Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent. (ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A. (iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date. (iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made. (v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. (vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Code Section 409A Compliance. (i) To The Company and you each hereby affirm that it is their mutual view that the fullest extent applicable, amounts provision of payments and other benefits payable under this Agreement described or referenced herein are either exempt from or intended to be exempt from in compliance with the definition requirements of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury regulations relating thereto (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent and that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall each party’s tax reporting will be interpreted and administered to the extent possible completed in a manner consistent with such view. The Company and you each agree that upon the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contraryResignation Date, you will experience a “separation from service” for purposes of determining Section 409A. Any payments that qualify for the payment date “short-term deferral” exception or another exception under Section 409A will be paid under the applicable exception. For purposes of any amounts that are treated as the limitations on nonqualified deferred compensation under Section 409A of the Code that become payable Code, each payment of compensation under this Agreement will be treated as a separate payment of compensation. Notwithstanding anything to the contrary in connection this Agreement, all reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with a termination the requirements of employmentSection 409A of the Code, including, where applicable, the date requirement that (x) the Employee is deemed to have incurred a termination amount of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h)expenses eligible for reimbursement, or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to kind benefits provided, during a calendar year may not affect the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect toexpenses eligible for reimbursement, or in connection withkind benefits to be provided, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment in any other calendar year; (y) the reimbursement of any such payments or benefits until an eligible expense will be made no later than the first business last day of the seventh month calendar year following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the expense is incurred; and (z) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company nor its affiliates will be liable in any manner for any federal, state or local income or excise taxes (including but not limited to any taxes under Sections 409A of the Code), or penalties or interest with respect thereto, as a result of the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to hereunder or the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect inclusion of any such compensation or benefits or the value thereof in your income. You acknowledge and agree that the Company will not be responsible for any additional taxes or penalties resulting from the application of Section 409A Tax.”409A.
Appears in 1 contract
Samples: Separation and Release Agreement (Reading International Inc)
Code Section 409A Compliance. (i) To The parties intend that any severance or other compensation payable to the fullest extent applicable, amounts and other benefits payable Executive under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section paid or provided in compliance with Section 409A of the Internal Revenue Code of 1986and all regulations, as amended guidance, and other interpretative authority issued thereunder (“Section 409A”) in accordance with one such that there will be no adverse tax consequences, interest, or more of penalties for the exemptions available under the final Treasury regulations promulgated Executive under Section 409A andas a result of the payments and benefits so paid or provided to her. The parties agree to modify this Agreement, or the timing (but not the amount) of the payment of the severance or other compensation, or both, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended necessary to comply with Section 409A. In addition, notwithstanding anything to the applicable requirements contrary contained in any other provision of Section 409A with respect this Agreement, the payments and benefits to such amounts or benefits. This be provided to the Executive under this Agreement shall be interpreted and administered subject to the extent possible in a manner consistent with the foregoing statement of intentprovisions set forth below.
(iia) Notwithstanding anything The date of the Executive’s “separation from service”, as defined in this Agreement or elsewhere to the contraryregulations issued under Section 409A, shall be treated as the Executive’s Date of Termination for purposes purpose of determining the time of payment date of any amount (other than Obligations) that becomes payable to the Executive pursuant to Paragraph 5 hereof upon the termination of her employment.
(b) In the case of any amounts that are treated as payable to the Executive under this Agreement, or under any other “nonqualified deferred compensation plan” (within the meaning of Section 409A) maintained by the Company or any of its affiliated companies, in the form in the form of “a series of installment payments”, as defined in Treas. Reg. §1.409A-2(b)(2)(iii), (A) the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii), and (B) to the extent any such plan does not already so provide, it is hereby amended to so provide, with respect to amounts payable to the Executive thereunder.
(c) If the Executive is a “specified employee” within the meaning of the Section 409A at the time of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a Executive’s “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h)Section 409A, or in subsequent IRS guidance then any payment otherwise required to be made to the Executive under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date account of the EmployeeExecutive’s “separation from service” , to the extent such payment (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement after taking in connection with the Employee’s separation from service on the scheduled to account all exclusions applicable to such payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B409A) (together with any interest or penalties imposed with respect tois properly treated as deferred compensation subject to Section 409A, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits not be made until the first business day after (i) the expiration of the seventh month following six months from the date of the EmployeeExecutive’s separation from service orservice, or (ii) if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on On the Delayed Payment Date, there shall be paid to the Executive or, if the Executive has died, to the Executive’s estate, in a single cash lump sum, an amount equal to aggregate amount of the payments delayed pursuant to the preceding sentence, plus interest thereon at the Delayed Payment Interest Rate (as defined below) computed from the date on which each such delayed payment otherwise would have been made to the Executive until the Delayed Payment Date, plus any equity entitlements that have been delayed as a result of Executive’s status as a “specified employee” shall also be paid at such time. For purposes of the foregoing, the “Delayed Payment Interest Rate” shall mean the national average annual rate of interest payable on jumbo six-month bank certificates of deposit, as quoted in the business section of the most recently published Saturday edition of The Wall Street Journal preceding the date as of which Executive is treated as having incurred a separation from service for purposes of Section 409A.
(d) All expenses eligible for reimbursement hereunder shall be paid to the Executive promptly, but in any event by no later than December 31 of the calendar year following the calendar year in which such expenses were incurred. The expenses incurred by the Executive in any calendar year that are eligible for reimbursement under this Agreement shall not affect the expenses incurred by the Executive in any other calendar year that are eligible for reimbursement hereunder. The Executive’s right to receive any reimbursement hereunder shall not be subject to liquidation or exchange for any other benefit.
(ive) In each case where this Agreement provides for If, as of the date on which, or by which, any payment of an amount that constitutes nonqualified deferred compensation under Section 409A required to be made to the Employee within a designated period Executive (e.g.or her estate) under this Agreement, within 30 days after calculation of the date amount of terminationsuch payment is not administratively practicable due to events beyond the control of the Executive (or her estate) and then such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein made to the contraryExecutive (or her estate) within 10 business days after, but in any event by no later than December 31 next following, the Employee expressly agrees and acknowledges that in date on which calculation of the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment amount of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Taxpayment first becomes administratively practicable.”
Appears in 1 contract
Samples: Executive Employment Agreement (Innophos Holdings, Inc.)
Code Section 409A Compliance. (i) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable benefit under this Agreement are intended to comply with or be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986Section 409A and the regulations and guidance promulgated thereunder (collectively, as amended (“Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in accordance compliance therewith. If the Executive provides the Company with one documentation from Executive’s tax counsel of a national reputation with expertise in Section 409A that any provision of this Agreement (or more any award of the exemptions available under the final Treasury regulations promulgated compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Section 409A and(with specificity as to the reason therefore) or the Company independently makes such determination, the Company and the Executive agree to work in good faith to reform such provision (to the extent permitted under Section 409A) to the minimum extent reasonably necessary to conform with Section 409A. To the extent that any provision hereof is modified in order to comply with or be exempt from Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and the Company of the applicable provision without violating the provisions of Section 409A. Notwithstanding anything contained herein to the contrary, the Company shall not (i) be obligated to modify or amend this Agreement in any manner to the extent that such modification or amendment would (a) increase the Company’s obligations hereunder, (b) increase any such amount amounts owed by the Company hereunder or benefit is (c) otherwise accelerate the timing of payments owed by the Company hereunder or becomes subject to Section 409A due to a (ii) be responsible for the failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of with, or be exempt from, Section 409A with respect to such amounts 409A, or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.for any taxes, penalties or interest incurred by Executive under Section 409A.
(ii) Notwithstanding anything in any other provision of this Agreement or elsewhere to the contrary, if the Executive is a “specified employee” within the meaning of Section 409A, and a payment or benefit provided for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation in this Agreement would be subject to additional tax under Section 409A of if such payment or benefit is paid within six months after the Code that become payable Executive’s “separation from service” (within the meaning of-Section 409A), then such payment or benefit required under this Agreement shall not be paid (or commence) during the six-month period immediately following the Executive’s separation from service except as provided in connection with a termination of employmentthe immediately following sentence. In such an event, the date any payments or benefits that the Employee is deemed to would otherwise have been made or provided during such six-month period and which would have incurred such additional tax under Section 409A shall instead be paid to the Executive in a lump-sum cash payment, without interest, on the earlier of (i) the first business day of the seventh month following the Executive’s separation from service or (ii) the 10th business day following the Executive’s death. If the Executive’s termination of employment shall be the date on which the Employee has incurred hereunder does not constitute a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h)Section 409A, or in subsequent IRS guidance under Code section then any amounts payable hereunder on account of a termination of the Executive’s employment and which are subject to Section 409A shall not be paid until the Executive has experienced a “separation from service” within the meaning of Section 409A.
(iii) Notwithstanding anything All expenses or other reimbursements as provided herein shall be payable in this Agreement accordance with the Company’s policies in effect from time to time, but in any event shall be made on or elsewhere prior to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business last day of the seventh month taxable year following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the taxable year in which such expenses were incurred by Executive. In addition, no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the payment shall be made.
(v) Live Nation expenses eligible for reimbursement in any other taxable year and the Employee may agree Executive’s right to take other actions reimbursement or in-kind benefits shall not be subject to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation liquidation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability exchanged for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Taxanother benefit.”
Appears in 1 contract
Samples: Employment Agreement (Emtec Inc/Nj)
Code Section 409A Compliance. (ia) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue comply with Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any such amount or benefit provision hereof is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation modified in accordance with such final Treasury regulations, this Agreement is intended order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the parties hereto of the applicable requirements provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Code Section 409A or damages for failing to comply with respect Code Section 409A.
b) An "Employment Separation" shall not be deemed to such have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits. This Agreement shall be interpreted and administered to benefits upon or following an Employment Separation unless such Employment Separation is also a "separation from service" within the extent possible in a manner consistent with the foregoing statement meaning of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contraryCode Section 409A and, for purposes of determining the payment date any such provision of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employmentAgreement, the date that the Employee is deemed references to have incurred a termination of employment an Employment Separation or like terms shall be the date on which the Employee has incurred a “mean "separation from service” ." If the Executive is deemed on the date of termination to be a "specified employee" within the meaning of Treasury Regulation section 1.409A-1(hthat term under Code Section 409A(a)(2)(B), then with regard to any payment or in subsequent IRS guidance the provision of any benefit that is considered deferred compensation under Code section 409A.
Section 409A payable on account of a "separation from service," such payment or benefit shall be made or provided at the date which is the earlier of (iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (Ai) the Employee is a “specified employee” expiration of the six (within 6)-month period measured from the meaning date of Treasury Regulation Section 1.409A-1(i)such "separation from service" of the Executive, and (ii) on the date of the Employee’s “separation from service” Executive's death (within the meaning "Delay Period"). Upon the expiration of Treasury Regulation the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(h)(whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and (B) commencement of any remaining payments or other and benefits payable due under this Agreement shall be paid or provided in connection accordance with the Employee’s separation from service on the scheduled normal payment dates specified in Sections 8(cfor them herein.
c) and (d) will subject All expenses or other reimbursements under this Agreement shall be made on or prior to the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business last day of the seventh month taxable year following the date taxable year in which such expenses were incurred by the Executive (provided that if any such reimbursements constitute taxable income to the Executive, such reimbursements shall be paid no later than March 15th of the Employee’s separation from service or, if earlier, calendar year following the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the expenses to be reimbursed were incurred), and no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year.
d) For purposes of Code Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be mademade within thirty (30) days"), the actual date of payment within the specified period shall be within the sole discretion of the Company.
(ve) Live Nation and the Employee may agree to take other actions to avoid the imposition In no event shall any payment under this Agreement that constitutes "deferred compensation" for purposes of a Code Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein be offset by any other payment pursuant to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”"
Appears in 1 contract
Samples: Change in Control & Non Competition Agreement (Commercial Vehicle Group, Inc.)
Code Section 409A Compliance. (i) To The Company and Employee each herby affirm that it is in their mutual view that the fullest extent applicableprovision of payments and benefits described or referenced herein are exempt from, amounts and other benefits payable under this Agreement are intended to be exempt from or in compliance with, the definition requirements of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury regulations relating thereto (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent and that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement each Party’s tax reporting shall be interpreted and administered to the extent possible completed in a manner consistent with such view. The Company and Employee each agree that upon the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrarySeparation Date, Employee will experience a “separation from service” for purposes of determining Section 409A. Any payments that qualify for the payment date “short-term deferral” exception or another exception under Section 409A shall be paid under the applicable exception. For purposes of any amounts that are treated as the limitations on nonqualified deferred compensation under Section 409A of the Code that become payable Code, each payment of compensation under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred treated as a “separation from service” within the meaning separate payment of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) compensation. Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything contained herein to the contrary, to the Employee expressly agrees extent required to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and acknowledges benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following the Separation Date shall instead be paid on the first business day after the date that is six months following the Separation Date (or death, if earlier). Neither the Company nor its affiliates shall be liable in the event that any manner for any federal, state or local income or excise taxes (including but not limited to any taxes under Section 409A Tax is imposed in of the Code), or penalties or interest with respect thereto, as a result of the payment of any compensation or benefits payable to hereunder, or the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect inclusion of any such Section 409A Taxcompensation or benefits or the value thereof in Employee’s income.”
Appears in 1 contract
Code Section 409A Compliance. (i) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulationspermitted, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to be in compliance therewith. In no event whatsoever shall the extent possible in a manner consistent Company be liable for any additional tax, interest or penalty that may be imposed on Executive by Code Section 409A or damages for failing to comply with the foregoing statement of intent.Code Section 409A.
(ii) Notwithstanding anything in this Agreement or elsewhere herein to the contrary, for purposes of determining (A) the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement Severance Benefits shall be paid only in connection with a termination of employment, the date Executive’s employment that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred constitutes a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
Section 409A and (iiiB) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within the meaning of Treasury Regulation as such term is defined under Code Section 1.409A-1(i)) on the date 409A, payment of the Employee’s “separation from service” Severance Benefits shall be delayed for a period of six (within the meaning of Treasury Regulation Section 1.409A-1(h)6) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employeemonths following Executive’s separation from service on of employment to the scheduled payment dates specified in Sections 8(c) extent and (d) will subject the Employee up to an “additional tax” amount necessary to ensure such payments are not subject to the penalties and interest under Code Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, 409A. If the payments are delayed as a “Section 409A Tax”)result of the previous sentence, then Live Nation shall withhold payment of any such payments or benefits until on the first business day following the end of such six (6) month period (or such earlier date upon which such amount can be paid under Code Section 409A without resulting in a prohibited distribution), the Company shall pay Executive a lumpsum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period.
