Common use of Compliance with Section 409A of the Code Clause in Contracts

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 9 contracts

Samples: Retention Agreement (Retail Properties of America, Inc.), Retention Agreement (Retail Properties of America, Inc.), Retention Agreement (Retail Properties of America, Inc.)

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Compliance with Section 409A of the Code. The parties intend that this 6.1. This Agreement (and all payments and other benefits provided under this Agreement) Agreement are intended to comply with, or be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “from, Section 409A”), and shall be construed and interpreted in accordance with such intent. However, the Company does not guarantee any particular tax effect for income provided to the maximum extent possible, whether Executive pursuant to this Agreement, and except for the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4)Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii)Company shall not be responsible for the payment of any applicable taxes, penalties, interest, costs, fees, including attorneys’ fees, or otherwiseother liability incurred by Executive in connection with compensation paid or provided to Executive pursuant to this Agreement. 6.2. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement on account of Executive’s termination of employment with the Company which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid in a lump sum on the Delayed Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the Delayed Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. (b) Each payment made under this Agreement shall be treated as a separate payment and the 6.3. Any right of Executive to a series of receive installment payments under this Agreement shall shall, for all purposes of Section 409A, be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 7 contracts

Samples: Employment Agreement (Everi Holdings Inc.), Employment Agreement (Everi Holdings Inc.), Employment Agreement (Everi Holdings Inc.)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) 19.1 No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) 19.2 Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) 19.3 With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The 19.4 Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. 19.5 Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 7 contracts

Samples: Executive Employment Agreement (Jda Software Group Inc), Executive Employment Agreement (Jda Software Group Inc), Executive Employment Agreement (Jda Software Group Inc)

Compliance with Section 409A of the Code. The parties intend that this 6.1. This Agreement (and all payments and other benefits provided under this Agreement) Agreement are intended to comply with, or be exempt from the requirements of from, Section 409A of the Code and the or any regulations and ruling issued or rulings thereunder (collectively “Section 409A”), and shall be construed and interpreted in accordance with such intent. However, the Company does not guarantee any particular tax effect for income provided to the maximum extent possible, whether Executive pursuant to this Agreement, and except for the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4)Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii)Company shall not be responsible for the payment of any applicable taxes, penalties, interest, costs, fees, including attorneys’ fees, or otherwiseother liability incurred by Executive in connection with compensation paid or provided to Executive pursuant to this Agreement. 6.2. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement on account of Executive’s termination of employment with the Company which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid in a lump sum on the Delayed Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the Delayed Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. (b) Each payment made under this Agreement shall be treated as a separate payment and the 6.3. Any right of Executive to a series of receive installment payments under this Agreement shall shall, for all purposes of Section 409A, be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 7 contracts

Samples: Employment Agreement, Employment Agreement (Everi Holdings Inc.), Employment Agreement (Everi Holdings Inc.)

Compliance with Section 409A of the Code. The parties intend that (a) To the extent any of the benefits payable under Section 9(b), (c) or (d) of this Agreement constitute non-qualified deferred compensation subject to Section 409A of the Code, the following provisions shall apply: (and all payments and other i) Any termination of employment triggering payment of such benefits provided must constitute a “separation from service” under Section 409A of the Code before distribution of such benefits can commence. For purposes of clarification, this Agreementparagraph shall not cause any forfeiture of benefits on the part of the Executive, but shall only act as a delay until such time as a “separation from service” occurs. (ii) be exempt from If the requirements of Executive is a “specified employee” (as that term is used in Section 409A of the Code and the regulations and ruling other guidance issued thereunder thereunder) on the date his separation from service becomes effective, any benefits payable under Section 9 that constitute non-qualified deferred compensation subject to Section 409A of the Code shall be delayed until the earlier of (collectively A) the business day following the six-month anniversary of the date his separation from service becomes effective, and (B) the date of the Employee’s death, but only to the extent necessary to avoid the imposition of accelerated or increased income taxes, excise taxes or other penalties under Section 409A of the Code. On the earlier of (A) the business day following the six-month anniversary of the date his separation from service becomes effective, and (B) the Executive’s death, the Company shall pay the Executive in a lump sum the aggregate value of the non-qualified deferred compensation that the Company otherwise would have paid the Executive prior to that date under Section 9 of this Agreement. (iii) It is intended that each installment of the payments and benefits provided under Section 9 this Agreement shall be treated as a separate payment” for purposes of Section 409A”409A of the Code. In particular, if the installment severance payments set forth in Sections 9(b)(i), 9(c)(i) and 9(d)(i) of this Agreement otherwise qualify under Treas. Reg. §1.409A-1(b)(9)(iii) as an involuntary separation plan, the installment severance payments shall be divided into two portions. That number of installments commencing on the first payment date set forth in Sections 9(b)(i), 9(c)(i) and 9(d)(i) of this Agreement that are in the aggregate less than two times the applicable compensation limit under Section 401(a)(17) of the Code for the year in which the termination of the Executive’s employment occurs (provided the termination of the Executive’s employment is also a “separation from service”) shall be payable in accordance with Treas. Reg. §1.409A-1(b)(9)(iii) as an involuntary separation plan. The remainder of the installments shall be paid in accordance with Sections 21(a)(i) and (ii) above. (iv) Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), specifically permitted or otherwise. To the extent required by Section 409A is applicable to such payments, of the parties intend that this Agreement Code. (and such payments and benefitsb) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this if any term in the Agreement is ambiguous, such term or terms shall be interpreted, operated and administered interpreted in a manner consistent with such intentions. Without limiting that avoids the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral inclusion of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A 409A(a)(1) of the Code. HoweverFor purposes of clarification, this Section 20 shall be a rule of construction and interpretation and nothing in this Section 20 shall cause a forfeiture of benefits on the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for part of the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 6 contracts

Samples: Employment Agreement (Cyclacel Pharmaceuticals, Inc.), Employment Agreement (Cyclacel Pharmaceuticals, Inc.), Employment Agreement (Cyclacel Pharmaceuticals, Inc.)

Compliance with Section 409A of the Code. The parties intend Notwithstanding anything herein to the contrary, (a) if at the time of Executive's termination of employment with the Company Executive is a "specified employee" as such term is defined in Section 409A of the Code and the regulations thereunder, and the deferral of the commencement of any 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 of the Code, then the Company 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 Executive) until the date that is six (6) months following Executive's termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code) and (b) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement (and all are deferred pursuant to this Section 12 in order to prevent any accelerated tax or additional tax under Section 409A of the Code, then such payments and other benefits provided shall be paid at the time specified under this Agreement) Section 12 without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 12; provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, a termination of employment shall not be exempt deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a "Separation from the requirements of Service" as such term is defined in Section 409A of the Code and the regulations and ruling issued guidance promulgated thereunder (collectively “Section 409A”)and, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to for purposes of any such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement Agreement, references to the contrary, this Agreement a "resignation," "termination," "termination of employment," or like terms shall be interpreted, operated and administered in a manner consistent with such intentionsmean Separation from Service. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning For purposes of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement shall be treated designated as a "separate payment and payment" within the right meaning of the Section 409A of the Code. Notwithstanding anything to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefitsthe contrary herein, except for to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a "deferral of compensation,” " within the meaning of Section 409A, 409A of the Code: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (iix) the amount of expenses eligible for reimbursement, reimbursement or in-kind benefits provided, provided to Executive during any taxable calendar year shall will not affect the amount of expenses eligible for reimbursement, reimbursement or in-kind benefits provided to be provided, Executive in any other taxable calendar year, provided that (y) the foregoing clause (ii) shall not be deemed reimbursements for expenses for which Executive is entitled to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable the calendar year following the taxable calendar year in which the applicable expense occurred. is incurred, and (dz) The Company intends that income provided the right to Executive pursuant to this Agreement will payment or reimbursement or in-kind benefits hereunder may not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee liquidated or exchanged for any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementother benefit.

Appears in 6 contracts

Samples: Executive Employment Agreement (MusclePharm Corp), Executive Employment Agreement (MusclePharm Corp), Executive Employment Agreement (MusclePharm Corp)

Compliance with Section 409A of the Code. The parties intend Notwithstanding anything herein to the contrary, (a) if at the time of Executive’s termination of employment with the Company Executive is a “specified employee” as such term is defined in Section 409A of the Code and the regulations thereunder, and the deferral of the commencement of any 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 of the Code, then the Company 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 Executive) until the date that is six (6) months following Executive’s termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code) and (b) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement (and all are deferred pursuant to this Section 12 in order to prevent any accelerated tax or additional tax under Section 409A of the Code, then such payments and other benefits provided shall be paid at the time specified under this Agreement) Section 12 without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 12; provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, a termination of employment shall not be exempt deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “Separation from the requirements of Service” as such term is defined in Section 409A of the Code and the regulations and ruling issued guidance promulgated thereunder (collectively “Section 409A”)and, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to for purposes of any such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement Agreement, references to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral resignation,” “termination,” “termination of compensationemployment,within the meaning or like terms shall mean Separation from Service. For purposes of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement shall be treated designated as a separate payment and payment” within the right meaning of the Section 409A of the Code. Notwithstanding anything to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefitsthe contrary herein, except for to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, 409A of the Code: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (iix) the amount of expenses eligible for reimbursement, reimbursement or in-kind benefits provided, provided to Executive during any taxable calendar year shall will not affect the amount of expenses eligible for reimbursement, reimbursement or in-kind benefits provided to be provided, Executive in any other taxable calendar year, provided that (y) the foregoing clause (ii) shall not be deemed reimbursements for expenses for which Executive is entitled to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable the calendar year following the taxable calendar year in which the applicable expense occurred. is incurred, and (dz) The Company intends that income provided the right to Executive pursuant to this Agreement will payment or reimbursement or in-kind benefits hereunder may not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee liquidated or exchanged for any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementother benefit.

Appears in 5 contracts

Samples: Executive Employment Agreement (MusclePharm Corp), Executive Employment Agreement (MusclePharm Corp), Executive Employment Agreement (MusclePharm Corp)

Compliance with Section 409A of the Code. The parties intend (a) Notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation the severance payments and benefits under Section 6 will be paid to Executive if Executive is a Specified Employee until the six-month anniversary of Executive’s Separation From Service to the extent that paying such amounts at the time or times indicated in this Agreement (and all payments and other benefits provided would result in a prohibited distribution under this AgreementSection 409A(a)(2)(B)(i) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder Code. (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. b) To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contraryapplicable, this Agreement shall be interpretedinterpreted and applied consistent and in accordance with Section 409A. The parties agree to act in good faith in complying with the requirements of Section 409A. For purposes of this Agreement, operated all references to “termination”, “termination of employment”, Date of Termination and administered correlative phrases shall mean a Separation From Service. In the event additional regulations or other guidance are issued under Section 409A or a court of competent jurisdiction provides additional authority concerning the application of Section 409A with respect to the payments described in a manner consistent with such intentions. Without limiting this Agreement, then the generality of parties agree to act in good faith to amend the foregoing, and notwithstanding any other provision provisions of this Agreement to permit such payments to be made at the contrary: (a) No amount payable pursuant to earliest time permitted under such additional regulations, guidance or authority that as closely as practicable achieves the original intent of this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate paymentsAgreement. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within To the meaning of extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation §1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. (id) To the extent that any payments or reimbursements provided to Executive under this Agreement are deemed to constitute compensation to which Treasury Regulation §1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed to Executive reasonably promptly, but not later than December 31 of the year following the year in which the expense was incurred. The amounts of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and Executive’s right to such payments or 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredbenefit. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 5 contracts

Samples: Executive Employment Agreement (Independence Contract Drilling, Inc.), Executive Employment Agreement (Independence Contract Drilling, Inc.), Executive Employment Agreement (Independence Contract Drilling, Inc.)

Compliance with Section 409A of the Code. The parties intend (a) Notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation the severance payments and benefits under Section 6 will be paid to Executive if Executive is a Specified Employee until the six-month anniversary of Executive’s Separation From Service to the extent that paying such amounts at the time or times indicated in this Agreement (and all payments and other benefits provided would result in a prohibited distribution under this AgreementSection 409A(a)(2)(B)(i) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder Code. (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. b) To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contraryapplicable, this Agreement shall be interpretedinterpreted and applied consistent and in accordance with Section 409A. The parties agree to act in good faith in complying with the requirements of Section 409A. For purposes of this Agreement, operated all references to “termination,” “termination of employment,” Date of Termination and administered correlative phrases shall mean a Separation From Service. In the event additional regulations or other guidance are issued under Section 409A or a court of competent jurisdiction provides additional authority concerning the application of Section 409A with respect to the payments described in a manner consistent with such intentions. Without limiting this Agreement, then the generality of parties agree to act in good faith to amend the foregoing, and notwithstanding any other provision provisions of this Agreement to permit such payments to be made at the contrary: (a) No amount payable pursuant to earliest time permitted under such additional regulations, guidance or authority that as closely as practicable achieves the original intent of this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate paymentsAgreement. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within To the meaning of extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation §1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. (id) To the extent that any payments or reimbursements provided to Executive under this Agreement are deemed to constitute compensation to which Treasury Regulation §1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed to Executive reasonably promptly, but not later than December 31 of the year following the year in which the expense was incurred. The amounts of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and Executive’s right to such payments or 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredbenefit. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 4 contracts

Samples: Executive Employment Agreement (Independence Contract Drilling, Inc.), Executive Employment Agreement (Independence Contract Drilling, Inc.), Executive Employment Agreement (Independence Contract Drilling, Inc.)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling rulings issued thereunder (collectively collectively, “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such paymentspayments or benefits, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) a. No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, the Company shall, within ten (10) business days after the date of Executive’s separation from service, notify Executive that the Company is applying this Section 7.7(a) to the payment otherwise due to be paid to Executive and shall acknowledge in writing its obligation to accumulate and hold such amount in trust until paid in accordance with this Section 7.7(a) and except as otherwise permitted by Section 409A, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive before the date (the “Delayed Payment Date”) which is the first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from serviceservice (the “Delayed Payment Date”). All such amounts that would, but for this SectionSection 7.7(a), become payable prior to the Delayed Payment Date will be accumulated accumulated, held in trust for the benefit of Executive (subject only to the claims of the general creditors of the Company), and paid on the Delayed Payment Date. If a tax liability is created, the Company will withhold and pay any tax owed and the net of tax amount will be held in trust. (b) b. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) c. With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 of Executive shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) year of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effectExecutive, and (iii) any such payments reimbursement shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredwas incurred. (d) d. The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. 409A. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 4 contracts

Samples: Transition Agreement (Pico Holdings Inc /New), Transition Agreement (Pico Holdings Inc /New), Employment Agreement (Pico Holdings Inc /New)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii1.409A-1(b) (9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 4 contracts

Samples: Retention Agreement (Retail Properties of America, Inc.), Retention Agreement (Retail Properties of America, Inc.), Retention Agreement (Retail Properties of America, Inc.)

Compliance with Section 409A of the Code. The parties intend that (i) This Agreement is intended to comply with section 409A of the Code and its corresponding regulations, to the extent applicable. Severance benefits under this Agreement (and all payments and other benefits provided under this Agreement) are intended to be exempt from section 409A of the requirements Code under the “short term deferral” exemption, to the maximum extent applicable, and then under the “separation pay” exemption, to the maximum extent applicable. Notwithstanding anything in this Agreement to the contrary, payments may only be made under this Agreement upon an event and in a manner permitted by section 409A of Section the Code, to the extent applicable. As used in this Agreement, the term “termination of employment” shall mean the Executive’s separation from service with the Company within the meaning of section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)promulgated thereunder. In no event may the Executive, to directly or indirectly, designate the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisecalendar year of a payment. To the extent Section For purposes of section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoingCode, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement hereunder shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a the right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement or . All reimbursements and 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments this Agreement shall be made on or before provided in accordance with the last day requirements of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section section 409A of the Code. HoweverNotwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. (ii) Notwithstanding anything herein to the contrary, if, at the time of the Executive’s termination of employment with the Company, the Company does not guarantee has securities which are publicly traded on an established securities market and the Executive is a “specified employee” (as such term is defined in section 409A of the Code) and it is necessary to postpone the commencement of any particular payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax effect for income provided to Executive pursuant to this Agreement. In under section 409A of the Code, then the Company will postpone the commencement of the payment of any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise paid within the ‘short-term deferral exception’ under Treasury Regulations section 1.409A-1(b)(4), and the Company shall not “separation pay exception” under Treasury Regulations section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six (6) months following the Executive’s “separation of service” (as such term is defined under section 409A of the Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts will be responsible for paid in a lump sum to the Executive on the first payroll date that occurs after the date that is six months following Executive’s separation of service with the Company. If the Executive dies during the postponement period prior to the payment of any applicable taxes postponed amount, the amounts withheld on compensation account of section 409A of the Code shall be paid or provided to Executive pursuant to this Agreementthe personal representative of the Executive’s estate within sixty (60) days after the date of the Executive’s death.

Appears in 4 contracts

Samples: Change in Control and Severance Agreement (Tabula Rasa HealthCare, Inc.), Change in Control and Severance Agreement (Tabula Rasa HealthCare, Inc.), Change in Control and Severance Agreement (Tabula Rasa HealthCare, Inc.)

Compliance with Section 409A of the Code. The parties intend To the extent that this the Board determines that any Award granted hereunder is subject to Section 409A of the Code, the Award Agreement (evidencing such Award shall incorporate the terms and all payments conditions necessary to avoid the consequences specified in Section 409A(a)(1) of the Code. To the extent applicable, the Plan and other benefits provided under this Agreement) Award Agreements shall be exempt from interpreted in accordance with Section 409A of the Code. In the event that any provision of the Plan or an Award agreement is determined by the Board to not comply with the applicable requirements of Section 409A of the Code or the Treasury Regulations or other guidance issued thereunder, the Board shall have the authority to take such actions and the regulations and ruling issued thereunder (collectively “Section 409A”), to make such changes to the maximum extent possiblePlan or an Award Agreement as the Board deems necessary to comply with such requirements (including without limitation, whether after the grant date of an Award, increasing the exercise price to equal what was the Fair Market Value on the grant date of the Award). Each payment to a Participant made pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent this Plan shall be considered a separate payment and not one of a series of payments for purposes of Section 409A is applicable to such payments, of the parties intend that this Agreement (and such payments and benefits) comply with Code. Notwithstanding the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this foregoing or anything elsewhere in the Plan or an Award Agreement to the contrary, this Agreement shall be interpreted, operated and administered if upon a Participant’s Separation From Service (as defined in a manner consistent with such intentions. Without limiting the generality Section 409A of the foregoingCode), and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive he/she is then a “specified employee” within the meaning of (as defined in Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode), no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior then solely to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right extent necessary to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of comply with 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) 409A of the Code solely because such expenses are subject to a limit related to and avoid the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day imposition of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation taxes under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A of the Code payable as a result of and within six (6) months following such Separation From Service under this Plan until the earlier of (i) the first business day of the seventh month following the Participant’s Separation From Service, or (ii) ten (10) days after the Company receives written confirmation of the Participant’s death. Any such delayed payments shall be made without interest. While it is intended that all payments and benefits provided under this Plan will be exempt from or comply with Section 409A of the Code, the Company makes no representation or covenant to ensure that the Awards and payments under this Plan are exempt from or compliant with Section 409A of the Code. The Company will have no liability to any Participant or any other party if a payment or benefit under this Plan or any Award is challenged by any taxing authority or is ultimately determined not to be exempt or compliant. Each Participant further understands and agrees that each Participant will be entirely responsible for the payment of any applicable and all taxes on compensation paid any benefits payable to the Participant as a result of this Plan or provided any Award. In no event whatsoever shall the Company be liable for any additional tax, interest or penalties that may be imposed on a Participant by Section 409A of the Code or for any damages for failing to Executive pursuant to this Agreementcomply with Section 409A of the Code.

