Deferred Compensation. Notwithstanding anything to the contrary herein, the following provisions apply to the extent severance benefits provided herein are subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”). Severance benefits shall not commence until you have a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the severance benefits payments shall be delayed until the earlier of (i) six (6) months and one day after your separation from service and (ii) your death. 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. 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). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
Appears in 6 contracts
Samples: Employment Agreement (Silicon Graphics International Corp), Employment Agreement (Silicon Graphics International Corp), Employment Agreement (Silicon Graphics International Corp)
Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Employee’s termination of employment unless and until you have Employee has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Employee without causing Employee to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing 409A(a)(2)(B)(i) of the severance benefits Code, no Severance Benefit payments that are nonqualified deferred compensation subject to Section 409A and are triggered by a separation from service shall be delayed paid until the earlier later of (i) six (6) months and one day after your separation from service and (ii) your Employee’s Separation Date of, if earlier, Employee’s death. Upon All such payments will be accumulated and paid within thirty (30) days after the expiration of the applicable deferral such delay period. However, 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It it is intended that each installment payments to Employee will be exempt from Section 409A under the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the payments provided hereunder constitute separate “payments” for purposes Treasury Regulations and not likely to be delayed pursuant to this provision. Notwithstanding any other payment schedule set forth in this Agreement, none of Treasury Regulation Section 1.409A-2(b)(2)(i)the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. To All amounts payable under the extent that Agreement will be subject to standard payroll taxes and deductions. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision will Company shall not be read in such a manner so that all liable to Employee or any other person if payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined fail to be subject to exempt from, or compliant with, Section 409A of 409A. Employee is solely responsible for the Code, the amount tax consequences of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayments hereunder.
Appears in 6 contracts
Samples: Employment Agreement (Pacific Ethanol, Inc.), Employment Agreement (Pacific Ethanol, Inc.), Employment Agreement (Pacific Ethanol, Inc.)
Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 10 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the applicable deferral periodbenefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 12 and (2) commence paying the balance, any payments which would have otherwise been made during that period (whether if any, of the benefits in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent accordance with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. 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). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayment schedule.
Appears in 5 contracts
Samples: Employment Agreement (Carbylan Therapeutics, Inc.), Employment Agreement (Carbylan Therapeutics, Inc.), Employment Agreement (Carbylan Therapeutics, Inc.)
Deferred Compensation. Notwithstanding anything to (a) The intent of the contrary herein, parties is that payments and benefits under this Agreement are exempt from the following provisions apply to requirements of Code section 409A because they are short term deferrals under Treas. Reg. Sec. 1.409A-1(b)(4) or payments under a separation pay plan within the meaning of Treas. Reg. Sec. 1.409A-1(b)(9) and this Agreement will be construed and administered in a manner consistent with such intent. To the extent severance any payment or benefits provided herein are subject to Section not exempt from the requirements of Code section 409A of the Internal Revenue they will comply in form and operation with Code of 1986, as amended (the “Code”) section 409A and the regulations and other guidance promulgated thereunder and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered in a manner to be in compliance therewith.
(b) A termination of employment will not be deemed to have occurred for purposes of any state law provision of similar effect (collectively, “Section 409A”). Severance this Agreement providing for the payment of any amounts or benefits shall not commence until you have upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code section 409A and, for purposes of Section 409A. Each installment any such provision of severance benefits is this Agreement, references to a “termination,” “termination of employment,” “resignation” or like terms will mean “separation from service.” The parties acknowledge that in determining whether a separation from service has occurred, the rules of Treas. Reg. Sec. 1.409A-1(h)(5), concerning “dual status” employee directors, will apply.
(c) Severance payments are intended to constitute separate “payment” payments for purposes of Treas. Reg. Section 1.409A-2(b)(2)(iSec. 1.409A-2(b)(2), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely be subject to the extent necessary to avoid adverse personal tax consequences under Section 409Adistribution requirements of Code section 409A(a)(2)(A) of the Code, including, without limitation, the timing requirement of the severance benefits Code section 409A(a)(2)(B)(i) that payments shall be delayed until the earlier due on account of (i) six (6) months and one day after your separation from service and (ii) your death. 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to delayed until six months after such separation (or, if earlier, upon death) if Executive is a “separation from servicespecified employee” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment within the meaning of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation aforesaid Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, Code at the provision will be read in time of such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitseparation.
Appears in 4 contracts
Samples: Employment Agreement (Bright Health Group Inc.), Employment Agreement (Bright Health Group Inc.), Employment Agreement (Bright Health Group Inc.)
Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing 409A(a)(2)(B)(i) of the severance benefits Code, no Severance Benefit payments that are nonqualified deferred compensation subject to Section 409A and are triggered by a separation from service shall be delayed paid until the earlier later of (i) six (6) months and one day after your separation from service and (ii) your Employee’s Separation Date of, if earlier, Employee’s death. Upon All such payments will be accumulated and paid within thirty (30) days after the expiration of the applicable deferral such delay period. However, 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It it is intended that each installment payments to Employee will be exempt from Section 409A under the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the payments provided hereunder constitute separate “payments” for purposes Treasury Regulations and not likely to be delayed pursuant to this provision. Notwithstanding any other payment schedule set forth in this Agreement, none of Treasury Regulation Section 1.409A-2(b)(2)(i)the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. To All amounts payable under the extent that Agreement will be subject to standard payroll taxes and deductions. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision will Company shall not be read in such a manner so that all liable to Employee or any other person if payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined fail to be subject to exempt from, or compliant with, Section 409A of 409A. Employee is solely responsible for the Code, the amount tax consequences of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayments hereunder.
Appears in 4 contracts
Samples: Employment Agreement (Alto Ingredients, Inc.), Employment Agreement (Alto Ingredients, Inc.), Employment Agreement (Alto Ingredients, Inc.)
Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 8 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the benefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 10 and (2) commence paying the balance, if any, of the benefits in accordance with the applicable deferral periodpayment schedule. This Agreement, any payments which would have otherwise been made during that period (whether together with the Confidentiality Agreement, sets for the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements, understandings and discussions between you and the Company, including without limitation the Employment Agreement between you and the Company dated February 9, 2007. For the avoidance of doubt, the Confidentiality Agreement remains in full force and effect, in accordance with its terms. This letter may not be modified or amended except by a single sum or in installments) in written agreement, signed by the absence Chief Executive Officer of this paragraph shall be paid the Company, although the Company reserves the right to you or modify unilaterally your beneficiary in one lump sum (without interest). Any termination compensation, benefits, job title and duties, reporting relationships and other terms of your employment. We are pleased to offer you these employment is intended to constitute a “separation from service” terms. Sincerely, /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx President and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. 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). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.CEO
Appears in 2 contracts
Samples: Employment Agreement (Carbylan Therapeutics, Inc.), Employment Agreement (Carbylan Therapeutics, Inc.)
Deferred Compensation. Notwithstanding anything in this Agreement to the contrary hereincontrary, the following provisions apply to the extent severance benefits provided herein are no amount deemed deferred compensation subject to Section 409A that is designated to be paid upon the Employee’s termination of employment shall be payable pursuant to this Agreement unless the Internal Revenue Code Employee’s termination of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”). Severance benefits shall not commence until you have employment constitutes a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and with the severance benefits are intended to satisfy Company within the exemptions from application meaning of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9(a “Separation from Service”). HoweverNotwithstanding anything in this Agreement to the contrary, if such exemptions are not available and you are, upon separation the Employee is deemed by the Company at the time of the Employee’s Separation from service, Service to be a “specified employee” for purposes of Section 409A, then, solely to the extent necessary delayed commencement of any portion of the benefits to which the Employee is entitled under this Agreement is required in order to avoid adverse personal tax consequences a prohibited distribution under Section 409A, the timing such portion of the severance Employee’s benefits payments shall not be delayed until provided to the Employee prior to the earlier of (iA) six the expiration of the six-month period measured from the date of the Employee’s Separation from Service with the Company or (6B) months and one day after your separation from service and (ii) your the date of the Employee’s death. Upon the first business day following the expiration of the applicable deferral Section 409A period, any all payments which would have otherwise been made during that period (whether deferred pursuant to the preceding sentence will be paid in a single lump-sum to the Employee (or in installments) in the absence of Employee’s estate or beneficiaries), and any remaining payments due to the Employee under this paragraph Agreement shall be paid to you or your beneficiary in one lump sum (without interest)as otherwise provided herein. Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for For purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code409A, the provision will be read in such a manner so that all Employee’s right to receive any installment payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to will be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any treated as a right to reimbursement or the provision receive a series of any in-kind benefit separate payments and, accordingly, each such installment payment shall at all times be subject to liquidation or exchange for another benefitconsidered a separate and distinct payment.
Appears in 2 contracts
Samples: Employment Agreement (Gamida Cell Ltd.), Employment Agreement (Gamida Cell Ltd.)
Deferred Compensation. Notwithstanding anything (i) To the extent (i) any payments to the contrary which you become entitled under this letter agreement, or any agreement or plan referenced herein, in connection with your termination of employment with the following provisions apply to the extent severance benefits provided herein are Company constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) you are deemed at the regulations and other guidance thereunder and any state law time of similar effect (collectivelysuch termination of employment to be a “specified” employee under Section 409A of the Code, “Section 409A”). Severance benefits then such payment or payment shall not be made or commence until you have a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the severance benefits payments shall be delayed until the earlier of (i) six (6) months and one day after your separation from service and (ii) your death. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that six (6)-month period (whether in a single sum or in installments) in measured from the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination date of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” (as such term is at the time defined in Treasury Regulation regulations under Section 1.409A-1. It is intended that each installment 409A of the payments provided hereunder constitute separate “payments” Code) with the Company; or (ii) the date of your death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to PRONAI THERAPEUTICS, INC. OFFER LETTER - 5 avoid adverse tax treatment to you, including (without limitation) the additional twenty percent (20%) tax for which you would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been paid during the period between your termination of employment and the first payment date but for the application of this provision, and the balance of the installments (if any) will be payable in accordance with their original schedule.
(ii) For purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent this letter agreement or any agreement or plan referenced herein, and notwithstanding any other provision herein, with respect to any payment that any provision of this Agreement is ambiguous as subject to its compliance with (and not exempt from) Section 409A of the Code, no payment shall be made upon disability or terminal illness unless and until such condition qualifies as a “Disability” within the provision will be read in such a manner so that all payments hereunder comply with meaning of Section 409A of the Code. Code and Section 1.409A-3(i)(4) of the regulations thereunder.
(iii) Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement letter agreement (or otherwise referenced herein) is determined to be subject to (and not exempt from) Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement or in kind benefits to be provided in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses)calendar year, in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
(iv) To the extent that any provision of this letter agreement is ambiguous as to its exemption or compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder are exempt from Section 409A to the maximum permissible extent, and for any payments where such construction is not tenable, that those payments comply with Section 409A to the maximum permissible extent. To the extent any payment under this offer letter may be classified as a “short-term deferral” within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A.
(v) Payments pursuant to this letter agreement (or referenced in this letter agreement) are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the regulations under Section 409A of the Code.