(iii) For purposes of compliance with Code Section 409A, (A) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the seventh month taxable year following the date of taxable year in which such expenses were incurred by Executive, (B) any right to reimbursement or inkind benefits is not subject to liquidation or exchange for another benefit and (C) no such reimbursement, expenses eligible for reimbursement, or inkind benefits provided in any taxable year shall in any way affect the Employee’s separation from service orexpenses eligible for reimbursement, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments or inkind benefits to be withheldprovided, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Dateany other taxable year.
(iv) In each case where For purposes of Code Section 409A, Executive’s right to receive any installment payments pursuant to this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to shall be made to the Employee within treated as a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be madereceive a series of separate and distinct payments.
(v) Live Nation and the Employee may agree to take Notwithstanding any other actions to avoid the imposition provision of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein this Agreement to the contrary, the Employee expressly agrees and acknowledges that in the no event that shall any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether payment under this Agreement or otherwise, then (A) the payment that constitutes “nonqualified deferred compensation” for purposes of such Code Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor subject to offset by any of their respective past or present directors, officers, employees or agents shall have any liability for any such other amount unless otherwise permitted by Code Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”409A.
Appears in 1 contract
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(ia) To If and to the fullest extent applicable, amounts and other any payment or benefits payable under this Agreement are intended otherwise subject to be exempt from the definition requirements of “nonqualified deferred compensation” under section 409A Code Section 409A, the intent of the Internal Revenue parties is that such payment and benefits shall comply with Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any such amount or benefit provision hereof is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation modified in accordance with such final Treasury regulations, this Agreement is intended order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the parties hereto of the applicable requirements provision without violating the provisions of Code Section 409A. The Company makes no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A with respect and makes no undertaking to preclude Code Section 409A from applying to any such amounts payments or benefits. This Agreement In no event whatsoever shall the Company be interpreted and administered liable for any additional tax, interest or penalty that may be imposed on the Executive by Code Section 409A or damages for failing to the extent possible in a manner consistent comply with the foregoing statement of intent.Code Section 409A.
(iib) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the date on which payment of any amounts or benefits upon or following the Employee has incurred Executive’s Termination Date unless such termination is also a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h)Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” “Termination Date,” or in subsequent IRS guidance under Code section 409A.like terms shall mean “separation from service.”
(iiic) Notwithstanding anything in Each payment payable to the Executive under this Agreement on or elsewhere after the Executive’s Termination Date shall be treated as a separate and distinct “payment” for purposes of Code Section 409A and, further, is intended to be exempt from Code Section 409A, including but not limited to the contraryshort-term deferral exemption thereunder. If and to the extent any such payment is determined to be subject to Code Section 409A and is otherwise payable upon the Executive’s termination of employment, if Live Nation reasonably determines that (A) in the Employee event the Executive is a “specified employee” (within as defined in Code Section 409A), any such payment that would otherwise have been payable in the meaning of Treasury Regulation Section 1.409A-1(i)first six (6) on months following the Executive’s Termination Date will not be paid to the Executive until the date of the Employee’s “separation from service” that is six (within the meaning of Treasury Regulation Section 1.409A-1(h)6) months and one (B1) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the EmployeeExecutive’s separation from service Termination Date (or, if earlier, the Executive’s date of the Employee’s death (the “Delayed Payment Date”death). In Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the event that this Section 8(f)(iii) requires amount of any payments otherwise payable to be withheldthe Executive under this Agreement. Thereafter, the remainder of any such withheld payments shall be accumulated and paid payable in a single lump sum, without interest, on the Delayed Payment Dateaccordance with this Agreement.
(ivd) In each case where Whenever a payment under this Agreement provides for specifies a period within which such payment may be made, the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the actual date of termination) and such payment within the specified period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be madewithin the sole discretion of the Company.
(ve) Live Nation and the Employee may agree to take other actions to avoid the imposition In no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of a Code Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein be offset by any other payment pursuant to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then .
(Af) To the payment of such extent required under Code Section 409A Tax shall be solely the Employee’s responsibility409A, (Bi) neither Live Nationany reference herein to the term “Agreement” shall mean this Agreement and any other plan, its affiliated entities nor any of their respective past agreement, method, program, or present directorsother arrangement, officers, employees or agents shall have any liability for any such with which this Agreement is required to be aggregated under Code Section 409A Tax409A, and (Cii) the Employee shall indemnify and hold harmless, any reference herein to the greatest extent permitted term “Company” shall mean the Company and all persons with whom the Company would be considered a single employer under law, each of the foregoing from and against any claims Code Section 414(b) or liabilities that may arise in respect of any such Section 409A Tax414(c).”
Appears in 1 contract
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(ia) To If and to the fullest extent applicable, amounts and other any payment or benefits payable under this Agreement are intended otherwise subject to be exempt from the definition requirements of “nonqualified deferred compensation” under section 409A Code Section 409A, the intent of the Internal Revenue parties is that such payment and benefits shall comply with Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any such amount or benefit provision hereof is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation modified in accordance with such final Treasury regulations, this Agreement is intended order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the parties hereto of the applicable requirements provision without violating the provisions of Code Section 409A. The Company makes no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A with respect and makes no undertaking to preclude Code Section 409A from applying to any such amounts payments or benefits. This Agreement In no event whatsoever shall the Company be interpreted and administered liable for any additional tax, interest or penalty that may be imposed on the Executive by Code Section 409A or damages for failing to the extent possible in a manner consistent comply with the foregoing statement of intent.Code Section 409A.
(iib) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the date on which payment of any amounts or benefits upon or following the Employee has incurred Executive’s Termination Date unless such termination is also a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(hCode Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service".
(c) Each payment payable to the Executive under this Agreement on or after the Executive’s Termination Date shall be treated as a separate and distinct “payment” for purposes of Code Section 409A and, further, except with respect to the payment described in paragraph 4(h), or in subsequent IRS guidance under is intended to be exempt from Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere Section 409A, including but not limited to the contraryshort-term deferral exemption thereunder. If and to the extent any such payment is determined to be subject to Code Section 409A and is otherwise payable upon the Executive’s termination of employment, if Live Nation reasonably determines that (A) in the Employee event the Executive is a “specified employee” (within as defined in Code Section 409A), any such payment that would otherwise have been payable in the meaning of Treasury Regulation Section 1.409A-1(i)first six (6) on months following the Executive’s Termination Date will not be paid to the Executive until the date of the Employee’s “separation from service” that is six (within the meaning of Treasury Regulation Section 1.409A-1(h)6) months and one (B1) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the EmployeeExecutive’s separation from service Termination Date (or, if earlier, the Executive’s date of the Employee’s death (the “Delayed Payment Date”death). In Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the event that this Section 8(f)(iii) requires amount of any payments otherwise payable to be withheldthe Executive under this Agreement. Thereafter, the remainder of any such withheld payments shall be accumulated and paid payable in a single lump sum, without interest, on the Delayed Payment Dateaccordance with this Agreement.
(ivd) In each case where All expenses or other reimbursements to the Executive under this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to Agreement, if any, shall be made on or prior to the Employee within a designated period last day of the taxable year following the taxable year in which such expenses were incurred by the Executive (e.g.provided that if any such reimbursements constitute taxable income to the Executive, within 30 days after such reimbursements shall be paid no later than March 15th of the date of termination) and such period begins and ends in different calendar years, year following the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the calendar year in which the payment expenses to be reimbursed were incurred), and no such reimbursement or expenses eligible for reimbursement in any taxable year shall be madein any way affect the expenses eligible for reimbursement in any other taxable year.
(ve) Live Nation and Whenever a payment under this Agreement specifies a period within which such payment may be made, the Employee may agree to take other actions to avoid actual date of payment within the imposition specified period shall be within the sole discretion of a the Company.
(f) In no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Code Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein be offset by any other payment pursuant to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then .
(Ag) To the payment of such extent required under Code Section 409A Tax shall be solely the Employee’s responsibility409A, (Bi) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”reference
Appears in 1 contract
Code Section 409A Compliance. (i) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to comply with, or be exempt from the definition of “nonqualified deferred compensation” under section from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulationspermitted, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to be in compliance therewith; provided, that the extent possible in a manner consistent Corporation does not guarantee to Employee any particular tax treatment with the foregoing statement of intent.
(ii) Notwithstanding anything in respect to this Agreement and any payments hereunder. In no event whatsoever shall the Corporation be liable for any additional tax, interest, or elsewhere penalties that may be imposed on Employee by Code Section 409A or any damages for failing to the contrary, for comply with Code Section 409A. For purposes of determining the payment date of Code Section 409A, Employee’s right to receive any amounts that are installment payments pursuant to this Agreement shall be treated as nonqualified deferred compensation under Section 409A a right to receive a series of the Code that become payable separate and distinct payments. Whenever a payment under this Agreement in connection specifies a payment period with reference to a termination number of employmentdays (e.g., the date that the Employee is deemed to have incurred a termination of employment “payment shall be the date on which the Employee has incurred a “separation from service” made within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month ten calendar days following the date of the Employee’s separation from service or, if earliertermination”), the actual date of payment within the Employee’s death (specified period shall be within the “Delayed Payment Date”)sole discretion of the Corporation. In no event may Employee, directly or indirectly, designate the event calendar year of any payment to be made under this Agreement that is considered nonqualified deferred compensation. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; provided, that this clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 8(f)(iii105(b) requires any payments solely because such expenses are subject to be withheld, a limit related to the period the arrangement is in effect; and (iii) such withheld payments shall be accumulated and paid in a single lump sum, without interest, made on or before the Delayed Payment Date.
(iv) In each case where this Agreement provides for last day of Employee’s taxable year following the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the taxable year in which the payment shall be madeexpense was incurred.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Code Section 409A Compliance. (i) To The Company and Employee each herby affirm that it is in their mutual view that the fullest extent applicableprovision of payments and benefits described or referenced herein are exempt from, amounts and other benefits payable under this Agreement are intended to be exempt from or in compliance with, the definition requirements of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury regulations relating thereto (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent and that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement each Party’s tax reporting shall be interpreted and administered to the extent possible completed in a manner consistent with such view. The Company and Employee each agree that upon the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrarySeparation Date, Employee will experience a “separation from service” for purposes of determining Section 409A. Any payments that qualify for the payment date “short-term deferral” exception or another exception under Section 409A shall be paid under the applicable exception. For purposes of any amounts that are treated as the limitations on nonqualified deferred compensation under Section 409A of the Code that become payable Code, each payment of compensation under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred treated as a “separation from service” within the meaning separate payment of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) compensation. Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything contained herein to the contrary, to the Employee expressly agrees extent required to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and acknowledges benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following the Separation Date separation from service shall instead be paid on the first business day after the date that is six months following the Separation Date (or death, if earlier). Neither the Company nor its affiliates shall be liable in the event that any manner for any federal, state or local income or excise taxes (including but not limited to any taxes under Section 409A Tax is imposed in of the Code), or penalties or interest with respect thereto, as a result of the payment of any compensation or benefits payable to hereunder, or the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect inclusion of any such Section 409A Taxcompensation or benefits or the value thereof in Employee’s income.”
Appears in 1 contract
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(ia) To If and to the fullest extent applicable, amounts and other any payment or benefits payable under this Agreement are intended otherwise subject to be exempt from the definition requirements of “nonqualified deferred compensation” under section 409A Code Section 409A, the intent of the Internal Revenue parties is that such payment and benefits shall comply with Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any such amount or benefit provision hereof is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation modified in accordance with such final Treasury regulations, this Agreement is intended order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the parties hereto of the applicable requirements provision without violating the provisions of Code Section 409A. The Company and the Operating Subsidiary make no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A with respect and makes no undertaking to preclude Code Section 409A from applying to any such amounts payments or benefits. This Agreement In no event whatsoever shall the Westell Companies be interpreted and administered liable for any additional tax, interest or penalty that may be imposed on Executive by Code Section 409A or damages for failing to the extent possible in a manner consistent comply with the foregoing statement of intent.Code Section 409A.
(iib) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the date on which the Employee has incurred payment of any amounts or benefits upon or following Executive's termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Each severance payment payable to Executive under Section 3.3 shall be treated as a separate and distinct “payment” for purposes of Code Section 409A. Accordingly, any such payments that would otherwise be payable (i) within 2- 1/2 months after the end of the Company's taxable year containing Executive's employment termination date, or (ii) within 2- 1/2 months after Executive's taxable year containing Executive's employment termination date, whichever occurs later (the “Short Term Deferral Period”), are exempt from Code Section 409A. Furthermore, any such payments paid after the Short Term Deferral Period are exempt from Code Section 409A as severance pay due to an involuntary separation from service to the extent that the sum of those payments is equal to or less than the maximum amount described in Treasury Regulation section 1.409A-1(h)Section 1.409A-1(b)(9)(iii)(A) (the “Involuntary Separation Amount”) because such payments are payable only upon Executive's “involuntary” separation from service for purposes of Code Section 409A. Accordingly, or in subsequent IRS guidance under the sum of (A) such payments that are paid within the Short Term Deferral Period and (B) such payments paid after the Short Term Deferral Period that do not exceed the Involuntary Separation Amount are exempt from Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere Section 409A and, therefore, notwithstanding any provision of the Plan to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within the meaning of Treasury Regulation as defined in Code Section 1.409A-1(i409A)) on the date of the Employee’s “separation , only those payments that are not otherwise exempt from service” Code Section 409A under clause (within the meaning of Treasury Regulation Section 1.409A-1(h)A) and (B) commencement above and that would otherwise have been payable in the first six (6) months following Executive's termination of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) employment will subject the Employee not be paid to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits Executive until the first business day of the seventh month following date that is six months after the date of the Employee’s separation from service Executive's termination of employment (or, if earlier, the Executive's date of the Employee’s death (the “Delayed Payment Date”death). In Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the event that this Section 8(f)(iii) requires amount of any payments otherwise payable to be withheldExecutive under this Agreement. Thereafter, the remainder of any such withheld payments shall be accumulated and paid payable in a single lump sum, without interest, on the Delayed Payment Dateaccordance with Section 3.3.
(ivd) In each case where All expenses or other reimbursements to Executive under this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to Agreement, if any, shall be made on or prior to the Employee within a designated period last day of the taxable year following the taxable year in which such expenses were incurred by Executive (e.g.provided that if any such reimbursements constitute taxable income to the Executive, within 30 days after such reimbursements shall be paid no later than March 15th of the date of termination) and such period begins and ends in different calendar years, year following the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the calendar year in which the expenses to be reimbursed were incurred), and no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year.
(e) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be mademade within thirty (30) days”), the actual date of payment within the specified period shall be within the sole discretion of the Company.