Appears in 4 contracts

Samples: Business Combination Agreement (TradeUP Global Corp), Business Combination Agreement (TradeUP Global Corp), Business Combination Agreement (Grab Holdings LTD)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreementa) be exempt from the requirements of Section 409A Notwithstanding any provision of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, contrary and except as provided by this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: clause (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within ), if the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” as defined under Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder, the Executive shall not be entitled to any payments or benefits in the nature of non-qualified deferred compensation within the meaning of Section 409A (determined using the identification methodology selected by “Deferred Compensation”) and the Company from time to timeshall not pay or provide such Deferred Compensation, or if none, upon a separation of his service until the default methodologyearlier of: (i) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of six (6) months after the Executive’s separation from service shall paid to Executive before for any reason other than death or (ii) the date of his death (the “Delayed Payment Date”). The provisions of this Section 22(a) which is first day shall apply only if necessary to avoid the imposition of taxes and penalties under Section 409A relating to the seventh month after the date payment of Executive’s separation from service or, if earlier, the date of Executive’s death following such non-qualified deferred compensation to specified employees upon their separation from service. All such amounts that would, but for this Section, become payable prior The determination of whether Section 409A is deemed to apply to the Delayed payment of any amounts hereunder shall be made in good faith by the Company after consultation with and advice from its legal or accounting advisors and after consulting with the Executive. If this Section 22(a) becomes applicable such that the payment of Deferred Compensation is delayed, any payments that are so delayed shall accrue interest, from the date of a separation of service through the Payment Date will be accumulated and paid Date, at the “prime rate” as reported in the Wall Street Journal (or such other nationally recognized source if no such rate is then available) on the Delayed date of such separation (or the first business day following such date if such separation does not occur on a business day) and shall be paid in a lump sum on the Payment Date. (b) Each payment made under If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Section 409A, the Company shall, after promptly consulting with and receiving the approval of the Executive (which shall not be treated as a separate payment unreasonably withheld), reform such provision; provided that, the Company agrees (both in the application of this subsection (b) and the right above subsection (a)) to a series maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of installment payments under this Agreement shall be treated as a right to a series the applicable provision without violating the provisions of separate payments.Section 409A. (c) With regard to This Section 22 shall survive any provision in this Agreement that provides for reimbursement termination of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 4 contracts

Samples: Employment Agreement (Houston Exploration Co), Employment Agreement (Houston Exploration Co), Employment Agreement (Houston Exploration Co)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) the Plan are intended to be exempt from the requirements provisions of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisepermitted by applicable law. To the extent Section 409A applicable, it is applicable to such payments, intended that the parties intend that this Agreement (and such payments and benefits) the Plan comply with the deferralprovisions of Section 409A of the Code, payout and other limitations and restrictions imposed under so that the income inclusion provisions of Section 409A. Notwithstanding any other provision 409A(a)(1) of this Agreement the Code do not apply to the contrary, this Employee. The Agreement and the Plan shall be interpreted, operated administered and administered interpreted in a manner consistent with such intentions. Without limiting this intent, and any provision that would cause the generality Agreement or the Plan to fail to satisfy Section 409A of the foregoingCode shall have no force and effect until amended to comply with Section 409A of the Code (which amendment may be retroactive to the extent permitted by Section 409A of the Code and may be made by the Company without the consent of the Employee). If the Award is subject to Section 409A of the Code, and notwithstanding a retirement or termination of employment shall not be deemed to occur for purposes of any other provision of this the Agreement to providing for the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral payment of compensation” within the meaning any amounts upon or following retirement or termination of Section 409A shall be paid employment unless and until Executive has incurred such retirement or termination is also a “separation from service” within the meaning of Section 409A. Furthermore409A of the Code, and for purposes of any such provision in the Agreement, references to a “termination,” “termination of employment,” “retire,” “retirement” or like terms shall mean “separation from service.” Notwithstanding anything in the Agreement to the extent that Executive contrary, if the Award is subject to Section 409A of the Code, and if the Employee is a “specified employeeSpecified Employee(within the meaning of Section the Company’s Specified Employee Policy for 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodologyArrangements) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid the Employee ceases to Executive before the date (the “Delayed Payment Date”) which is first day be an employee of the Company, then if there is a payout of the Award, such payout shall be delayed until and made during the seventh calendar month after following the date calendar month during which the Employee ceased to be an employee of Executive’s separation from service the Company (or, if earlier, the date calendar month following the calendar month of Executivethe Employee’s death following such separation from service. All such amounts that would, but for this Section, become payable prior death) to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered extent required by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. HoweverNotwithstanding the foregoing, the Company does not guarantee any no particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except result for the Company’s responsibility Employee with respect to withhold applicable any income recognized by the Employee in connection with the Agreement is guaranteed, and employment taxes from compensation paid or provided to Executive, the Company Employee solely shall not be responsible for any taxes, penalties or interest imposed on the payment Employee in connection with the Agreement. Reference to Section 409A of the Code will also include any applicable taxes on compensation paid proposed, temporary or provided final regulations, or any other guidance, promulgated with respect to Executive pursuant to this Agreementsuch Section by the U.S. Department of the Treasury or the Internal Revenue Service.

Appears in 4 contracts

Samples: Stock Option Award Agreement (L3harris Technologies, Inc. /De/), Stock Option Award Agreement (L3harris Technologies, Inc. /De/), Stock Option Award Agreement (L3harris Technologies, Inc. /De/)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreementa) be exempt from the requirements of Section 409A Notwithstanding any provision of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, contrary and except as provided by this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: clause (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within ), if the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” as defined under Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder, the Executive shall not be entitled to any payments or benefits in the nature of non-qualified deferred compensation within the meaning of Section 409A (determined using the identification methodology selected by “Deferred Compensation”) and the Company from time to timeshall not pay or provide such Deferred Compensation, or if none, upon a separation of his service until the default methodologyearlier of: (i) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of six (6) months after the Executive’s separation from service shall paid to Executive before for any reason other than death or (ii) the date of his death (the “Delayed Payment Date”). The provisions of this Section 20(a) which is first day shall apply only if necessary to avoid the imposition of taxes and penalties under Section 409A relating to the seventh month after the date payment of Executive’s separation from service or, if earlier, the date of Executive’s death following such non-qualified deferred compensation to specified employees upon their separation from service. All such amounts that would, but for this Section, become payable prior The determination of whether Section 409A is deemed to apply to the Delayed payment of any amounts hereunder shall be made in good faith by the Company after consultation with and advice from its legal or accounting advisors and after consulting with the Executive. If this Section 20(a) becomes applicable such that the payment of Deferred Compensation is delayed, any payments that are so delayed shall accrue interest, from the date of a separation of service through the Payment Date will be accumulated and paid Date, at the “prime rate” as reported in the Wall Street Journal (or such other nationally recognized source if no such rate is then available) on the Delayed date of such separation (or the first business day following such date if such separation does not occur on a business day) and shall be paid in a lump sum on the Payment Date. (b) Each payment made under If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Section 409A, the Company shall, after promptly consulting with and receiving the approval of the Executive (which shall not be treated as a separate payment unreasonably withheld), reform such provision; provided that, the Company agrees (both in the application of this subsection (b) and the right above subsection (a)) to a series maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of installment payments under this Agreement shall be treated as a right to a series the applicable provision without violating the provisions of separate payments.Section 409A. (c) With regard to This Section 20 shall survive any provision in this Agreement that provides for reimbursement termination of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 3 contracts

Samples: Employment Agreement (Houston Exploration Co), Employment Agreement (Houston Exploration Co), Employment Agreement (Houston Exploration Co)

Compliance with Section 409A of the Code. The parties intend that this This Agreement (and all payments and other benefits provided under this Agreement) the Award are intended to comply with, or otherwise be exempt from the requirements of from, Section 409A of the Code and the any regulations and ruling issued Treasury guidance promulgated thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision provisions of this Agreement to the contrary, any right of Participant to any payment under this Agreement shall upon termination of Participant’s employment will be interpreted, operated and administered in a manner consistent with payable only when such intentions. Without limiting the generality termination of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which employment constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive If Participant is a “specified employee” (within the meaning of Section 409A (and determined using the identification methodology selected pursuant to any policies adopted by the Company from consistent with Section 409A), at the time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of ExecutiveParticipant’s separation from service shall and if any portion of the payments or benefits to be received by Participant upon separation from service would be considered deferred compensation under Section 409A and cannot be paid or provided to Executive before Participant without Participant incurring taxes, interest or penalties under Section 409A, amounts that would otherwise be payable pursuant to this Agreement and benefits that would otherwise be provided pursuant to this Agreement, in each case, during the date six-month period immediately following Participant’s separation from service will instead be paid or made available on the earlier of (a) the “Delayed Payment Date”) which is first business day of the seventh month after following the date of ExecutiveParticipant’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each Participant’s death; provided, however, that such deferral will only be effected to the extent required to avoid adverse tax treatment to Participant, including (without limitation) the additional 20% tax for which Participant would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph will be paid to Participant or Participant’s beneficiary in one lump sum (without interest). It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as a “separation pay due to involuntary separation”). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder comply with Section 409A. Notwithstanding anything to the contrary set forth herein, the Company may amend this Agreement and the Award at any time and in any and all respects without Participant’s consent as the Board may, in its sole discretion, deem appropriate in order to comply with Section 409A and any guidance governing Section 409A. The Company will notify Participant of any such changes made to this Agreement and the Award. The preceding provisions, however, will not be construed as a guarantee by the Company of any particular tax effect to Participant of any payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement or the Award. The Company will not be liable to Participant for any payment under this Agreement that does not constitute a “deferral of compensation,” within the meaning of is determined to result in an additional tax, penalty or interest under Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange nor for another benefit, (ii) the reporting in good faith any payment as an 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, includible in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that gross income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.409A.

Appears in 3 contracts

Samples: Phantom Performance Share Unit Award Agreement (EnergySolutions, Inc.), Phantom Performance Share Unit Award Agreement (EnergySolutions, Inc.), Phantom Performance Share Unit Award Agreement (EnergySolutions, Inc.)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) the Plan are intended to be exempt from the requirements provisions of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisepermitted by applicable law. To the extent Section 409A applicable, it is applicable to such payments, intended that the parties intend that this Agreement (and such payments and benefits) the Plan comply with the deferralprovisions of Section 409A of the Code, payout and other limitations and restrictions imposed under so that the income inclusion provisions of Section 409A. Notwithstanding any other provision 409A(a)(1) of this Agreement the Code do not apply to the contrary, this Employee. The Agreement and the Plan shall be interpreted, operated administered and administered interpreted in a manner consistent with such intentions. Without limiting this intent, and any provision that would cause the generality Agreement or the Plan to fail to satisfy Section 409A of the foregoingCode shall have no force and effect until amended to comply with Section 409A of the Code (which amendment may be retroactive to the extent permitted by Section 409A of the Code and may be made by the Company without the consent of the Employee). If the Award is subject to Section 409A of the Code, and notwithstanding a retirement or termination of employment shall not be deemed to occur for purposes of any other provision of this the Agreement to providing for the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral payment of compensation” within the meaning any amounts upon or following retirement or termination of Section 409A shall be paid employment unless and until Executive has incurred such retirement or termination is also a “separation from service” within the meaning of Section 409A. Furthermore409A of the Code, and for purposes of any such provision in the Agreement, references to a “termination,” “termination of employment,” “retire,” “retirement” or like terms shall mean “separation from service.” Payments to an Employee who is Full Retirement Eligible are intended to comply with Treasury Regulation §1.409A-3(c). Notwithstanding anything in the Agreement to the extent that Executive contrary, if the Award is subject to Section 409A of the Code, and if the Employee is a “specified employeeSpecified Employee(within the meaning of Section the Company’s Specified Employee Policy for 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodologyArrangements) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid the Employee ceases to Executive before the date (the “Delayed Payment Date”) which is first day be an employee of the Company, then such payout shall be delayed until and made during the seventh calendar month after following the date calendar month during which the Employee ceased to be an employee of Executive’s separation from service the Company (or, if earlier, the date calendar month following the calendar month of Executivethe Employee’s death following such separation from service. All such amounts that would, but for this Section, become payable prior death) to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered extent required by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. HoweverNotwithstanding the foregoing, the Company does not guarantee any no particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except result for the Company’s responsibility Employee with respect to withhold applicable any income recognized by the Employee in connection with the Agreement is guaranteed, and employment taxes from compensation paid or provided to Executive, the Company Employee solely shall not be responsible for any taxes, penalties or interest imposed on the payment Employee in connection with the Agreement. Reference to Section 409A of the Code will also include any applicable taxes on compensation paid proposed, temporary or provided final regulations, or any other guidance, promulgated with respect to Executive pursuant to this Agreementsuch Section by the U.S. Department of the Treasury or the Internal Revenue Service.

Appears in 3 contracts

Samples: Restricted Unit Award Agreement (L3harris Technologies, Inc. /De/), Restricted Unit Award Agreement (L3harris Technologies, Inc. /De/), Restricted Unit Award Agreement (L3harris Technologies, Inc. /De/)

Compliance with Section 409A of the Code. The parties intend that 1. This Agreement shall at all times be administered and the provisions of this Agreement shall be interpreted consistent with the requirements of Section 409A of the Code and any and all regulations thereunder, including such regulations as may be promulgated after the Grant Date. Without limiting the foregoing, for purposes of Section 409A of the Code, (a) each “payment” (as defined by Section 409A of the Code) made under this Agreement or the options shall be considered a “separate payment;” (b) payments shall be deemed exempt from the definition of deferred compensation under Section 409A of the Code to the fullest extent possible under (i) the “short-term deferral” exemption of Treasury Regulation § 1.409A-1(b)(4), and (ii) with respect to amounts paid as separation pay no later than the second calendar year following the calendar year containing Grantee's “separation from service” (as defined for purposes of Section 409A of the Code) the “two years/two-times” separation pay exemption of Treasury Regulation § 1.409A-1(b)(9)(iii), which are hereby incorporated by reference, and (c) if Grantee is a “specified employee” as defined in Section 409A of the Code (and all payments as applied according to procedures of the Company and other benefits provided its affiliates) as of Grantee's separation from service, to the extent any payment under this AgreementAgreement or the Options constitutes deferred compensation (after taking into account any applicable exemptions from Section 409A of the Code) and to the extent required by Section 409A of the Code, no payments due under this Agreement or the Options may be exempt made until the earlier of: (i) the first day of the seventh month following Grantee's separation from service, or (ii) Grantee's date of death; provided, however, that any payments delayed during this six-month period shall be paid in the aggregate in a lump sum, without interest, on the first day of the seventh month following Grantee's separation from service. To the extent that the payment terms for the Options are otherwise set forth in a written employment agreement or change in control agreement with a specified employee (or other Company plan applicable to the specified employee) and such payment terms otherwise meet the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to application of such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered terms does not result in a manner consistent with such intentions. Without limiting the generality violation of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided foregoing payment terms shall be disregarded and the payment terms set forth in the applicable agreement or plan shall apply. 2. If this Agreement or the Options fail to Executive pursuant to this Agreement. In any eventmeet the requirements of Section 409A of the Code, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, neither the Company nor any of its Affiliates shall not be responsible have any liability for any tax, penalty or interest imposed on Grantee by Section 409A of the Code, and Grantee shall have no recourse against the Company or any of its Affiliates for payment of any applicable taxes on compensation paid such tax, penalty or provided to Executive pursuant to this Agreementinterest imposed by Section 409A of the Code.

Appears in 3 contracts

Samples: Inducement Stock Option Grant Agreement (Wright Medical Group Inc), Inducement Stock Option Grant Agreement (Wright Medical Group Inc), Inducement Stock Option Grant Agreement (Wright Medical Group Inc)

Compliance with Section 409A of the Code. The parties intend To the extent applicable, it is intended that this Award Agreement and the Plan comply with the provisions of Section 409A of the U.S. Internal Revenue Code, so that the income inclusion provisions of Section 409A(a)(1) do not apply to you. This Award Agreement and the Plan shall be administered in a manner consistent with this intent, and any provision that would cause the Award Agreement or the Plan to fail to satisfy Section 409A of the Code shall have no force and effect until amended to comply with Section 409A of the Code (and all payments and other benefits provided under this Agreement) which amendment may be exempt from retroactive to the requirements of extent permitted by Section 409A of the Code and may be made by the regulations and ruling issued thereunder (collectively “Section 409A”Company without your consent). In particular, to the maximum extent possible, whether the RSUs become nonforfeitable pursuant to a “Change in Control” and the short-term deferral exception described event causing the RSUs to become nonforfeitable is your retirement or an event that does not constitute a permitted distribution event under Section 409A(a)(2) of the Code, then notwithstanding anything to the contrary in Treasury Regulation Section 1.409A-1(b)(4)this Award Agreement, issuance of the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii)Common Shares will be made, or otherwise. To to the extent Section 409A is applicable necessary to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under provisions of Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality 409A of the foregoingCode, and notwithstanding any other provision to you on the earlier of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a your “separation from service” within with the meaning of Company (determined in accordance with Section 409A. Furthermore409A); provided, to the extent however, that Executive is if you are a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A), your date of issuance of the Common Shares shall be the date that is six months after the date of your separation of service with the Company, (ib) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) end of the amount of expenses eligible for reimbursementDeferral Period, or in-kind benefits provided, during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits (c) your death. Reference to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the CodeCode is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. However, This section applies only if you are a citizen or resident of the Company does United Sates or if the compensation is for services performed in the United States that is not guarantee any particular tax effect for otherwise exempt from United States federal income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementtaxation.

Appears in 3 contracts

Samples: Award Agreement (Scotts Miracle-Gro Co), Award Agreement (Scotts Miracle-Gro Co), Award Agreement (Scotts Miracle-Gro Co)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) 19.1 No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) 19.2 Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) 19.3 With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The 19.4 Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year of the Executive, payment shall be made in the Executive’s later taxable year. 19.5 Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 2 contracts

Samples: Executive Employment Agreement (Mobile Mini Inc), Executive Employment Agreement (Mobile Mini Inc)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling rulings issued thereunder (collectively collectively, “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such paymentspayments or benefits, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, the Company shall, within ten (10) business days after the date of Executive’s separation from service, notify Executive that the Company is applying this Section 11(a) to the payment otherwise due to be paid to Executive and shall acknowledge in writing its obligation to accumulate and hold such amount in trust until paid in accordance with this Section 11(a) and no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive before the date (the “Delayed Payment Date”) which is the first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from serviceservice (the “Delayed Payment Date”). All such amounts that would, but for this SectionSection 11(a), become payable prior to the Delayed Payment Date will be accumulated accumulated, held in trust for the benefit of Executive (subject only to the claims of the general creditors of the Company), and paid on the Delayed Payment Date. If a tax liability is created, the Company will withhold and pay any tax owed and the net of tax amount will be held in trust. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 of Executive shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) year of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effectExecutive, and (iii) any such payments reimbursement shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredwas incurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. 409A. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 2 contracts

Samples: Severance Agreement (Pico Holdings Inc /New), Severance Agreement (Pico Holdings Inc /New)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and A. Notwithstanding any other benefits provided under provisions set forth in this Agreement, no option may be extended to a date later than the earlier of: 1) be exempt from the requirements of Section 409A latest date upon which the option could have expired by its original terms under any circumstances or 2) the tenth anniversary of the Code and original grant of the regulations and ruling issued thereunder (collectively “option or such other time period permitted under Treas. Reg. Section 409A”1.409A-1(b)(5)(v)(C), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. . B. Notwithstanding any other provision of this Agreement to the contrary, if any amount (including imputed income) to be paid to Executive pursuant to this Agreement as a result of Executive’s termination of employment is “deferred compensation” subject to Section 409A of the Internal Revenue Code of 1986, as amended and any successor statute, regulation and guidance thereto (“Section 409A of the Code”), and if the Executive is a “Specified Employee” (as defined under Section 409A of the Code) as of the date of Executive’s termination of employment hereunder, then, to the extent necessary to avoid the imposition of excise taxes or other penalties under Section 409A of the Code, the payment of benefits, if any, scheduled to be paid by Company to Executive hereunder during the first 6-month period following the date of a termination of employment hereunder shall not be paid until the date which is the first business day after six (6) months have elapsed since the Executive’s termination of employment for any reason other than death. Any deferred compensation payments delayed in accordance with the terms of this Section 11B shall be paid in a lump sum after 6-months have elapsed since the Executive’s termination of employment. Any other payments will be made according to the schedule provided for herein. C. If any of the benefits set forth in this Agreement are deferred compensation under Section 409A of the Code, any termination of employment triggering payment of such benefits must constitute a “separation from service” under Section 409A of the Code before distribution of such benefits can commence. For purposes of clarification, this paragraph shall not cause any forfeiture of benefits on the part of the Executive, but shall only act as a delay until such time as a “separation from service” occurs. D. It is intended that each installment of the payments and benefits provided under this Agreement shall be interpreted, operated and administered in treated as a manner consistent with such intentions. Without limiting the generality separate “payment” for purposes of Section 409A of the foregoing, Code. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A of the Code. E. Any reimbursements or direct payment of Executive’s expenses subject to Section 409A of the Code shall be made no later than the end of the calendar year following the calendar year in which such expense is incurred by the Executive. Any reimbursement or right to direct payment of Executive’s expense in one calendar year shall not affect the amount that may be reimbursed or paid for in any other calendar year and notwithstanding a reimbursement or payment of Executive’s expense (or right thereto) may not be exchanged or liquidated for another benefit or payment. F. Notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as interpreted and at all times administered in a separate payment and manner that avoids the right to a series inclusion of installment payments compensation in income under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b409A(a)(1) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Code. Any provision inconsistent with Section 409A of the CodeCode will be read out of the Agreement. HoweverFor purposes of clarification, this Section 11 shall be a rule of construction and interpretation and nothing in this Section 11 shall cause a forfeiture of benefits on the part of the Executive.” 5. Except as specifically modified herein, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this terms of the Agreement. In any event, except for the Company’s responsibility to withhold applicable income and all terms and conditions of your employment taxes from compensation paid or provided to Executive, the with Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementremain in full force and effect.

Appears in 2 contracts

Samples: Employment Agreement (AMICAS, Inc.), Employment Agreement (AMICAS, Inc.)

Compliance with Section 409A of the Code. The parties intend that this (i) This Agreement (is intended to comply with Section 409A of the Code and all payments and other its corresponding regulations, to the extent applicable. Severance benefits provided under this Agreement) the Agreement are intended to be exempt from Section 409A of the requirements Code under the “short term deferral” exemption, to the maximum extent applicable, and then under the “separation pay” exemption, to the maximum extent applicable. Notwithstanding anything in this Agreement to the contrary, payments may only be made under this Agreement upon an event and in a manner permitted by Section 409A of the Code, to the extent applicable. As used in the Agreement, the term “termination of employment” shall mean the Executive’s separation from service with the Company within the meaning of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)promulgated thereunder. In no event may the Executive, to directly or indirectly, designate the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisecalendar year of a payment. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning For purposes of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement hereunder shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a the right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement or . All reimbursements and in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) provided under 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments Agreement shall be made on or before provided in accordance with the last day requirements of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. HoweverNotwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. (ii) Notwithstanding anything herein to the contrary, if, at the time of the Executive’s termination of employment with the Company, the Company does not guarantee has securities which are publicly traded on an established securities market and the Executive is a “specified employee” (as such term is defined in section 409A of the Code) and it is necessary to postpone the commencement of any particular payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax effect for income provided to Executive pursuant to this Agreement. In under section 409A of the Code, then the Company will postpone the commencement of the payment of any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise paid within the ’short-term deferral exception’ under Treas. Reg. §1.409A-1(b)(4), and the Company shall not ’separation pay exception’ under Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following the Executive’s “separation of service” (as such term is defined under code section 409A of the Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts will be responsible for paid in a lump sum to the Executive on the first payroll date that occurs after the date that is six months following Executive’s separation of service with the Company. If the Executive dies during the postponement period prior to the payment of any applicable taxes postponed amount, the amounts withheld on compensation account of section 409A of the Code shall be paid or provided to Executive pursuant to this Agreementthe personal representative of the Executive’s estate within sixty (60) days after the date of the Executive’s death.

Appears in 2 contracts

Samples: Employment Agreement (Insurance Acquisition Corp.), Employment Agreement (Insurance Acquisition Corp.)