(vi) For all purposes under Section 6 and any cross references to the benefits therein, your termination of your employment shall only mean a termination that constitutes a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. You will only be eligible to receive the benefits described in Section 6 if your termination of employment constitutes a separation from service as defined in Treasury Regulation Section 1.409A-1.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (ProNAi Therapeutics Inc)
Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 8 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the benefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 10 and (2) commence paying the balance, if any, of the benefits in accordance with the applicable deferral periodpayment schedule. This Agreement, any payments which would have otherwise been made during that period (whether together with the Confidentiality Agreement, sets for the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements, understandings and discussions between you and the Company, including without limitation the Employment Agreement between you and the Company dated January 3, 2006. For the avoidance of doubt, the Confidentiality Agreement remains in full force and effect, in accordance with its terms. This letter may not be modified or amended except by a single sum or in installments) in written agreement, signed by the absence Chief Executive Officer of this paragraph shall be paid the Company, although the Company reserves the right to you or modify unilaterally your beneficiary in one lump sum (without interest). Any termination compensation, benefits, job title and duties, reporting relationships and other terms of your employment. We are pleased to offer you these employment is intended to constitute a “separation from service” terms. Sincerely, /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx President and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. 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). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.CEO
Appears in 2 contracts
Samples: Employment Agreement (Carbylan Therapeutics, Inc.), Employment Agreement (Carbylan Therapeutics, Inc.)
Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Executive is a “specified employee” for purposes within the meaning of Section 409A409A(a)(2)(B)(i) of the Code, then, solely any Severance Benefit payments that are triggered by a separation from service shall be accelerated to the minimum extent necessary to avoid adverse personal tax consequences under Section 409A, so that (a) the timing of the severance benefits payments shall be delayed until the earlier lesser of (iy) the total cash severance payment amount, or (z) six (6) months and one day after your separation from service of such installment payments are paid no later than March 15 of the calendar year following such termination, and (iib) your death. Upon all amounts paid pursuant to the expiration foregoing clause (a) will constitute separate payments for purposes of Section 1.409A-2(b)(2) 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” Treasury Regulations and thus will be determined consistent with payable pursuant to the rules relating to a “separation from serviceshort-term deferral” as such term is defined rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1Regulations. It is intended that each installment if Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the payments provided hereunder constitute separate “payments” for purposes Code at the time of Treasury Regulation Section 1.409A-2(b)(2)(i). To such separation from service the extent that any foregoing provision of this Agreement is ambiguous as to its shall result in compliance with the requirements of Section 409A 409A(a)(2)(B)(i) of the CodeCode since payments to Executive will either be payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations or will not be paid until at least 6 months after separation from service. Notwithstanding any other payment schedule set forth in this Agreement, none of the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. On the first regular payroll pay day following the effective date of the Separation Date Release of all claims, the provision Company will be read pay Executive the Severance Benefits Executive would otherwise have received under the Agreement on or prior to such date but for the delay in such a manner so that all payments hereunder comply with Section 409A payment related to the effectiveness of the Coderelease of claims, with the balance of the Severance Benefits being paid as originally scheduled. Except as otherwise expressly provided herein, to All amounts payable under the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to will be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, standard payroll taxes and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitdeductions.”
Appears in 2 contracts
Samples: Executive Employment Agreement (Pacific Ethanol, Inc.), Executive Employment Agreement (Pacific Ethanol, Inc.)
Deferred Compensation. Notwithstanding anything (i) To the extent (i) any payments to the contrary which you become entitled under this letter agreement, or any agreement or plan referenced herein, in connection with your termination of employment with the following provisions apply to the extent severance benefits provided herein are Company constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) you are deemed at the regulations and other guidance thereunder and any state law time of similar effect (collectivelysuch termination of employment to be a “specified” employee under Section 409A of the Code, “Section 409A”). Severance benefits then such payment or payment shall not be made or commence until you have a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the severance benefits payments shall be delayed until the earlier of (i) six (6) months and one day after your separation from service and (ii) your death. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that six (6)-month period (whether in a single sum or in installments) in measured from the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination date of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” (as such term is at the time defined in Treasury Regulation regulations under Section 1.409A-1. It is intended that each installment 409A of the payments provided hereunder constitute separate “payments” Code) with the Company; or (ii) the date of your death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you, including (without limitation) the additional twenty percent (20%) tax for which you would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been paid during the period between your termination of employment and the first payment date but for the application of this provision, and the balance of the installments (if any) will be payable in accordance with their original schedule.
(ii) For purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent this letter agreement or any agreement or plan referenced herein, and notwithstanding any other provision herein, with respect to any payment that any provision of this Agreement is ambiguous as subject to its compliance with (and not exempt from) Section 409A of the Code, no payment shall be made upon disability or terminal illness unless and until such condition qualifies as a “Disability” within the provision will be read in such a manner so that all payments hereunder comply with meaning of Section 409A of the Code. Code and Section 1.409A-3(i)(4) of the regulations thereunder.
(iii) Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement letter agreement (or otherwise referenced herein) is determined to be subject to (and not exempt from) Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement or in kind benefits to be provided in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses)calendar year, in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit. PRONAI THERAPEUTICS, INC. OFFER LETTER - 5
(iv) To the extent that any provision of this letter agreement is ambiguous as to its exemption or compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder are exempt from Section 409A to the maximum permissible extent, and for any payments where such construction is not tenable, that those payments comply with Section 409A to the maximum permissible extent. To the extent any payment under this offer letter may be classified as a “short-term deferral” within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A.
(v) Payments pursuant to this letter agreement (or referenced in this letter agreement) are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the regulations under Section 409A of the Code.
(vi) For all purposes under Section 7 and any cross references to the benefits therein, your termination of your employment shall only mean a termination that constitutes a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. You will only be eligible to receive the benefits described in Section 7 if your termination of employment constitutes a separation from service as defined in Treasury Regulation Section 1.409A-1.