(vf) Live Nation and the Employee may agree to take other actions to avoid the imposition In no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of a Code Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein be offset by any other payment pursuant to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then .
(Ag) To the payment of such extent required under Code Section 409A Tax shall be solely the Employee’s responsibility409A, (Bi) neither Live Nationany reference herein to the term “Agreement” shall mean this Agreement and any other plan, its affiliated entities nor any of their respective past agreement, method, program, or present directorsother arrangement, officers, employees or agents shall have any liability for any such with which this Agreement is required to be aggregated under Code Section 409A Tax409A., and (Cii) the Employee shall indemnify and hold harmless, any reference herein to the greatest extent permitted term “Company” and “Operating Subsidiary” shall mean the Company, the Operating Subsidiary, and all persons with whom the Company and the Operating Subsidiary would be considered a single employer under law, each of the foregoing from and against any claims Code Section 414(b) or liabilities that may arise in respect of any such Section 409A Tax414(c).”
Appears in 1 contract
Code Section 409A Compliance. (ia) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue comply with Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any such amount or benefit provision hereof is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation modified in accordance with such final Treasury regulations, this Agreement is intended order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the parties hereto of the applicable requirements provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Code Section 409A or damages for failing to comply with respect Code Section 409A.
b) An "Employment Separation" shall not be deemed to such have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits. This Agreement shall be interpreted and administered to benefits upon or following an Employment Separation unless such Employment Separation is also a "separation from service" within the extent possible in a manner consistent with the foregoing statement meaning of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contraryCode Section 409A and, for purposes of determining the payment date any such provision of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employmentAgreement, the date that the Employee is deemed references to have incurred a termination of employment an Employment Separation or like terms shall be the date on which the Employee has incurred a “mean "separation from service” ." If the Executive is deemed on the date of termination to be a "specified employee" within the meaning of Treasury Regulation section 1.409A-1(hthat term under Code Section 409A(a)(2)(B), then with regard to any payment or in subsequent IRS guidance the provision of any benefit that is considered deferred compensation under Code section 409A.
Section 409A payable on account of a "separation from service," such payment or benefit shall be made or provided at the date which is the earlier of (iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (Ai) the Employee is a “specified employee” expiration of the six (within 6)-month period measured from the meaning date of Treasury Regulation Section 1.409A-1(i)such "separation from service" of the Executive, and (ii) on the date of the Employee’s “separation from service” Executive's death (within the meaning "Delay Period"). Upon the expiration of Treasury Regulation the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(h)(whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and (B) commencement of any remaining payments or other and benefits payable due under this Agreement shall be paid or provided in connection accordance with the Employee’s separation from service on the scheduled normal payment dates specified in Sections 8(cfor them herein.
c) and (d) will subject All expenses or other reimbursements under this Agreement shall be made on or prior to the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business last day of the seventh month taxable year following the date taxable year in which such expenses were incurred by the Executive (provided that if any such reimbursements constitute taxable income to the Executive, such reimbursements shall be paid no later than March 15th of the Employee’s separation from service or, if earlier, calendar year following the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the expenses to be reimbursed were incurred), and no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year.
d) For purposes of Code Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement shall be treated as a right to Change in Control & Non-competition Agreement I Mohamed receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be mademade within thirty (30) days"), the actual date of payment within the specified period shall be within the sole discretion of the Company.
(ve) Live Nation and the Employee may agree to take other actions to avoid the imposition In no event shall any payment under this Agreement that constitutes "deferred compensation" for purposes of a Code Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein be offset by any other payment pursuant to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”"
Appears in 1 contract
Samples: Change in Control & Non Competition Agreement (Commercial Vehicle Group, Inc.)
Code Section 409A Compliance. (i) To the fullest extent applicable, It is Company’s intent that amounts and other benefits payable paid under this Agreement are intended to be exempt from the definition of generally shall not constitute “nonqualified deferred compensation” as that term is defined under section Section 409A of the Internal Revenue Code of 1986, as amended (“Code Section 409A”) in accordance with one or more of ), and the exemptions available under the final Treasury regulations promulgated thereunder, because the amounts paid under this Agreement are structured to comply with either the “short-term deferral” exception or other applicable exceptions to Code Section 409A and, to 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to individual payments under this Agreement do not qualify for an exemption from exception and are determined to be “deferred compensation” within the definition meaning of nonqualified deferred compensation in accordance Code Section 409A and compliance with such final Treasury regulations, an applicable term of this Agreement is intended to comply with the applicable requirements would cause or would result in a violation of Code Section 409A with respect to 409A, then such amounts or benefits. This Agreement provision shall be interpreted and administered or reformed in the manner necessary to achieve compliance with Code Section 409A. Accordingly, the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, “Termination Date” is the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in Section 409A, and thus all payments under this Agreement are being made upon Employee’s separation from service. In no event may Employee, directly or elsewhere to indirectly, designate the contrarycalendar year of a payment and where payment may occur in one year or the next, if Live Nation reasonably determines that (A) it shall be made in the second year. Each payment under this Agreement, including each salary continuation payment of Severance Pay, Bonus Amount, and each Benefits Offset Payment, shall be treated as a separate identified payment for purposes of Code Section 409A. Employee is a “specified employee” employee (within the meaning of as defined in Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) . Company and (B) commencement of any Employee agree that all payments or other benefits payable under this Agreement in connection with the that are scheduled to be paid within six months after Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee Termination Date qualify for an exception to an “additional tax” under Code Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion409A, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take all other actions to avoid the imposition of payments are made at a Section 409A Tax at such time and in such manner as permitted under a form that complies with Code Section 409A.
(vi) Notwithstanding anything herein to the contrary, the 409A. Employee expressly agrees and acknowledges that in the event that Company does not make any Section 409A Tax representations or is imposed in respect of any compensation or benefits payable providing tax advice to the Employee, whether under and that Employee has had the opportunity to consult with her own tax and financial counsel with respect to this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A TaxAgreement.”
Appears in 1 contract
Code Section 409A Compliance. (i) To If, at the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition time of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a Executive’s “separation from service” (within the meaning of Treasury Regulation section 1.409A-1(hCode Section 409A), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within the meaning of Treasury Regulation Code Section 1.409A-1(i409A), the Company will not pay or provide any “Specified Benefits” (as defined herein) on until after the date end of the Employeesixth calendar month beginning after Executive’s “separation from serviceservice (the “409A Suspension Period”). For purposes of this Agreement, “Specified Benefits” (within are any amounts or benefits that would be subject to Section 409A penalties if the meaning Company were to pay or otherwise settle such amounts or benefits on account of Treasury Regulation Section 1.409A-1(h)) and (B) commencement Executive’s separation from service in the manner prescribed by applicable plan, program, arrangement, or agreement terms. Within 14 calendar days after the end of the 409A Suspension Period, Executive shall be paid a lump sum payment in cash equal to any Specified Benefits delayed because of the preceding sentence, together with interest on suspended cash payments for the period of delay at a rate not less than the average prime interest rate published in the Wall Street Journal on any day chosen by the Company during that period. Thereafter, Executive shall receive any remaining payments or other benefits payable under as if there had not been an earlier delay.
(ii) This Agreement is intended to conform to Section 409A of the Code, and the Company shall have complete discretion to interpret and construe this Agreement and any associated documents in connection any manner that establishes an exemption from or otherwise conforms them to the requirements of Section 409A. If, for any reason including imprecision in drafting, any Plan provision does not accurately reflect its intended establishment of an exemption from or compliance with Code Section 409A), as demonstrated by consistent interpretations or other evidence of intent (by the Employee’s separation Company in its sole and absolute discretion), the provision shall be considered ambiguous and shall be interpreted by the Company in a fashion consistent herewith, as determined in the sole and absolute discretion of the Company. The Company reserves the right (including the right to delegate such right) to unilaterally amend this Agreement without the consent of Executive in order to accurately reflect its correct interpretation and operation, as well as to maintain an exclusion from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect toapplication of, or in connection compliance with, such taxCode Section 409A.
(iii) To the extent needed to comply with Internal Revenue Code Section 409A, a “Section 409A Tax”)expenses under Sections 6.1, then Live Nation shall withhold payment 6.2, 24 or any other expense reimbursement provisions of any such payments this Agreement or benefits until with Executive, must be reimbursed no later than the first business day end of the seventh month calendar year following the date of calendar year in which they were incurred, Executive must request reimbursement at least thirty (30) days before that deadline, and the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments right to reimbursement shall not be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Datenot subject to liquidation or exchange for another benefit.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g.If Executive incurs any tax acceleration, within 30 days after the date of termination) and such period begins and ends in different calendar yearspenalties, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition or interest because of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contraryviolation, the Employee expressly agrees Company shall pay those amounts and acknowledges that in hold Executive harmless from the event that any economic effect of tax acceleration, and shall pay all taxes and penalties on all such payments, unless the Company proposed a reasonable way of preventing the Section 409A Tax is imposed in respect of any compensation or benefits payable violation and Executive refused to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, agree to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Taxit.”
Appears in 1 contract
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under The parties hereto recognize that certain provisions of this Agreement are intended to may be exempt from the definition of “nonqualified deferred compensation” under section affected by Section 409A of the Internal Revenue Code and guidance issued thereunder, and agree to amend this Agreement, or take such other action as may be necessary or advisable, to comply with Section 409A. It is intended that all payments hereunder shall comply with Section 409A and the regulations promulgated thereunder so as to not subject the Executive to payment of 1986interest or any additional tax under Section 409A. In furtherance thereof, as amended (“if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the time specified herein would subject such amount or benefit to any additional tax under Section 409A”) in accordance with one , the payment or more provision of such amount or benefit shall be postponed to the exemptions available under earliest date on which the final Treasury regulations promulgated under Section 409A andpayment or provision of such amount or benefit could be made without incurring such additional tax. In addition, to the extent that any such amount regulations or benefit is or becomes other guidance issued under Section 409A (after application of the previous provisions of this Section (12)G)) would result in the Executive's being subject to the payment of interest or any additional tax under Section 409A due to a failure to qualify for an exemption from 409A, the definition of nonqualified deferred compensation in accordance with such final Treasury regulationsparties agree, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible reasonably possible, to amend this Agreement in a manner consistent with order to avoid the foregoing statement imposition of intent.
(ii) any such interest or additional tax under Section 409A, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company and the Executive. Notwithstanding anything in this Agreement or elsewhere herein to the contrary, it is expressly understood that at any time the Company (or any related employer treated with the Company as the service recipient for purposes of determining Code Section 409A) is publicly traded on an established securities market (as defined for purposes of Code Section 409A), if a payment or provision of an amount or benefit constituting a deferral of compensation is to be made pursuant to the payment date terms of any amounts that are treated this Agreement to the Executive on account of a Separation from Service (as nonqualified defined herein) at a time when the Executive is a Specified Employee (as defined for purposes of Code Section 409A(a)(2)(B)(i)), such deferred compensation under Section 409A of shall not be paid to the Code that become payable under this Agreement in connection with a termination of employment, Executive prior to the date that is six (6) months after the Employee is deemed Separation from Service. In the event this restriction applies, the deferred compensation that the Executive would have otherwise been entitled to have incurred a termination of employment shall during the restriction period will be accumulated and paid (without adjustment for the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or delay in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)payment) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation Executive's Separation from service orService. The parties hereto intend that the Agreement, if earlieras amended, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this be consistent with IRS Notice 2007-78, IRS Notice2007-86 and other Code Section 8(f)(iii) requires any payments to be withheld409A transition relief, such withheld payments and it shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Dateinterpreted accordingly.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Code Section 409A Compliance. (i) To a. The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the comply with Internal Revenue Code of 1986Section 409A and the regulations and guidance promulgated thereunder (collectively, as amended (“Code Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and Employer of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall Employer be liable for any additional tax, interest or penalty that may be imposed on Executive by Code Section 409A or for damages for failing to comply with Code Section 409A.
b. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amount or benefit is upon or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred following a termination of employment shall be the date on which the Employee has incurred unless such termination is also a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h)Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or in subsequent IRS guidance under Code section 409A.
(iii) like terms shall mean “separation from service. Notwithstanding anything in this Agreement or elsewhere any other payment schedule provided herein to the contrary, if Live Nation reasonably determines that (A) Executive is deemed on the Employee is date of termination to be a “specified employee” (within the meaning of Treasury Regulation that term under Code Section 1.409A-1(i409A(a)(2)(B)) , then with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made on the date which is the earlier of (i) the expiration of the Employeesix (6)-month period measured from the date of Executive’s “separation from service,” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (Bii) commencement the date of any Executive’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this paragraph (whether they would have otherwise been payable in a single sum or other in installments in the absence of such delay) shall be paid or reimbursed to Executive in a lump sum, and all remaining payments and benefits payable due under this Agreement shall be paid or provided in connection accordance with the Employee’s separation from service on the scheduled normal payment dates specified in Sections 8(cfor them herein.
c. To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (i) and (d) will subject all expenses or other reimbursements hereunder shall be made on or prior to the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business last day of the seventh month taxable year following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the taxable year in which such expenses were incurred by Executive, (ii) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the payment shall expenses eligible for reimbursement, or in-kind benefits to be madeprovided, in any other taxable year.
(v) Live Nation and the Employee may agree to take d. Notwithstanding any other actions to avoid the imposition provision of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein this Agreement to the contrary, the Employee expressly agrees and acknowledges that in the no event that shall any Section 409A Tax is imposed in respect of any compensation payment or benefits payable to the Employee, whether benefit under this Agreement or otherwise, then (A) the payment that constitutes “nonqualified deferred compensation” for purposes of such Code Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor subject to offset by any of their respective past or present directors, officers, employees or agents shall have any liability for any such other amount unless otherwise permitted by Code Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”409A.
Appears in 1 contract
Code Section 409A Compliance. (ia) To the fullest extent applicable, amounts and other benefits payable under this Agreement Agreement, and amounts and benefits payable under any other agreements or plans referenced in this Agreement, are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and409A. In this regard, to each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything , and any ambiguity as to its compliance with Section 409A will be read in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts such a manner so that are treated as nonqualified deferred compensation under all payments hereunder comply with Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.Code.
(iiib) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within as determined by the meaning of Treasury Regulation Section 1.409A-1(i)) Compensation Committee on the date of the Employee’s “separation from service” (within as such terms are defined for purposes of Code Section 409A), and the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of Company reasonably determines that any payments amount or other benefits benefit payable under this Agreement in connection with the Employee’s on account of such separation from service on the scheduled payment dates specified in Sections 8(c) and (d) constitutes nonqualified deferred compensation that will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then Live Nation the payment or provision thereof shall withhold payment of any such payments or benefits until be postponed to the first business day of the seventh month following the date of the Employee’s separation from service termination or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, The Executive and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee Company may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. In the event that this Section 8 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, the provisions of this Agreement which require the commencement of payments subject to Section 409A upon a termination of employment shall be interpreted to require that the Executive have a “separation from service” with the Company as defined for purposes of Code Section 409A.