Compliance with Section 409A of the Code. The parties intend that Award of the Option, PUs and RSUs covered by this Agreement (and all payments and other benefits provided under this Agreement) is intended to be exempt excepted from coverage under, or compliant with, the requirements provisions of Section 409A of the Code and the regulations and ruling issued other guidance promulgated thereunder (collectively “Section 409A”), to . Notwithstanding the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), foregoing or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, if all or any portion of the Award of the Option, PUs and RSUs is subject to the provisions of Section 409A (and not exempted therefrom), the provisions of this Agreement shall be interpretedadministered, operated interpreted and administered construed in a manner consistent necessary to comply with Section 409A (or disregarded to the extent such intentionsprovision cannot be so administered, interpreted or construed). Without limiting If any payments or benefits hereunder may be deemed to constitute nonconforming deferred compensation subject to taxation under the generality provisions of the foregoingSection 409A, this Agreement may be amended, as reasonably requested by either party, and notwithstanding as may be necessary to preclude any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a such payment or benefit from being deemed deferral of deferred compensation” within the meaning of Section 409A shall be paid unless in order to preserve the payments and until Executive has incurred a “benefits provided hereunder without additional cost to either party. If, at the time of the Executive’s separation from service” service (within the meaning of Section 409A. Furthermore409A), to (A) the extent that Executive is shall be a “specified employee” (within the meaning of Section 409A (determined and using the identification methodology selected by the Company from time to time, or if none, -to-time) and (B) the default methodology) as of the date of Executive’s separation from service, no Company shall make a good faith determination that an amount that payable hereunder constitutes a deferral of deferred compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 settlement 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 which is required to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related delayed pursuant to the period the arrangement is six (6) month delay rule set forth in effect, and (iii) such payments shall be made on Section 409A in order to avoid taxes or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation penalties under Section 409A of the Code. However409A, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, then the Company shall not be responsible settle such amount on the otherwise scheduled settlement date but shall instead settle it, without interest, on the first business day of the month after such six (6) month period. Notwithstanding the foregoing, the Company and its Subsidiaries make no representations and/or warranties with respect to compliance with Section 409A, and the Executive recognizes and acknowledges that Section 409A could potentially impose upon the Executive certain taxes and/or interest charges for which the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementis and shall remain solely responsible.

Appears in 2 contracts

Samples: Ceo Inducement Award Agreement (DIEBOLD NIXDORF, Inc), Ceo Inducement Award Agreement (DIEBOLD NIXDORF, Inc)

Compliance with Section 409A of the Code. (a) The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from is intended to comply with the requirements of Section 409A of the Code and or an exemption. Notwithstanding anything in the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, distributions upon termination of employment may only be made upon a “separation from service” as determined under Section 409A. Each payment under this Agreement shall be interpretedtreated as a separate payment for purposes of Section 409A. In no event may the Executive, operated directly or indirectly, designate the calendar year of any payment to be made under this Agreement. In the event the parties determine that the terms of this Agreement do not comply with Section 409A, they will negotiate reasonably and administered in good faith to amend the terms of this Agreement such that it complies (in a manner consistent with that attempts to minimize the economic impact of such intentions. Without limiting amendment on the generality Executive and the Company) within the time period permitted by the applicable Department of the foregoing, Treasury Regulations. (b) All reimbursements and notwithstanding any other provision of in-kind benefits provided under this Agreement to shall be made or provided in accordance with the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning requirements of Section 409A of the Code. In order to comply with Section 409A of the Code, in no event shall the payments by the Company under Section 6 be paid unless made later than the end of the calendar year next following the calendar year in which such fees and until expenses were incurred, provided, that the Executive has incurred shall have submitted an invoice for such fees and expenses at least 10 days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred. The amount of any such fees and expenses that the Company is obligated to pay in any given calendar year shall not affect the fees and expenses that the Company is obligated to pay in any other calendar year, and the Executive’s right to have the Company pay such fees and expenses may not be liquidated or exchanged for any other benefit. (c) The Company and the Executive shall take all steps necessary (including with regard to any post-termination services the Executive provides) to ensure that any termination of employment described in this Agreement constitutes a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, and notwithstanding anything contained in this Agreement to the contrary, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for date on which such “separation from service” takes place shall be the Companydate of the termination of the Executive’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementemployment.

Appears in 2 contracts

Samples: Employment Agreement (HealthMarkets, Inc.), Employment Agreement (HealthMarkets, Inc.)

Compliance with Section 409A of the Code. The parties intend This Agreement is intended to either avoid the application of, or comply with, Section 409A of the Code. To that end, this Agreement shall at all times be interpreted in a manner that is consistent with Section 409A of the Code. Notwithstanding any other provision in this Agreement to the contrary, the Company shall have the right, in its sole discretion, to adopt such amendments to this Agreement or take such other actions (including amendments and all payments actions with retroactive effect) as it determines is necessary or appropriate for this Agreement to comply with Section 409A of the Code. Further: a. Any reimbursement of any costs and other benefits provided expenses by the Company to the Executive under this Agreement shall be made by the Company in no event later than the close of the Executive’s taxable year following the taxable year in which the cost or expense is incurred by the Executive. 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 and the Executive’s right to receive any reimbursement hereunder shall not be subject to liquidation or exchange for any other benefit. b. Any payment following a separation from service that would be subject to Section 409A(a)(2)(A)(i) of the Code as a distribution following a separation from service of a “specified employee” (as defined under Section 409A(a)(2)(B)(i) of the Code) shall be made on the first to occur of (i) ten (10) days after the expiration of the six (6)-month period following such separation from service, (ii) death, or (iii) such earlier date that complies with Section 409A of the Code. c. Each payment that the Executive may receive under this Agreement shall be treated as a “separate payment” for purposes of Section 409A of the Code. d. 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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.” e. Payments under this Agreement are intended to be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 2 contracts

Samples: Executive Employment Agreement (L Brands, Inc.), Executive Employment Agreement (L Brands, Inc.)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreementa) be exempt from the requirements of Section 409A Notwithstanding any provision of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, contrary and except as provided by this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: clause (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within ), if the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” as defined under Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder, the Executive shall not be entitled to any payments or benefits in the nature of non-qualified deferred compensation within the meaning of Section 409A (determined using the identification methodology selected by “Deferred Compensation”) and the Company from time to timeshall not pay or provide such Deferred Compensation, or if none, upon a separation of her service until the default methodologyearlier of: (i) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of six (6) months after the Executive’s separation from service shall paid to Executive before for any reason other than death or (ii) the date of her death (the “Delayed Payment Date”). The provisions of this Section 20(a) which is first day shall apply only if necessary to avoid the imposition of taxes and penalties under Section 409A relating to the seventh month after the date payment of Executive’s separation from service or, if earlier, the date of Executive’s death following such non-qualified deferred compensation to specified employees upon their separation from service. All such amounts that would, but for this Section, become payable prior The determination of whether Section 409A is deemed to apply to the Delayed payment of any amounts hereunder shall be made in good faith by the Company after consultation with and advice from its legal or accounting advisors and after consulting with the Executive. If this Section 20(a) becomes applicable such that the payment of Deferred Compensation is delayed, any payments that are so delayed shall accrue interest, from the date of a separation of service through the Payment Date will be accumulated and paid Date, at the “prime rate” as reported in the Wall Street Journal (or such other nationally recognized source if no such rate is then available) on the Delayed date of such separation (or the first business day following such date if such separation does not occur on a business day) and shall be paid in a lump sum on the Payment Date. (b) Each payment made under If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Section 409A, the Company shall, after promptly consulting with and receiving the approval of the Executive (which shall not be treated as a separate payment unreasonably withheld), reform such provision; provided that, the Company agrees (both in the application of this subsection (b) and the right above subsection (a)) to a series maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of installment payments under this Agreement shall be treated as a right to a series the applicable provision without violating the provisions of separate payments.Section 409A. (c) With regard to This Section 20 shall survive any provision in this Agreement that provides for reimbursement termination of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 2 contracts

Samples: Employment Agreement (Houston Exploration Co), Employment Agreement (Houston Exploration Co)

Compliance with Section 409A of the Code. The parties intend 16.1. To the extent that any payment to Mr. Xxxxxx xnder this Agreement (and all payments and other benefits provided under this Agreement) is deemed to be exempt from deferred compensation subject to the requirements of Section 409A of the Internal Revenue Code of 1986 (the "Code") this Agreement shall be operated in compliance with the applicable requirements of Section 409A of the Code ("Section 409A") and the its corresponding regulations and ruling issued thereunder (collectively “Section 409A”), related guidance with respect to the maximum extent possible, whether pursuant to the short-term deferral exception described payment in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described question. Notwithstanding anything in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, any payment under this Agreement shall that is subject to the requirements of Section 409A may only be interpreted, operated and administered made in a manner consistent with such intentions. Without limiting and upon an event permitted by Section 409A. To the generality of the foregoing, and notwithstanding extent that any other provision of this Agreement would cause a conflict with the requirements of Section 409A, or would cause the administration of this Agreement to fail to satisfy the requirements of Section 409A, such provision shall be deemed null and void to the contrary: (a) No amount payable pursuant to extent permitted by applicable law, and the Company may modify this Agreement which constitutes in such a “deferral manner as to comply with such requirements without Mr. Xxxxxx'x xonsent. Joxxxx X. Xxxxxx, Xx. Xmployment Agreement — continued 16.2. If Mr. Xxxxxx xs a key employee (as defined in Section 416(i) of compensation” within the meaning of Code (without regard to paragraph 5 thereof)) except to the extent permitted under Section 409A, no benefit or payment that is subject to Section 409A shall be paid unless (after taking into account all applicable exceptions to Section 409A, including but not limited to the exceptions for short-term deferrals and until Executive has incurred a “for separation pay only upon an involuntary separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable shall be made under this Agreement on account of Executive’s separation Mr. Xxxxxx'x xeparation from service shall paid to Executive before (as defined in Section 409A) with the Company until the later of — 16.2.1. The date (the “Delayed Payment Date”) which is prescribed for payment in this Agreement; and 16.2.2. The first day of the seventh calendar month that begins after the date of Executive’s separation Mr. Xxxxxx'x xeparation from service (or, if earlier, the date of Executive’s death following such separation from servicehis death.) 16.3. All such amounts payments that wouldwere delayed by reason of the application of the date prescribed by Section 16.2.2, but for this Section, become payable prior to above (the Delayed Payment Date will "Section 16.2.2 Date") shall be accumulated aggregated and paid on to Mr. Xxxxxx xn the Delayed Payment Date. (b) Each Section 16.2.2 Date in a lump sum together with interest computed from the date each such payment made under this Agreement shall be treated as a separate payment and would have first been paid to him absent the right to a series application of installment payments under this Agreement shall be treated as a right to a series the Section 16.2.2 Date until paid using the Non-LIBOR rate of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within interest the meaning of Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) Company would have paid had it borrowed 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 payment under its revolving line of credit. After the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive16.2.2 Date, the Company shall not be responsible pay any other amounts provided for herein to the payment of any applicable taxes on compensation paid or extent and in the manner provided to Executive pursuant to in this Agreement.

Appears in 2 contracts

Samples: Employment Agreement (Sterling Construction Co Inc), Employment Agreement (Sterling Construction Co Inc)

Compliance with Section 409A of the Code. The parties intend 16.1. To the extent that any payment to Mr. Xxxxx xnder this Agreement (and all payments and other benefits provided under this Agreement) is deemed to be exempt from deferred compensation subject to the requirements of Section 409A of the Internal Revenue Code of 1986 (the "Code") this Agreement shall be operated in compliance with the applicable requirements of Section 409A of the Code ("Section 409A") and the its corresponding regulations and ruling issued thereunder (collectively “Section 409A”), related guidance with respect to the maximum extent possible, whether pursuant to the short-term deferral exception described payment in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described question. Notwithstanding anything in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, any payment under this Agreement shall that is subject to the requirements of Section 409A may only be interpreted, operated and administered made in a manner consistent with such intentions. Without limiting and upon an event permitted by Section 409A. To the generality of the foregoing, and notwithstanding extent that any other provision of this Agreement would cause a conflict with the requirements of Section 409A, or would cause the administration of this Agreement to fail to satisfy the requirements of Section 409A, such provision shall be deemed null and void to the contrary: (a) No amount payable pursuant to extent permitted by applicable law, and the Company may modify this Agreement which constitutes in such a “deferral manner as to comply with such requirements without Mr. Xxxxx'x xonsent. Jaxxx X. Xxxxx, Xx. Xmployment Agreement — continued 16.2. If Mr. Xxxxx xs a key employee (as defined in Section 416(i) of compensation” within the meaning of Code (without regard to paragraph 5 thereof)) except to the extent permitted under Section 409A, no benefit or payment that is subject to Section 409A shall be paid unless (after taking into account all applicable exceptions to Section 409A, including but not limited to the exceptions for short-term deferrals and until Executive has incurred a “for separation pay only upon an involuntary separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable shall be made under this Agreement on account of Executive’s separation Mr. Xxxxx'x xeparation from service shall paid to Executive before (as defined in Section 409A) with the Company until the later of — 16.2.1. The date (the “Delayed Payment Date”) which is prescribed for payment in this Agreement; and 16.2.2. The first day of the seventh calendar month that begins after the date of Executive’s separation Mr. Xxxxx'x xeparation from service (or, if earlier, the date of Executive’s death following such separation from servicehis death.) 16.3. All such amounts payments that wouldwere delayed by reason of the application of the date prescribed by Section 16.2.2, but for this Section, become payable prior to above (the Delayed Payment Date will "Section 16.2.2 Date") shall be accumulated aggregated and paid on to Mr. Xxxxx xn the Delayed Payment Date. (b) Each Section 16.2.2 Date in a lump sum together with interest computed from the date each such payment made under this Agreement shall be treated as a separate payment and would have first been paid to him absent the right to a series application of installment payments under this Agreement shall be treated as a right to a series the Section 16.2.2 Date until paid using the Non-LIBOR rate of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within interest the meaning of Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) Company would have paid had it borrowed 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 payment under its revolving line of credit. After the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive16.2.2 Date, the Company shall not be responsible pay any other amounts provided for herein to the payment of any applicable taxes on compensation paid or extent and in the manner provided to Executive pursuant to in this Agreement.

Appears in 2 contracts

Samples: Employment Agreement (Sterling Construction Co Inc), Employment Agreement (Sterling Construction Co Inc)

Compliance with Section 409A of the Code. The parties intend that This Award is intended to comply with the “short-term deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4) of the Code. However, if this Agreement (and all payments and other benefits provided under this Agreement) be exempt from award fails to satisfy the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A rule and is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoingotherwise not exempt from, and notwithstanding any other provision of this Agreement therefore deemed to be deferred compensation subject to, Section 409A, and if the contrary: (a) No amount payable pursuant to this Agreement which constitutes Grantee is a “deferral of compensationSpecified Employee(within the meaning of set forth Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology409A(a)(2)(B)(i)) as of the date of Executivethe Grantee’s separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h) of the Code), then the issuance of any shares of Stock that would otherwise be made upon the date of the separation from service or within the first six months thereafter will not be made on the originally scheduled dates and will instead be issued in a lump sum on the date that is six months and one day after the date of the separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before with the date (the “Delayed Payment Date”) which is first day balance of the seventh month after shares of Stock issued thereafter in accordance with the date original issuance schedule set forth in this Agreement, but if and only if such delay in the issuance of Executive’s separation from service orthe shares of Stock is necessary to avoid the imposition of taxation on the Participant in respect of the Stock under Section 409A. The PSUs, if earlierany, will be earned and will become fully vested, in whole or in part, on the Vesting Date set forth in the Notice of Award of Performance Based Stock Units, based on the Company's attainment of one or both of the Performance Goals set forth below, subject to Grantee’s continued Service with the Company through the conclusion of the Performance Measurement Period, except as set forth in the Agreement. 75% of the PSUs shall be earned based on the achievement of Cumulative non-GAAP operating income, as determined by the Compensation Committee in its sole discretion, as follows: Below Threshold Less than $[ ]M 0% Threshold $[ ]M 100% Interim $[ ]M 150% Maximum $[ ]M 200% Dollar amounts are in millions using budgeted exchange rates. If the Company’s operating margin (Cumulative non-GAAP operating income/revenues) in any of the three annual periods in the Performance Measurement Period is below 35%, the date number of ExecutivePSUs earned shall be 0. The Compensation Committee may adjust the Cumulative non-GAAP operating income for any year during the Performance Measurement Period, to recognize (1) the effect of accounting changes in accordance with generally accepted accounting principles, and (2) acquisitions or dispositions during the Performance Measurement Period. 25% of the PSUs shall be earned based on Company’s death following such separation from service. All such amounts that wouldTSR Percentile Rank Relative to its Peer Group, but for this Sectionas determined by the Compensation Committee in its sole discretion, become payable prior as follows: Below Threshold Less than 35th Percentile 0% Threshold 35th Percentile 50% Target 55th Percentile 100% Interim 75th Percentile 150% Maximum 90th Percentile 200% (Maximum) Notwithstanding anything to the Delayed Payment Date will contrary contained herein, if the Company’s TSR for the Performance Measurement Period is negative, any PSUs earned shall be accumulated capped at 100%. The definitions and calculation of the Company’s Percentile Rank Relative to its Peer Group shall be as follows: (a) TSR means a company’s total shareholder return, calculated based on the stock price appreciation during the Performance Measurement Period plus the value of dividends paid on such stock during the Delayed Payment Date. Performance Measurement Period (b) Each payment made under this Agreement which shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of have been reinvested in the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executiveunderlying company’s taxable year following the taxable year in which the expense occurredstock). (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 2 contracts

Samples: Performance Based Stock Unit Agreement (Progress Software Corp /Ma), Performance Based Stock Unit Agreement (Progress Software Corp /Ma)

Compliance with Section 409A of the Code. (a) The parties intend agree that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements for purposes of Section 409A of the Code Code, any right of Employee to receive installment payments of the Severance Payment, the Prior Bonus Payment and the regulations Override and ruling issued thereunder Bonus Severance Payment shall be treated as a right to a series of separate payments. (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefitsb) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement anything set forth herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”) shall be paid unless and until Executive Employee has incurred a “separation from service” within the meaning of the Section 409A. 409A Regulations. Furthermore, to the extent that Executive Employee is a “specified employee” within the meaning of the Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) Regulations as of the date of ExecutiveEmployee’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive Employee before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of ExecutiveEmployee’s separation from service or, if earlier, the date of ExecutiveEmployee’s death following such separation from service. All such amounts that would, but for this Sectionsubsection 9.5(a), become payable prior to the Delayed Payment Date will shall be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive Employee pursuant to this Agreement will shall not be subject to taxation under Section 409A of the Code. The provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A of the Code and the Section 409A Regulations. However, the Company does not guarantee any particular tax effect for income provided to Executive Employee pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to ExecutiveEmployee, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive Employee pursuant to this Agreement. (d) The LTIP, as applicable to awards thereunder granted to Employee, and such awards granted to Employee, shall, to the extent not exempt from the requirements of Section 409A of the Code, comply with the documentary requirements of Section 409A of the Code by the documentary compliance effective date of such section and operationally comply at all times from and after the date of grant of such awards.

Appears in 2 contracts

Samples: Employment Agreement (Kofax LTD), Employment Agreement (Kofax LTD)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)thereunder, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such paymentspayments or benefits, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (ai) No amount payable pursuant to this Agreement on account of Executive’s termination of employment with the Company which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Separation. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceSeparation, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service Separation shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service Separation or, if earlier, the date of Executive’s death following such separation from serviceSeparation. All such amounts that would, but for this Sectionparagraph, become payable prior to the Delayed Payment Date will be accumulated and paid in a lump sum on the Delayed Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the Delayed Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. (bii) Each payment made under this Agreement shall be treated as a separate payment It is the intent of the Company and the Executive that any right of Executive to a series of receive installment payments under this Agreement shall hereunder shall, for all purposes of Section 409A, be treated as a right to a series of separate payments. (ciii) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (iA) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (iiB) 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 the foregoing clause (iiB) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iiiC) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (div) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 2 contracts

Samples: Executive Service Agreement (RhythmOne PLC), Executive Service Agreement (RhythmOne PLC)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of This agreement is intended to comply with Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), will be interpreted in a manner intended to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent comply with Section 409A is applicable to such payments, of the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Code. Notwithstanding any other provision of this Agreement anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting (i) any payments that qualify for the generality “short-term deferral” exception or another exception under Section 409A of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A Code shall be paid unless under the applicable exception, (ii) to the extent necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, all payments made and until Executive has incurred benefits provided upon your termination of employment shall only be made and provided upon a “separation from service” within the meaning of Section 409A. Furthermore409A of the Code, (iii) if at the time of your termination of employment with the Company you are a “specified employee” as defined in Section 409A of the Code and the deferral of the commencement of any 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 of the Code, then the Company 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 you) until the date that is six months following your termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code without any accelerated or additional tax under Section 409A of the Code), at which point all payments deferred pursuant to such six-month delay shall be paid to you in a lump sum, and (iv) if any other payments of money or other benefits due hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral would avoid such accelerated or additional tax under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that Executive is does not cause such an accelerated or additional tax. To the extent any reimbursements or in-kind benefits due under this Plan constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Each payment made under this Plan shall be designated as a “specified employeeseparate payment” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, The Company shall consult with you in good faith regarding the implementation of the provisions of this section; provided that neither the Company does not guarantee nor any particular tax effect for income provided of its employees or representatives shall have any liability to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementyou with respect thereto.

Appears in 2 contracts

Samples: Employment Agreement (Xylem Inc.), Employment Agreement (Exelis Inc.)

Compliance with Section 409A of the Code. (a) The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) the Plan are intended to be exempt from the requirements provisions of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisepermitted by applicable law. To the extent Section 409A applicable, it is applicable to such payments, intended that the parties intend that this Agreement (and such payments and benefits) the Plan comply with the deferralprovisions of Section 409A of the Code, payout and other limitations and restrictions imposed under so that the income inclusion provisions of Section 409A. Notwithstanding any other provision 409A(a)(1) of this Agreement the Code do not apply to the contrary, this Employee. The Agreement and the Plan shall be interpreted, operated administered and administered interpreted in a manner consistent with such intentions. Without limiting this intent, and any provision that would cause the generality Agreement or the Plan to fail to satisfy Section 409A of the foregoing, Code shall have no force and notwithstanding effect until amended to comply with Section 409A of the Code (which amendment may be retroactive to the extent permitted by Section 409A of the Code and may be made by the Corporation without the consent of the Employee). A termination of employment shall not be deemed to occur for purposes of any other provision of this the Agreement to providing for the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral payment of compensation” within the meaning any amounts upon or following termination of Section 409A shall be paid employment unless and until Executive has incurred such termination is also a “separation from service” within the meaning of Section 409A. Furthermore409A of the Code, and for purposes of any such provision in the Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.” Notwithstanding anything in the Agreement to the extent that Executive contrary, if the Award is subject to Section 409A of the Code, and if the Employee is a “specified employee” Specified Employee (within the meaning of Section the Corporation’s Specified Employee Policy for 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodologyArrangements) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid the Employee ceases to Executive before the date (the “Delayed Payment Date”) which is first day be an employee of the Corporation, then such payout shall be delayed until and made during the seventh calendar month after following the date calendar month during which the Employee ceased to be an employee of Executive’s separation from service the Corporation (or, if earlier, the date calendar month following the calendar month of Executivethe Employee’s death following such separation from service. All such amounts that woulddeath), but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered extent required by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. HoweverNotwithstanding the foregoing, the Company does not guarantee any no particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except result for the Company’s responsibility Employee with respect to withhold applicable any income recognized by the Employee in connection with the Agreement is guaranteed, and employment taxes from compensation paid or provided to Executive, the Company Employee solely shall not be responsible for any taxes, penalties or interest imposed on the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Employee in connection with the Agreement. (b) Reference to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service.

