Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply: (a) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). (b) If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, any payment or provision of benefits in connection with the Executive’s separation from service (as determined for purposes of Section 409A of the Code) shall not be made until six months after the Executive’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the right to reimbursement from the Company as soon as the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled. (c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. (d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period. (e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code. (f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 11 contracts
Samples: Employment Agreement (Ntelos Holdings Corp), Employment Agreement (Ntelos Holdings Corp), Employment Agreement (Ntelos Holdings Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder).
(ii) Neither the Executive Employee nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the payment, there is a dispute as to amount due or the proper recipient of such payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company.
(bB) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate Federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described.
(iii) If the Executive Employee is a “specified employee” for purposes employee of a publicly traded corporation as required by Section 409A(a)(2)(B)(i) of the Code, and any payment or provision of any benefit hereunder is subject to Section 409A any payment or provision of benefits in connection with the Executive’s a separation from service payment event (as determined for purposes of Section 409A of the Code) ), as opposed to another payment event permitted under Section 409A, shall not be made until six months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 6 contracts
Samples: Change in Control Agreement (Community Bankers Trust CORP), Change in Control Agreement (Community Bankers Trust CORP), Change in Control Agreement (Transcommunity Financial Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Internal Revenue Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Internal Revenue Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Employee under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder).
(ii) Neither the Executive Employee nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company.
(bB) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate Federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described.
(iii) If the Executive Employee is a “specified employee” for purposes employee of a publicly traded corporation as required by Section 409A(a)(2)(B)(i) of the Internal Revenue Code, any payment or provision of benefits in connection with the Executive’s a separation from service payment event (as determined for purposes of Section 409A of the Internal Revenue Code) shall not be made until six months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive If a series of separate payments and benefits to Change in Control occurs but the fullest extent allowed by Section 409A Change in Control does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Internal Revenue Code.
(d) For purposes , then payment of determining time of (but not entitlement to) the payment any amount or provision of deferred compensation any benefit under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered to be nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code otherwise fails to comply withshall be deferred until another permissible payment event contained in Section 409A of the Internal Revenue Code occurs (e.g., or be exempt fromdeath, disability, separation from service from the requirements Company and its affiliated companies as defined for purposes of Section 409A of the Internal Revenue Code), including any deferral of payment or provision of benefits for the 409A Deferral Period as provided above.
Appears in 5 contracts
Samples: Employment Agreement (Dollar General Corp), Employment Agreement (Dollar General Corp), Employment Agreement (Dollar General Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company CompuCredit and its affiliates as defined for purposes of Section 409A of the Internal Revenue Code), and in such form, as complies with the applicable requirements of Section 409A of the Internal Revenue Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Internal Revenue Code, the following shall apply:
(a) Neither the Executive Employee nor the Company CompuCredit shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder).
(b) If the Executive Employee is a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, any payment or provision of benefits in connection with the Executive’s a separation from service event (as determined for purposes of Section 409A of the Internal Revenue Code) shall not be made until the earlier of (i) Employee’s death or (ii) six (6) months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as CompuCredit once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Internal Revenue Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Internal Revenue Code in connection with the Executive’s a termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Internal Revenue Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive Employee would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code shall be determined on the basis of the applicable twelve12-month period ending on the specified employee identification date designated by the Company CompuCredit consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Internal Revenue Code.
(f) Notwithstanding any of the provisions other provision of this Agreement, the Company CompuCredit shall not be liable to the Executive Employee if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Internal Revenue Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code.
Appears in 3 contracts
Samples: Employment Agreement (Compucredit Corp), Employment Agreement (Compucredit Corp), Employment Agreement (Compucredit Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company Atlanticus and its affiliates as defined for purposes of Section 409A of the Internal Revenue Code), and in such form, as complies with the applicable requirements of Section 409A of the Internal Revenue Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Internal Revenue Code, the following shall apply:
(a) Neither the Executive Employee nor the Company Atlanticus shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder)Internal Revenue Code.
(b) If the Executive Employee is a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, any payment or provision of benefits in connection with the Executive’s a separation from service (as determined for purposes of Section 409A of the Internal Revenue Code) shall not be made until the earlier of (i) Employee’s death or (ii) six (6) months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”)) to the extent required by Section 409A of the Code. In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as Atlanticus once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Internal Revenue Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Internal Revenue Code in connection with the Executive’s a termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Internal Revenue Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive Employee would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code shall be determined on the basis of the applicable twelve12-month period ending on the specified employee identification date designated by the Company Atlanticus consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Internal Revenue Code.
(f) Notwithstanding any of the provisions other provision of this Agreement, the Company Atlanticus shall not be liable to Employee for any additional Section 409A taxes, penalties or interest as the Executive if result of any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Internal Revenue Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code.
Appears in 3 contracts
Samples: Employment Agreement (Atlanticus Holdings Corp), Employment Agreement (Atlanticus Holdings Corp), Employment Agreement (Atlanticus Holdings Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred a deferral of compensation subject to within the meaning of Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be necessary to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder); provided, no such amendment shall be effective without Executive’s consent to the extent reducing the economic value of the Agreement to Executive (as determined on a pre-tax basis).
(ii) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to the amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company; and
(B) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described; Provided, such delay in payment shall occur only in a manner that satisfies the requirements of Section 409A of the Code and regulations thereunder.