Appears in 2 contracts
Samples: Executive Officer Employment Agreement, Employment Agreement (ProNAi Therapeutics Inc)
Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing 409A(a)(2)(B)(i) of the severance benefits Code, no Severance Benefit payments that are nonqualified deferred compensation subject to Section 409A and are triggered by a separation from service shall be delayed paid until the earlier later of (i) six (6) months and one day after your separation from service and (ii) your Employee’s Separation Date or Employee’s death. Upon All such payments will be accumulated and paid within thirty (30) days after the expiration of the applicable deferral such delay period. However, 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It it is intended that each installment payments to Employee will be exempt from Section 409A under the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the payments provided hereunder constitute separate “payments” for purposes Treasury Regulations and not likely to be delayed pursuant to this provision. Notwithstanding any other payment schedule set forth in this Agreement, none of Treasury Regulation Section 1.409A-2(b)(2)(i)the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. To All amounts payable under the extent that Agreement will be subject to standard payroll taxes and deductions. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision will Company shall not be read in such a manner so that all liable to Employee or any other person if payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined fail to be subject to exempt from, or compliant with, Section 409A of 409A. Employee is solely responsible for the Code, the amount tax consequences of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayments hereunder.
Appears in 1 contract
Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Employee’s termination of employment unless and until you have Employee has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Employee without causing Employee to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of TreasTreasury Regulation Section 1.409A2(b)(2)(i). Reg. Section 1.409A-2(b)(2)(i)For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A409A(a)(2)(B)(i) of the Code, then, solely any Severance Benefit payments that are triggered by a separation from service shall be accelerated to the minimum extent necessary to avoid adverse personal tax consequences under Section 409A, so that (a) the timing of the severance benefits payments shall be delayed until the earlier lesser of (iy) the total cash severance payment amount, or (z) six (6) months and one day after your separation from service of such installment payments are paid no later than March 15 of the calendar year following such termination, and (iib) your death. Upon all amounts paid pursuant to the expiration foregoing clause (a) will constitute separate payments for purposes of Section 1.409A-2(b)(2) 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” Treasury Regulations and thus will be determined consistent with payable pursuant to the rules relating to a “separation from serviceshort-term deferral” as such term is defined rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1Regulations. It is intended that each installment if Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code at the time of such separation from service the foregoing provision shall result in compliance with the requirements of Section 409A(a)(2)(B)(i) of the Code since payments to Employee will either be payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations or will not be paid until at least 6 months after separation from service. Notwithstanding any other payment schedule set forth in this Agreement, none of the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. On the first regular payroll pay day following the effective date of the Separation Date Release of all claims, the Company will pay Employee the Severance Benefits Employee would otherwise have received under the Agreement on or prior to such date but for the delay in payment related to the effectiveness of the release of claims, with the balance of the Severance Benefits being paid as originally scheduled. All amounts payable under the Agreement will be subject to standard payroll taxes and deductions. In the event that the payments or other benefits provided hereunder for in this Agreement or otherwise payable to Employee (i) constitute separate “parachute payments” for purposes within the meaning of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A 280G of the Code, and (ii) would be subject to the provision will excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s benefits under this Agreement shall be read either (a) delivered in full, or (b) delivered to such a manner so lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all payments hereunder comply with or some portion of such benefits may be taxable under Section 409A 4999 of the Code. Except as otherwise expressly provided herein, If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the extent any expense reimbursement or foregoing provision, reduction shall occur in the provision following order: reduction of any in-kind benefit under this Agreement cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. If acceleration of vesting of stock award compensation is determined to be subject to Section 409A reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code, the amount date of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day grant of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitEmployee’s stock awards.
Appears in 1 contract
Samples: Executive Employment Agreement (Pacific Ethanol, Inc.)
Deferred Compensation. Notwithstanding anything to the contrary hereinin this Agreement, if Executive is a “specified employee” within the following provisions apply to the extent severance benefits provided herein are subject to meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the any final regulations and other guidance promulgated thereunder and any state law of similar effect (collectively, “Section 409A”). Severance ) at the time of Executive’s termination, and any portion of the severance payable to Executive, if any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits shall not commence until you have a which may be considered deferred compensation under Section 409A (together, the “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(iDeferred Compensation Separation Benefits”), and then only that portion of the severance benefits are intended to satisfy Deferred Compensation Separation Benefits which do not exceed the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4)Limit (as defined below) may be made within the first six (6) months following Executive’s termination of employment in accordance with the payment schedule applicable to each payment or benefit. Any portion of the Deferred Compensation Separation Benefits in excess of the Section 409A Limit shall accrue and, 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing such portion of the severance benefits payments shall be delayed until Deferred Compensation Separation Benefits would otherwise have been payable within the earlier first six (6) months following Executive’s termination of (i) employment, will become payable on the first payroll date that occurs on or after the date six (6) months and one (1) day after your separation from service and (ii) your death. Upon following the expiration date 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any Executive’s termination of your employment is intended to constitute a “separation from service” and employment. All subsequent Deferred Compensation Separation Benefits, if any, will be determined consistent payable in accordance with the rules relating payment schedule applicable to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1each payment or benefit. 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). To the extent that any provision intent of this Agreement is ambiguous as to its compliance comply with the requirements of Section 409A so that none of the Code, the provision severance payments and benefits to be provided hereunder will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to the additional tax imposed under Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses409A, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.any
Appears in 1 contract
Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 10 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the benefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 12 and (2) commence paying the balance, if any, of the benefits in accordance with the applicable deferral periodpayment schedule. This Agreement, any payments which would have otherwise been made during that period (whether in together with the Confidentiality Agreement, sets for the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements, understandings and discussions between you and the Company, including, without limitation, the Prior Agreement. This letter may not be modified or amended except by a single sum or in installments) in written agreement, signed by the absence Chief Executive Officer of this paragraph shall be paid the Company, although the Company reserves the right to you or modify unilaterally your beneficiary in one lump sum (without interest). Any termination compensation, benefits, job title and duties, reporting relationships and other terms of your employment is intended to constitute a “separation from service” employment. Sincerely, /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx President and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. 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). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeCEO /s/ Xxxx XxXxxx Signature April 15, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.2016 Date EXHIBIT A
Appears in 1 contract
Deferred Compensation. (i) Notwithstanding anything to the contrary hereinin this Agreement, if Executive is a “specified employee” within the following provisions apply to the extent severance benefits provided herein are subject to meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and at the regulations and time of Executive’s termination of employment (other guidance thereunder and any state law of similar effect (collectively, “Section 409A”). Severance benefits shall not commence until you have a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(ithan due to death), and then the severance payable to Executive, if any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits that are intended to satisfy the exemptions from application of considered deferred compensation under Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409ACode (together, the timing “Deferred Compensation”) that is payable within the first six (6) months following Executive’s termination of employment, will be paid in a lump sum on the severance benefits payments shall be delayed until first payroll date that occurs on or after the earlier of (i) date six (6) months and one (1) day after your separation from service and following the date of Executive’s termination of employment. All subsequent Deferred Compensation, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Executive dies following his date of termination but prior to the six (ii6) your death. Upon the expiration month anniversary of the applicable deferral periodhis date of termination, then any payments which would have otherwise been made during that period (whether delayed in accordance with this paragraph will be paid in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum as soon as administratively practicable (without interest)but not more than 90 days) after the date of Executive’s death and all other Deferred Compensation will be payable in accordance with the payment schedule applicable to each payment or benefit. Any termination of your employment Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
(ii) Deferred Compensation otherwise payable or provided pursuant to Section 6(c) shall be paid or provided only at the time of a termination of Executive’s employment which constitutes a “separation from service” within the meaning of Section 409A of the Code.