(vic) Notwithstanding anything herein To the extent the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the contraryExecutive, the Employee Company shall reimburse any such eligible fees or expenses no later than 2 1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2 1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. Except as otherwise expressly agrees provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and acknowledges in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
(d) The provisions of this Section 8 shall also apply to all payments and benefits that may be provided under the Change in Control Agreement, notwithstanding any provision to the contrary contained therein, if required in order to comply with Section 409A. In addition to the provisions set forth in subsections (a) through (c) above: (i) the cash severance payable under the Change in Control Agreement shall be paid at the same time and in the event same form provided under this Agreement for severance payable under Section 6(b) (that any is, in installments over twenty-four (24) months rather than a lump sum) unless the Executive’s separation from service occurs within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 409A Tax is imposed 1.409A-3(i)(5); (ii) if the Executive’s separation from service does occur within twelve (12) months following the effective date of the closing of the Change in respect of any compensation or benefits Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5), then the cash severance payable to the Employee, whether Executive under this Section 1(b)(1) of the Change in Control Agreement shall be paid on the sixtieth (60th) day following his separation from service (subject to Section 8(b)) provided the Executive has fulfilled the conditions for payment of the cash severance under the Change in Control Agreement (including that the Release of Claims as defined therein shall have become effective) on or before such date (and shall not be paid otherwise, then ); and (Aiii) any reimbursement of taxes required to be made by the Company under the Change in Control Agreement shall be made by the end of the calendar year next following the calendar year in which the Executive remits the related taxes. If the payment of such cash severance has commenced pursuant to Section 409A Tax 6(b)(1) of this Agreement before the occurrence of a Change in Control that results in the Executive’s eligibility for severance benefits under the Change in Control Agreement, then the payment of cash severance shall be solely governed by the Employee’s responsibility, (BChange in Control Agreement rather than Section 6(b)(1) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Taxthis Agreement, and (C) any adjustment to reflect an underpayment or overpayment of the Employee shall indemnify and hold harmless, amount that otherwise would have been due before the Change in Control pursuant to the greatest extent permitted under lawChange in Control Agreement shall be applied to the first installment due after the Change in Control Agreement, each of the foregoing from and against any claims or liabilities that may arise proceeding in respect of any such Section 409A Taxchronological order thereafter as necessary.”
Appears in 1 contract
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this This Performance Award Agreement is intended to comply with the requirements of Code Section 409A and any right or benefit which is provided pursuant to or in connection with this Performance Award Agreement which is considered to be nonqualified deferred compensation subject to Code Section 409A (referred to as a “409A Award”) shall be provided and paid in a manner, and at such time and in such form, as complies with the applicable requirements of Code Section 409A to avoid the unfavorable tax consequences provided therein for non-compliance. Consequently, this Performance Award Agreement is intended to be administered, interpreted and construed in accordance with the applicable requirements of Code Section 409A. Notwithstanding the foregoing, the Executive and his or her successor in interest shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on the Executive or his or her successor in interest in connection with this Performance Award Agreement (including any taxes and penalties under Code Section 409A); and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold the Executive or his or her successor in interest harmless from any or all of such taxes or penalties.
(i) Except as permitted under Code Section 409A, any 409A Award payable to the Executive or for his or her benefit with respect to such amounts the Performance Award may not be reduced by, or benefits. This Agreement shall be interpreted and administered offset against, any amount owing by the Executive to the extent possible in a manner consistent with the foregoing statement Company or any of intentits affiliates.
(ii) Notwithstanding anything in this Agreement or elsewhere To the extent that entitlement to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a Award occurs due to termination or cessation of employment, the date that the Employee is deemed to have incurred a termination or cessation of employment shall be the date on which the Employee has incurred read to mean a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), Code Section 409A. A “separation from service” shall occur where it is reasonably anticipated that no further services will be performed after that date or in subsequent IRS guidance under that the level of bona fide services the Executive will perform after that date (whether as an employee or independent contractor of the Company or an affiliate) will permanently decrease to less than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period. Continued services solely as a director of the Company or an affiliate shall not prevent a separation from service from occurring by the Executive as permitted by Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere Section 409A. Where entitlement to payment occurs by reason of a separation from service and the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within the meaning of Treasury Regulation Code Section 1.409A-1(i)409A, as applicable to the Company and its affiliates and using the identification methodology selected by the Company from time to time in accordance with Code Section 409A) on the date of the Employee’s his or her “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits 409A Award shall be delayed (without interest) until the first business day after the end of the seventh six (6) month following the date of the Employee’s separation from service delay period required under Code Section 409A or, if earlier, after the Executive’s death.
(iii) In the event a 409A benefit is payable over a period of time (such as within ninety (90) days following termination), the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments payment shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, the Company in its sole discretion. Additionally, for purposes of complying with the requirements under Code Section 409A, the PSUs and the Employee shall have no right to designate the year in which the payment dividend equivalents shall be madetreated as separate payments.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this This Performance Award Agreement is intended to comply with the requirements of Code Section 409A and any right or benefit which is provided pursuant to or in connection with this Performance Award Agreement which is considered to be nonqualified deferred compensation subject to Code Section 409A (referred to as a “409A Award”) shall be provided and paid in a manner, and at such time and in such form, as complies with the applicable requirements of Code Section 409A to avoid the unfavorable tax consequences provided therein for non-compliance. Consequently, this Performance Award Agreement is intended to be administered, interpreted and construed in accordance with the applicable requirements of Code Section 409A. Notwithstanding the foregoing, the Employee and his or her successor in interest shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on the Employee or his or her successor in interest in connection with this Performance Award Agreement (including any taxes and penalties under Code Section 409A); and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold the Employee or his or her successor in interest harmless from any or all of such taxes or penalties. Except as permitted under Code Section 409A, any 409A Award payable to the Employee or for his or her benefit with respect to such amounts the Performance Award may not be reduced by, or benefits. This Agreement shall be interpreted and administered offset against, any amount owing by the Employee to the Company or any of its affiliates. To the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere that entitlement to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a Award occurs due to termination or cessation of employment, the date that the Employee is deemed to have incurred a termination or cessation of employment shall be the date on which the Employee has incurred read to mean a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), Code Section 409A. A “separation from service” shall occur where it is reasonably anticipated that no further services will be performed after that date or in subsequent IRS guidance under that the level of bona fide services the Employee will perform after that date (whether as an employee or independent contractor of the Company or an affiliate) will permanently decrease to less than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period. Continued services solely as a director of the Company or an affiliate shall not prevent a separation from service from occurring by the Employee as permitted by Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere Section 409A. Where entitlement to the contrary, if Live Nation reasonably determines that (A) payment occurs by reason of a separation from service and the Employee is a “specified employee” (within the meaning of Treasury Regulation Code Section 1.409A-1(i)409A, as applicable to the Company and its affiliates and using the identification methodology selected by the Company from time to time in accordance with Code Section 409A) on the date of the Employee’s his or her “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits 409A Award shall be delayed (without interest) until the first business day after the end of the seventh six (6) month following the date of the Employee’s separation from service delay period required under Code Section 409A or, if earlier, the date of after the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Datedeath.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Code Section 409A Compliance. (i) To a. The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the comply with Internal Revenue Code of 1986Section 409A and the regulations and guidance promulgated thereunder (collectively, as amended (“Code Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and Employer of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall Employer be liable for any additional tax, interest or penalty that may be imposed on Executive by Code Section 409A or for damages for failing to comply with Code Section 409A.
b. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amount or benefit is upon or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred following a termination of employment shall be the date on which the Employee has incurred unless such termination is also a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h)Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or in subsequent IRS guidance under Code section 409A.
(iii) like terms shall mean “separation from service. Notwithstanding anything in this Agreement or elsewhere any other payment schedule provided herein to the contrary, if Live Nation reasonably determines that (A) Executive is deemed on the Employee is date of termination to be a “specified employee” (within the meaning of Treasury Regulation that term under Code Section 1.409A-1(i409A(a)(2)(B)) , then with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made on the date which is the earlier of (i) the expiration of the Employeesix (6)-month period measured from the date of Executive’s “separation from service,” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (Bii) commencement the date of any Executive’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this paragraph (whether they would have otherwise been payable in a single sum or other in installments in the absence of such delay) shall be paid or reimbursed to Executive in a lump sum, and all remaining payments and benefits payable due under this Agreement shall be paid or provided in connection accordance with the Employee’s separation from service on the scheduled normal payment dates specified in Sections 8(cfor them herein.
c. To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (i) and (d) will subject all expenses or other reimbursements hereunder shall be made on or prior to the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business last day of the seventh month taxable year following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the taxable year in which such expenses were incurred by Executive, (ii) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the payment shall expenses eligible for reimbursement, or in-kind benefits to be madeprovided, in any other taxable year.
(v) Live Nation and the Employee may agree to take d. Notwithstanding any other actions to avoid the imposition provision of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein this Agreement to the contrary, the Employee expressly agrees and acknowledges that in the no event that shall any Section 409A Tax is imposed in respect of any compensation payment or benefits payable to the Employee, whether benefit under this Agreement or otherwise, then (A) the payment that constitutes “nonqualified deferred compensation” for purposes of such Code Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor subject to offset by any of their respective past or present directors, officers, employees or agents shall have any liability for any such other amount unless otherwise permitted by Code Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”409 A.
Appears in 1 contract
Code Section 409A Compliance. (ia) To the fullest extent applicable, amounts and other benefits payable under this Agreement Agreement, and amounts and benefits payable under any other agreements or plans referenced in this Agreement, are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and409A. In this regard, to each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything , and any ambiguity as to its compliance with Section 409A will be read in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts such a manner so that are treated as nonqualified deferred compensation under all payments hereunder comply with Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.Code.
(iiib) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within as determined by the meaning of Treasury Regulation Section 1.409A-1(i)) Compensation Committee on the date of the Employee’s “separation from service” (within as such terms are defined for purposes of Code Section 409A), and the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of Company reasonably determines that any payments amount or other benefits benefit payable under this Agreement in connection with the Employee’s on account of such separation from service on the scheduled payment dates specified in Sections 8(c) and (d) constitutes nonqualified deferred compensation that will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then Live Nation the payment or provision thereof shall withhold payment of any such payments or benefits until be postponed to the first business day of the seventh month following the date of the Employee’s separation from service termination or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, The Executive and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee Company may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. In the event that this Section 7 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, the provisions of this Agreement which require the commencement of payments subject to Section 409A upon a termination of employment shall be interpreted to require that the Executive have a “separation from service” with the Company as defined for purposes of Code Section 409A.
(vic) Notwithstanding anything herein To the extent the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the contraryExecutive, the Employee Company shall reimburse any such eligible fees or expenses no later than 2‑1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2‑1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. Except as otherwise expressly agrees provided herein, to the extent any expense reimbursement or the provision of any in‑kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in‑kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and acknowledges in no event shall any right to reimbursement or the provision of any in‑kind benefit be subject to liquidation or exchange for another benefit.
(d) The provisions of this Section 7 shall also apply to all payments and benefits that may be provided under the Change in Control Agreement, notwithstanding any provision to the contrary contained therein, if required in order to comply with Section 409A. In addition to the provisions set forth in subsections (a) through (c) above: (i) the cash severance payable under the Change in Control Agreement shall be paid at the same time and in the event same form provided under this Agreement for severance payable under Section 5(b) (that any is, in installments over twenty‑four (24) months rather than a lump sum) unless the Executive’s separation from service occurs within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 409A Tax is imposed 1.409A‑3(i)(5); (ii) if the Executive’s separation from service does occur within twelve (12) months following the effective date of the closing of the Change in respect of any compensation or benefits Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A‑3(i)(5), then the cash severance payable to the Employee, whether Executive under this Section 1(b)(1) of the Change in Control Agreement shall be paid on the sixtieth (60th) day following his separation from service (subject to Section 7(b)) provided the Executive has fulfilled the conditions for payment of the cash severance under the Change in Control Agreement (including that the Release of Claims as defined therein shall have become effective) on or before such date (and shall not be paid otherwise, then ); and (Aiii) any reimbursement of taxes required to be made by the Company under the Change in Control Agreement shall be made by the end of the calendar year next following the calendar year in which the Executive remits the related taxes. If the payment of such cash severance has commenced pursuant to Section 409A Tax 5(b)(1) of this Agreement before the occurrence of a Change in Control that results in the Executive’s eligibility for severance benefits under the Change in Control Agreement, then the payment of cash severance shall be solely governed by the Employee’s responsibility, (BChange in Control Agreement rather than Section 5(b)(1) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Taxthis Agreement, and (C) any adjustment to reflect an underpayment or overpayment of the Employee shall indemnify and hold harmless, amount that otherwise would have been due before the Change in Control pursuant to the greatest extent permitted under lawChange in Control Agreement shall be applied to the first installment due after the Change in Control Agreement, each of the foregoing from and against any claims or liabilities that may arise proceeding in respect of any such Section 409A Taxchronological order thereafter as necessary.”
Appears in 1 contract
Code Section 409A Compliance. (ia) To the fullest extent applicable, amounts and other benefits payable under this Agreement Agreement, and amounts and benefits payable under any other agreements or plans referenced in this Agreement, are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and409A. In this regard, to each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything , and any ambiguity as to its compliance with Section 409A will be read in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts such a manner so that are treated as nonqualified deferred compensation under all payments hereunder comply with Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.Code.
(iiib) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within as determined by the meaning of Treasury Regulation Section 1.409A-1(i)) Compensation Committee on the date of the Employee’s “separation from service” (within as such terms are defined for purposes of Code Section 409A), and the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of Company reasonably determines that any payments amount or other benefits benefit payable under this Agreement in connection with the Employee’s on account of such separation from service on the scheduled payment dates specified in Sections 8(c) and (d) constitutes nonqualified deferred compensation that will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then Live Nation the payment or provision thereof shall withhold payment of any such payments or benefits until be postponed to the first business day of the seventh month following the date of the Employee’s separation from service termination or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, The Executive and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee Company may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. In the event that this Section 7 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, the provisions of this Agreement which require the commencement of payments subject to Section 409A upon a termination of employment shall be interpreted to require that the Executive have a “separation from service” with the Company as defined for purposes of Code Section 409A.