Appears in 2 contracts

Samples: Performance Unit Award Agreement (L3harris Technologies, Inc. /De/), Performance Unit Award Agreement (L3harris Technologies, Inc. /De/)

Compliance with Section 409A of the Code. The parties intend It is intended that this Award Agreement (and all payments and other benefits provided under this Agreement) the Plan be exempt from the requirements provisions of Section section 409A of the Code to the maximum extent permissible under law. To the extent section 409A of the Code applies to this Award Agreement and the Plan, it is intended that this Award Agreement and the Plan comply with the provisions of section 409A of the Code. This Award Agreement and the Plan shall be administered and interpreted in a manner consistent with this intent. In the event that this Award Agreement or the Plan does not comply with section 409A of the Code (to the extent applicable thereto), the Company shall have the authority to amend the terms of this Award Agreement or the Plan (which amendment may be retroactive to the extent permitted by section 409A of the Code and may be made by the regulations Company without your consent) to avoid excise taxes and ruling issued thereunder (collectively “Section 409A”)other penalties under section 409A of the Code, to the maximum extent possible. Notwithstanding the foregoing, whether pursuant no particular tax result for you with respect to any income recognized by you in connection with this Award Agreement is guaranteed, and you solely shall be responsible for any taxes, penalties, interest or other losses or expenses incurred by you under section 409A of the short-term deferral exception described Code in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwiseconnection with this Award Agreement. To the extent Section 409A is applicable any amounts under this Award Agreement are payable by reference to your “termination of employment,” such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement term shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement deemed to the contrary: (a) No amount payable pursuant refer to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a your “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section section 409A of the Code. HoweverNotwithstanding any other provision in this Plan, if you are a “specified employee,” as defined in section 409A of the Company does not guarantee Code, as of the date of your separation from service, then to the extent any particular tax effect for income provided to Executive pursuant to amount payable under this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for Award Agreement (i) constitutes the payment of any applicable taxes on compensation paid nonqualified deferred compensation, within the meaning of section 409A of the Code, (ii) is payable upon your separation from service and (iii) under the terms of this Award Agreement would be payable prior to the six-month anniversary of your separation from service, such payment shall be delayed until the earlier to occur of (a) the six-month anniversary of your separation from service or provided to Executive pursuant to this Agreement.(b) the date of your death. 7.32

Appears in 2 contracts

Samples: Restricted Stock Units Award Agreement (Ingredion Inc), Restricted Stock Units Award Agreement (Ingredion Inc)

Compliance with Section 409A of the Code. The parties intend that this (a) This Agreement (and all payments and other benefits provided under this Agreement) be exempt from is intended to comply with the requirements of Section 409A of the Internal Revenue Code and of 1986, as amended (the regulations and ruling issued thereunder “Code”). Payments of Non-Qualified Deferred Compensation (collectively as such term is defined under Code Section 409A (“Section 409A”), to ) and the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that regulations promulgated thereunder) may only be made under this Agreement (upon an event and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality permitted by Section 409A. Any amounts payable solely on account of an involuntary separation from service of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” Executive within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation excludible from service” within the meaning requirements of Section 409A. Furthermore409A, either as involuntary separation pay or as short-term deferral amounts, to the extent that Executive is a “specified employee” within the meaning maximum possible extent. For purposes of Section 409A (determined using the identification methodology selected by the Company from time to time409A, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (b) To the extent required by Section 409A, and notwithstanding any other provision of this Agreement to the contrary, no payment of Non-Qualified Deferred Compensation will be provided to, or with respect to, the Executive on account of his separation from service until the first to occur of (i) the date of the Executive’s death or (ii) the date which is one day after the six (6) month anniversary of his separation from service, but in either case only if he is a “specified employee” (as defined under Section 409A(a)(2)(B)(i) of the Code and the regulations promulgated thereunder) in the year of his separation from service. Any payment that is delayed pursuant to the provisions of the immediately preceding sentence shall instead be paid in a lump sum promptly following the first to occur of the two dates specified in such immediately preceding sentence. (c) Any payment of Non-Qualified Deferred Compensation made pursuant to a voluntary or involuntary termination of the Executive’s employment with the Company shall be withheld until the Executive incurs both (i) a termination of his employment relationship with the Company and (ii) a “separation from service” with the Company, as such term is defined in Treas. Reg. Section 1.409A-1(h). (d) If the Executive is permitted to elect to defer the receipt of Common Shares which are treated as Non-Qualified Deferred Compensation, such election shall be made in accordance with the requirements of Code Section 409A. Each initial deferral election (an "Initial Deferral Election") must be received by the Board prior to the following dates or will have no effect whatsoever: (i) Except as otherwise provided below, the December 31 immediately preceding the year in which the compensation is earned; (ii) With regard respect to any provision annual or long-term incentive pay which qualifies as "performance-based compensation" within the meaning of Code Section 409A, by the date six (6) months prior to the end of the performance measurement period applicable to such incentive pay provided such additional requirements set forth in this Agreement Code Section 409A are met; (iii) With respect to "fiscal year compensation" as defined under Code Section 409A, by the last day of the Company's fiscal year immediately preceding the year in which the fiscal year compensation is earned; or (iv) With respect to mid-year awards or other legally binding rights to a payment of compensation in a subsequent year that provides is subject to a forfeiture condition requiring the Executive continued service for reimbursement a period of expenses at least twelve (12) months, on or in-kind benefitsbefore the thirtieth (30th) day following the grant of such award, except for any expenseprovided that the election is made at least twelve (12) months in advance of the earliest date at which the forfeiture condition could lapse. The Board may, reimbursement in its sole discretion, permit the Executive to submit additional deferral elections in order to delay, but not to accelerate, a payment, or in-kind benefit provided pursuant to this Agreement that does change the form of payment of an amount of deferred compensation (a "Subsequent Deferral Election"), if, and only if, the following conditions are satisfied: (i) the Subsequent Deferral Election must not constitute take effect until 12 months after the date on which it is made, (ii) in the case of a “deferral of compensation,” payment other than a payment attributable to the Executive’s death, disability or an unforeseeable emergency (all within the meaning of Section 409A, (i409A of the Code) the right to reimbursement or in-kind benefits shall Subsequent Deferral Election further defers the payment for a period of not be subject to liquidation or exchange for another benefit, (ii) less than five years from 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because date such expenses are subject to a limit related to the period the arrangement is in effect, payment would otherwise have been made and (iii) the Subsequent Deferral Election is received by the Company at least 12 months prior to the date the payment would otherwise have been made. In addition, the Executive may be further permitted to revise the form of payment he has elected, or the number of installments elected, provided that such payments shall be made on or before revisions comply with the last day requirements of Executive’s taxable year following the taxable year in which the expense occurreda Subsequent Deferral Election. (de) The Company intends that income provided to Executive pursuant to preceding provisions of this Agreement will Section 12 shall not be subject to taxation under Section 409A of the Code. However, construed as a guarantee by the Company does not guarantee of any particular tax effect for income provided to the Executive pursuant to under this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the The Company shall not be responsible liable to the Executive for the any additional tax, penalty or interest imposed under Section 409A nor for reporting in good faith any payment of any applicable taxes on compensation paid or provided to Executive pursuant to made under this Agreement.Agreement as an amount includible in gross income under Section 409A.

Appears in 1 contract

Samples: Restricted Stock Unit Award Agreement (Medical Transcription Billing, Corp)

Compliance with Section 409A of the Code. The parties intend that this (i) This Agreement (is intended to comply with Section 409A of the Code and all payments and other its corresponding regulations, to the extent applicable. Severance benefits provided under this Agreement) the Agreement are intended to be exempt from Section 409A of the requirements Code under the “short term deferral” exemption, to the maximum extent applicable, and then under the “separation pay” exemption, to the maximum extent applicable. Notwithstanding anything in this Agreement to the contrary, payments may only be made under this Agreement upon an event and in a manner permitted by Section 409A of the Code, to the extent applicable. As used in the Agreement, the term “termination of employment” shall mean Executive’s separation from service with the Company within the meaning of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)promulgated thereunder. In no event may Executive, to directly or indirectly, designate the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisecalendar year of a payment. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning For purposes of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement hereunder shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a the right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement or . All reimbursements and in-kind benefits provided under the Agreement shall not be made or provided in accordance with the requirements of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to liquidation or exchange for another benefitexecution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. (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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related Notwithstanding anything herein to the period contrary, if, at the arrangement is in effect, and (iii) such payments shall be made on or before the last day time of Executive’s taxable year following termination of employment with the taxable year Company, the Company has securities which are publicly traded on an established securities market and Executive is a “specified employee” (as such term is defined in which Section 409A of the expense occurred. (dCode) The Company intends that income provided and it is necessary to Executive pursuant to postpone the commencement of any payments or benefits otherwise payable under this Agreement will not be subject as a result of such termination of employment to taxation prevent any accelerated or additional tax under Section 409A of the Code. However, then the Company does not guarantee will postpone the commencement of the payment of any particular tax effect for income provided to Executive pursuant to this Agreement. In such payments or benefits hereunder (without any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation reduction in such payments or benefits ultimately paid or provided to Executive) that are not otherwise paid within the ‘short-term deferral exception’ under Treas. Reg. §1.409A-1(b)(4), and the Company shall not ‘separation pay exception’ under Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Executive’s “separation of service” (as such term is defined under Section 409A of the Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts will be responsible for paid in a lump sum to Executive on the first payroll date that occurs after the date that is six months following Executive’s separation of service with the Company. If Executive dies during the postponement period prior to the payment of any applicable taxes postponed amount, the amounts withheld on compensation account of Section 409A 280Gof the Code shall be paid or provided to Executive pursuant to this Agreementthe personal representative of Executive’s estate within sixty (60) days after the date of Executive’s death.

Appears in 1 contract

Samples: Employment Agreement (Interpace Biosciences, Inc.)

Compliance with Section 409A of the Code. (a) The parties intend agree that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements for purposes of Section 409A of the Code Code, any right of Employee to receive installment payments of the Severance Payment, the Prior Bonus Payment, the Bonus Severance Payment and the regulations and ruling issued thereunder Special Reimbursement shall be treated as a right to a series of separate payments. (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefitsb) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement anything set forth herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”) shall be paid unless and until Executive Employee has incurred a “separation from service” within the meaning of the Section 409A. 409A Regulations. Furthermore, to the extent that Executive Employee is a “specified employee” within the meaning of the Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) Regulations as of the date of ExecutiveEmployee’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive Employee before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of ExecutiveEmployee’s separation from service or, if earlier, the date of ExecutiveEmployee’s death following such separation from service. All such amounts that would, but for this Sectionsubsection 9.5(a), become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive Employee pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. The provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A of the Code and the Section 409A Regulations. However, the Xxxx Xxxxxx Company does not guarantee any particular tax effect for income provided to Executive Employee pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to ExecutiveEmployee, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive Employee pursuant to this Agreement. (d) The LTIP, as applicable to awards thereunder granted to Employee, and such awards granted to Employee, will, to the extent not exempt from the requirements of Section 409A of the Code, comply with the documentary requirements of Section 409A of the Code by the documentary compliance effective date of such section and operationally comply at all times from and after the date of grant of such awards.

Appears in 1 contract

Samples: Employment Agreement (Kofax LTD)

Compliance with Section 409A of the Code. The parties intend To the extent applicable, it is intended that this Agreement complies with the provisions of Section 409A of the Code. This Agreement shall be administered in a manner consistent with this intent, and any provision that would cause this Agreement to fail to satisfy Section 409A of the Code shall have no force and effect until amended to comply with Section 409A of the Code (and all payments and other benefits provided under this Agreement) which amendment may be exempt from retroactive to the requirements of extent permitted by Section 409A of the Code and may be made by the regulations and ruling issued thereunder (collectively “Section 409A”Company without the consent of Employee). In particular, to the maximum extent possibleEmployee becomes entitled to receive a payment or benefit subject to Section 409A upon an event that does not constitute a permitted distribution event under Section 409A(a)(2) of the Code, whether pursuant then notwithstanding anything to the short-term deferral exception described contrary in Treasury Regulation Section 1.409A-1(b)(4)this Agreement, payment will be made to Employee on the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision earlier of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to Employee's "separation from service" with the Company (determined in accordance with Section 409A); provided, however, that if Employee is a "specified employee" (within the meaning of Section 409A) and the payment of any amounts described in this Agreement which constitutes a “deferral on account of compensation” Employee's "separation from service" (within the meaning of Section 409A shall be paid unless and until Executive has incurred a “of the Code) would not meet the "short-term deferral" exemption under Section 409A of the Code (or otherwise qualify for exemption under Section 409A of the Code), then the Company will pay such amounts to Employee six months following Employee's "separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” " (within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”Code) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. or (b) Each payment made under this Agreement shall be treated as a separate payment and Employee's death. Notwithstanding the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executiveforegoing, the Company shall not be obligated to guarantee any particular tax result for Employee with respect to any payment or benefit provided to Employee hereunder, and Employee shall be responsible for the any taxes imposed on Employee in connection with any such payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementbenefit.

Appears in 1 contract

Samples: Executive Employment Agreement (Dendreon Corp)

Compliance with Section 409A of the Code. The parties intend (a) Section 409A of the Internal Revenue Code (“Section 409A”) imposes payment restrictions on “separation pay” (i.e., payments owed to you upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to you, including immediate taxation, interest and a 20% penalty tax. It is the Company’s intent that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the application of, or otherwise comply with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)Code, to the maximum extent possible. If neither of these exceptions applies, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and then notwithstanding any other provision of in this Agreement to the contrary: (ai) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall All amounts that would otherwise be paid unless or provided during the first six months following the date of termination shall instead be accumulated through and until Executive has incurred paid or provided (together with interest on any delayed payment at the applicable federal rate under the Internal Revenue Code), on the first business day following the six-month anniversary of your termination of employment. (ii) Any expense eligible for reimbursement must be incurred, or any entitlement to a benefit must be used, during the Term (or the applicable expense reimbursement or benefit continuation period provided in this Agreement). The amount of the reimbursable expense or benefit to which you are entitled during a calendar year will not affect the amount to be provided in any other calendar year, and your right to receive the reimbursement or benefit is not subject to liquidation or exchange for another benefit. Provided the requisite documentation is submitted, the Company will reimburse the eligible expenses on or before the last day of the calendar year following the calendar year in which the expense was incurred. (b) For purposes of this Agreement, “termination of employment” or words or phrases to that effect shall mean a “separation from service” within the meaning of Section 409A. FurthermoreIf the foregoing correctly sets forth our understanding, please sign, date and return all three (3) copies of this Agreement to the extent that Executive is a “specified employee” within undersigned for execution on behalf of the meaning of Section 409A (determined using the identification methodology selected Company; after this Agreement has been executed by the Company from time and a fully-executed copy returned to timeyou, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service it shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensationbinding agreement between us. Sincerely yours,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Scripps E W Co /De)

Compliance with Section 409A of the Code. The parties Parties intend that this Agreement (and all payments and other benefits to be provided under this Agreement) be exempt from Agreement that constitute nonqualified deferred compensation within the requirements meaning of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) shall comply with the deferral, payout and other limitations and restrictions imposed under Section 409A so that no additional taxation is imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentionsintent. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) 18.1 No amount payable pursuant to this Agreement on account of the Executive’s termination of employment with the Company which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) 18.2 Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) 18.3 With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) 18.4 Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year of Executive, payment shall be made in Executive’s later taxable year. 18.5 The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. 409A. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Viavi Solutions Inc.)

Compliance with Section 409A of the Code. (a) The parties intend Company intends that income provided to Solomon pursuant to this Agreement (and all payments and other benefits provided will not be subject to taxation under this Agreement) be exempt from the requirements of Section 409A of the International Revenue Code and the regulations and ruling issued Treasury Regulations thereunder (collectively “collectively, Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision The provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A. However, the Company does not guarantee any particular tax effect for income provided to Solomon, the Company shall not be responsible for the payment of any applicable taxes, penalties, interest, costs, fees, including Attorneys fees, or other liability incurred by Employee in connection with compensation paid or provided to Solomon pursuant to this Agreement. (b) Notwithstanding anything set forth herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No no amount payable pursuant to this Agreement on account of Solomon’s termination of employment with the Company which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive Solomon has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive if Solomon is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of ExecutiveSolomon’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of ExecutiveSolomon’s separation from service shall be paid to Executive Solomon before the date ({the “Delayed Payment Date”) which is the first business day of the seventh month after the date of ExecutiveSolomon’s separation from service or, if earlier, the date of ExecutiveSolomon’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard The Company agrees that in accordance with the IRS Notices it will each attach to any provision in this Agreement that provides its Federal income tax return for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which containing the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation Amendment Date the applicable statement under Section 409A XII of Notice 2010-6, substantially in the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.forms attached hereto as Appendix I.

Appears in 1 contract

Samples: Employment Agreement (Groupon, Inc.)

Compliance with Section 409A of the Code. The parties intend Notwithstanding anything herein to the contrary, (a) if at the time of Executive's termination of employment with the Company Executive is a "specified employee" as such term is defined in Section 409A of the Code and the regulations thereunder, and the deferral of the commencement of any 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 of the Code, then the Company 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 Executive) until the date that is six (6) months following Executive's termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code) and (b) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement (and all are deferred pursuant to this Section 12 in order to prevent any accelerated tax or additional tax under Section 409A of the Code, then such payments and other benefits provided shall be paid at the time specified under this Agreement) Section 12 without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 12; provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, a termination of employment shall not be exempt deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a "Separation from the requirements of Service" as such term is defined in Section 409A of the Code and the regulations and ruling issued guidance promulgated thereunder (collectively “Section 409A”)and, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to for purposes of any such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement Agreement, references to the contrary, this Agreement a "resignation," "termination," "termination of employment," or like terms shall be interpreted, operated and administered in a manner consistent with such intentionsmean Separation from Service. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning For purposes of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement shall be treated designated as a "separate payment and payment" within the right meaning of the Section 409A of the Code. Notwithstanding anything to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefitsthe contrary herein, except for to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a "deferral of compensation,” " within the meaning of Section 409A, 409A of the Code: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (iix) the amount of expenses eligible for reimbursement, reimbursement or in-kind benefits provided, provided to Executive during any taxable calendar year shall wiII not affect the amount of expenses eligible for reimbursement, reimbursement or in-kind benefits provided to be provided, Executive in any other taxable calendar year, provided that (y) the foregoing clause (ii) shall not be deemed reimbursements for expenses for which Executive is entitled to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable the calendar year following the taxable calendar year in which the applicable expense occurred. is incurred, and (dz) The Company intends that income provided the right to Executive pursuant to this Agreement will payment or reimbursement or in-kind benefits hereunder may not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee liquidated or exchanged for any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementother benefit.

Appears in 1 contract

Samples: Employment Agreement (UBL Interactive,Inc.)

Compliance with Section 409A of the Code. The parties intend (a) Section 409A of the Internal Revenue Code (“Section 409A”) imposes payment restrictions on “separation pay” (i.e., payments owed to you upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to you, including immediate taxation, interest and a 20% penalty tax. It is the Company’s intent that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the application of, or otherwise complies with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)Code, to the maximum extent possible. If neither of these exceptions applies, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and then notwithstanding any other provision of in this Agreement to the contrary: (ai) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall All amounts that would otherwise be paid unless or provided during the first six months following the date of termination shall instead be accumulated through and until Executive has incurred paid or provided (together with interest on any delayed payment at the applicable federal rate under the Internal Revenue Code), on the first business day following the six-month anniversary of your termination of employment. (ii) Any expense eligible for reimbursement must be incurred, or any entitlement to a benefit must be used, during the Term (or the applicable expense reimbursement or benefit continuation period provided in this Agreement). The amount of the reimbursable expense or benefit to which you are entitled during a calendar year will not affect the amount to be provided in any other calendar year, and your right to receive the reimbursement or benefit is not subject to liquidation or exchange for another benefit. Provided the requisite documentation is submitted, the Company will reimburse the eligible expenses on or before the last day of the calendar year following the calendar year in which the expense was incurred. (b) For purposes of this Agreement, “termination of employment” or words or phrases to that effect shall mean a “separation from service” within the meaning of Section 409A. FurthermoreIf the foregoing correctly sets forth our understanding, please sign, date and return all three (3) copies of this Agreement to the extent that Executive is a “specified employee” within undersigned for execution on behalf of the meaning of Section 409A (determined using the identification methodology selected Company; after this Agreement has been executed by the Company from time and a fully-executed copy returned to timeyou, or if noneit shall constitute a binding agreement between us. Xx. Xxxx X. Hale July 29, the default methodology) as of the date of Executive’s separation from service2008 Page 15 Sincerely yours, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to /s/ Xxxxxxx X. Xxxx Xxxxxxx X. Xxxx Chairman, President and Chief Executive before the date Officer /s/ Xxxx X. Xxxx Xxxx X. Xxxx Dated: 7/31/2008 This Release, Waiver and Non-Compete Agreement (the “Delayed Payment DateAgreement”) which is first day of entered by and between (the seventh month after “Executive”) and Scripps Networks Interactive, Inc. (the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date“Company”). (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Scripps Networks Interactive, Inc.)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No 1. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent any payments or benefits payable under this Agreement on account of Executive’s termination of employment constitute a deferral of compensation subject to Section 409A of the Code, no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment DateDate without interest. (b) 2. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) 3. With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The 4. Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Executive Employment Agreement (Criteo S.A.)