(iii) The foregoing provisions are intended to comply with the requirements of Section 409A of the Code so that none of the severance payments and benefits to be provided hereunder will be determined consistent with subject to the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. 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). To the extent that any provision of this Agreement is ambiguous as to its compliance with additional tax imposed under Section 409A of the Code, the provision and any ambiguities herein will be read interpreted to so comply. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such a manner so that all payments hereunder comply with reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A of the Code. Except as otherwise expressly .
(iv) Notwithstanding anything to the contrary in this Agreement, this Agreement and the benefits provided hereinhereunder are intended to comply, to the extent any expense reimbursement applicable thereto, with Code Section 409A and the Treasury Regulations and other guidance promulgated or issued thereunder and with Code Section 457A and the Treasury Regulations and other guidance promulgated or issued thereunder, and the provisions of this Agreement shall be interpreted and construed consistent with this intent. If Executive or the provision of Company believes, at any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Codetime, the amount of that any such expenses eligible for reimbursementbenefit or right does not so comply with Code Section 457A, or it shall promptly advise the provision of any in-kind benefit, in one calendar year other and shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, negotiate reasonably and in no event shall any right good faith to reimbursement or amend the provision terms of any in-kind benefit be subject to liquidation or exchange for another benefitsuch benefits and rights such that they comply with Code Section 457A (with the most limited possible economic effect on Executive and on the Company).
Appears in 1 contract
Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 10 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the benefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 12 and (2) commence paying the balance, if any, of the benefits in accordance with the applicable deferral periodpayment schedule. This Agreement, together with the Confidentiality Agreement, sets for the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements, understandings and discussions between you and the Company, including, without limitation, the Prior Agreement. This letter may not be modified or amended except by a written agreement, signed by the Chief Executive Officer of the Company, although the Company reserves the right to modify unilaterally your compensation, benefits, job title and duties, reporting relationships and other terms of your employment. Sincerely, /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx President and CEO UNDERSTOOD, ACCEPTED AND AGREED: Xxxx XxXxxx /s/ Xxxx XxXxxx Signature April 15, 2016 Date In exchange for the General Severance Benefits, the Change of Control Severance Benefits, and/or the Full Acceleration, as applicable, to be provided to me pursuant to the Amended and Restated Employment Agreement dated April 15, 2016 (the “Agreement”) between me and Carbylan Therapeutics, Inc. (the “Company”), I hereby provide the following release of claims (the “Release”). In exchange for the severance pay and benefits provided to me under the Agreement, to which I acknowledge I would not otherwise be entitled, and for other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I hereby generally and completely release the Company, its parent and subsidiary entities, and their respective directors, officers, employees, shareholders, stockholders, partners, agents, attorneys, predecessors, successors, insurers, employee benefit plans, affiliates, and assigns (collectively, the “Released Parties”) of and from any and all claims, liabilities and obligations, both known and unknown, arising out of or in any way related to events, acts, conduct, or omissions occurring at any time prior to or at the time that I sign this Release (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company (or its successor) or the termination of that employment; (2) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership or equity interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing (including, but not limited to, any payments which would have otherwise been made during that period claims based on or arising from the Agreement); (whether 4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in a single sum violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in installmentsEmployment Act (as amended) (“ADEA”), the federal Family and Medical Leave Act (as amended) (“FMLA”), the California Family Rights Act (“CFRA”), the California Labor Code (as amended), and the California Fair Employment and Housing Act (as amended). Notwithstanding the foregoing, the following are not included in the absence Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any written indemnification agreement with the Company to which I am a party, the charter, bylaws, or operating agreements of the Company, applicable law, or applicable directors and officers liability insurance; (2) any rights or claims which are not waivable as a matter of law; and (3) any claims for breach of the Agreement arising after the date that I sign this Release. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, the California Department of Fair Employment and Housing, or any other government agency, except that I acknowledge and agree that I am hereby waiving my right to any monetary benefits in connection with any such claim, charge or proceeding. I represent that I have no lawsuits, claims or actions pending in my name, or on behalf of any other person or entity, against any of the Released Parties. The following paragraph shall apply to me only if I am forty (40) years old or older as of the date that I sign this Release: I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA, and that the consideration given for the waiver and release in the preceding paragraph is in addition to anything of value to which I am already entitled. I further acknowledge that I have been advised by this writing that: (1) my waiver and release do not apply to any rights or claims that may arise after the date I sign this Release; (2) I have been advised to consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so) and I have had sufficient opportunity to do so; (3) I have twenty-one (21) days to consider this Release (although I may choose voluntarily to sign it earlier); (4) I have seven (7) days following the date I sign this Release to revoke it by providing written notice of revocation to the Company’s Board of Directors; and (5) this Release will not be effective until the date upon which the revocation period has expired, which will be the eighth calendar day after the date I sign it if I do not revoke it (such date, the “Effective Date”). The following paragraph shall apply to me only if I am less than forty (40) years old as of the date that I sign this Release: I understand that I have fourteen (14) days to consider this Release (although I may choose voluntarily to sign it earlier), the Release will become effective as of the date that I sign it (such date, the “Effective Date”), and I do not have the right to revoke this Release after signing it. I UNDERSTAND THAT THIS RELEASE AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to my release of claims herein, including but not limited to the release of unknown and