(vic) Notwithstanding anything herein To the extent the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the contraryExecutive, the Employee Company shall reimburse any such eligible fees or expenses no later than 2-1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2-1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. Except as otherwise expressly agrees provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and acknowledges in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
(d) The provisions of this Section 7 shall also apply to all payments and benefits that may be provided under the Change in Control Agreement, notwithstanding any provision to the contrary contained therein, if required in order to comply with Section 409A. In addition to the provisions set forth in subsections (a) through (c) above: (i) the cash severance payable under the Change in Control Agreement shall be paid at the same time and in the event same form provided under this Agreement for severance payable under Section 5(b) (that any is, in installments over twenty-four (24) months rather than a lump sum) unless the Executive’s separation from service occurs within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 409A Tax is imposed 1.409A-3(i)(5); (ii) if the Executive’s separation from service does occur within twelve (12) months following the effective date of the closing of the Change in respect of any compensation or benefits Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5), then the cash severance payable to the Employee, whether Executive under this Section 1(b)(1) of the Change in Control Agreement shall be paid on the sixtieth (60th) day following his separation from service (subject to Section 7(b)) provided the Executive has fulfilled the conditions for payment of the cash severance under the Change in Control Agreement (including that the Release of Claims as defined therein shall have become effective) on or before such date (and shall not be paid otherwise, then ); and (Aiii) any reimbursement of taxes required to be made by the Company under the Change in Control Agreement shall be made by the end of the calendar year next following the calendar year in which the Executive remits the related taxes. If the payment of such cash severance has commenced pursuant to Section 409A Tax 5(b)(1) of this Agreement before the occurrence of a Change in Control that results in the Executive’s eligibility for severance benefits under the Change in Control Agreement, then the payment of cash severance shall be solely governed by the Employee’s responsibility, (BChange in Control Agreement rather than Section 5(b)(1) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Taxthis Agreement, and (C) any adjustment to reflect an underpayment or overpayment of the Employee shall indemnify and hold harmless, amount that otherwise would have been due before the Change in Control pursuant to the greatest extent permitted under lawChange in Control Agreement shall be applied to the first installment due after the Change in Control Agreement, each of the foregoing from and against any claims or liabilities that may arise proceeding in respect of any such Section 409A Taxchronological order thereafter as necessary.”
Appears in 1 contract
Code Section 409A Compliance. (i) To A. This Plan shall be interpreted by the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended Committee to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) 409A. Notwithstanding anything in this Agreement or elsewhere herein to the contrary, for purposes (i) if at the time of determining the payment date Participant’s Termination of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Employment Participant is a “specified employee” (within as defined in Section 409A and the meaning of Treasury Regulation Section 1.409A-1(i)) on the date deferral of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits otherwise payable under this Agreement hereunder as a result of such Termination of Employment is necessary in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee order to an “prevent any accelerated or additional tax” tax under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)409A, then Live Nation shall withhold the Employer will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Participant) until the first business day date that is six months following Participant’s Termination of Employment (or the earliest date as is permitted under Section 409A) and (ii) if any other payments of money or other benefits due to Participant hereunder could cause the application of an accelerated or additional tax under Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board of Directors, that does not cause such an accelerated or additional tax.
B. The intent of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event parties is that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where benefits under this Agreement provides for comply with Section 409A and the payment of an amount regulations and guidance promulgated such that constitutes nonqualified deferred compensation taxation under Section 409A shall not arise in connection with this Agreement, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted so as to be made in compliance with Section 409A. In no event whatsoever shall the Company, or any other company, bank, person or other entity be liable for any additional tax, interest or penalty that may be imposed on Participant or Beneficiary under Section 409A or damages or any other losses for failing to comply with Section 409A or any other provision of applicable tax or other similar law. Neither the Employee within a designated period (e.g.Company nor any of its Affiliates, within 30 days after or any of the date agents, employees, officers, directors or other representatives of termination) and such period begins and ends one or more of the foregoing represents, warrants or guarantees any particular or favorable tax or other result in different calendar yearsconnection with this Agreement, the exact payment date within such range shallPlan, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax . The Participant shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability and exclusively responsible for any and all such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Taxresults.”
Appears in 1 contract
Samples: Supplemental Executive Retirement Plan (Level One Bancorp Inc)
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this This Performance Award Agreement is intended to comply with the requirements of Code Section 409A and any right or benefit which is provided pursuant to or in connection with this Performance Award Agreement which is considered to be nonqualified deferred compensation subject to Code Section 409A (referred to as a “409A Award”) shall be provided and paid in a manner, and at such time and in such form, as complies with the applicable requirements of Code Section 409A to avoid the unfavorable tax consequences provided therein for non-compliance. Consequently, this Performance Award Agreement is intended to be administered, interpreted and construed in accordance with the applicable requirements of Code Section 409A. Notwithstanding the foregoing, the Employee and his or her successor in interest shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on the Employee or his or her successor in interest in connection with this Performance Award Agreement (including any taxes and penalties under Code Section 409A); and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold the Employee or his or her successor in interest harmless from any or all of such taxes or penalties.
(i) Except as permitted under Code Section 409A, any 409A Award payable to the Employee or for his or her benefit with respect to such amounts the Performance Award may not be reduced by, or benefits. This Agreement shall be interpreted and administered offset against, any amount owing by the Employee to the extent possible in a manner consistent with the foregoing statement Company or any of intentits affiliates.
(ii) Notwithstanding anything in this Agreement or elsewhere To the extent that entitlement to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a Award occurs due to termination or cessation of employment, the date that the Employee is deemed to have incurred a termination or cessation of employment shall be the date on which the Employee has incurred read to mean a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), Code Section 409A. A “separation from service” shall occur where it is reasonably anticipated that no further services will be performed after that date or in subsequent IRS guidance under that the level of bona fide services the Employee will perform after that date (whether as an employee or independent contractor of the Company or an affiliate) will permanently decrease to less than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period. Continued services solely as a director of the Company or an affiliate shall not prevent a separation from service from occurring by the Employee as permitted by Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere Section 409A. Where entitlement to the contrary, if Live Nation reasonably determines that (A) payment occurs by reason of a separation from service and the Employee is a “specified employee” (within the meaning of Treasury Regulation Code Section 1.409A-1(i)409A, as applicable to the Company and its affiliates and using the identification methodology selected by the Company from time to time in accordance with Code Section 409A) on the date of the Employee’s his or her “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits 409A Award shall be delayed (without interest) until the first business day after the end of the seventh six (6) month following the date of the Employee’s separation from service delay period required under Code Section 409A or, if earlier, the date of after the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Datedeath.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement This Plan is intended to comply with Section 409A of the Code so that no excise tax or penalties will apply to the Severance Benefits and any ambiguous provisions will be construed in a manner so that the Plan is compliant with Code Section 409A but only to the extent that it is applicable requirements or so that the Plan is exempt from the application of Section 409A with respect to such amounts of the Code. If a provision of the Plan would result in the imposition of earlier or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation additional taxes under Section 409A of the Code that become payable under this Agreement in connection with a termination of employmentCode, the date Company and Participants agree that the Employee is deemed to have incurred a termination of employment such provision shall be the date on which the Employee has incurred a “separation from service” within the meaning interpreted or otherwise reformed to avoid imposition of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere such taxes. No Participant shall have any right to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on determine the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”)amount under this Plan. In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, for any amounts payable hereunder that are deferred compensation subject to Code Section 409A, any amount payable to a Participant who is a specified employee on account of a Separation from Service will be withheld and will not be paid until the Employee expressly agrees first business day that is six (6) months after the Participant’s Separation from Service within the meaning of Code Section 409A. For purposes of Section 409A of the Code, each payment or amount due under this Plan shall be considered a separate payment. To the extent required under Code Section 409A, a “termination of employment” shall mean Participant’s “separation from service” as defined in Section 1.409A-1(h) of the Final Treasury Regulations promulgated under Section 409A of the Code, including the default presumptions thereof. Notwithstanding anything in this Plan to the contrary, the Severance Benefits will be paid as follows: (i) to the extent required by Code Section 409A on the first business day following the date which is six (6) months following a Participant’s Termination Date with respect to all or the portion of the Severance Benefit that is subject to Code Section 409A if the Participant is a “specified employee” under Code Section 409A, provided, however, that if the Participant has not executed the Separation and acknowledges that Release Agreement (which has not been revoked in the time period specified in such agreement) prior to this date no Severance Benefits will be paid or payable to such a Participant, or (ii) if the Severance Benefit is subject to the requirements of Code Section 409A, but is not subject to the requirements of clause (i) above, on the first scheduled payroll date following 15 days from Company’s receipt of an executed Separation and Release (which has not been revoked in the applicable time period as provided in such agreement) provided that if the period during which the Participant has discretion to execute and revoke the Separation and Release Agreement straddles two calendar years the payment will only be paid in the second calendar year, but in no event that any Section 409A Tax is imposed in respect later than seventy (70) days after the Participant’s Termination Date. The following rules shall apply to payments of any compensation or benefits payable to the Employee, whether amounts under this Agreement that are treated as “reimbursement payments” or otherwise, then “in kind payments” that are subject to Section 409A of the Code: (Ai) the payment amount of such Section 409A Tax expenses eligible for reimbursement or paid in kind benefits in one calendar year shall be solely not limit the Employee’s responsibilityavailable reimbursements or paid in kind for any other calendar year; (ii) Participant shall file a claim for all reimbursement payments not later than thirty (30) days following the end of the calendar year during which the expenses were incurred, (Biii) neither Live Nation, its affiliated entities nor any the Company shall make such reimbursement within thirty (30) days following the date Participant delivers written notice of their respective past the expenses to the Company; (iv) Participant’s right to such reimbursement payments or present directors, officers, employees in kind benefits shall not be subject to liquidation or agents shall have any liability exchange for any such Section 409A Tax, other payment or benefit; and (Cv) all reimbursements will be made no later than the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each end of the foregoing from and against any claims or liabilities that may arise in respect calendar year following calendar year of any such Section 409A Taxthe Participant’s Termination Date .”
Appears in 1 contract
Samples: Restructuring Support Agreement (Petroquest Energy Inc)
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable The arrangements under this Agreement are not intended to be exempt from the definition of “nonqualified create "deferred compensation” under section " within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”the "Code") in accordance with one and any rulings or more regulations thereunder, including IRS Notice 2005-1, and all provisions of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered consistently with such intent. In the event that any amounts payable under this Agreement that would otherwise be considered deferred compensation pursuant to Section 409A of the extent possible Code (or any applicable regulations or guidance promulgated by the Secretary of the Treasury in a manner consistent with connection therewith) are paid within six (6) months following the foregoing statement date of intent.
(ii) Notwithstanding anything in termination of employment, such amounts shall be paid at the earlier of the time otherwise provided under this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any time that will prevent such amounts that are treated as nonqualified from being considered deferred compensation under Section 409A of the Code Code. Solely to the extent, if any, that become payable under this Agreement constitutes the grant of an additional benefit under the Agreement that consists solely of a deferral of additional compensation not otherwise provided under the Agreement as of October 3, 2004, it is intended that any such additional benefit be treated as a material modification of the Agreement only as to such additional deferral of compensation as provided in connection Q&A-18 of IRS Notice 2005-1. Further, in the event that (a) the Company determines that there is an ambiguity with a termination respect to any provision of employmentthis Agreement that could cause such provision to result in an obligation to pay deferred compensation subject to Section 409A of the Code, such ambiguity shall be interpreted and resolved in the date manner that the Employee is deemed Company deems necessary to have incurred a termination of employment shall be either avoid the date on which the Employee has incurred a “separation from service” obligation to pay deferred compensation within the meaning of Treasury Regulation section 1.409A-1(h)Section 409A of the Code or to comply with timing and payment provisions of Section 409A of the Code, or and (b) the Company determines, in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in good faith, that any amendment to this Agreement is necessary or elsewhere appropriate in order to comply with timing and payment provisions of Section 409A of the contrary, if Live Nation reasonably determines that (A) Code or to avoid the Employee is a “specified employee” (obligation to pay deferred compensation within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date 409A of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlierCode, the date of Company shall have the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments right to be withheld, make such withheld payments shall be accumulated and paid in a single lump sum, without interestamendment, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nationprospective or retroactive basis, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Samples: Employment Agreement (Solutia Inc)
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended and the regulations thereunder (the “Section 409ACode”) ), in accordance with one or more of the exemptions available under the final Treasury regulations Regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee Executive is deemed to have incurred a termination of employment shall be the date on which the Employee Executive has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS Internal Revenue Service guidance under Code section Section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation the Company reasonably determines that (A) the Employee Executive is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the EmployeeExecutive’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the EmployeeExecutive’s separation from service on the scheduled payment dates specified in Sections 8(cSection 8(a) and through (d) c), will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation the Company shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the EmployeeExecutive’s separation from service or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii8(e)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interestwith interest equal to the “short-term applicable Federal rate” (within the meaning of Section 1274(d) of the Code), compounded annually, in effect on the date of such termination, on the Delayed Payment DateDate and the balance of the payments shall be made as otherwise scheduled.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee Executive within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii8(e)(iii) above, be determined by Live Nationthe Company, in its sole discretion, and the Employee Executive shall have no right to designate the year in which the payment shall be made.
(v) Live Nation The Company and the Employee Executive may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.409A. To the extent applicable, each of the exceptions to Section 409A’s prohibition on acceleration of payments of deferred compensation provided under Treasury Regulation 1.409A-3(j)(4) shall be permitted under this Agreement.
(vi) Notwithstanding anything herein to Each of the contrary, Company and the Employee expressly agrees Executive acknowledge and acknowledges agree that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) they have had their own independent legal counsel review this Agreement for purposes of compliance with the payment requirements of such Section 409A Tax shall be solely the Employee’s responsibilityor an exemption therefrom, and (B) neither Live Nation, each party is relying solely on the advice of its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability independent legal counsel for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Taxpurposes.”
Appears in 1 contract
Samples: Employment Agreement (Live Nation Entertainment, Inc.)
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(i1) To If and to the fullest extent applicable, amounts and other any payment or benefits payable under this Agreement are intended otherwise subject to be exempt from the definition requirements of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended amended, including any regulations and other applicable authorities promulgated thereunder (the “Section 409ACode”) in accordance with one or more ), the intent of the exemptions available under the final Treasury regulations promulgated under parties is that such payment and benefits shall comply with Code Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any such amount or benefit provision hereof is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation modified in accordance with such final Treasury regulations, this Agreement is intended order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the parties hereto of the applicable requirements provision without violating the provisions of Code Section 409A. The Company makes no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A with respect and makes no undertaking to preclude Code Section 409A from applying to any such amounts payments or benefits. This Agreement In no event whatsoever shall the Company be interpreted and administered liable for any additional tax, interest or penalty that may be imposed on Executive by Code Section 409A or damages for failing to the extent possible in a manner consistent comply with the foregoing statement of intent.Code Section 409A.