Compliance with Section 409A of the Code. The parties intend that (i) Notwithstanding anything to the contrary in this Agreement, no severance pay or benefits to be paid or provided to the Executive, if any, pursuant to this Agreement (and all that, when considered together with any other severance payments and other benefits provided or separation benefits, are considered deferred compensation under this Agreement) be exempt from the requirements of Code Section 409A of the Code 409A, and the final #93411817v3 regulations and ruling issued any guidance promulgated thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4)) (together, the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits“Deferred Payments”) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall will be paid unless and or otherwise provided until the Executive has incurred a “separation from service” within the meaning of Section 409A. FurthermoreSimilarly, no severance payable to the Executive, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until the Executive has a “separation from service” within the meaning of Section 409A. (ii) Any severance payments or benefits under this Agreement that would be considered Deferred Payments will be paid on, or, in the case of installments, will not commence until, the sixtieth (60th) day following the Executive’s separation from service, or, if later, such time as required by Section 7(d)(iv). Except as required by Section 7(d)(iv), any installment payments that would have been made to the Executive during the sixty (60) day period immediately following the Executive’s separation from service but for the preceding sentence will be paid to the Executive on the sixtieth (60th) day following the Executive’s separation from service and the remaining payments shall be made as provided in this Agreement. (iii) It is intended that each installment of the payments provided for in this Agreement is a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i). For the avoidance of doubt, it is intended that payments of the amounts set forth in this Section 5 satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii), and any amounts paid under this Agreement that qualify under either of such exemptions will not constitute Deferred Payments for purposes of clause (i) above. (iv) Any provision of this Agreement to the contrary notwithstanding, if, at the time of the Executive’s Date of Termination, the Executive is a “specified employee,” within the meaning of Section 409A of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of his separation from service would be considered nonqualified deferred compensation under Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (determined using i) six (6) months and one day after the identification methodology selected by the Company separation from time to time, or if none, the default methodologyservice and (ii) as of the date of the Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date death (the “Delayed Payment DateDelay Period) which is first day ). Upon the expiration of the seventh month after Delay Period, all payments and benefits delayed pursuant to this Section 7(d) (whether they would have otherwise been payable in a single sum or in installments in the date absence of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior delay) shall be paid or provided to the Delayed Payment Date will be accumulated Executive in a lump-sum, and paid on the Delayed Payment Date. (b) Each payment made any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment and the right to a series of installment payments dates specified for them herein. (v) Any reimbursements provided under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” deferred compensation within the meaning of Section 409A409A of the Code shall be made or provided in accordance with the requirements of Section 409A of the Code, including, without limitation, that (i) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the right to reimbursement Company under this Agreement be paid later than the last day of the calendar year next following the calendar year in which the applicable fees, expenses or in-kind benefits shall not be subject to liquidation or exchange for another benefit, other amounts were incurred; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during reimbursement in any taxable given calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits that the Company is obligated to be provided, reimburse in any other taxable calendar year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and ; (iii) such payments shall be made on or before the last day of Executive’s taxable year following right to have the taxable year Company pay or provide such reimbursements may not be liquidated or exchanged for any other benefit; and (iv) in which no event shall the expense occurred.Company's obligations to make such reimbursements apply later than the Executive’s remaining lifetime. #93411817v3 (dvi) The Company intends foregoing provisions are intended to comply with the requirements of Section 409A so that income none of the severance payments and benefits to be provided to Executive pursuant to this Agreement hereunder will not be subject to taxation the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of the Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A of or to otherwise avoid income recognition under Section 409A prior to the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the actual payment of any applicable taxes on compensation paid benefits or provided to imposition of any additional tax. In no event will any member of the Company Group reimburse, indemnify, or hold harmless the Executive pursuant to this Agreement.for any taxes, penalties and interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.

Appears in 1 contract

Samples: Employment Agreement (Acutus Medical, Inc.)

Compliance with Section 409A of the Code. The parties intend that this 6.1. This Agreement (and all payments and other benefits provided under this Agreement) Agreement are intended to comply with, or be exempt from the requirements of from, Section 409A of the Code and the or any regulations and ruling issued or rulings thereunder (collectively “Section 409A”), and shall be construed and interpreted in accordance with such intent. Company does not guarantee, however, that any particular tax effect for income is being provided to the maximum extent possible, whether Executive pursuant to this Agreement, and, except for Company’s responsibility to withhold applicable Deductions and Withholdings from compensation paid or provided to Executive, Company shall not be responsible for the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4)payment of any applicable taxes, the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii)penalties, interest, costs, fees, including attorneys’ fees, or otherwiseother liability incurred by Executive in connection with compensation paid or provided to Executive pursuant to this Agreement. 6.2. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which on account of Executive’s termination of employment with Company that constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which that is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which that is the first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid in a lump sum on the Delayed Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the Delayed Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. (b) Each payment made under this Agreement shall be treated as a separate payment and the 6.3. Any right of Executive to a series of receive installment payments under this Agreement Agreement, for all purposes of Section 409A, shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Global Cash Access Holdings, Inc.)

Compliance with Section 409A of the Code. The parties intend (a) To the extent applicable, it is intended that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from comply with the requirements provisions of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwiseCode. To the extent Section 409A is applicable to such payments, the parties intend that this This Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall will be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality this intent. (b) Notwithstanding any provisions of the foregoing, Section 4 and notwithstanding any other provision of this Agreement Annex A to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within , if the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” (within the meaning of Section 409A (and determined using the identification methodology selected pursuant to policies adopted by the Company from time to time, or Company) on his Termination Date and if none, the default methodology) as any portion of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s payments or benefits to be received by the Executive upon separation from service shall paid (within the meaning of Section 409A) would be considered deferred compensation under Section 409A, amounts of deferred compensation that would otherwise be payable pursuant to Executive before this Agreement during the date six-month period immediately following the Termination Date (the “Delayed Payment DatePayments”) which is and benefits that constitute deferred compensation that would otherwise be provided pursuant to this Agreement (except for the benefits described in Paragraph 4 of Annex A) (the “Delayed Benefits”) during the six-month period immediately following the Executive’s Termination Date (such period, the “Delay Period”) will instead be paid or made available on the earlier of (i) the first day of the seventh month after following the date of the Executive’s separation from service or, if earlier, Termination Date and (ii) the date of Executive’s death following such separation from service(the applicable date, the “Permissible Payment Date”). All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date The Company will be accumulated and paid pay interest on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment Payments and the right to a series value of installment payments under this Agreement shall be treated as a right to a series of separate paymentsthe Delayed Benefits at the rate specified in Section 4(b). (c) With regard Each payment to be made to the Executive under the provisions of Section 4 or Annex A will be considered to be a separate payment and not one of a series of payments for purposes of Section 409A. Further, coverages provided during one taxable year will not affect the degree to which coverages will be provided in any other taxable year. (d) A termination of employment will not be deemed to have occurred for purposes of any provision in of this Agreement that provides and Annex A providing for reimbursement the payment of expenses any amounts or in-kind benefits, except for any expense, reimbursement benefits subject to Section 409A upon or in-kind benefit provided pursuant to this Agreement that does not constitute following a termination of employment unless such termination is also a “deferral of compensation,separation from service(within the meaning of Section 409A, ). (ie) If any provision of 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 Agreement needs to be providedrevised to satisfy the requirements of Section 409A, then such provision shall be modified or restricted to the minimum extent and in any other taxable year, provided that the foregoing clause (ii) shall not be deemed manner necessary to be violated in compliance with regard to expenses reimbursed under any arrangement covered by Section 105(b) such requirements of the Code solely because any such expenses are subject to a limit related to modification will maintain the period same economic results as were intended under the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) Agreement. The Company intends cannot guarantee that income the payments and benefits that may be paid or provided to Executive pursuant to this Agreement will not satisfy all applicable provisions of Section 409A. Payments made to the Executive under the Agreement in error shall be subject returned to taxation under Section 409A of the Code. However, the Company does and do not guarantee any particular tax effect for income provided create a legally binding right to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementsuch payments.

Appears in 1 contract

Samples: Severance Agreement (Lincoln Electric Holdings Inc)

Compliance with Section 409A of the Code. The parties intend (a) To the extent applicable, it is intended that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from comply with the requirements provisions of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwiseCode. To the extent Section 409A is applicable to such payments, the parties intend that this This Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall will be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality this intent. (b) Notwithstanding any provisions of the foregoing, Section 4 and notwithstanding any other provision of this Agreement Annex A to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within , if the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” (within the meaning of Section 409A (and determined using the identification methodology selected pursuant to policies adopted by the Company from time to time, or Company) on the Executive’s Termination Date and if none, the default methodology) as any portion of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s payments or benefits to be received by the Executive upon separation from service shall paid (within the meaning of Section 409A) would be considered deferred compensation under Section 409A, amounts of deferred compensation that would otherwise be payable pursuant to Executive before this Agreement during the date six-month period immediately following the Termination Date (the “Delayed Payment DatePayments”) which is and benefits that constitute deferred compensation that would otherwise be provided pursuant to this Agreement (except for the benefits described in Paragraph 3 of Annex A) (the “Delayed Benefits”) during the six-month period immediately following the Executive’s Termination Date (such period, the “Delay Period”) will instead be paid or made available on the earlier of (i) the first day of the seventh month after following the date of the Executive’s separation from service or, if earlier, Termination Date and (ii) the date of Executive’s death following such separation from service(the applicable date, the “Permissible Payment Date”). All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date The Company will be accumulated and paid pay interest on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment Payments and the right to a series value of installment payments under this Agreement shall be treated as a right to a series of separate paymentsthe Delayed Benefits at the rate specified in Section 4(b). (c) With regard Each payment to be made to the Executive under the provisions of Section 4 or Annex A will be considered to be a separate payment and not one of a series of payments for purposes of Section 409A. Further, coverages provided during one taxable year will not affect the degree to which coverages will be provided in any other taxable year. (d) A termination of employment will not be deemed to have occurred for purposes of any provision in of this Agreement that provides and Annex A providing for reimbursement the payment of expenses any amounts or in-kind benefits, except for any expense, reimbursement benefits subject to Section 409A upon or in-kind benefit provided pursuant to this Agreement that does not constitute following a termination of employment unless such termination is also a “deferral of compensation,separation from service(within the meaning of Section 409A, ). (ie) If any provision of 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 Agreement needs to be providedrevised to satisfy the requirements of Section 409A, then such provision shall be modified or restricted to the minimum extent and in any other taxable year, provided that the foregoing clause (ii) shall not be deemed manner necessary to be violated in compliance with regard to expenses reimbursed under any arrangement covered by Section 105(b) such requirements of the Code solely because any such expenses are subject to a limit related to modification will maintain the period same economic results as were intended under the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) Agreement. The Company intends cannot guarantee that income the payments and benefits that may be paid or provided to Executive pursuant to this Agreement will not satisfy all applicable provisions of Section 409A. Payments made to the Executive under the Agreement in error shall be subject returned to taxation under Section 409A of the Code. However, the Company does and do not guarantee any particular tax effect for income provided create a legally binding right to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementsuch payments.

Appears in 1 contract

Samples: Change in Control Severance Agreement (Lincoln Electric Holdings Inc)

Compliance with Section 409A of the Code. The parties intend It is intended that this the Agreement (and all payments and other benefits provided under this Agreement) the Plan be exempt from or compliant with the requirements provisions of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisepermissible under law. To the extent Section 409A of the Code applies to the Agreement and the Plan, it is applicable to such payments, intended that the parties intend that this Agreement (and such payments and benefits) the Plan comply with the deferral, payout provisions of Section 409A of the Code. The Agreement and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement Plan shall be interpreted, operated administered and administered interpreted in a manner consistent with such intentionsthis intent. Without limiting In the generality event that the Agreement or the Plan does not comply with Section 409A of the Code (to the extent applicable thereto), the Company shall have the authority to amend the terms of the Agreement or the Plan (which amendment may be retroactive to the extent permitted by Section 409A of the Code and may be made by the Company without the Participant’s consent) to avoid excise taxes and other penalties under Section 409A of the Code, to the extent possible. Notwithstanding the foregoing, no particular tax result for the Participant with respect to any income recognized by the Participant in connection with the Agreement is guaranteed, and notwithstanding the Participant solely shall be responsible for any taxes, penalties, interest or other provision losses or expenses incurred by the Participant under Section 409A of this the Code in connection with the Agreement. To the extent any amounts under the Agreement are payable by reference to the contrary: (a) No amount payable pursuant Participant’s “termination of employment,” such term shall be deemed to this Agreement which constitutes a refer to the Participant’s deferral of compensationseparation from service,” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within of the meaning of Section 409A. FurthermoreCode. Notwithstanding any other provision in this Plan, to if the extent that Executive Participant is a “specified employee,as defined in Section 409A of the Code, as of the date of the Participant’s separation from service, then to the extent any amount payable under the Agreement (a) constitutes the payment of nonqualified deferred compensation, within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of ExecutiveCode, (b) is payable upon the Participant’s separation from service, no amount that constitutes a deferral and (c) under the terms of compensation which is the Agreement would be payable on account prior to the six (6)-month anniversary of Executivethe Participant’s separation from service, such payment shall be delayed until the earlier to occur of (i) the six (6)-month anniversary of the Participant’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) date of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of ExecutiveParticipant’s taxable year following the taxable year in which the expense occurreddeath. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Global Performance Share Agreement (Ingredion Inc)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s 's separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s 's separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s 's separation from service or, if earlier, the date of Executive’s 's death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s 's taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s 's responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Severance Agreement (Pico Holdings Inc /New)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No 1. To the extent any payments or benefits payable under this Agreement on account of Executive’s termination of office or employment constitute a deferral of compensation subject to Section 409A of the Code, no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive before the date (the “Delayed Payment Date”) which is the first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment DateDate without interest. (b) 2. For each payment or benefit payable under this Agreement that constitutes a deferral of compensation subject to Section 409A of the Code, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, a Change in Control shall be deemed to have occurred only if a change in the ownership or effective control of Company or a change in ownership of a substantial portion of the assets of Company shall also be deemed to have occurred under Section 409A of the Code. 3. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) 4. With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The 5. Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Management Agreement (Criteo S.A.)

Compliance with Section 409A of the Code. The parties intend that this (i) This Agreement (is intended to comply with Section 409A of the Code and all payments and other its corresponding regulations, to the extent applicable. Severance benefits provided under this Agreement) the Agreement are intended to be exempt from Section 409A of the requirements Code under the “short term deferral” exemption, to the maximum extent applicable, and then under the “separation pay” exemption, to the maximum extent applicable. Notwithstanding anything in this Agreement to the contrary, payments may only be made under this Agreement upon an event and in a manner permitted by Section 409A of the Code, to the extent applicable. As used in the Agreement, the term “termination of employment” shall mean the Executive’s separation from service with the Company within the meaning of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)promulgated thereunder. In no event may the Executive, to directly or indirectly, designate the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisecalendar year of a payment. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning For purposes of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement hereunder shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a the right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement or . All reimbursements and in-kind benefits provided under the Agreement shall not be made or provided in accordance with the requirements of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to liquidation or exchange for another benefitexecution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. (ii) Notwithstanding anything herein to the amount of expenses eligible for reimbursementcontrary, or in-kind benefits providedif, during any taxable year shall not affect at the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) time of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following termination of employment with the taxable year Company, the Company has securities which are publicly traded on an established securities market and the Executive is a “specified employee” (as such term is defined in which Section 409A of the expense occurred. (dCode) The Company intends that income provided and it is necessary to Executive pursuant to postpone the commencement of any payments or benefits otherwise payable under this Agreement will not be subject as a result of such termination of employment to taxation prevent any accelerated or additional tax under Section 409A of the Code. However, then the Company does not guarantee will postpone the commencement of the payment of any particular tax effect for income provided to Executive pursuant to this Agreement. In such payments or benefits hereunder (without any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise paid within the ’short-term deferral exception’ under Treas. Reg. §1.409A-1(b)(4), and the Company shall not ’separation pay exception’ under Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following the Executive’s “separation of service” (as such term is defined under Section 409A of the Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts will be responsible for paid in a lump sum to the Executive on the first payroll date that occurs after the date that is six months following the Executive’s separation of service with the Company. If the Executive dies during the postponement period prior to the payment of any applicable taxes postponed amount, the amounts withheld on compensation account of Section 409A of the Code shall be paid or provided to Executive pursuant to this Agreementthe personal representative of the Executive’s estate within sixty (60) days after the date of the Executive’s death.

Appears in 1 contract

Samples: Employment Agreement (Shift Technologies, Inc.)

Compliance with Section 409A of the Code. The parties intend that this (a) This Agreement (and all payments and other benefits provided under this Agreement) shall be exempt from amended to the requirements of extent necessary to comply with Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisepromulgated thereunder. To the extent Section 409A is applicable Prior to such paymentsamendment, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement notwithstanding anything contained herein to the contrary, this Agreement shall be interpreted, operated and administered construed in a manner consistent with such intentions. Without limiting the generality Section 409A of the foregoingCode and the parties shall take such actions as are required to comply in good faith with the provisions of Section 409A of the Code such that payments shall not be made to the Executive at such time if such payments shall subject the Executive to the penalty tax under Code Section 409A, but rather such payments shall be made by the Bank to the Executive at the earliest time permissible thereafter without the Executive having liability for such penalty tax under Code Section 409A. (b) If and to the extent termination payments under this Agreement constitute deferred compensation within the meaning of Code Section 409A and regulations promulgated thereunder, and notwithstanding if the payment under Section 7 does not qualify as a short-term deferral under Code Section 409A and Treas. Reg. §1.409A-1(b)(4) (or any other provision of this Agreement to similar or successor provisions), and the contrary: (a) No amount payable pursuant to this Agreement which constitutes Executive is a “deferral of compensation” Specified Employee within the meaning of Section 409A of the Code and regulations promulgated thereunder, then the payment of such termination payments that constitute deferred compensation under Section 409A shall be paid unless comply with Code Section 409A(a)(2)(B)(i) and until Executive has incurred a “separation from service” the regulations thereunder, which generally provide that distributions of deferred compensation (within the meaning of Code Section 409A. Furthermore, 409A) to the extent a Specified Employee that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is are payable on account of Termination of Employment may not commence prior to the six (6) month anniversary of the Executive’s separation from service shall paid to Executive before the date Termination of Employment (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of the Executive’s death following death). Amounts that would otherwise be distributed to the Executive during such separation from service. All such amounts that would, six (6) month period but for this Section, become payable prior to the Delayed Payment Date will preceding sentence shall be accumulated and paid to the Executive on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and 185th day following the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) date of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredTermination of Employment. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Parke Bancorp, Inc.)

Compliance with Section 409A of the Code. The parties intend Notwithstanding anything herein to the contrary, (a) if at the time of Executive's termination of employment with the Company Executive is a "specified employee" as such term is defined in Section 409A of the Code and the regulations thereunder, and the deferral of the commencement of any 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 of the Code, then the Company 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 Executive) until the date that is six (6) months following Executive's termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code) and (b) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement (and all are deferred pursuant to this Section 12 in order to prevent any accelerated tax or additional tax under Section 409A of the Code, then such payments and other benefits provided shall be paid at the time specified under this Agreement) Section 12 without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 12; provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, a termination of employment shall not be exempt deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a "Separation from the requirements of Service" as such term is defined in Section 409A of the Code and the regulations and ruling issued guidance promulgated thereunder (collectively “Section 409A”)and, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to for purposes of any such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement Agreement, references to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral resignation,” “termination,” “termination of compensationemployment,within the meaning or like terms shall mean Separation from Service. For purposes of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement shall be treated designated as a "separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” payment" within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.the

Appears in 1 contract

Samples: Executive Employment Agreement (MusclePharm Corp)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling rulings issued thereunder (collectively collectively, “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such paymentspayments or benefits, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No x. Xx amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, the Company shall, within ten (10) business days after the date of Executive’s separation from service, notify Executive that the Company is applying this Section 7.7(a) to the payment otherwise due to be paid to Executive and shall acknowledge in writing its obligation to accumulate and hold such amount in trust until paid in accordance with this Section 7.7(a) and except as otherwise permitted by Section 409A, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive before the date (the “Delayed Payment Date”) which is the first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from serviceservice (the “Delayed Payment Date”). All such amounts that would, but for this SectionSection 7.7(a), become payable prior to the Delayed Payment Date will be accumulated accumulated, held in trust for the benefit of Executive (subject only to the claims of the general creditors of the Company), and paid on the Delayed Payment Date. If a tax liability is created, the Company will withhold and pay any tax owed and the net of tax amount will be held in trust. (b) b. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) c. With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 of Executive shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) year of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effectExecutive, and (iii) any such payments reimbursement shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredwas incurred. (d) d. The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. 409A. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Transition Agreement

Compliance with Section 409A of the Code. The parties intend It is intended that this the Agreement (and all payments and other benefits provided under this Agreement) the Plan be exempt from or compliant with the requirements provisions of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisepermissible under law. To the extent Section 409A of the Code applies to the Agreement and the Plan, it is applicable to such payments, intended that the parties intend that this Agreement (and such payments and benefits) the Plan comply with the deferral, payout provisions of Section 409A of the Code. The Agreement and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement Plan shall be interpreted, operated administered and administered interpreted in a manner consistent with such intentionsthis intent. Without limiting In the generality event that the Agreement or the Plan does not comply with Section 409A of the Code (to the extent applicable thereto), the Company shall have the authority to amend the terms of the Agreement or the Plan (which amendment may be retroactive to the extent permitted by Section 409A of the Code and may be made by the Company without your consent) to avoid excise taxes and other penalties under Section 409A of the Code, to the extent possible. Notwithstanding the foregoing, no particular tax result for you with respect to any income recognized by you in connection with the Agreement is guaranteed, and notwithstanding you solely shall be responsible for any taxes, penalties, interest or other provision losses or expenses incurred by you under Section 409A of this the Code in connection with the Agreement. To the extent any amounts under the Agreement are payable by reference to the contrary: (a) No amount payable pursuant your “termination of employment,” such term shall be deemed to this Agreement which constitutes a refer to your deferral of compensationseparation from service,” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within of the meaning of Section 409A. FurthermoreCode. Notwithstanding any other provision in this Plan, to the extent that Executive is if you are a “specified employee,as defined in Section 409A of the Code, as of the date of your separation from service, then to the extent any amount payable under the Agreement (a) constitutes the payment of nonqualified deferred compensation, within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s Code, (b) is payable upon your separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before and (c) under the date (the “Delayed Payment Date”) which is first day terms of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become Agreement would be payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. six (b) Each 6)-month anniversary of your separation from service, such payment made under this Agreement shall be treated as a separate payment and delayed until the right earlier to a series occur of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement six (6)-month anniversary of your separation from service or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount date 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredyour death. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Global Restricted Stock Unit Award Agreement (Ingredion Inc)

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Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from This Award is intended to comply with the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, if it is determined that the Award fails to satisfy the requirements of the short-term deferral rule and notwithstanding any other provision of this Agreement is otherwise deferred compensation subject to the contrary: (a) No amount payable pursuant to this Agreement which constitutes Section 409A, and if you are a “deferral of compensationSpecified Employee(within the meaning set forth in Section 409A(a)(2)(B)(i) of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodologyCode) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s your separation from service shall paid to Executive before (within the meaning of Treasury Regulation Section 1.409A-1(h) (“Separation from Service”)), then the issuance of any Property that would otherwise be made upon the date (the “Delayed Payment Date”) which is first day of the seventh month separation from service or within the first six months thereafter will not be made on the originally scheduled date(s) and will instead be issued in a lump sum on the date that is six months and one day after the date of Executive’s separation the Separation from service or, if earlier, Service. Notwithstanding any contrary provision of the Notice of Grant or of this Agreement: (a) The Expiration Date shall be the earlier of (i) the Expiration Date set forth on the Notice of Grant or (ii) the later of (x) the date that is 185 days after the Date of Executive’s death following such separation from service. All such amounts that wouldGrant or (y) the latest date after the Date of Grant which, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid determined on the Delayed Payment DateDate of Grant, would result in the Liquidity-Based vesting condition constituting a “substantial risk of forfeiture” within the meaning of Treasury Regulations Section 1.409A-1(d). (b) Each payment made under this Agreement In the event the Expiration Date is determined pursuant to clause (x) of paragraph (a)(ii) above, the Liquidity Event Requirement shall be treated as a separate payment and deemed to be met on the right to a series first business day following the Date of installment payments under Grant. For the avoidance of doubt, in the event the Expiration Date is not earlier than the date that is 185 days after the Date of Grant, the provisions of this Agreement paragraph (b) shall be treated as a right to a series of separate paymentsnot apply. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except Under no circumstances will the Company reimburse you for any expense, reimbursement taxes or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation costs under Section 409A of the Codeor any other tax law or rule. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income All such taxes and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementcosts are solely your responsibility.