unsuspected claims. I hereby represent that I have been paid all compensation owed and for all time worked, I have received all the leave and leave benefits and protections for which I am eligible, pursuant to you FMLA, CFRA, any Company policy or your beneficiary applicable law, and I have not suffered any on-the-job injury or illness for which I have not already filed a workers’ compensation claim. I further agree: (1) not to disparage the Company, or any of the other Released Parties, in one lump sum any manner likely to be harmful to its or their business, business reputation, or personal reputation (although I may respond accurately and fully to any question, inquiry or request for information as required by legal process); (2) not to voluntarily (except in response to legal compulsion) assist any third party in bringing or pursuing any proposed or pending litigation, arbitration, administrative claim or other formal proceeding against the Company, its parent or subsidiary entities, affiliates, officers, directors, employees or agents; and (3) to cooperate fully with the Company, by voluntarily (without interestlegal compulsion) providing accurate and complete information, in connection with the Company’s actual or contemplated defense, prosecution, or investigation of any claims or demands by or against third parties, or other matters, arising from events, acts, or failures to act that occurred during the period of my employment by the Company or any successor thereto. I understand that, upon the Effective Date, this Release will take effect as a legally binding agreement between me and the Company. This Release sets for the entire agreement and understanding between the Company and me relating to the matters set forth herein and supersedes all prior and contemporaneous agreements, understandings and discussions concerning such matters, whether express or implied. This Release may not be modified or amended except by a written agreement, signed by the Chief Executive Officer of the Company and me. By: [Name] Date: This Amendment (“Amendment”) to the Amended and Restated Employment Agreement, dated April 15, 2016, by and between Carbylan Therapeutics, Inc. (“Carbylan”) and Executive (the “Agreement”), is made and entered into as of November 21, 2016, by and among Xxxx XxXxxx (“Executive”) and KalVista Pharmaceuticals Inc., the successor of Carbylan (the “Company”), which will be assuming the obligations set forth in the Agreement, as modified by this Amendment, upon the close of the share purchase transaction between Carbylan and KalVista Pharmaceuticals Ltd (“KalVista”). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment A copy of the payments provided hereunder constitute separate “payments” for purposes Agreement with all of Treasury Regulation Section 1.409A-2(b)(2)(i)its exhibits is attached hereto as Exhibit 1. To Capitalized terms used but not defined herein shall have the extent that any provision of this Agreement is ambiguous as meanings ascribed to its compliance with Section 409A of them in the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitAgreement.
Appears in 1 contract
Samples: Employment Agreement (KalVista Pharmaceuticals, Inc.)
Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Executive is a “specified employee” for purposes within the meaning of Section 409A409A(a)(2)(B)(i) of the Code, then, solely any Severance Benefit payments that are triggered by a separation from service shall be accelerated to the minimum extent necessary to avoid adverse personal tax consequences under Section 409A, so that (a) the timing of the severance benefits payments shall be delayed until the earlier lesser of (iy) the total cash severance payment amount, or (z) six (6) months and one day after your separation from service of such installment payments are paid no later than March 15 of the calendar year following such termination, and (iib) your death. Upon all amounts paid pursuant to the expiration foregoing clause (a) will constitute separate payments for purposes of Section 1.409A-2(b)(2) 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” Treasury Regulations and thus will be determined consistent with payable pursuant to the rules relating to a “separation from serviceshort-term deferral” as such term is defined rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1Regulations. It is intended that each installment if Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the payments provided hereunder constitute separate “payments” for purposes Code at the time of Treasury Regulation Section 1.409A-2(b)(2)(i). To such separation from service the extent that any foregoing provision of this Agreement is ambiguous as to its shall result in compliance with the requirements of Section 409A 409A(a)(2)(B)(i) of the CodeCode since payments to Executive will either be payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations or will not be paid until at least 6 months after separation from service. Notwithstanding any other payment schedule set forth in this Agreement, none of the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. On the first regular payroll pay day following the effective date of the Separation Date Release of all claims, the provision Company will be read pay Executive the Severance Benefits Executive would otherwise have received under the Agreement on or prior to such date but for the delay in such a manner so that all payments hereunder comply with Section 409A payment related to the effectiveness of the Coderelease of claims, with the balance of the Severance Benefits being paid as originally scheduled. Except as otherwise expressly provided herein, to All amounts payable under the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to will be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, standard payroll taxes and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitdeductions.
Appears in 1 contract
Samples: Executive Employment Agreement (Pacific Ethanol, Inc.)
Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing 409A(a)(2)(B)(i) of the severance benefits Code, no Severance Benefit payments that are nonqualified deferred compensation subject to Section 409A and are triggered by a separation from service shall be delayed paid until the earlier later of (i) six (6) months and one day after your separation from service and (ii) your Employee’s Separation Date of, if earlier, Employee’s death. Upon All such payments will be accumulated and paid within thirty (30) days after the expiration of the applicable deferral such delay period. However, 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It it is intended that each installment payments to Employee will be exempt from Section 409A under the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the payments provided hereunder constitute separate “payments” for purposes Treasury Regulations and not likely to be delayed pursuant to this provision. Notwithstanding any other payment schedule set forth in this Agreement, none of Treasury Regulation Section 1.409A-2(b)(2)(i)the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. To All amounts payable under the extent that Agreement will be subject to standard payroll taxes and deductions. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision will Company shall not be read in such a manner so that all liable to Employee or any other person if payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined fail to be subject to exempt from, or compliant with, Section 409A of 409A. Employee is solely responsible for the Code, the amount tax consequences of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayments hereunder.