(ii2) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the date on which the Employee has incurred payment of any amounts or benefits upon or following Executive’s termination of employment unless such termination is also a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h)Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or in subsequent IRS guidance under Code section 409A.like terms shall mean “separation from service.”
(iii3) Notwithstanding anything in Each payment payable to Executive under this Agreement Section 6 on or elsewhere after his date of termination shall be treated as a separate and distinct “payment” for purposes of Code Section 409A and, further is intended to be exempt from Code Section 409A, including but not limited to the contraryshort-term deferral and involuntary separation pay plan exemptions thereunder. If and to the extent any such payment is determined to be subject to Code Section 409A and is otherwise payable upon Executive’s termination of employment, if Live Nation reasonably determines that (A) in the Employee event Executive is a “specified employee” (within as defined in Code Section 409A), any such payment that would otherwise have been payable in the meaning first six (6) months following Executive’s termination of Treasury Regulation Section 1.409A-1(i)) on employment will not be paid to Executive until the date of the Employee’s “separation from service” that is six (within the meaning of Treasury Regulation Section 1.409A-1(h)6) months and one (B1) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the EmployeeExecutive’s separation from service termination of employment (or, if earlier, the Executive’s date of the Employee’s death (the “Delayed Payment Date”death). In Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the event that this Section 8(f)(iii) requires amount of any payments otherwise payable to be withheldExecutive under this Agreement. Thereafter, the remainder of any such withheld payments shall be accumulated and paid payable in a single lump sum, without interest, on the Delayed Payment Dateaccordance with this Section 6.
(iv4) In each case where With respect to any right to reimbursement of expenses or in-kind benefits under this Agreement provides for the payment Agreement, (i) all reimbursement of an amount that constitutes nonqualified deferred compensation under Section 409A expenses to Executive shall be made on or prior to the Employee within a designated period (e.g.last day of Executive’s taxable year following the taxable year in which such expenses were incurred by Executive, within 30 days after except that if any such reimbursements constitute taxable income to Executive, such reimbursements shall be paid no later than March 15th of calendar year following the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment expenses to be reimbursed were incurred, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during Executive’s taxable year shall not in any way affect the expenses eligible for reimbursement, or in-kind benefits to be madeprovided, in any other taxable year, and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(v5) Live Nation and Whenever a payment under this Agreement specifies a period within which such payment may be made, the Employee may agree to take other actions to avoid actual date of payment within the imposition specified period shall be within the sole discretion of a the Company.
(6) In no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Code Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein be offset by any other payment pursuant to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then .
(A7) To the payment of such extent required under Code Section 409A Tax shall be solely the Employee’s responsibility409A, (Bi) neither Live Nationany reference herein to the term “Agreement” shall mean this Agreement and any other plan, its affiliated entities nor any of their respective past agreement, method, program, or present directorsother arrangement, officers, employees or agents shall have any liability for any such with which this Agreement is required to be aggregated under Code Section 409A Tax409A, and (Cii) the Employee shall indemnify and hold harmless, any reference herein to the greatest extent permitted term “Company” shall mean the Company and all persons with whom the Company would be considered a single employer under law, each of the foregoing from and against any claims Code Section 414(b) or liabilities that may arise in respect of any such Section 409A Tax414(c).”
Appears in 1 contract
Code Section 409A Compliance. (ia) To the fullest extent applicable, amounts and other benefits payable under this Agreement Agreement, and amounts and benefits payable under any other agreements or plans referenced in this Agreement, are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and409A. In this regard, to each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything , and any ambiguity as to its compliance with Section 409A will be read in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts such a manner so that are treated as nonqualified deferred compensation under all payments hereunder comply with Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.Code.
(iiib) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within as determined by the meaning of Treasury Regulation Section 1.409A-1(i)) Compensation Committee on the date of the Employee’s “separation from service” (within as such terms are defined for purposes of Code Section 409A), and the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of Company reasonably determines that any payments amount or other benefits benefit payable under this Agreement in connection with the Employee’s on account of such separation from service on the scheduled payment dates specified in Sections 8(c) and (d) constitutes nonqualified deferred compensation that will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then Live Nation the payment or provision thereof shall withhold payment of any such payments or benefits until be postponed to the first business day of the seventh month following the date of the Employee’s separation from service termination or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, The Executive and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee Company may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. In the event that this Section 8 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, the provisions of this Agreement which require the commencement of payments subject to Section 409A upon a termination of employment shall be interpreted to require that the Executive have a “separation from service” with the Company as defined for purposes of Code Section 409A.
(vic) Notwithstanding anything herein To the extent the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the contraryExecutive, the Employee Company shall reimburse any such eligible fees or expenses no later than 2-1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2-1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. Except as otherwise expressly agrees provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and acknowledges in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
(d) The provisions of this Section 8 shall also apply to all payments and benefits that may be provided under the Change in Control Agreement, notwithstanding any provision to the contrary contained therein, if required in order to comply with Section 409A. In addition to the provisions set forth in subsections (a) through (c) above: (i) the cash severance payable under the Change in Control Agreement shall be paid at the same time and in the event same form provided under this Agreement for severance payable under Section 6(b) (that any is, in installments over twenty-four (24) months rather than a lump sum) unless the Executive’s separation from service occurs within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 409A Tax is imposed 1.409A-3(i)(5); (ii) if the Executive’s separation from service does occur within twelve (12) months following the effective date of the closing of the Change in respect of any compensation or benefits Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5), then the cash severance payable to the Employee, whether Executive under this Section 1(b)(1) of the Change in Control Agreement shall be paid on the sixtieth (60th) day following his separation from service (subject to Section 8(b)) provided the Executive has fulfilled the conditions for payment of the cash severance under the Change in Control Agreement (including that the Release of Claims as defined therein shall have become effective) on or before such date (and shall not be paid otherwise, then ); and (Aiii) any reimbursement of taxes required to be made by the Company under the Change in Control Agreement shall be made by the end of the calendar year next following the calendar year in which the Executive remits the related taxes. If the payment of such cash severance has commenced pursuant to Section 409A Tax 6(b)(1) of this Agreement before the occurrence of a Change in Control that results in the Executive’s eligibility for severance benefits under the Change in Control Agreement, then the payment of cash severance shall be solely governed by the Employee’s responsibility, (BChange in Control Agreement rather than Section 6(b)(1) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Taxthis Agreement, and (C) any adjustment to reflect an underpayment or overpayment of the Employee shall indemnify and hold harmless, amount that otherwise would have been due before the Change in Control pursuant to the greatest extent permitted under lawChange in Control Agreement shall be applied to the first installment due after the Change in Control Agreement, each of the foregoing from and against any claims or liabilities that may arise proceeding in respect of any such Section 409A Taxchronological order thereafter as necessary.”
Appears in 1 contract
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under The parties hereto recognize that certain provisions of this Agreement are intended to may be exempt from the definition of “nonqualified deferred compensation” under section affected by Section 409A of the Internal Revenue Code and guidance issued thereunder, and agree to amend this Agreement, or take such other action as may be necessary or advisable, to comply with Section 409A. It is intended that all payments hereunder shall comply with Section 409A and the regulations promulgated thereunder so as to not subject the Executive to payment of 1986interest or any additional tax under Section 409A. In furtherance thereof, as amended (“if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the time specified herein would subject such amount or benefit to any additional tax under Section 409A”) in accordance with one , the payment or more provision of such amount or benefit shall be postponed to the exemptions available under earliest date on which the final Treasury regulations promulgated under Section 409A andpayment or provision of such amount or benefit could be made without incurring such additional tax. In addition, to the extent that any such amount regulations or benefit is or becomes other guidance issued under Section 409A (after application of the previous provisions of this Section (10)(k) would result in the Executive’s being subject to the payment of interest or any additional tax under Section 409A due to a failure to qualify for an exemption from 409A, the definition of nonqualified deferred compensation in accordance with such final Treasury regulationsparties agree, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible reasonably possible, to amend this Agreement in a manner consistent with order to avoid the foregoing statement imposition of intent.
(ii) any such interest or additional tax under Section 409A, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company and the Executive. Notwithstanding anything in this Agreement or elsewhere herein to the contrary, it is expressly understood that at any time the Company (or any related employer treated with the Company as the service recipient for purposes of determining Section 409A) is publicly traded on an established securities market (as defined for purposes of Section 409A), if a payment or provision of an amount or benefit constituting a deferral of compensation is to be made pursuant to the payment date terms of any amounts that are treated this Agreement to the Executive on account of a Separation from Service at a time when the Executive is a Specified Employee (as nonqualified defined for purposes of Section 409A(a)(2)(B)(i)), such deferred compensation under Section 409A of shall not be paid to the Code that become payable under this Agreement in connection with a termination of employment, Executive prior to the date that is six (6) months after the Employee is deemed Separation from Service. In the event this restriction applies, the deferred compensation that the Executive would have otherwise been entitled to have incurred a termination of employment shall during the restriction period will be accumulated and paid (without adjustment for the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or delay in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)payment) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the EmployeeExecutive’s separation Separation from service Service or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”)estate or personal representative upon his death. In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid Each payment made in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment series of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether payments under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any deemed to be a separate payment for purposes of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”409A.
Appears in 1 contract
Code Section 409A Compliance. (i) To the fullest extent applicable, The Parties intend that any amounts and other or benefits payable or provided under this Agreement are intended to be exempt from comply with the definition provisions of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Code Section 409A”) in accordance with one or more and the Treasury Regulations relating thereto so as not to subject Executive to the payment of the exemptions available tax, interest and any tax penalty which may be imposed under the final Treasury regulations promulgated under Code Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition 409A. The provisions of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement such intent. A termination of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere employment of Executive shall not be deemed to the contrary, have occurred for purposes of determining any provision of this Agreement providing for the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred or benefits upon or following a termination of employment shall be the date on which the Employee has incurred unless such termination is also a “separation from of service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance Code Section 409A. If an amount is to be paid under Code section 409A.
(iii) Notwithstanding anything in this Agreement in two or elsewhere more installments, each installment shall be treated as a separate payment for purposes of Code Section 409A. If Executive is considered to the contrary, if Live Nation reasonably determines that (A) the Employee is be a “specified employee” (within as defined in Code Section 409A and related Treasury Regulations) at the meaning of Treasury Regulation Section 1.409A-1(i)) on the date Retirement Date, a portion of the Employeeamount payable to Executive under Section 9 hereof shall be delayed for six (6) months following Executive’s “separation from service” (within of service if and to the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection extent necessary to comply with the Employee’s separation from service requirements of Section 409A. Any amounts payable to Executive during such six (6) month-period that are delayed due to the limitation in the preceding sentence shall be paid to Executive in a lump sum on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until after the first business day of the seventh (7th) month following the date of the EmployeeExecutive’s separation from service or, if earlier, service. Executive acknowledges and agree that he has been advised by the date Company to consult with tax counsel of his own choosing regarding the tax consequences to him of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each performance of the foregoing from terms and against any claims or liabilities that may arise in respect provisions of any such Section 409A Taxthis Agreement.”
Appears in 1 contract
Code Section 409A Compliance. (i) To The intent of the fullest extent applicable, amounts and other benefits payable under parties to this Agreement are intended to is that payments and benefits paid or provided hereunder be exempt from the definition of “nonqualified deferred compensation” under section or comply with Section 409A of the Internal Revenue Code of 1986Code, as amended and the regulations and guidance promulgated thereunder (together, “Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent and that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent accordance with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”)intention. In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, if at the Employee expressly agrees and acknowledges that time of Executive’s termination of employment with Company, Executive is a “specified employee” as defined in the event that any Section 409A Tax is imposed in respect and the deferral of the commencement of any compensation payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A, then the commencement of such payments or benefits hereunder shall be delayed until the date that is six (6) months and one day following Executive’s termination of employment with Company; provided that, to the Employeeextent necessary to comply with the requirements of IRS Notice 2010-6, whether in no event shall a payment described in this sentence be paid prior to the date which is eighteen (18) months and one day following September 29, 2010. For purposes of any payments and benefits which are (i) subject to Section 409A and (ii) payable due to a termination of Executive’s employment, Executive shall not be considered to have terminated employment with Company until Executive incurs a “separation from service” from Company within the meaning of Section 409A. Each amount to be paid or benefit to be provided under this Agreement or otherwise, then (A) the shall be construed as a separate identified payment for purposes of such Section 409A Tax of the Code, and any payments described in this Agreement that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. To the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts reimbursable to Executive under this Agreement shall be solely paid to Executive on or before the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each last day of the foregoing from year following the year in which the expense was incurred and against the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any claims one year may not effect amounts reimbursable or liabilities that may arise provided in respect of any such Section 409A Taxsubsequent year.”
Appears in 1 contract
Samples: Employment Agreement (Icon Acquisition Holdings, L.P.)
Code Section 409A Compliance. (i) To the fullest extent applicable, It is Company’s intent that amounts and other benefits payable paid under this Agreement are intended to be exempt from the definition of generally shall not constitute “nonqualified deferred compensation” as that term is defined under section Section 409A of the Internal Revenue Code of 1986, as amended (“Code Section 409A”) in accordance with one or more of ), and the exemptions available under the final Treasury regulations promulgated thereunder, because the amounts paid under this Agreement are structured to comply with either the “short-term deferral” exception or other applicable exceptions to Code Section 409A and, to 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to individual payments under this Agreement do not qualify for an exemption from exception and are determined to be “deferred compensation” within the definition meaning of nonqualified deferred compensation in accordance Code Section 409A and compliance with such final Treasury regulations, an applicable term of this Agreement is intended to comply with the applicable requirements would cause or would result in a violation of Code Section 409A with respect to 409A, then such amounts or benefits. This Agreement provision shall be interpreted and administered or reformed in the manner necessary to achieve compliance with Code Section 409A. Accordingly, the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, “Termination Date” is the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in Section 409A, and thus all payments under this Agreement are being made upon Employee’s separation from service. In no event may Employee, directly or elsewhere to indirectly, designate the contrarycalendar year of a payment and where payment may occur in one year or the next, if Live Nation reasonably determines that (A) it shall be made in the second year. Each payment under this Agreement, including each salary continuation payment of Severance Pay, and each Benefits Offset Payment, shall be treated as a separate identified payment for purposes of Code Section 409A. Employee is a “specified employee” employee (within the meaning of as defined in Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) . Company and (B) commencement of any Employee agree that all payments or other benefits payable under this Agreement in connection with the that are scheduled to be paid within six months after Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee Termination Date qualify for an exception to an “additional tax” under Code Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion409A, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take all other actions to avoid the imposition of payments are made at a Section 409A Tax at such time and in such manner as permitted under a form that complies with Code Section 409A.