Appears in 1 contract

Samples: Restricted Securities Unit Grant (Cardlytics, Inc.)

Compliance with Section 409A of the Code. The parties intend that this This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) to the extent applicable and all payments and other benefits provided under this Agreement) will be exempt from interpreted in a manner intended to comply with Section 409A of the requirements Code. Notwithstanding anything herein to the contrary, if at the time of your termination of employment with the Company you are a “specified employee” as defined in Section 409A of the Code (and any related regulations or other pronouncements thereunder) and the regulations and ruling issued thereunder (collectively “Section 409A”), deferral of the commencement of any payments or benefits otherwise payable hereunder or under the LTI Plans as a result of such termination of employment is necessary in order to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), prevent any accelerated or otherwise. To the extent additional tax under Section 409A is applicable to such paymentsof the Code, then the parties intend that this Agreement (and Company will defer the commencement of the payment of any such payments and benefitsor benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) comply with until the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality expiration of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation six-month period measured from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s your separation from service shall paid to Executive before with the Company (or the earliest date (as is permitted under Section 409A of the “Delayed Payment Date”) which is Code). On the first day of the seventh month after following the date of Executive’s your separation from service orservice, or if earlier, the date of Executive’s death following your death, all payments delayed pursuant to this paragraph (whether they would have otherwise been paid or reimbursed to you in a single sum or in installments) shall be paid or reimbursed to you in a single sum and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal dates specified for them in this Agreement. In addition, if any other payments of money or other benefits due to you hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such separation from service. All payments or other benefits shall be deferred if deferral will make such amounts that wouldpayment or other benefits compliant under Section 409A of the Code, but for this Sectionor otherwise such payment or other benefits shall be restructured, become payable prior to the Delayed Payment Date will extent possible, in a manner, determined by the Company, that does not cause such an accelerated or additional tax. To the extent any reimbursements or in-kind benefits due to you under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be accumulated and paid on the Delayed Payment Date. to you in a manner consistent with Treas. Reg. Section 1.409A-3(i)(l)(iv) or (b) v), as applicable. Each payment made under this Agreement shall be treated designated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,payment” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the The Company shall not be responsible for consult with you in good faith regarding the payment implementation of any applicable taxes on compensation paid or provided to Executive pursuant to the provisions of this AgreementSection 7.8.

Appears in 1 contract

Samples: Employment Agreement (Leonardo DRS, Inc.)

Compliance with Section 409A of the Code. (a) The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from is intended to comply with the requirements of Section 409A of the Code and or an exemption. Notwithstanding anything in the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, distributions upon termination of employment may only be made upon a “separation from service” as determined under Section 409A. Each payment under this Agreement shall be interpretedtreated as a separate payment for purposes of Section 409A. In no event may the Executive, operated directly or indirectly, designate the calendar year of any payment to be made under this Agreement. In the event the parties determine that the terms of this Agreement do not comply with Section 409A, they will negotiate reasonably and administered in good faith to amend the terms of this Agreement such that it complies (in a manner consistent with that attempts to minimize the economic impact of such intentions. Without limiting amendment on the generality Executive and the Company) within the time period permitted by the applicable Department of the foregoing, Treasury Regulations. (b) All reimbursements and notwithstanding any other provision of in-kind benefits provided under this Agreement to shall be made or provided in accordance with the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning requirements of Section 409A of the Code. In order to comply with Section 409A of the Code, in no event shall the payments by the Company under Sections 5(b) or 6 be paid unless made later than the end of the calendar year next following the calendar year in which such fees and until expenses were incurred, provided, that the Executive has incurred shall have submitted an invoice for such fees and expenses at least 10 days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred. The amount of any such fees and expenses that the Company is obligated to pay in any given calendar year shall not affect the fees and expenses that the Company is obligated to pay in any other calendar year, and the Executive’s right to have the Company pay such fees and expenses may not be liquidated or exchanged for any other benefit. (c) The Company and the Executive shall take all steps necessary (including with regard to any post-termination services the Executive provides) to ensure that any termination of employment described in this Agreement constitutes a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, and notwithstanding anything contained in this Agreement to the contrary, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for date on which such “separation from service” takes place shall be the Companydate of the termination of the Executive’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementemployment.

Appears in 1 contract

Samples: Employment Agreement (HealthMarkets, Inc.)

Compliance with Section 409A of the Code. The parties intend that (i) Notwithstanding anything to the contrary in this Agreement, no severance pay or benefits to be paid or provided to the Executive, if any, pursuant to this Agreement (and all that, when considered together with any other severance payments and other benefits provided or separation benefits, are considered deferred compensation under this Agreement) be exempt from the requirements of Code Section 409A of the Code 409A, and the final regulations and ruling issued any guidance promulgated thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4)) (together, the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits“Deferred Payments”) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall will be paid unless and or otherwise provided until the Executive has incurred a “separation from service” within the meaning of Section 409A. FurthermoreSimilarly, no severance payable to the Executive, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section l.409A-l(b)(9) will be payable until the Executive has a “separation from service” within the meaning of Section 409A. (ii) Any severance payments or benefits under this Agreement that would be considered Deferred Payments will be paid on, or, in the case of installments, will not commence until, the sixtieth (60th) day following the Executive’s separation from service, or, if later, such time as required by Section 5(d)(iv). Except as required by Section 5(d)(iv), any installment payments that would have been made to the Executive during the sixty (60) day period immediately following the Executive’s separation from service but for the preceding sentence will be paid to the Executive on the sixtieth (60th) day following the Executive’s separation from service and the remaining payments shall be made as provided in this Agreement. (iii) It is intended that each installment of the payments provided for in this Section 5 is a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i). For the avoidance of doubt, it is intended that payments of the amounts set forth in this Section 5 satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation 1.409A-1(b)(4) and l.409A-l(b)(9)(iii), and any amounts paid under this Agreement that qualify under either of such exemptions will not constitute Deferred Payments for purposes of clause (i) above. (iv) Any provision of this Agreement to the contrary notwithstanding, if: at the time of the Executive’s Date of Termination, the Executive is a “specified employee,” within the meaning of Section 409A of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of his separation from service would be considered nonqualified deferred compensation under Section 409A of the Code, such payment or benefit shall be paid or provided at the date which is the earlier of (determined using i) six (6) months and one day after the identification methodology selected by the Company from time to time, or if none, the default methodologyDate of Termination and (ii) as of the date of the Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date death (the “Delayed Payment DateDelay Period) which is first day ). Upon the expiration of the seventh month after Delay Period, all payments and benefits delayed pursuant to this Section 5(d) (whether they would have otherwise been payable in a single sum or in installments in the date absence of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior delay) shall be paid or provided to the Delayed Payment Date will be accumulated Executive in a lump-sum, and paid on the Delayed Payment Date. (b) Each payment made any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment and the right to a series of installment payments dates specified for them herein. (v) Any reimbursements provided under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” deferred compensation within the meaning of Section 409A409A of the Code shall be made or provided in accordance with the requirements of Section 409A of the Code, including, without limitation, that (i) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the right to reimbursement Company under this Agreement be paid later than the last day of the calendar year next following the calendar year in which the applicable fees, expenses or in-kind benefits shall not be subject to liquidation or exchange for another benefit, other amounts were incurred; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during reimbursement in any taxable given calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits that the Company is obligated to be provided, reimburse in any other taxable calendar year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and ; (iii) such payments shall be made on or before the last day of Executive’s taxable year following right to have the taxable year Company pay or provide such reimbursements may not be liquidated or exchanged for any other benefit; and (iv) in which no event shall the expense occurredCompany’s obligations to make such reimbursements apply later than the Executive’s remaining lifetime. (dvi) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company intends that income provided and the Executive agree to Executive pursuant work together in good faith to consider amendments to this Agreement will not be subject and to taxation take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to the Executive under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.409A.

Appears in 1 contract

Samples: Employment Agreement (Acutus Medical, Inc.)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No 1. To the extent any payments or benefits payable under this Agreement on account of Executive’s termination of office or employment constitute a deferral of compensation subject to Section 409A of the Code, no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is the first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment DateDate without interest. (b) 2. For each payment or benefit payable under this Agreement that constitutes a deferral of compensation subject to Section 409A of the Code, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, a Change in Control shall be deemed to have occurred only if a change in the ownership or effective control of Company or a change in ownership of a substantial portion of the assets of Company shall also be deemed to have occurred under Section 409A of the Code. 3. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) 4. With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The 5. Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Management Agreement (Criteo S.A.)

Compliance with Section 409A of the Code. The parties intend that this This Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of is intended to comply with Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), will be interpreted in a manner intended to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent comply with Section 409A is applicable to such payments, of the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Code. Notwithstanding any other provision of this Agreement anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting (i) any payments that qualify for the generality “short-term deferral” exception or another exception under Section 409A of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A Code shall be paid unless under the applicable exception, (ii) to the extent necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, all payments made and until Executive has incurred benefits provided upon your termination of employment shall only be made and provided upon a “separation from service” within the meaning of Section 409A. Furthermore409A of the Code, (iii) if at the time of your termination of employment with the Company you are a “specified employee” as defined in Section 409A of the Code and the deferral of the commencement of any 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 of the Code, then the Company 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 you) until the date that is six months following your termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code without any accelerated or additional tax under Section 409A of the Code), at which point all payments deferred pursuant to such six-month delay shall be paid to you in a lump sum, and (iv) if any other payments of money or other benefits due hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral would avoid such accelerated or additional tax under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that Executive is does not cause such an accelerated or additional tax. To the extent any reimbursements or in-kind benefits due under this Plan constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Each payment made under this Plan shall be designated as a “specified employeeseparate payment” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, The Company shall consult with you in good faith regarding the implementation of the provisions of this section; provided that neither the Company does not guarantee nor any particular tax effect for income provided of its employees or representatives shall have any liability to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementyou with respect thereto.

Appears in 1 contract

Samples: Employment Agreement (ITT Corp)

Compliance with Section 409A of the Code. The parties intend that this (a) This Agreement (and all payments and other benefits provided under this Agreement) shall be exempt from amended to the requirements of extent necessary to comply with Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisepromulgated thereunder. To the extent Section 409A is applicable Prior to such paymentsamendment, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement notwithstanding anything contained herein to the contrary, this Agreement shall be interpreted, operated and administered construed in a manner consistent with such intentions. Without limiting the generality Section 409A of the foregoingCode and the parties shall take such actions as are required to comply in good faith with the provisions of Section 409A of the Code such that payments shall not be made to the Executive at such time if such payments shall subject the Executive to the penalty tax under Code Section 409A, and notwithstanding any other provision of but rather such payments shall be made by the Bank to the Executive at the earliest time permissible thereafter without the Executive having liability for such penalty tax under Code Section 409A. (b) Notwithstanding anything in this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes , if the Bank in good faith determines, as of the effective date of Executive's Termination of Employment that the Executive is a “deferral of compensation” "specified employee" within the meaning of Section 409A of the Code and if the payment under Section 7 does not qualify as a short-term deferral under Code Section 409A and Treas. Reg. §1.409A-1(b)(4) (or any similar or successor provisions), and that an amount (or any portion of an amount) payable to Executive hereunder, is required to be suspended or delayed for six months in order to satisfy the requirements of Section 409A of the Code, then the Bank will so advise Executive, and any such payment (or the minimum amount thereof) shall be suspended and accrued for six months ("Six-Month Delay"), whereupon such amount or portion thereof shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before in a lump sum on the date (the “Delayed Payment Date”) which is first day of the seventh month after following the effective date of Executive’s separation from service or, 's Termination of Employment. The limitations of this Six-Month Delay shall only be effective if earlier, the date stock of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on Bank or the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated Company is publicly traded as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of set forth at 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b409A(a)(2)(B)(i) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredCode. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Parke Bancorp, Inc.)

Compliance with Section 409A of the Code. The parties intend that a. Notwithstanding the other provisions hereof, this Agreement (and all payments and other benefits provided under this Agreement) be exempt from agreement is intended to comply with the requirements of Section section 409A of the Code, to the extent applicable, and this agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. Accordingly, all provisions herein, or incorporated by reference, shall be construed and interpreted to comply with section 409A and, if necessary, any such provision shall be deemed amended to comply with section 409A of the Code and regulations thereunder. If any payment or benefit cannot be provided or made at the regulations and ruling issued thereunder (collectively “Section 409A”)time specified herein without incurring sanctions under section 409A of the Code, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), then such benefit or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement payment shall be interpreted, operated and administered provided in a manner consistent with full at the earliest time thereafter when such intentionssanctions will not be imposed. Without limiting the generality For purposes of section 409A of the foregoingCode, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement agreement shall be treated as a separate payment and payment. In no event may you, directly or indirectly, designate the right to a series calendar year of installment payments under this Agreement shall be treated as a right to a series of separate paymentspayment. (c) With regard to b. Notwithstanding any provision to the contrary in this Agreement that provides for reimbursement agreement, if on the date of expenses or in-kind benefitsyour termination of employment, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute you are a “deferral of compensation,specified employeewithin the meaning of 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, as defined in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) section 409A of the Code solely because such expenses and determined in the sole discretion of Unisys (or any successor thereto) in accordance with the Unisys (or any successor thereto) “specified employee” determination policy), then all severance payments payable to you under this agreement that are deemed as deferred compensation subject to the requirements of section 409A of the Code shall be postponed for a limit related period of six months following your “separation from service” with Unisys (or any successor thereto). The postponed amounts shall be paid to you in a lump sum within 60 days after the date that is six months following your “separation from service” with Unisys (or any successor thereto). If you die during such six-month period and prior to payment of the postponed cash amounts hereunder, the amounts delayed on account of section 409A of the Code shall be paid to the period the arrangement is in effect, and (iii) such payments personal representative of your estate within 60 days after your death. c. All reimbursements provided under this agreement shall be made on or before provided in accordance with the last day requirements of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section section 409A of the CodeCode and Treas. However, Reg. §1.409A-3(i)(1)(iv) and all tax gross-ups shall paid in accordance with the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreementrequirements of section 409A of the Code and Treas. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this AgreementReg. §1.409A-3(i)(1)(v).

Appears in 1 contract

Samples: Employment Agreement (Unisys Corp)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s 's separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s 's separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s 's separation from service or, if earlier, the date of Executive’s 's death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s 's taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s 's responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Severance Agreement (Pico Holdings Inc /New)

Compliance with Section 409A of the Code. The parties intend This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and will be interpreted in a manner intended to comply with Section 409A of the Code. Notwithstanding anything herein to the contrary, in the event any payments or benefits required to be provided hereunder are deemed to constitute payments of “nonqualified deferred compensation” that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from is subject to the requirements of Section 409A of the Code Code, then the time and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described manner in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), which such payment or otherwise. To the extent Section 409A benefit is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement provided shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermoreadjusted, to the extent reasonably possible, so that payment or distribution is made at a time and in a manner that is consistent with the requirements of such Section 409A (and applicable proposed or final Treasury regulations or other guidance issued or to be issued by the Internal Revenue Service). This Section 14 may, for example, require that certain payments to Executive following his termination of employment be delayed until the date that is six (6) months after the date of his separation from service with the Company (the “Delay Period”) if, at the time of Executive’s termination of employment with the Company, Executive is a “specified employee” within the meaning (as that term is used for purposes of Section 409A (determined using 409A(2)(B)(i)). Upon the identification methodology selected by the Company from time to time, or if none, the default methodology) as expiration of the date Delay Period, all payments and benefits delayed pursuant to this Section 14 (whether they would have otherwise been payable in a single sum or in installments in the absence of Executive’s separation from servicesuch delay) shall be paid or reimbursed to the Executive in a lump sum, no amount that 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. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitutes a deferral “deferred compensation” under Section 409A of compensation which is payable on account of Executive’s separation from service the Code, any such reimbursements or in-kind benefits shall be paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from servicein a manner consistent with Treas. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Reg. Section 1.409A-3(i)(1)(iv). Each payment made under this Agreement shall be treated designated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,payment” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, The Executive shall be deemed to have a “termination of employment” under this Agreement for purposes of entitling him to any “nonqualified deferred compensation” that is subject to the Company does not guarantee any particular tax effect for income provided requirements of Section 409A only to the extent the Executive pursuant to this Agreementhas a “separation from service,” as that term is defined in Section 409A and the applicable Treasury regulations applying all of the default rules thereunder. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the The Company shall not be responsible for consult with Executive in good faith regarding the payment implementation of any applicable taxes on compensation paid or provided to Executive pursuant to the provisions of this AgreementSection 14.

Appears in 1 contract

Samples: Supplemental Employment Agreement (Beazer Homes Usa Inc)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) 18.1 No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) 18.2 Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) 18.3 With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b05(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The 18.4 Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year of the Executive, payment shall be made in the Executive’s later taxable year. 18.5 Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Executive Employment Agreement (Inventure Foods, Inc.)

Compliance with Section 409A of the Code. (a) The parties intend agree that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements for purposes of Section 409A of the Code Code, any right of Employee to receive installment payments of the Severance Payment, the Prior Bonus Payment, the Bonus Severance Payment and the regulations and ruling issued thereunder Special Reimbursement shall be treated as a right to a series of separate payments. (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefitsb) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement anything set forth herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”) shall be paid unless and until Executive Employee has incurred a “separation from service” within the meaning of the Section 409A. 409A Regulations. Furthermore, to the extent that Executive Employee is a “specified employee” within the meaning of the Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) Regulations as of the date of ExecutiveEmployee’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive Employee before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of ExecutiveEmployee’s separation from service or, if earlier, the date of ExecutiveEmployee’s death following such separation from service. All such amounts that would, but for this Sectionsubsection 9.5(a), become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive Employee pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. The provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A of the Code and the Section 409A Regulations. However, the Company does not guarantee any particular tax effect for income provided to Executive Employee pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to ExecutiveEmployee, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive Employee pursuant to this Agreement. (d) The LTIP, as applicable to awards thereunder granted to Employee, and such awards granted to Employee, will, to the extent not exempt from the requirements of Section 409A of the Code, comply with the documentary requirements of Section 409A of the Code by the documentary compliance effective date of such section and operationally comply at all times from and after the date of grant of such awards.

Appears in 1 contract

Samples: Employment Agreement (Kofax LTD)

Compliance with Section 409A of the Code. The parties intend that this This Award Agreement (and all payments and other benefits provided under this Agreement) be exempt from is intended to comply with the requirements of Code Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described thereunder. Notwithstanding anything in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Award Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is this Award Agreement constitutes a “specified employee” within the meaning of nonqualified deferred compensation plan to which Code Section 409A applies, (determined using 1) the identification methodology selected by the Company from administration of this Award (including time to timeand manner of payments under it) shall comply with Code Section 409A, (2) any shares or if none, the default methodology) as other amounts payable under this Award Agreement on a termination of the date of Executive’s separation from service, no amount that constitutes your employment may only be paid on a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the as such term is defined under Code Section 409A and regulations thereunder) (Delayed Payment DateSeparation from Service), (3) which is first day each payment of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made compensation under this Award Agreement shall be treated as a separate payment payment, (4) in no event may you, directly or indirectly, designate the calendar year of a payment, and the right to a series of installment payments (5) no shares or other amounts which become issuable or distributable under this Award Agreement upon your Separation from Service shall actually be treated as a right issued or distributed to a series you prior to the earlier of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement first (1st) day of the seventh (7th) month following the date of such Separation from Service or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount date of expenses eligible for reimbursementyour death, or in-kind benefits provided, during any taxable year shall not affect if you are deemed at the expenses eligible for reimbursement, or in-kind benefits time of such Separation from Service to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed a specified employee under any arrangement covered by Section 105(b1.409A-1(i) of the Treasury Regulations issued under Code solely because such expenses are subject to a limit related to Section 409A, as determined by the period the arrangement is in effectCommittee, and (iii) such payments delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2). The deferred shares or other distributable amount shall be made issued or distributed in a lump sum on or before the last first (1st) day of Executive’s taxable year the seventh (7th) month following the taxable year in which date of your Separation from Service or, if earlier, the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A first day of the Code. However, month immediately following the date the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment receives proof of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementyour death.