Appears in 1 contract
Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the "Severance Benefits") that constitute "deferred compensation" within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “"Code”") and the regulations and other guidance thereunder and any state law of similar effect (collectively, “collectively "Section 409A”). Severance benefits ") shall not commence in connection with Employee's termination of employment unless and until you have Employee has also incurred a “"separation from service” " (as such term is defined in Treasury Regulation Section 1.409A-1(h) ("Separation From Service"), unless the Company reasonably determines that such amounts may be provided to Employee without causing Employee to incur the additional 20% tax under Section 409A. It is intended that each installment of the Severance Benefits payments provided for in this Agreement is a separate "payment" for purposes of Treasury Regulation Section 409A. Each installment 1.409A2(b)(2)(i). For the avoidance of severance benefits doubt, it is a separate “payment” for purposes intended that payments of Treas. Reg. Section 1.409A-2(b)(2)(i)the Severance Benefits set forth in this Agreement satisfy, and to the severance benefits are intended to satisfy greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). HoweverIf Employee is a "specified employee" within the meaning of 409A(a)(2)(B)(i) of the Code, if such exemptions any Severance Benefit payments that are not available and you are, upon triggered by a separation from service, a “specified employee” for purposes of Section 409A, then, solely service shall be accelerated to the minimum extent necessary to avoid adverse personal tax consequences under Section 409A, so that (a) the timing of the severance benefits payments shall be delayed until the earlier lesser of (iy) the total cash severance payment amount, or (z) six (6) months and one day after your separation from service of such installment payments are paid no later than March 15 of the calendar year following such termination, and (iib) your death. Upon all amounts paid pursuant to the expiration foregoing clause (a) will constitute separate payments for purposes of Section 1.409A-2(b)(2) 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 shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” Treasury Regulations and thus will be determined consistent with payable pursuant to the rules relating to a “separation from service” as such "short-term is defined deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1Regulations. It is intended that each installment if Employee is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code at the time of such separation from service the foregoing provision shall result in compliance with the requirements of Section 409A(a)(2)(B)(i) of the Code since payments to Employee will either be payable pursuant to the "short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations or will not be paid until at least 6 months after separation from service. Notwithstanding any other payment schedule set forth in this Agreement, none of the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. On the first regular payroll pay day following the effective date of the Separation Date Release of all claims, the Company will pay Employee the Severance Benefits Employee would otherwise have received under the Agreement on or prior to such date but for the delay in payment related to the effectiveness of the release of claims, with the balance of the Severance Benefits being paid as originally scheduled. All amounts payable under the Agreement will be subject to standard payroll taxes and deductions. In the event that the payments or other benefits provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of in this Agreement is ambiguous as or otherwise payable to its compliance with Employee (i) constitute "parachute payments" within the meaning of Section 409A 280G of the Code, and (ii) would be subject to the provision will excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then Employee's benefits under this Agreement shall be read either (a) delivered in full, or (b) delivered to such a manner so lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all payments hereunder comply with or some portion of such benefits may be taxable under Section 409A 4999 of the Code. Except as otherwise expressly provided herein, If a reduction in payments or benefits constituting "parachute payments" is necessary pursuant to the extent any expense reimbursement or foregoing provision, reduction shall occur in the provision following order: reduction of any in-kind benefit under this Agreement cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. If acceleration of vesting of stock award compensation is determined to be subject to Section 409A reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code, the amount date of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day grant of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitEmployee's stock awards.
Appears in 1 contract
Deferred Compensation. Notwithstanding anything The Company agrees to pay to the contrary hereinExecutive deferred compensation on the following terms and conditions.
(a) Except as otherwise provided in Sections 1(b), 1(c), 1(d) or 1(e) below, the following provisions apply Company shall pay to the extent severance benefits provided herein are Executive the sum of $70,000 per year (the “Deferred Compensation”) in equal monthly installments of $5,833.33, subject to applicable withholding, on the first business day of each month for 15 years (180 months) commencing on the earlier of: (i) August 1, 2014, and (ii) the first business day of the month following the Executive’s “separation from service” from the Company , as that phrase is defined in Section 409A of the Internal Revenue Code of 1986, as amended amended, (the “Code”) and the regulations and for reasons other guidance thereunder and any state law of similar effect than Cause (collectively, “Section 409A”). Severance benefits shall not commence until you have a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(ias defined below), and subject to earlier termination as provided in this Agreement. Unless his employment is earlier terminated by the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” Company for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409Areasons other than Cause, the timing of the severance benefits payments shall be delayed until Executive must remain continuously employed through the earlier of (i) six (6) months and one day after your separation from service and August 1, 2014; or (ii) your deathan applicable payment event set forth in Sections 1(b), 1(c) or 1(d) of this Agreement to be eligible for benefits under this Agreement. Upon The Executive must be employed on the expiration date of a distribution under Section 1(e) of this Agreement, but a distribution under Section 1(e) shall not otherwise alter the eligibility requirements set forth in this Agreement. In exchange for and as a requirement to receive the compensation set forth in this Section 1(a) of this Agreement, the Executive and Company (and its Affiliates) shall enter into a mutually acceptable general release of claims accrued as of the applicable deferral period, any payments which would have otherwise been made during that period (whether date thereof in a single sum or in installments) in favor of the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a Company and its Affiliates within 45 days following the Executive’s “separation from service” from the Company. The form and will scope of such release shall be determined consistent with acceptable to the rules relating Company and its Affiliates, the approval of which shall not be unreasonably withheld by the Company and its Affiliates.