(vi) Notwithstanding anything herein to the contrary, the 409A. Employee expressly agrees and acknowledges that in the event that Company does not make any Section 409A Tax representations or is imposed in respect of any compensation or benefits payable providing tax advice to the Employee, whether under and that Employee has had the opportunity to consult with his own tax and financial counsel with respect to this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A TaxAgreement.”
Appears in 1 contract
Code Section 409A Compliance. (i) To A. This Plan shall be interpreted by the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended Committee to comply with the applicable requirements of Code Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) 409A. Notwithstanding anything in this Agreement or elsewhere herein to the contrary, for purposes (i) if at the time of determining the payment date Participant’s Termination of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Employment Participant is a “specified employee” (within as defined in Code Section 409A and the meaning of Treasury Regulation Section 1.409A-1(i)) on the date deferral of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits otherwise payable hereunder as a result of such Termination of Employment is necessary in order to prevent any accelerated or additional tax under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Code Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)409A, then Live Nation shall withhold the Employer will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Participant) until the first business day date that is six months following Participant’s Termination of Employment (or the earliest date as is permitted under Code Section 409A) and (ii) if any other payments of money or other benefits due to Participant hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board of Directors, that does not cause such an accelerated or additional tax.
B. The intent of the seventh month following parties is that payments and benefits under this Agreement comply with Code Section 409A and the date of regulations and guidance promulgated such that taxation under Code Section 409A shall not arise in connection with this Agreement, and, accordingly, to the Employee’s separation from service ormaximum extent permitted, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments Agreement shall be interpreted so as to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under compliance with Code Section 409A.
(vi) Notwithstanding anything herein to the contraryC. For purposes of Section 409A, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether each installment payment provided under this Agreement or otherwise, then (A) the payment of such Section 409A Tax Plan shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Taxtreated as a separate payment.”
Appears in 1 contract
Samples: Supplemental Executive Retirement Plan (Georgia-Carolina Bancshares, Inc)
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) ), in accordance with one or more of the exemptions available under the final Treasury regulations Regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee Executive is deemed to have incurred a termination of employment shall be the date on which the Employee Executive has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS Internal Revenue Service guidance under Code section Section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation the Company reasonably determines that (A) the Employee Executive is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the EmployeeExecutive’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the EmployeeExecutive’s separation from service on the scheduled payment dates specified in Sections 8(cSection 8(a) and through (d) c), will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation the Company shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the EmployeeExecutive’s separation from service or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii8(e)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interestwith interest equal to the “short-term applicable Federal rate” (within the meaning of Section 1274(d) of the Code), compounded annually, in effect on the date of such termination, on the Delayed Payment DateDate and the balance of the payments shall be made as otherwise scheduled.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee Executive within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii8(e)(iii) above, be determined by Live Nationthe Company, in its sole discretion, and the Employee Executive shall have no right to designate the year in which the payment shall be made.
(v) Live Nation The Company and the Employee Executive may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.409A. To the extent applicable, each of the exceptions to Section 409A’s prohibition on acceleration of payments of deferred compensation provided under Treasury Regulation 1.409A-3(j)(4) shall be permitted under this Agreement.
(vi) Notwithstanding anything herein to Each of the contrary, Company and the Employee expressly agrees Executive acknowledge and acknowledges agree that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) they have had their own independent legal counsel review this Agreement for purposes of compliance with the payment requirements of such Section 409A Tax shall be solely the Employee’s responsibilityor an exemption therefrom, and (B) neither Live Nation, each party is relying solely on the advice of its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability independent legal counsel for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Taxpurposes.”
Appears in 1 contract
Samples: Employment Agreement (Live Nation Entertainment, Inc.)
Code Section 409A Compliance. (i) To 8.1 It is the fullest extent applicable, amounts Company’s intent that compensation and other benefits payable to which you are entitled under this Agreement are intended to not be exempt from the definition of treated as “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended amended, and the treasury regulations and other official guidance promulgated thereunder (“Code Section 409A”) ), and that any ambiguities in accordance with one the construction of this Agreement be interpreted in order to effectuate such intent. In the event that the Company determines, in its sole discretion, that any compensation or more of the exemptions available benefits to which you are entitled under the final Treasury regulations promulgated this Agreement could be treated as “nonqualified deferred compensation” under Code Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, unless this Agreement is intended amended or modified, the Company may, in its sole discretion, amend or modify this Agreement without obtaining any additional consent from you, so long as such amendment or modification does not materially affect the net present value of the compensation or benefits to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall which you otherwise would be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intententitled under this Agreement.
(ii) Notwithstanding anything in this Agreement or elsewhere 8.2 A termination of employment shall not be deemed to the contrary, have occurred for purposes of determining any provision of this Agreement providing for the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred or benefits upon or following a termination of employment shall be the date on which the Employee has incurred unless such termination is also a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h)Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere like terms shall mean “separation from service.” If you are deemed on the date of termination to the contrary, if Live Nation reasonably determines that (A) the Employee is be a “specified employee” (within the meaning of Treasury Regulation that term under Code Section 1.409A-1(i409A(a)(2)(B)) , then with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on the date account of the Employee’s a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (within a) the meaning expiration of Treasury Regulation Section 1.409A-1(h)) the six (6)-month period measured from the date of your “separation from service,” and (Bb) commencement the date of your death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to you in a lump sum, and any remaining payments or other and benefits payable due under this Agreement shall be paid or provided in connection accordance with the Employee’s separation from service on the scheduled normal payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” for them herein.
8.3 If a general release of claims, as contemplated under Section 409A(a)(1)(B7 hereof, is executed and delivered (and no longer subject to revocation) in the manner provided in said Section 7, then the following shall apply:
(together with any interest or penalties imposed with respect toa) To the extent that the Severance Pay is not “nonqualified deferred compensation” for purposes of Code Section 409A, or in connection withthen the Severance Pay shall commence upon the first scheduled payment date immediately following the date that the release is executed, such tax, a delivered and no longer subject to revocation (the “Section 409A TaxRelease Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon your termination of employment, and any payments made thereafter shall continue as provided herein.
(b) To the extent that the Severance Pay is “nonqualified deferred compensation” for purposes of Code Section 409A, then Live Nation shall withhold payment of any such payments or benefits until shall be made or commence upon the sixtieth (60th) day following your termination of employment. The first business such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon your termination of employment, and any payments made thereafter shall continue as provided herein.
8.4 For purposes of compliance with Code Section 409A, (a) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the seventh month taxable year following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the taxable year in which such expenses were incurred by you, (b) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (c) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the payment expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
8.5 For purposes of Code Section 409A, your right to receive any installment payments pursuant to this Agreement shall be madetreated as a right to receive a series of separate and distinct payments.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition 8.6 In no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of a Code Section 409A Tax at such time and in such manner as be subject to offset by any other amount unless otherwise permitted under by Code Section 409A.
(vi) Notwithstanding anything herein to 8.7 In no event whatsoever shall the contraryCompany be liable for any additional tax, the Employee expressly agrees and acknowledges interest or penalty that in the event that any may be imposed on you by Code Section 409A Tax is imposed in respect of any compensation or benefits payable damages for failing to the Employee, whether under this Agreement or otherwise, then (A) the payment of such comply with Code Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”409A.
Appears in 1 contract
Samples: Letter Agreement of Employment (New York & Company, Inc.)
Code Section 409A Compliance. (i) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended comply with IRC Section 409A and the regulations and guidance promulgated thereunder and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be exempt from in compliance therewith. To the definition of extent that any payment or benefit described in this Agreement constitutes “nonqualified non-qualified deferred compensation” under section IRC Section 409A of the Internal Revenue Code of 1986, as amended (“or is intended to qualify for an exemption under IRC Section 409A”) and such payment or benefit is payable upon Executive’s termination of employment or termination of this Agreement, then the phrase “termination of employment,” “termination of this Agreement” and other similar phrases in this Agreement will be deemed to mean a “separation from service,” as defined in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under IRC Section 409A andand corresponding Treasury regulations. Additionally, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable reimbursements under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere are subject to the contraryprovisions of IRC Section 409A , if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date any such reimbursements payable to Executive will be paid to Executive no later than December 31 of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month year following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contraryexpense was incurred, the Employee expressly agrees amount of the expenses reimbursed in one year will not affect the amount eligible for reimbursement in any subsequent year, and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable Executive’s right to the Employee, whether reimbursement under this Agreement will not be subject to liquidation or otherwise, then (A) the payment exchange for another benefit. The Company makes no representation or warranty and will have no liability to Executive or any other person with respect to whether any provision of such this Agreement fails to comply with IRC Section 409A Tax or fails to satisfy an intended exemption from IRC Section 409A. In no event whatsoever shall the Company be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability liable for any such Section 409A Taxadditional tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims interest or liabilities penalty that may arise in respect of any such be imposed on Executive by IRC Section 409A Tax.”409A.
Appears in 1 contract
Code Section 409A Compliance. (i) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulationspermitted, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to be in compliance therewith. In no event whatsoever shall the extent possible in a manner consistent Company be liable for any additional tax, interest or penalty that may be imposed on Executive by Code Section 409A or damages for failing to comply with the foregoing statement of intent.Code Section 409A.
(ii) Notwithstanding anything in this Agreement or elsewhere herein to the contrary, for purposes of determining (A) the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement Severance Payments shall be paid only in connection with a termination of employment, the date Executive’s employment that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred constitutes a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), Code Section 409A and each reference to “Separation,” “date of Separation,” “termination of employment” or in subsequent IRS guidance under Code section 409A.
such similar term shall be interpreted to mean a “separation from service” and (iiiB) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within the meaning of Treasury Regulation as such term is defined under Code Section 1.409A-1(i)) on the date 409A, payment of the Employee’s “separation from service” Severance Payments shall be delayed for a period of six (within the meaning of Treasury Regulation Section 1.409A-1(h)6) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employeemonths following Executive’s separation from service on of employment to the scheduled payment dates specified in Sections 8(c) extent and (d) will subject the Employee up to an “additional tax” amount necessary to ensure such payments are not subject to the penalties and interest under Code Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, 409A. If the payments are delayed as a “Section 409A Tax”)result of the previous sentence, then Live Nation shall withhold payment of any such payments or benefits until on the first business day following the end of such six (6) month period (or such earlier date upon which such amount can be paid under Code Section 409A without resulting in a prohibited distribution), the Company shall pay Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period.
(iii) For purposes of compliance with Code Section 409A, (A) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the seventh month taxable year following the date of taxable year in which such expenses were incurred by Executive, (B) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the Employee’s separation from service orexpenses eligible for reimbursement, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments or in-kind benefits to be withheldprovided, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Dateany other taxable year.
(iv) In each case where For purposes of Code Section 409A, Executive’s right to receive any installment payments pursuant to this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to shall be made to the Employee within treated as a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be madereceive a series of separate and distinct payments.
(v) Live Nation and the Employee may agree to take Notwithstanding any other actions to avoid the imposition provision of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein this Agreement to the contrary, the Employee expressly agrees and acknowledges that in the no event that shall any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether payment under this Agreement or otherwise, then (A) the payment that constitutes “nonqualified deferred compensation” for purposes of such Code Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor subject to offset by any of their respective past or present directors, officers, employees or agents shall have any liability for any such other amount unless otherwise permitted by Code Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”409A.
Appears in 1 contract
Code Section 409A Compliance. (ia) To the fullest extent applicable, amounts and other benefits payable under this Agreement Agreement, and amounts and benefits payable under any other agreements or plans referenced in this Agreement, are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and409A. In this regard, to each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything , and any ambiguity as to its compliance with Section 409A will be read in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts such a manner so that are treated as nonqualified deferred compensation under all payments hereunder comply with Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.Code.
(iiib) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within as determined by the meaning of Treasury Regulation Section 1.409A-1(i)) Compensation Committee on the date of the Employee’s “separation from service” (within as such terms are defined for purposes of Code Section 409A), and the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of Company reasonably determines that any payments amount or other benefits benefit payable under this Agreement in connection with the Employee’s on account of such separation from service on the scheduled payment dates specified in Sections 8(c) and (d) constitutes nonqualified deferred compensation that will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then Live Nation the payment or provision thereof shall withhold payment of any such payments or benefits until be postponed to the first business day of the seventh month following the date of the Employee’s separation from service termination or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, The Executive and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee Company may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. In the event that this Section 8 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, the provisions of this Agreement which require the commencement of payments subject to Section 409A upon a termination of employment shall be interpreted to require that the Executive have a “separation from service” with the Company as defined for purposes of Code Section 409A.
(vic) Notwithstanding anything herein To the extent the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the contraryExecutive, the Employee expressly agrees and acknowledges that Company shall reimburse any such eligible fees or expenses no later than 2 1/2 months after the end of the calendar year in which the event that fees or expenses were incurred (or if later, 2 1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any Section 409A Tax is imposed in respect earlier required deadline for payment otherwise applicable under this Agreement. Notwithstanding any contrary provision herein, to the extent any expense reimbursement or the provision of any compensation or benefits payable to the Employee, whether in-kind benefit under this Agreement or otherwise, then (A) the payment of such is determined to be subject to Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect Code, the amount of any such Section 409A Tax.”expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit. (d)
Appears in 1 contract
Code Section 409A Compliance. (ia) To the fullest extent applicable, amounts and other benefits payable under this Agreement Agreement, and amounts and benefits payable under any other agreements or plans referenced in this Agreement, are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and409A. In this regard, to each payment under Section 1 of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything , and any ambiguity as to its terms or its compliance with Section 409A will be read in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts such a manner so that are treated as nonqualified deferred compensation under all payments hereunder comply with Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.Code.
(iiib) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within as determined by the meaning of Treasury Regulation Section 1.409A-1(i)) Compensation Committee on the date of the Employee’s “separation from service” (within as such terms are defined for purposes of Code Section 409A), and the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of Company reasonably determines that any payments amount or other benefits benefit payable under this Agreement in connection with the Employee’s on account of such separation from service on the scheduled payment dates specified in Sections 8(c) and (d) constitutes nonqualified deferred compensation that will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then Live Nation the payment or provision thereof shall withhold payment of any such payments or benefits until be postponed to the first business day of the seventh month following the date of the Employee’s separation from service termination or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, Executive and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee Company may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. In the event that this Section 4 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, the provisions of this Agreement which require the commencement of payments subject to Section 409A upon a termination of employment shall be interpreted to require that Executive have a “separation from service” with the Company as defined for purposes of Code Section 409A.