Appears in 1 contract

Samples: Restricted Stock Unit Award Agreement (Raytheon Co/)

Compliance with Section 409A of the Code. The parties intend that 20.1. This Agreement shall at all times be administered and the provisions of this Agreement shall be interpreted consistent with the requirements of Section 409A of the Code and any and all regulations thereunder, including such regulations as may be promulgated after the Grant Date. Without limiting the foregoing, for purposes of Section 409A of the Code, (a) each “payment” (as defined by Section 409A of the Code) made under this Agreement or the options shall be considered a “separate payment;” (b) payments shall be deemed exempt from the definition of deferred compensation under Section 409A of the Code to the fullest extent possible under (i) the “short-term deferral” exemption of Treasury Regulation § 1.409A-1(b)(4), and (ii) with respect to amounts paid as separation pay no later than the second calendar year following the calendar year containing Grantee's “separation from service” (as defined for purposes of Section 409A of the Code) the “two years/two-times” separation pay exemption of Treasury Regulation § 1.409A-1(b)(9)(iii), which are hereby incorporated by reference, and (c) if Grantee is a “specified employee” as defined in Section 409A of the Code (and all payments as applied according to procedures of the Company and other benefits provided its affiliates) as of Grantee's separation from service, to the extent any payment under this AgreementAgreement or the Options constitutes deferred compensation (after taking into account any applicable exemptions from Section 409A of the Code) and to the extent required by Section 409A of the Code, no payments due under this Agreement or the Options may be exempt made until the earlier of: (i) the first day of the seventh month following Grantee's separation from service, or (ii) Grantee's date of death; provided, however, that any payments delayed during this six-month period shall be paid in the aggregate in a lump sum, without interest, on the first day of the seventh month following Grantee's separation from service. To the extent that the payment terms for the Options are otherwise set forth in a written employment agreement or change in control agreement with a specified employee (or other Company plan applicable to the specified employee) and such payment terms otherwise meet the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to application of such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered terms does not result in a manner consistent with such intentions. Without limiting the generality violation of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided foregoing payment terms shall be disregarded and the payment terms set forth in the applicable agreement or plan shall apply. 20.2. If this Agreement or the Options fail to Executive pursuant to this Agreement. In any eventmeet the requirements of Section 409A of the Code, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, neither the Company nor any of its Affiliates shall not be responsible have any liability for any tax, penalty or interest imposed on Grantee by Section 409A of the Code, and Grantee shall have no recourse against the Company or any of its Affiliates for payment of any applicable taxes on compensation paid such tax, penalty or provided to Executive pursuant to this Agreementinterest imposed by Section 409A of the Code.

Appears in 1 contract

Samples: Inducement Stock Option Grant Agreement (Wright Medical Group Inc)

Compliance with Section 409A of the Code. (a) The parties intend agree that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements for purposes of Section 409A of the Code Code, any right of Employee to receive installment payments of the Severance Payment, the Prior Bonus Payment, the Bonus Severance Payment and the regulations and ruling issued thereunder Special Reimbursement shall be treated as a right to a series of separate payments. (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefitsb) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement anything set forth herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”) shall be paid unless and until Executive Employee has incurred a “separation from service” within the meaning of the Section 409A. 409A Regulations. Furthermore, to the extent that Executive Employee is a “specified employee” within the meaning of the Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) Regulations as of the date of ExecutiveEmployee’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive Employee before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of ExecutiveEmployee’s separation from service or, if earlier, the date of ExecutiveEmployee’s death following such separation from service. All such amounts that would, but for this Sectionsubsection 9.5(a), become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive Employee pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. The provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A of the Code and the Section 409A Regulations. However, the Company does not guarantee any particular tax effect for income provided to Executive Employee pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income Income and employment taxes from compensation paid or provided to ExecutiveEmployee, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive Employee pursuant to this Agreement. (d) The LTIP and the Option Plan, as applicable to awards thereunder granted to Employee, and such awards granted to Employee, will, to the extent not exempt from the requirements of Section 409A of the Code, comply with the documentary requirements of Section 409A of the Code by the documentary compliance effective date of such section and operationally comply at ail times from and after the date of grant of such awards.

Appears in 1 contract

Samples: Employment Agreement (Kofax LTD)

Compliance with Section 409A of the Code. The parties intend that 20.1. This Agreement shall at all times be administered and the provisions of this Agreement shall be interpreted consistent with the requirements of Section 409A of the Code and any and all regulations thereunder, including such regulations as may be promulgated after the Grant Date. Without limiting the foregoing, for purposes of Section 409A of the Code, (a) each “payment” (as defined by Section 409A of the Code) made under this Agreement or the options shall be considered a “separate payment;” (b) payments shall be deemed exempt from the definition of deferred compensation under Section 409A of the Code to the fullest extent possible under (i) the “short-term deferral” exemption of Treasury Regulation § 1.409A-1(b)(4), and (ii) with respect to amounts paid as separation pay no later than the second calendar year following the calendar year containing Grantee’s “separation from service” (as defined for purposes of Section 409A of the Code) the “two years/two-times” separation pay exemption of Treasury Regulation § 1.409A-1(b)(9)(iii), which are hereby incorporated by reference, and (c) if Grantee is a “specified employee” as defined in Section 409A of the Code (and all payments as applied according to procedures of the Company and other benefits provided its affiliates) as of Grantee’s separation from service, to the extent any payment under this AgreementAgreement or the Options constitutes deferred compensation (after taking into account any applicable exemptions from Section 409A of the Code) and to the extent required by Section 409A of the Code, no payments due under this Agreement or the Options may be exempt made until the earlier of: (i) the first day of the seventh month following Grantee’s separation from service, or (ii) Grantee’s date of death; provided, however, that any payments delayed during this six-month period shall be paid in the aggregate in a lump sum, without interest, on the first day of the seventh month following Grantee’s separation from service. To the extent that the payment terms for the Options are otherwise set forth in a written employment agreement or change in control agreement with a specified employee (or other Company plan applicable to the specified employee) and such payment terms otherwise meet the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to application of such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered terms does not result in a manner consistent with such intentions. Without limiting the generality violation of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided foregoing payment terms shall be disregarded and the payment terms set forth in the applicable agreement or plan shall apply. 20.2. If this Agreement or the Options fail to Executive pursuant to this Agreement. In any eventmeet the requirements of Section 409A of the Code, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, neither the Company nor any of its Affiliates shall not be responsible have any liability for any tax, penalty or interest imposed on Grantee by Section 409A of the Code, and Grantee shall have no recourse against the Company or any of its Affiliates for payment of any applicable taxes on compensation paid such tax, penalty or provided to Executive pursuant to this Agreementinterest imposed by Section 409A of the Code.

Appears in 1 contract

Samples: Inducement Stock Option Grant Agreement (Wright Medical Group Inc)

Compliance with Section 409A of the Code. The parties intend that Notwithstanding any other provision of the Plan or this Agreement (to the contrary, the Plan and all payments and other benefits provided under this Agreement) Agreement shall be construed or deemed to be amended as necessary to remain exempt from or comply with the requirements of Section 409A of the Code and to avoid the imposition of any additional or accelerated taxes or other penalties under Section 409A of the Code. The Committee, in its sole discretion, shall determine the requirements of Section 409A of the Code applicable to the Plan and this Agreement and shall interpret the terms of each consistently therewith. Under no circumstances, however, shall the Company, an Affiliate, or a subsidiary have any liability under the Plan or this Agreement for any -6- taxes, penalties, or interest due on amounts paid or payable pursuant to the Plan and/or this Agreement, including any taxes, penalties, or interest imposed under Section 409A of the Code. In the event that it is determined by the Company that, as a result of the deferred compensation tax rules under Section 409A of the Code (and any related regulations and ruling issued thereunder or other pronouncements thereunder) (collectively the Section 409ADeferred Compensation Tax Rules”), benefits that the Participant is entitled to receive under the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision terms of this Agreement are deferred compensation subject to tax under the contraryDeferred Compensation Tax Rules, this Agreement (i) the Participant shall not be interpreted, operated and administered in a manner consistent with such intentions. Without limiting considered to have terminated employment for purposes hereof until the generality of the foregoing, and notwithstanding any other provision of this Agreement Participant would be considered to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has have incurred a “separation from service” within the meaning of Section 409A. Furthermorethe Deferred Compensation Tax Rules and (ii) the Company shall, to in lieu of providing such benefit when otherwise due under this Agreement, instead provide such benefit on the extent that Executive first day on which such provision would not result in the Participant incurring any tax liability under the Deferred Compensation Tax Rules; which day, if the Participant is a “specified employee” (within the meaning of Section 409A the Deferred Compensation Tax Rules), shall, in the event the benefit to be provided is due to the Participant’s “separation from service” (determined using within the identification methodology selected by meaning of the Deferred Compensation Tax Rules) with the Company from time to timeand its subsidiaries, or if none, be the default methodology) as of first day following the six-month period beginning on the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior Each amount to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made or benefit to be provided under this Agreement shall be treated construed as a separate separately identified payment for purposes of the Deferred Compensation Tax Rules, and the right to a series of installment any payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision described in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” are due within the meaning of Section 409A, (i) “short term deferral period” as defined in the right to reimbursement or in-kind benefits Deferred Compensation Tax Rules 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurredtreated as deferred compensation unless applicable law requires otherwise. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: 2020 Performance Based Rsu Award Agreement (Entegris Inc)

Compliance with Section 409A of the Code. (a) The parties intend that benefits set forth in this Agreement do not constitute non-qualified deferred compensation subject Section 409A of the Code pursuant to Treas. Reg. §1.409A-(1)(b)(9)(iii). If any of the benefits set forth in this Agreement are deemed to constitute non-qualified deferred compensation subject to Section 409A of the Code, the following provisions shall apply: (and all payments and other i) any termination of employment triggering payment of such benefits provided must constitute a “separation from service” under Section 409A of the Code before distribution of such benefits can commence. For purposes of clarification, this Agreementparagraph shall not cause any forfeiture of benefits on the part of the Executive, but shall only act as a delay until such time as a “separation from service” occurs; (ii) be exempt from if the requirements of Executive is a “specified employee” (as that term is used in Section 409A of the Code and the regulations and ruling other guidance issued thereunder thereunder) on the date his separation from service becomes effective, any benefits payable under Section 9 that constitute non-qualified deferred compensation subject to Section 409A of the Code shall be delayed until the earlier of (collectively “Section 409A”)A) the business day following the six-month anniversary of the date his separation from service becomes effective, and (B) the date of the Employee’s death, but only to the maximum extent possiblenecessary to avoid the imposition of accelerated or increased income taxes, whether pursuant excise taxes or other penalties under Section 409A of the Code. On the earlier of (A) the business day following the six-month anniversary of the date his separation from service becomes effective, and (B) the Executive’s death, the Company shall pay the Executive in a lump sum the aggregate value of the non-qualified deferred compensation that the Company otherwise would have paid the Executive prior to that date under Section 9 of this Agreement; (iii) it is intended that each installment of the payments and benefits provided under this Agreement shall be treated as a separate “payment” for purposes of Section 409A of the Code; and (iv) neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), extent specifically permitted or otherwise. To the extent required by Section 409A is applicable to such payments, of the parties intend that this Agreement Code. (and such payments and benefitsb) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this if any term in the Agreement is ambiguous, such term or terms shall be interpreted, operated and administered interpreted in a manner consistent with such intentions. Without limiting that avoids the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral inclusion of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A 409A(a)(1) of the Code. HoweverFor purposes of clarification, this Section 20 shall be a rule of construction and interpretation and nothing in this Section 20 shall cause a forfeiture of benefits on the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for part of the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Cyclacel Pharmaceuticals, Inc.)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling rulings issued thereunder (collectively collectively, “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such paymentspayments or benefits, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, the Company shall, within ten (10) business days after the date of Executive’s separation from service, notify Executive that the Company is applying this Section 7.7(a) to the payment otherwise due to be paid to Executive and shall acknowledge in writing its obligation to accumulate and hold such amount in trust until paid in accordance with this Section 7.7(a) and except as otherwise permitted by Section 409A, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive before the date (the “Delayed Payment Date”) which is the first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from serviceservice (the “Delayed Payment Date”). All such amounts that would, but for this SectionSection 7.7(a), become payable prior to the Delayed Payment Date will be accumulated accumulated, held in trust for the benefit of Executive (subject only to the claims of the general creditors of the Company), and paid on the Delayed Payment Date. If a tax liability is created, the Company will withhold and pay any tax owed and the net of tax amount will be held in trust. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Pico Holdings Inc /New)

Compliance with Section 409A of the Code. The parties intend that this Agreement (Units are intended to comply with Section 409A of the Code to the extent subject thereto and all payments and other benefits provided under this Agreement) shall be exempt from the requirements of interpreted in accordance with Section 409A of the Code and the Department of Treasury regulations and ruling other interpretive guidance issued thereunder (collectively “Section 409A”)thereunder, to including, without limitation, any such regulations or other guidance that may be issued after the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwiseGrant Date. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of in the Plan or this Agreement to the contrary, no payment or distribution under this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality that constitutes an item of deferred compensation under Section 409A of the foregoing, Code and notwithstanding becomes payable by reason of the Participant’s termination of service with the Company or any other provision of this Agreement its affiliates will be made to the contrary: (a) No amount payable pursuant to this Agreement which Participant until the Participant’s termination of service constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within (as defined in Section 409A of the meaning Code). For purposes of this Agreement, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A. Furthermore, to 409A of the extent that Executive Code. If the Participant is a “specified employee” within the meaning of (as defined in Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode), no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior then to the Delayed Payment Date will be accumulated and paid on extent necessary to avoid the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series imposition of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation taxes under Section 409A of the Code, such Participant shall not be entitled to any payments upon a termination of his or her service until the earlier of: (i) the expiration of the six (6)-month period measured from the date of such Participant’s “separation from service” and (ii) the date of such Participant’s death. HoweverUpon the expiration of the applicable waiting period set forth in the preceding sentence, all payments and benefits deferred pursuant to this Section 13 (whether they would have otherwise been payable in a single lump sum or in installments in the absence of such deferral) shall be paid to such Participant in a lump sum as soon as practicable, but in no event later than sixty (60) calendar days, following such expired period, and any remaining payments due under this Agreement will be paid in accordance with the normal payment dates specified for them herein. Notwithstanding the foregoing, the Company does nor any of its affiliates is not guarantee guaranteeing any particular tax effect outcome, and the Participant shall remain solely liable for income provided to Executive pursuant to this Agreement. In any event, except for and all tax consequences associated with the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this AgreementUnits.

Appears in 1 contract

Samples: Restricted Stock Unit Grant Agreement (Siga Technologies Inc)

Compliance with Section 409A of the Code. The parties intend (a) Section 409A of the Internal Revenue Code (“Section 409A”) imposes payment restrictions on “separation pay” (i.e., payments owed to you upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to you, including immediate taxation, interest and a 20% penalty tax. It is the Company’s intent that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the application of, or otherwise complies with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)Code, to the maximum extent possible. If neither of these exceptions applies, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and then notwithstanding any other provision of in this Agreement to the contrary: (ai) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall All amounts that would otherwise be paid unless or provided during the first six months following the date of termination shall instead be accumulated through and until Executive has incurred paid or provided (together with interest on any delayed payment at the applicable federal rate under the Internal Revenue Code), on the first business day following the six-month anniversary of your termination of employment. (ii) Any expense eligible for reimbursement must be incurred, or any entitlement to a benefit must be used, during the Term (or the applicable expense reimbursement or benefit continuation period provided in this Agreement). The amount of the reimbursable expense or benefit to which you are entitled during a calendar year will not affect the amount to be provided in any other calendar year, and your right to receive the reimbursement or benefit is not subject to liquidation or exchange for another benefit. Provided the requisite documentation is submitted, the Company will reimburse the eligible expenses on or before the last day of the calendar year following the calendar year in which the expense was incurred. (b) For purposes of this Agreement, “termination of employment” or words or phrases to that effect shall mean a “separation from service” within the meaning of Section 409A. FurthermoreIf the foregoing correctly sets forth our understanding, please sign, date and return all three (3) copies of this Agreement to the extent that Executive is a “specified employee” within undersigned for execution on behalf of the meaning of Section 409A (determined using the identification methodology selected Company; after this Agreement has been executed by the Company from time Xx. Xxxxxx X. NeCastro October 15, 2008 and a fully-executed copy returned to timeyou, or if noneit shall constitute a binding agreement between us. Sincerely yours, the default methodology) as of the date of Executive’s separation from service/s/ Xxxxxxx X. Xxxx Xxxxxxx X. Xxxx Chairman, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to President & Chief Executive before the date Officer /s/ Xxxxxx X. XxXxxxxx Xxxxxx X. XxXxxxxx Dated: 10-16-08 This Release, Waiver and Non-Compete Agreement (the “Delayed Payment DateAgreement”) which is first day of entered by and between (the seventh month after “Executive”) and Scripps Networks Interactive, Inc. (the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date“Company”). (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Employment Agreement (Scripps Networks Interactive, Inc.)

Compliance with Section 409A of the Code. The parties intend (a) Section 409A of the Internal Revenue Code (“Section 409A”) imposes payment restrictions on “separation pay” (i.e., payments owed to you upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to you, including immediate taxation, interest and a 20% penalty tax. It is the Company’s intent that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the application of, or otherwise complies with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)Code, to the maximum extent possible. If neither of these exceptions applies, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and then notwithstanding any other provision of in this Agreement to the contrary: (ai) No All amounts that would otherwise be paid or provided during the first six months following the date of termination shall instead be accumulated through and paid or provided (together with interest on any delayed payment at the applicable federal rate under the Internal Revenue Code), on the first business day following the six-month anniversary of your termination of employment. (ii) Any expense eligible for reimbursement must be incurred, or any entitlement to a benefit must be used, during the Term (or the applicable expense reimbursement or benefit continuation period provided in this Agreement). The amount payable of the reimbursable expense or benefit to which you are entitled during a calendar year will not affect the amount to be provided in any other calendar year, and your right to receive the reimbursement or benefit is not subject to liquidation or exchange for another benefit. Provided the requisite documentation is submitted, except as otherwise provided with respect to the reimbursement of reasonable legal expenses pursuant to Section 13, the Company will reimburse the eligible expenses on or before the last day of the calendar year following the calendar year in which the expense was incurred. (b) For purposes of this Agreement which constitutes a Agreement, deferral termination of compensation” within the meaning of Section 409A employment’ or words or phrases to that effect shall be paid unless and until Executive has incurred mean a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.409A.

Appears in 1 contract

Samples: Employment Agreement (Scripps Networks Interactive, Inc.)

Compliance with Section 409A of the Code. (a) The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from is intended to comply with the requirements of Section 409A of the Code or an exemption, and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described shall in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described all respects be administered in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply accordance with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this anything in the Agreement to the contrary, this distributions upon termination of employment may only be made under the Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred upon a “separation from service” within the meaning of as determined under Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and for purposes of Section 409A. In no event may the right Executive, directly or indirectly, designate the calendar year of any payment to a series of installment payments be made under this Agreement. All reimbursements provided under the Agreement shall be treated as a right to a series made in accordance with the requirements of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However. (b) Notwithstanding anything in this Agreement to the contrary, if at the time of the Executive’s termination of employment with the Company, the Executive is a “specified employee” (as defined in Section 409A of the Code) and it is necessary to postpone the commencement of any payments under this Agreement in order to prevent taxation under Section 409A, then the Company does not guarantee shall postpone commencement of such payments hereunder (without any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation reduction in such payments ultimately paid or provided to the Executive) until the first payroll date that occurs after the date that is six (6) months following the Executive’s “separation from service” with the Company (within the meaning of such term under Section 409A). If any payments are postponed, the Company shall not postponed amounts will be responsible for paid in a lump sum to the Executive on the first payroll date that occurs after the date that is six (6) months following the Executive’s “separation from service” with the Company. If the Executive dies during the postponement period prior to the payment of any applicable taxes the postponed amount, the amounts withheld on compensation account of Section 409A shall be paid or provided to Executive pursuant to this Agreementthe personal representative of the Executive’s estate within sixty (60) days after the date of the Executive’s death.