(b) The Deferred Compensation shall be forfeited in its entirety in the event that the Company terminates the Executive’s employment prior to a “separation from service” August 1, 2014 for Cause or if the Executive terminates his employment for any reason other than death, Disability, Constructive Termination (as such that term is defined in Treasury Regulation Section 1.409A-1the Employment Agreement). It is intended that each installment On and after the date on which Deferred Compensation payments commence hereunder, the Company may terminate its obligations under this Agreement only for Cause or if the Company subsequently determines within eighteen (18) months of the Executive’s termination that circumstances which would give rise to a for Cause termination of the Executive otherwise existed at the time of the Executive’s earlier termination.
(c) In the event that the Executive dies prior to having received any or all of the aggregate amount of the Deferred Compensation payable under this Section 1 (including if the Executive’s death occurs before August 1, 2014), the Company shall pay to his Beneficiary within sixty (60) days of the Executive’s date of death a single lump sum payment in an amount equal to the present value of the remaining payments provided hereunder constitute separate that would have been paid to the Executive had he not died. Such single lump sum payment shall be calculated by applying a discount rate equal to the then applicable 10-year Treasury Note interest rate.
(d) If there is a Change in Control of the Company or if the Executive is determined to have become Disabled prior to the Executive having received any or all of the aggregate amount of the Deferred Compensation payable under this Section 1 (including if the Change in Control or determination that the Executive has become Disabled occurs before August 1, 2014), the Company shall pay to the Executive within sixty (60) days of the effective date of the Change in Control or the determination that the Executive has become Disabled, a single lump sum payment in an amount equal to the present value of the remaining payments that would have been paid to the Executive had the Change in Control not occurred or had the Executive not become Disabled. Such single lump sum payment shall be calculated by applying a discount rate equal to the then applicable 10-year Treasury Note interest rate.
(e) In the event of an “paymentsUnforeseeable Emergency” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent as that any provision of this Agreement term is ambiguous as to its compliance with defined in Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A Company shall pay to the Executive within fifteen (15) days of the Code. Except as otherwise expressly provided herein, to occurrence of the extent any expense reimbursement or Unforeseeable Emergency the provision of any in-kind benefit under this Agreement is determined to be subject maximum amount allowable pursuant to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, 409A(a)(2)(B)(ii) in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year a lump sum promptly following the calendar year in which you incurred occurrence of such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit“Unforeseeable Emergency.”
Appears in 1 contract
Samples: Deferred Compensation Agreement (Global Partners Lp)
Deferred Compensation. Notwithstanding anything Participation under a deferred compensation agreement under which the Employee will be permitted to QUAD -- XXXX XXXXXXX EMPLOYMENT AGREEMENT AMENDMENT annually contribute and defer up to fifteen percent (15 % ) of the Employee's Base Salary and Cash Bonus, if any, and the Employer shall make a matching contrition equal to fifty percent (50 % ) of the contribution made by the Employee, up to a maximum of five percent (5%) of the Employee's Base Salary and Cash Bonus."
5. The penultimate sentence in Section 6 shall be deleted and replaced with the following: "'Disability' for the purposes of this Agreement shall mean that (i) the Employee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a contribution period of not less than twelve (12) months, or (ii) the Employee is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer."
6. The following sentence shall be added as an introductory paragraph in Section 10, before subsection (a): "Employee's employment during the term of this Agreement may be terminated by the Employer or Employee without any breach of this Agreement only under the circumstances described in this Section 10 (where such termination constitutes a "separation from service" pursuant to Code Section 409A), other than the termination of this Agreement pursuant to Sections 6 and 7."
7. The second sentence of subsection lO(a) shall be deleted and replaced with the following: "Such payment will be made in a lump sum within fifteen (15) days of termination."
8. The following sentence shall be added following the first sentence of subsection lO(b): "Such amounts shall be paid to the contrary hereinEmployee in accordance with the Employer's regular payroll on the next regular payroll date following the Employee's voluntary termination or termination for Cause."
9. The fifth sentence of subsection 10(c)(4) shall be deleted and replaced with the following: "In the event that such opinions determine that there would be an Excess Parachute Payment, the following provisions apply payment hereunder or any other payment determined by such counsel to be ineluctable in Total Payments shall be modified, reduced or eliminated as specified by the Employee in writing delivered to the extent severance benefits provided herein are subject Employer within thirty (30) days of his receipt of such opinions or, if the Employee fails to so notify the Employer, then as the Employer shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no QUAD -- XXXX XXXXXXX EMPLOYMENT AGREEMENT AMENDMENT Excess Parachute Payment and such adjustment shall be consistent with the rules under Section 409A of the Internal Revenue Code of 1986."
10. Subsection 10(c)(5) shall be deleted in its entirety and replaced with the following: "If the Employer is not in compliance with its minimum capital requirements or if the payments required under this Section 10 would cause the Employer's capital to be reduced below its minimum capital requirements, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”). Severance benefits shall not commence until you have a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the severance benefits payments shall be delayed until the earlier earliest date at which the Employer reasonably anticipates the making of (i) six (6) months and one day after your separation from service and (ii) your deathsuch payment will not cause the Employer's capital to be reduced below its minimum capital requirements. Upon the expiration of the applicable deferral period, any Such payments which would have otherwise been made during that period (whether in a single sum or in installments) shall not be reduced in the absence event Employee obtains other employment following the termination of this paragraph employment by the Employer."
11. The following sentence shall be paid added after the last sentence in subsection 1 l(b ): "Any payments pursuant to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and this indemnification will be determined consistent with the rules relating to a “separation from service” made as such term is defined in Treasury Regulation Section 1.409A-1. 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). To the extent that any provision of this Agreement is ambiguous soon as to its compliance with Section 409A of the Codepracticable, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), but in no event shall any expenses be reimbursed after later than two and one-half (2½) months following the last day end of the calendar year following the calendar year in which you incurred such expenses, and in no event the corresponding expenses are incurred."
12. The following Section 14 shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.added:
Appears in 1 contract