(vic) Notwithstanding anything herein To the extent the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the contraryExecutive, the Employee Company shall reimburse any such eligible fees or expenses no later than 2-1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2-1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. Except as otherwise expressly agrees and acknowledges that in provided herein, to the event that extent any Section 409A Tax is imposed in respect expense reimbursement or the provision of any compensation or benefits payable to the Employee, whether in-kind benefit under this Agreement or otherwise, then (A) the payment of such is determined to be subject to Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect Code, the amount of any such Section 409A Taxexpenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.”
Appears in 1 contract
Samples: Executive Change in Control Agreement (Headwaters Inc)
Code Section 409A Compliance. (ia) To the fullest extent applicable, amounts and other benefits payable under this Agreement Agreement, and amounts and benefits payable under any other agreements or plans referenced in this Agreement, are intended to be exempt from the definition of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and409A. In this regard, to each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything , and any ambiguity as to its compliance with Section 409A will be read in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts such a manner so that are treated as nonqualified deferred compensation under all payments hereunder comply with Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.Code.
(iiib) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee Executive is a “specified employee” (within as determined by the meaning of Treasury Regulation Section 1.409A-1(i)) Compensation Committee on the date of the Employee’s “separation from service” (within as such terms are defined for purposes of Code Section 409A), and the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of Company reasonably determines that any payments amount or other benefits benefit payable under this Agreement in connection with the Employee’s on account of such separation from service on the scheduled payment dates specified in Sections 8(c) and (d) constitutes nonqualified deferred compensation that will subject the Employee Executive to an “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”)) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then Live Nation the payment or provision thereof shall withhold payment of any such payments or benefits until be postponed to the first business day of the seventh month following the date of the Employee’s separation from service termination or, if earlier, the date of the EmployeeExecutive’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, The Executive and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee Company may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. In the event that this Section 8 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, the provisions of this Agreement which require the commencement of payments subject to Section 409A upon a termination of employment shall be interpreted to require that the Executive have a “separation from service” with the Company as defined for purposes of Code Section 409A.
(vic) Notwithstanding anything herein To the extent the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the contraryExecutive, the Employee Company shall reimburse any such eligible fees or expenses no later than 2 1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2 1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. Except as otherwise expressly agrees and acknowledges that in provided herein, to the event that extent any Section 409A Tax is imposed in respect expense reimbursement or the provision of any compensation or benefits payable to the Employee, whether in-kind benefit under this Agreement or otherwise, then (A) the payment of such is determined to be subject to Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect Code, the amount of any such Section 409A Taxexpenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.”
Appears in 1 contract
Code Section 409A Compliance. (i) To the fullest extent applicable, It is Company’s intent that amounts and other benefits payable paid under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section shall comply with Section 409A of the Internal Revenue Code of 1986, as amended amended, and the regulations promulgated thereunder (“Code Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from exception to Code Section 409A because the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, amounts paid under this Agreement is intended Plan are structured to comply with the applicable requirements of exceptions to Code Section 409A with respect to such amounts or benefits. 409A. This Agreement shall be interpreted interpreted, operated and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(ii) Notwithstanding anything these intentions, and payment shall be made in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under a manner consistent with Code Section 409A of the Code that become payable and its applicable exceptions. No payments to be made under this Agreement may be accelerated or deferred except as specifically permitted under Code Section 409A. To the extent that any regulations or other guidance issued under Code Section 409A would result in connection with a termination Employee being subject to payment of employmentadditional income taxes or interest under Code Section 409A, the date that parties agree to amend this Agreement to maintain to the Employee is deemed maximum extent practicable the original intent of this Agreement while avoiding the application of such taxes or interest. All payments to have incurred be made upon a termination of employment shall under this Plan may only be the date on which the Employee has incurred made upon a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning Section 409A. Each payment of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable compensation under this Agreement in connection with shall be treated as a separate payment of _/s/BWS/DS_ Initials compensation under Code Section 409A. Accordingly, those payments under this Agreement that when aggregated together exceed the lesser of two times (a) Employee’s separation from service on annual compensation in the scheduled payment dates specified in Sections 8(cyear preceding the year of the Termination Date or (b) and (dthe annual compensation limit prescribed by Code Section 401(a)(17) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits not commence until the first business day of the seventh month following the payroll date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days occurs after the date of termination) and such period begins and ends in different calendar yearsthat is 6 months after the Termination Date. In no event may Employee, the exact payment date within such range shalldirectly or indirectly, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the calendar year of a payment and where payment may occur in which one year or the payment next, it shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that made in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Taxsecond year.”
Appears in 1 contract
Code Section 409A Compliance. (i) To the fullest extent applicable, amounts and This Agreement is intended to be drafted in a manner such that no amount or other benefits payable benefit provided under this Agreement are intended becomes subject to be exempt from the definition of “nonqualified deferred compensation” (a) gross income inclusion under section Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated (b) interest and additional tax under Section 409A and(collectively, “Section 409A Penalties”), including, where appropriate, the construction of defined terms to have meanings that would not cause the extent imposition of the Section 409A Penalties. Any provisions of the Agreement that any such amount or benefit is or becomes are subject to Section 409A due are intended to a failure to qualify for comply with all applicable requirements of Section 409A, or an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements application of Section 409A with respect to such amounts or benefits. This Agreement 409A, and shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement accordingly. Notwithstanding any provision of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, for purposes of determining the payment date of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) any benefit provided hereunder would be subject to Section 409A Penalties because the Employee timing of such benefit is not delayed as required by Section 409A for a “specified employee” (within the meaning of Treasury Regulation as defined under Section 1.409A-1(i409A)) , then if Grantee is on the applicable date of a specified employee, any such benefit that Grantee would otherwise be entitled to receive during the Employeefirst six months following Grantee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” as defined under Section 409A(a)(1)(B409A) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month following the date of the Employee’s separation from service or, if earlier, the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g.paid, within 30 ten (10) days after the date that is six months following Grantee’s date of termination) and “separation from service”, or such period begins and ends in different calendar years, the exact payment earlier date within upon which such range shall, benefit can be provided under Section 409A without being subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at Penalties such time and in such manner as permitted under as, for example, upon Grantee’s death. In no event whatsoever shall the Company or any of its affiliates be liable to the Participant or any party for any additional tax, interest or penalties that may be imposed on Participant or any other person by Section 409A or any damages for failing to comply with Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Samples: Time Based Restricted Stock Unit Grant Agreement (KMG Chemicals Inc)
Code Section 409A Compliance. (i) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to comply with, or be exempt from the definition of “nonqualified deferred compensation” under section from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulationspermitted, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to be in compliance therewith; provided, that the extent possible in a manner consistent Company does not guarantee to Consultant any particular tax treatment with the foregoing statement of intent.
(ii) Notwithstanding anything in respect to this Agreement and any payments hereunder. In no event whatsoever shall the Company be liable for any additional tax, interest or elsewhere penalties that may be imposed on Consultant by Code Section 409A or any damages for failing to the contrary, for comply with Code Section 409A. For purposes of determining the payment date of Code Section 409A, Consultant’s right to receive any amounts that are installment payments pursuant to this Agreement shall be treated as nonqualified deferred compensation under Section 409A a right to receive a series of the Code that become payable separate and distinct payments. Whenever a payment under this Agreement in connection specifies a payment period with reference to a termination number of employmentdays (e.g., the date that the Employee is deemed to have incurred a termination of employment “payment shall be the date on which the Employee has incurred a “separation from service” made within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits payable under this Agreement in connection with the Employee’s separation from service on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of the seventh month ten calendar days following the date of the Employee’s separation from service or, if earliertermination”), the actual date of payment within the Employee’s death (specified period shall be within the “Delayed Payment Date”)sole discretion of the Company. In no event may Consultant, directly or indirectly, designate the event calendar year of any payment to be made under this Agreement that is considered non-qualified deferred compensation. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; provided, that this clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 8(f)(iii105(b) requires any payments solely because such expenses are subject to be withheld, a limit related to the period the arrangement is in effect; and (iii) such withheld payments shall be accumulated and paid in a single lump sum, without interest, made on or before the Delayed Payment Date.
(iv) In each case where this Agreement provides for last day of Consultant’s taxable year following the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the taxable year in which the payment shall be madeexpense was incurred.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”
Appears in 1 contract
Code Section 409A Compliance. (i) To The Company and you each hereby affirm that it is their mutual view that the fullest extent applicable, amounts provision of payments and other benefits payable under this Agreement described or referenced herein are either exempt from or intended to be exempt from in compliance with the definition requirements of “nonqualified deferred compensation” under section Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury regulations relating thereto (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent and that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall each party’s tax reporting will be interpreted and administered to the extent possible completed in a manner consistent with such view. The Company and you each agree that upon the foregoing statement of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contraryRetirement Date, you will experience a “separation from service” for purposes of determining Section 409A. Any payments that qualify for the payment date “short-term deferral” exception or another exception under Section 409A will be paid under the applicable exception. For purposes of any amounts that are treated as the limitations on nonqualified deferred compensation under Section 409A of the Code that become payable Code, each payment of compensation under this Agreement in connection with will be treated as a termination separate payment of employment, the date that the Employee is deemed to have incurred a termination of employment shall be the date on which the Employee has incurred a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h), or in subsequent IRS guidance under Code section 409A.
(iii) compensation. Notwithstanding anything in this Agreement or elsewhere contained herein to the contrary, if Live Nation reasonably determines to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, consulting and noncompetition fee amounts in Section 4.1(d) that (A) the Employee is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and (B) commencement of any payments or other benefits would otherwise be payable under pursuant to this Agreement in connection with the Employee’s on account of separation from service during the six-month period immediately following the Retirement Date will instead be paid on the scheduled payment dates specified in Sections 8(c) and (d) will subject the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business day of after the seventh month date that is six months following the date of the Employee’s separation from service orRetirement Date (or death, if earlier). Notwithstanding anything to the contrary in this Agreement, all reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the date requirement that (x) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year; (y) the reimbursement of an eligible expense will be made no later than the last day of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate year following the year in which the expense is incurred; and (z) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company nor its affiliates will be liable in any manner for any federal, state or local income or excise taxes (including but not limited to any taxes under Sections 409A of the Code), or penalties or interest with respect thereto, as a result of the payment shall be made.
(v) Live Nation and the Employee may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to hereunder or the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect inclusion of any such compensation or benefits or the value thereof in your income. You acknowledge and agree that the Company will not be responsible for any additional taxes or penalties resulting from the application of Section 409A Tax.”409A.
Appears in 1 contract
Samples: Separation and Release Agreement (Gulfport Energy Corp)
Code Section 409A Compliance. (ia) To The intent of the fullest extent applicable, amounts parties is that payments and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue comply with Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any such amount or benefit provision hereof is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation modified in accordance with such final Treasury regulations, this Agreement is intended order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the parties hereto of the applicable requirements provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Code Section 409A or damages for failing to comply with respect Code Section 409A.
b) An "Employment Separation" shall not be deemed to such have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits. This Agreement shall be interpreted and administered to benefits upon or following an Employment Separation unless such Employment Separation is also a "separation from service" within the extent possible in a manner consistent with the foregoing statement meaning of intent.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contraryCode Section 409A and, for purposes of determining the payment date any such provision of any amounts that are treated as nonqualified deferred compensation under Section 409A of the Code that become payable under this Agreement in connection with a termination of employmentAgreement, the date that the Employee is deemed references to have incurred a termination of employment an Employment Separation or like terms shall be the date on which the Employee has incurred a “mean "separation from service” ." If the Executive is deemed on the date of termination to be a "specified employee" within the meaning of Treasury Regulation section 1.409A-1(hthat term under Code Section 409A(a)(2)(B), then with regard to any payment or in subsequent IRS guidance the provision of any benefit that is considered deferred compensation under Code section 409A.
Section 409A payable on account of a "separation from service," such payment or benefit shall be made or provided at the date which is the earlier of (iii) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Live Nation reasonably determines that (Ai) the Employee is a “specified employee” expiration of the six (within 6)-month period measured from the meaning date of Treasury Regulation Section 1.409A-1(i)such "separation from service" of the Executive, and (ii) on the date of the Employee’s “separation from service” Executive's death (within the meaning "Delay Period"). Upon the expiration of Treasury Regulation the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(h)(whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and (B) commencement of any remaining payments or other and benefits payable due under this Agreement shall be paid or provided in connection accordance with the Employee’s separation from service on the scheduled normal payment dates specified in Sections 8(cfor them herein.
c) and (d) will subject All expenses or other reimbursements under this Agreement shall be made on or prior to the Employee to an “additional tax” under Section 409A(a)(1)(B) (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then Live Nation shall withhold payment of any such payments or benefits until the first business last day of the seventh month taxable year following the date taxable year in which such expenses were incurred by the Executive (provided that if any such reimbursements constitute taxable income to the Executive, such reimbursements shall be paid no later than March 15th of the Employee’s separation from service or, if earlier, calendar year following the date of the Employee’s death (the “Delayed Payment Date”). In the event that this Section 8(f)(iii) requires any payments to be withheld, such withheld payments shall be accumulated and paid in a single lump sum, without interest, on the Delayed Payment Date.
(iv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Employee within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(f)(iii) above, be determined by Live Nation, in its sole discretion, and the Employee shall have no right to designate the year in which the expenses to be reimbursed were incurred), and no such reimbursement or expenses eligible for Change in Control & Non-competition Agreement I reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year.
d) For purposes of Code Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be mademade within thirty (30) days"), the actual date of payment within the specified period shall be within the sole discretion of the Company.
(ve) Live Nation and the Employee may agree to take other actions to avoid the imposition In no event shall any payment under this Agreement that constitutes "deferred compensation" for purposes of a Code Section 409A Tax at such time and in such manner as permitted under Section 409A.
(vi) Notwithstanding anything herein be offset by any other payment pursuant to the contrary, the Employee expressly agrees and acknowledges that in the event that any Section 409A Tax is imposed in respect of any compensation or benefits payable to the Employee, whether under this Agreement or otherwise, then (A) the payment of such Section 409A Tax shall be solely the Employee’s responsibility, (B) neither Live Nation, its affiliated entities nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such Section 409A Tax, and (C) the Employee shall indemnify and hold harmless, to the greatest extent permitted under law, each of the foregoing from and against any claims or liabilities that may arise in respect of any such Section 409A Tax.”"
Appears in 1 contract
Samples: Change in Control & Non Competition Agreement (Commercial Vehicle Group, Inc.)