Appears in 1 contract

Samples: Employment Agreement (Charming Shoppes Inc)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)thereunder, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(41.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such paymentspayments or benefits, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (ai) No amount payable pursuant to this Agreement on account of Executive’s termination of employment with the Company which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Separation. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceSeparation, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service Separation shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service Separation or, if earlier, the date of Executive’s death following such separation from serviceSeparation. All such amounts that would, but for this Sectionparagraph, become payable prior to the Delayed Payment Date will be accumulated and paid in a lump sum on the Delayed Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the Delayed Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. (bii) Each payment made under this Agreement shall be treated as a separate payment It is the intent of the Company and the Executive that any right of Executive to a series of receive installment payments under this Agreement shall hereunder shall, for all purposes of Section 409A, be treated as a right to a series of separate payments. (ciii) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (iA) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (iiB) the amount of expenses eligible for reimbursement, or in-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 the foregoing clause (iiB) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iiiC) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (div) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Executive Service Agreement (RhythmOne PLC)

Compliance with Section 409A of the Code. (i) The intent of the parties intend is that the payments and benefits under this Agreement (and all payments and other benefits provided under this Agreement) comply with or be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) 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 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 regulations and ruling issued thereunder Company of the applicable provision without violating the provisions of Code Section 409A (collectively “Section 409A”). (ii) If any payment, compensation or other benefit provided to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that Executive under this Agreement in connection with Executive’s “separation from service” (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A 409A) is determined, in whole or in part, to constitute “nonqualified deferred compensation” (within the meaning of Section 409A) and Executive is a specified employee (as defined in Code Section 409A(a)(2)(B)(i)) at the time of separation from service, no part of such payments shall be paid before the day that is six months plus one day after the date of separation or, if earlier, ten business days following Executive’s death (the “New Payment Date”). The aggregate of any payments and benefits that otherwise would have been paid and/or provided to Executive during the period between the date of separation of service and the New Payment Date shall be paid to Executive in a lump sum on such New Payment Date. Thereafter, any payments and/or benefits that remain outstanding as of or following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. (iii) 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 amounts or benefits subject to Section 409A upon or following a termination of employment unless and until Executive has incurred such termination is also a “separation from service” (within the meaning of Section 409A. Furthermore409A), and for purposes of any such provision of this Agreement, references to the extent that Executive is a “specified employeeresignation,“termination,” “terminate,” “termination of employment” or like terms shall mean separation from service (within the meaning of Section 409A 409A). (determined using iv) All expenses or other reimbursements as provided herein shall be payable in accordance with the identification methodology selected by the Company Company’s policies in effect from time to time, but in any event shall be made on or if none, prior to the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first last day of the seventh month after taxable year following the date of taxable year in which such expenses were incurred by Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement herein that provides for reimbursement of costs and expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of as permitted by Section 409A, : (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, ; and (ii) the amount of expenses eligible for reimbursement, reimbursements or in-kind benefits provided, provided during any taxable year shall not affect the expenses eligible for reimbursement, reimbursement or in-kind benefits to be provided, provided in any other taxable year. (v) For purposes of Section 409A, provided that 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 made within 30 days following the foregoing clause date of termination), the actual date of payment within the specified period shall be within the sole discretion of the Company. (iivi) shall To the extent required to comply with Section 409A, a Change in Control will not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by occur for purposes of this Agreement unless it is a “change in control event” as defined in Section 105(b1.409A-3(i)(5)(i) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effectTreasury Regulations, and (iiiif it is not a “change in control event,” payment of the severance described in Section 8(b) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not shall instead be subject to taxation paid as provided under Section 409A 8(a) of this Agreement (unless the Code. Howeverseverance, the Company does not guarantee any particular or portion thereof, could be paid earlier without resulting in adverse tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementconsequences under Section 409A).

Appears in 1 contract

Samples: Employment Agreement (Lantheus Holdings, Inc.)

Compliance with Section 409A of the Code. (a) The parties intend Company intends that income provided to Executive pursuant to this Agreement (and all payments and other benefits provided will not be subject to taxation under this Agreement) be exempt from the requirements of Section 409A of the Internal Revenue Code and the regulations and ruling issued Treasury Regulations thereunder (collectively collectively, “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision The provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes, penalties, interest, costs, fees, including attorney’s fees, or other liability incurred by Employee in connection with compensation paid or provided to Executive pursuant to this Agreement. (b) Notwithstanding anything set forth herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No no amount payable pursuant to this Agreement on account of Executive’s termination of employment with the Company which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that if Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive before the date (the “Delayed Payment Date”) which is the first business day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Confidential Separation and Release Agreement (Jda Software Group Inc)

Compliance with Section 409A of the Code. (a) The parties intend agree that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements for purposes of Section 409A of the Code Code, any right of Employee to receive installment payments of the Severance Payment, the Prior Bonus Payment, the Bonus Severance Payment and the regulations and ruling issued thereunder Special Reimbursement shall be treated as a right to a series of separate payments. (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefitsb) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement anything set forth herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”) shall be paid unless and until Executive Employee has incurred a “separation from service” within the meaning of the Section 409A. 409A Regulations. Furthermore, to the extent that Executive Employee is a “specified employee” within the meaning of the Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) Regulations as of the date of ExecutiveEmployee’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall be paid to Executive Employee before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of ExecutiveEmployee’s separation from service or, if earlier, the date of ExecutiveEmployee’s death following such separation from service. All such amounts that would, but for this Sectionsubsection 9.5(a), become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive Employee pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. The provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A of the Code and the Section 409A Regulations. However, the Company does not guarantee any particular tax effect for income provided to Executive Employee pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to ExecutiveEmployee, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive Employee pursuant to this Agreement. (d) The LTIP and the Option Plan, as applicable to awards thereunder granted to Employee, and such awards granted to Employee, will, to the extent not exempt from the requirements of Section 409A of the Code, comply with the documentary requirements of Section 409A of the Code by the documentary compliance effective date of such section and operationally comply at all times from and after the date of grant of such awards.

Appears in 1 contract

Samples: Employment Agreement (Kofax LTD)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No : 15.1 Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent any payments or benefits payable under this Agreement on account of Executive’s termination of employment constitute a deferral of compensation subject to Section 409A of the Code, no amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment DateDate without interest. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Executive Employment Agreement (Criteo S.A.)

Compliance with Section 409A of the Code. The parties intend Notwithstanding anything herein to the contrary, (a) if at the time of Executive's termination of employment with the Company Executive is a "specified employee" as such term is defined in Section 409A of the Code and the regulations thereunder, and the deferral of the commencement of any 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 of the Code, then the Company 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 Executive) until the date that is six (6) months following Executive's termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code) and (b) if any other payments of money or other benefits due to Executive here under could cause the application of an accelerated or additional tax under Section 409A of the Code , such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement (and all are deferred pursuant to this Section 12 in order to prevent any accelerated tax or additional tax under Section 409A of the Code, then such payments and other benefits provided shall be paid at the time specified under this Agreement) Section 12 without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 12; provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, a termination of employment shall not be exempt deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a "Separation from the requirements of Service" as such term is defined in Section 409A of the Code and the regulations and ruling issued guidance promulgated thereunder (collectively “Section 409A”)and, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to for purposes of any such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement Agreement, reference s to the contrary, this Agreement a "resignation," "termination ,"termination of employment," or like terms shall be interpreted, operated and administered in a manner consistent with such intentionsmean Separation from Service. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning For purposes of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from serviceCode, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement shall be treated designated as a "separate payment and payment" within the right meaning of the Section 409A of the Code. Notwithstanding anything to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefitsthe contrary herein, except for to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a "deferral of compensation,” " within the meaning of Section 409A, 409A of the Code: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (iix) the amount of expenses eligible for reimbursement, reimbursement or in-kind bene fits provided to Executive during any calendar year win not affect 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 provided to be provided, Executive in any other taxable calendar year, provided that (y) the foregoing clause (ii) shall not be deemed reimbursements for expenses for which Executive is entitled to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable the calendar year following the taxable calendar year in which the applicable expense occurred. is incurred, and (dz) The Company intends that income provided the right to Executive pursuant to this Agreement will payment or reimbursement or in-kind benefits hereunder may not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee liquidated or exchanged for any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementother benefit.

Appears in 1 contract

Samples: Executive Employment Agreement (MusclePharm Corp)

Compliance with Section 409A of the Code. (a) The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from is intended to comply with the requirements of Section 409A of the Code and or an exemption. Notwithstanding anything in the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, distributions upon termination of employment may only be made upon a “separation from service” as determined under Section 409A. Each payment under this Agreement, including each installment of the Termination Payment, shall be treated as a separate payment for purposes of Section 409A. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. In the event the parties determine that the terms of this Agreement do not comply with Section 409A, they will negotiate reasonably and in good faith to amend the terms of this Agreement such that it complies (in a manner that attempts to minimize the economic impact of such amendment on the Executive and the Company) within the time period permitted by the applicable Department of Treasury Regulations. (b) All reimbursements and in-kind benefits provided under this Agreement shall be interpreted, operated and administered made or provided in a manner consistent accordance with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning requirements of Section 409A of the Code. In order to comply with Section 409A of the Code, in no event shall the payments by the Company under Section 6 be paid unless made later than the end of the calendar year next following the calendar year in which such fees and until expenses were incurred, provided, that the Executive has incurred shall have submitted an invoice for such fees and expenses at least 10 days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred. (c) The Company and the Executive shall take all steps necessary (including with regard to any post-termination services the Executive provides) to ensure that any termination of employment described in this Agreement constitutes a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, and notwithstanding anything contained in this Agreement to the contrary, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for date on which such “separation from service” takes place shall be the Companydate of the termination of the Executive’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementemployment.

Appears in 1 contract

Samples: Employment Agreement (HealthMarkets, Inc.)

Compliance with Section 409A of the Code. The parties intend that this This Award Agreement (and all payments and other benefits provided under this Agreement) be exempt from is intended to comply with the requirements of Code Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described thereunder. Notwithstanding anything in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Award Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is this Award Agreement constitutes a “specified employee” within the meaning of nonqualified deferred compensation plan to which Code Section 409A applies, (determined using 1) the identification methodology selected by the Company from administration of this Award (including time to timeand manner of payments under it) shall comply with Code Section 409A, (2) any shares or if none, the default methodology) as other amounts payable under this Award Agreement on a termination of the date of Executive’s separation from service, no amount that constitutes your employment may only be paid on a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the as such term is defined under Code Section 409A and regulations thereunder) (Delayed Payment DateSeparation from Service), (3) which is first day each payment of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made compensation under this Award Agreement shall be treated as a separate payment payment, (4) in no event may you, directly or indirectly, designate the calendar year of a payment, and the right to a series of installment payments (5) no shares or other amounts which become issuable or distributable under this Award Agreement upon your Separation from Service shall actually be treated as a right issued or distributed to a series you prior to the earlier of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement first (1st) day of the seventh (7th) month following the date of such Separation from Service or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount date of expenses eligible for reimbursementyour death, or in-kind benefits provided, during any taxable year shall not affect if you are is deemed at the expenses eligible for reimbursement, or in-kind benefits time of such Separation from Service to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed a specified employee under any arrangement covered by Section 105(b1.409A-1(i) of the Treasury Regulations issued under Code solely because such expenses are subject to a limit related to Section 409A, as determined by the period the arrangement is in effectCommittee, and (iii) such payments delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2). The deferred shares or other distributable amount shall be made issued or distributed in a lump sum on or before the last first (1st) day of Executive’s taxable year the seventh (7th) month following the taxable year in which date of your Separation from Service or, if earlier, the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A first day of the Code. However, month immediately following the date the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment receives proof of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreementyour death.

Appears in 1 contract

Samples: Restricted Stock Unit Award Agreement (Raytheon Co/)

Compliance with Section 409A of the Code. The parties intend that this This Agreement (and all payments and other benefits provided shall be interpreted to avoid any penalty sanctions under this Agreement) be exempt from the requirements of Section section 409A of the Internal Revenue Code and of 1986, as amended (the regulations and ruling issued thereunder (collectively “Section 409A”"Code"), . All payments to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that be made upon a termination of employment under this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall may only be interpreted, operated and administered in made upon a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “"separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section " under section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date Code. For purposes of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day section 409A of the seventh month after the date of Executive’s separation from service orCode, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a the right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement . In no event may Employee, directly or indirectly, designate the calendar year of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within payment. To the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed maximum extent permitted under any arrangement covered by Section 105(b) section 409A of the Code solely because and its corresponding regulations, the cash severance benefits payable under this Agreement are intended to meet the requirements of the short-term deferral exemption under section 409A of the Code and the 'separation pay exception' under Treas. Reg. section 1.409A-1(b)(9)(iii). However, if such expenses severance benefits do not qualify for such exemptions at the time of the Employee's termination of employment and therefore are deemed as deferred compensation subject to the requirements of section 409A of the Code, then if Employee is a limit related to "specified employee" of a publicly traded corporation under section 409A of the period Code on the arrangement is in effectdate of Employee's termination of employment, and (iii) such payments payment of severance under this Agreement shall be made on or before delayed for a period of 6 months from the last day date of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section Employee's termination of employment if required by section 409A of the Code. HoweverThe accumulated postponed amount shall be paid in a lump sum payment within 10 days after the end of the 6 month period. If Employee dies during the postponement period prior to payment of the postponed amount, the Company does not guarantee any particular tax effect for income provided amounts withheld on account of section 409A of the Code shall be paid to Executive the personal representative of Employee's estate within 60 days after the date of Employee's death. The determination of whether Employee is a "specified employee" shall be made by the Compensation Committee (or its delegate) in accordance with section 409A of the Code and the regulations issued thereunder. The continuation of the group healthcare coverage is intended to be exempt from the requirements of section 409A of the Code pursuant to this AgreementTreas. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this AgreementReg. section 1.409A-1(b)(9)(v)(B).

Appears in 1 contract

Samples: Employment Agreement (Nutri System Inc /De/)

Compliance with Section 409A of the Code. The parties intend This Agreement is intended to either avoid the application of, or comply with, Section 409A of the Code. To that end, this Agreement shall at all times be interpreted in a manner that is consistent with Section 409A of the Code. Notwithstanding any other provision in this Agreement to the contrary, the Company shall have the right, in its sole discretion, to adopt such amendments to this Agreement or take such other actions (including amendments and all payments actions with retroactive effect) as it determines is necessary or appropriate for this Agreement to comply with Section 409A of the Code. Further: a. Any reimbursement of any costs and other benefits provided expenses by the Company to the Executive under this Agreement shall be made by the Company in no event later than the close of the Executive’s taxable year following the taxable year in which the cost or expense is incurred by the Executive. 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 and the Executive’s right to receive any reimbursement hereunder shall not be subject to liquidation or exchange for any other benefit. b. Any payment following a separation from service that would be subject to Section 409A(a)(2)(A)(i) of the Code as a distribution following a separation from service of a “specified employee” (as defined under Section 409A(a)(2)(B)(i) of the Code) shall be made on the first to occur of (i) ten (10) days after the expiration of the six (6)-month period following such separation from service, (ii) death, or (iii) such earlier date that complies with Section 409A of the Code. c. Each payment that the Executive may receive under this Agreement shall be treated as a “separate payment” for purposes of Section 409A of the Code. d. 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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.” e. Payments under this Agreement are intended to be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that Any payments and benefits provided under this Agreement (and such payments and benefits) comply with may be accelerated in time or schedule by the deferralCompany, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermoreits sole discretion, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected permitted by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.

Appears in 1 contract

Samples: Executive Employment Agreement (Victoria's Secret & Co.)

Compliance with Section 409A of the Code. The parties intend (a) Section 409A of the Internal Revenue Code (“Section 409A”) imposes payment restrictions on “separation pay” (i.e., payments owed to you upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to you, including immediate taxation, interest and a 20% penalty tax. It is the Company’s intent that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from the application of, or otherwise complies with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)Code, to the maximum extent possible. If neither of these exceptions applies, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and then notwithstanding any other provision of in this Agreement to the contrary: (ai) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall All amounts that would otherwise be paid unless or provided during the first six months following the Date of Termination shall instead be accumulated through and until Executive has incurred paid or provided (together with interest on any delayed payment at the applicable federal rate under the Internal Revenue Code), on the first business day following the six-month anniversary of your termination of employment. (ii) Any expense eligible for reimbursement must be incurred, or any entitlement to a benefit must be used, during the Term (or the applicable expense reimbursement or benefit continuation period provided in this Agreement). The amount of the reimbursable expense or benefit to which you are entitled during a calendar year will not affect the amount to be provided in any other calendar year, and your right to receive the reimbursement or benefit is not subject to liquidation or exchange for another benefit. Provided the requisite documentation is submitted, the Company will reimburse the eligible expenses on or before the last day of the calendar year following the calendar year in which the expense was incurred. (b) For purposes of this Agreement, “termination of employment” or words or phrases to that effect shall mean a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company shall not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive pursuant to this Agreement.409A.

Appears in 1 contract

Samples: Employment Agreement (Scripps Networks Interactive, Inc.)

Compliance with Section 409A of the Code. The parties intend that (i) This Agreement is intended to comply with section 409A of the Code and its corresponding regulations, to the extent applicable. Severance benefits under this Agreement (and all payments and other benefits provided under this Agreement) are intended to be exempt from section 409A of the requirements Code under the “short term deferral” exemption, to the maximum extent applicable, and then under the “separation pay” exemption, to the maximum extent applicable. Notwithstanding anything in this Agreement to the contrary, payments may only be made under this Agreement upon an event and in a manner permitted by section 409A of Section the Code, to the extent applicable. As used in this Agreement, the term “termination of employment” shall mean the Executive’s separation from service with the Company within the meaning of section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”)promulgated thereunder. In no event may the Executive, to directly or indirectly, designate the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwisecalendar year of a payment. To the extent Section For purposes of section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoingCode, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each each payment made under this Agreement hereunder shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a the right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement or . All reimbursements and 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments this Agreement shall be made on or before provided in accordance with the last day requirements of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section section 409A of the Code. HoweverNotwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. ​ (ii) Notwithstanding anything herein to the contrary, if, at the time of the Executive’s termination of employment with the Company, the Company does not guarantee has securities which are publicly traded on an established securities market and the Executive is a “specified employee” (as such term is defined in section 409A of the Code) and it is necessary to postpone the commencement of any particular payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax effect for income provided to Executive pursuant to this Agreement. In under section 409A of the Code, then the Company will postpone the commencement of the payment of any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise paid within the `short-term deferral exception’ under Treasury Regulations section 1.409A-1(b)(4), and the Company shall not “separation pay exception” under Treasury Regulations section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six (6) months following the Executive’s “separation of service” (as such term is defined under section 409A of the Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts will be responsible for paid in a lump sum to the Executive on the first payroll date that occurs after the date that is six months following Executive’s separation of service with the Company. If the Executive dies during the postponement period prior to the payment of any applicable taxes postponed amount, the amounts withheld on compensation account of section 409A of the Code shall be paid or provided to Executive pursuant to this Agreement.the personal representative of the Executive’s estate within sixty (60) days after the date of the Executive’s death. ​

Appears in 1 contract

Samples: Change in Control and Severance Agreement (Tabula Rasa HealthCare, Inc.)

Compliance with Section 409A of the Code. The parties intend that this Agreement (and all payments and other benefits provided under this Agreement) be exempt from is intended to comply with the requirements of Section 409A of the Code or an exemption, and the regulations and ruling issued thereunder (collectively “Section 409A”), to the maximum extent possible, whether pursuant to the short-term deferral exception described shall in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described all respects be administered in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply accordance with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this anything in the Agreement to the contrary, this distributions upon termination of employment may only be made under the Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred upon a “separation from service” within the meaning of as determined under Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time to time, or if none, the default methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the right calendar year of any payment to a series of installment payments be made under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefitsAgreement. All reimbursements, except for any expenseclub memberships, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409Afinancial planning expenses, (i) the right to reimbursement or in-kind legal fees, outplacement 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 and other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable the calendar year following the taxable calendar year in which the relevant expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under is incurred or payment becomes due, and otherwise in accordance with the requirements of Section 409A of the Code. HoweverThe amount of expenses eligible for reimbursement or other payments becoming due during a calendar year may not affect the expenses eligible for reimbursement or other payments due in any other calendar year. Notwithstanding anything in this Agreement to the contrary, if at the time of Executive’s termination of employment with the Company, the Executive is a “specified employee” (as defined in Section 409A of the Code) and it is necessary to postpone the commencement of any payments under this Agreement in order to prevent taxation under Section 409A, then the Company does not guarantee shall postpone commencement of such payments hereunder (without any particular tax effect for income provided to Executive pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation reduction in such payments ultimately paid or provided to Executive) until the first payroll date that occurs after the date that is six (6) months following Executive’s “separation from service” with the Company (within the meaning of such term under Section 409A). If any payments are postponed, the Company shall not postponed amounts will be responsible for paid in a lump sum to Executive on the first payroll date that occurs after the date that is six (6) months following Executive’s “separation from service” with the Company. If Executive dies during the postponement period prior to the payment of any applicable taxes the postponed amount, the amounts withheld on compensation account of Section 409A shall be paid or provided to Executive pursuant to this Agreementthe personal representative of Executive’s estate within sixty (60) days after the date of Executive’s death.

Appears in 1 contract

Samples: Employment Agreement (Embarq CORP)

Compliance with Section 409A of the Code. The parties intend (i) It is intended that this Agreement (be interpreted and all payments and other benefits provided administered to prevent taxation under this Agreement) be exempt from the requirements of Section 409A of the Code. Notwithstanding any provision to the contrary in this Agreement, no payments or benefits to which the Executive becomes entitled under this Agreement shall be made or paid to the Executive prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of his “separation from service” with the Company (as such term is defined in Section 409A-1(h) of the 409A Regulations) or (ii) the date of the Executive’s death, if the Executive is deemed at the time of such separation from service a “key employee” within the meaning of that term under Code Section 416(i) and the regulations Company’s stock is publicly traded on an established securities market and ruling issued thereunder (collectively “such delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A”409A(a)(2). Upon the expiration of the applicable Code Section 409A(a)(2) deferral period, all payments deferred pursuant to this subsection 10(d) shall be paid in a lump sum to the maximum extent possibleExecutive, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that and any remaining payments due under this Agreement (and such payments and benefits) comply shall be paid in accordance with the deferralnormal payment dates specified for them herein. The Executive shall be entitled to interest on any deferred benefits and payments during the deferral period, payout with such interest to accrue at the prime rate in effect from time to time during that period and other limitations and restrictions imposed under Section 409A. to be paid in a lump sum on the first business day following the end of the deferral period. (ii) Notwithstanding any other provision of this Agreement to the contrary, this Agreement the Company shall be interpreted, operated modify the time and/or form of payment under any “Applicable Arrangement” (as defined below) if and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary: (a) No amount payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by the Company from time or the Executive determines such modification to time, be necessary or if none, advisable to avoid the default methodology) as imposition on the Executive of the date of Executive’s separation from service, no amount that constitutes a deferral of additional taxes imposed on certain non-qualified deferred compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date. (b) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (c) With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided arrangements pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of 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 the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. (d) The Company intends that income provided to Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. HoweverIn making any such modification to an Applicable Arrangement, the determination by the Company does not guarantee any particular tax effect for income provided to or the Executive pursuant to this Agreement. In any eventmust be made in good faith, except for be based on advice of counsel and be designed, in the Company’s responsibility sole judgment, to withhold applicable income and employment taxes from compensation paid or provided fulfill as closely as possible the Company’s original commitment to Executive, the Executive under the Applicable Arrangement without regard to Section 409A of the Code without increasing the Company’s costs under the Applicable Arrangement. No modification shall be made by the Company shall not be responsible for without prior written notice to the payment of any applicable taxes on compensation paid or provided to Executive pursuant to Executive. For this Agreement.purpose, “Applicable

Appears in 1 contract

Samples: Employment Agreement (Genpact LTD)

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