(biii) If at the time of any separation from service Executive is a “specified employee” for purposes (within the meaning of Section 409A of the Code) at a time in which the Company (or successor) is a publicly traded corporation, within the meaning of Section 409A(a)(2)(B)(i) of the CodeCode and regulations thereunder, to the minimum extent required to satisfy Section 409A(a)(2)(B)(i) of the Code and regulations thereunder, any payment or provision of benefits to Executive in connection with the Executive’s his separation from service (as determined for purposes of Section 409A of the Code) shall not be made until postponed and paid in a lump sum on the first business day following the date that is six months after the Executive’s separation from service (the “409A Deferral Period”). In , and the event such remaining payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in after the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferredso postponed, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as promptly after the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For If a “change of ownership or effective control of the Company or of the ownership of a substantial portion of the assets of the Company” under Section 280G of the Code (“280G CiC”) occurs which does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code, then payment of any amount or provision of any benefit payable pursuant to such 280G CiC under this Agreement which is considered to be a deferral of compensation subject to Section 409A of the Code shall be postponed until another permissible payment event contained in Section 409A of the Code occurs (e.g., death, disability, separation from service from the Company and its affiliated companies as defined for purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes ), including any deferral of determining time of (but not entitlement to) the payment or provision of deferred compensation benefits for the 409A Deferral Period as provided above.
(v) References under this Agreement under Section 409A of the Code in connection with the to Executive’s termination of employment, termination of employment will shall be read deemed to mean refer to the date upon which Executive has experienced a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of Code. All payments made under this Agreement, a Agreement shall constitute “specified employeeseparate payments” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (First Data Corp)
Nonqualified Deferred Compensation Omnibus Provision. It Notwithstanding any other provision of this Agreement, it is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Code shall be provided and paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A Notwithstanding any other provision of the Codethis Agreement, the following shall apply:
(a) Neither Company’s Compensation Committee or Board of Directors is authorized to amend this Agreement, to amend or void any election made by the Executive nor the Company shall take any action under this Agreement and/or to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not such manner as may be in compliance determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder).
. For example, if a Change of Control occurs but the Change of Control does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code with respect to which payment is permitted under Section 409A of the Code, then payment of any amount or provision of any benefit under this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Code shall be deferred until another permissible payment event contained in Section 409A occurs (b) If e.g., death, disability, separation from service from the Executive is a “specified employee” Company and its affiliated companies as defined for purposes of Section 409A(a)(2)(B)(i) 409A of the Code), including any deferral of payment or provision of benefits in connection with the Executive’s a separation from service (as determined for purposes of Section 409A of the Code) shall not be made until payment event to six months after a key employee of a publicly traded corporation as required by Section 409A(a)(2)(B)(i) of the Executive’s separation from service Code (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 2 contracts
Samples: Employment Agreement (Virginia Financial Group Inc), Employment Agreement (Virginia Financial Group Inc)
Nonqualified Deferred Compensation Omnibus Provision. It is The payments and benefits under this Agreement are intended to satisfy the exclusion from Section 409A of the Code for payments made upon an involuntary separation from service. However, to the extent that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Code Code, it shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(a) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder).
(b) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(i) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the payment, there is a dispute as to amount due or the proper recipient of such payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company.
(bii) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate Federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described.
(iii) If the Executive is a “specified employee” for purposes Executive of a publicly traded corporation as required by Section 409A(a)(2)(B)(i) of the Code, and any payment or provision of any benefit hereunder is subject to Section 409A any payment or provision of benefits in connection with the Executive’s a separation from service payment event (as determined for purposes of Section 409A of the Code) ), as opposed to another payment event permitted under Section 409A, or an amount payable that is not subject to Section 409A shall not be made until six months after the Executive’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the right to reimbursement from the Company as soon as the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 2 contracts
Samples: Change in Control Severance Agreement (Hibbett Inc), Change in Control Severance Agreement (Hibbett Sports Inc)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company CompuCredit and its affiliates as defined for purposes of Section 409A of the Internal Revenue Code), and in such form, as complies with the applicable requirements of Section 409A of the Internal Revenue Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Internal Revenue Code, the following shall apply:
(a) Neither the Executive Employee nor the Company CompuCredit shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder).
(b) If the Executive Employee is a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, any payment or provision of benefits in connection with the Executive’s a separation from service event (as determined for purposes of Section 409A of the Internal Revenue Code) shall not be made until the earlier of (i) Employee’s death or (ii) six (6) months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as CompuCredit once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 2 contracts
Samples: Employment Agreement (CompuCredit Holdings Corp), Employment Agreement (Compucredit Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred a deferral of compensation subject to within the meaning of Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be necessary to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder); provided, no such amendment shall be effective without Executive’s consent to the extent reducing the economic value of the Agreement to Executive (as determined on a pre-tax basis).
(ii) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to the amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company; and
(B) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described; Provided, such delay in payment shall occur only in a manner that satisfies the requirements of Section 409A of the Code and regulations thereunder.
(biii) If at the time of any separation from service Executive is a “specified employee” for purposes employee at a time in which the Company (or successor) is a publicly traded corporation, within the meaning of Section 409A(a)(2)(B)(i) of the CodeCode and regulations thereunder, to the minimum extent required to satisfy Section 409A(a)(2)(B)(i) of the Code and regulations thereunder, any payment or provision of benefits to Executive in connection with the Executive’s his separation from service (as determined for purposes of Section 409A of the Code) shall not be made until postponed and paid in a lump sum on the first business day following the date that is six months after the Executive’s separation from service (the “409A Deferral Period”). In , and the event such remaining payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in after the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferredso postponed, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as promptly after the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For If a “change of ownership or effective control of the Company or of the ownership of a substantial portion of the assets of the Company” under Section 280G of the Code (“280G CiC”) occurs which does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code, then payment of any amount or provision of any benefit payable pursuant to such 280G CiC under this Agreement which is considered to be a deferral of compensation subject to Section 409A of the Code shall be postponed until another permissible payment event contained in Section 409A of the Code occurs (e.g., death, disability, separation from service from the Company and its affiliated companies as defined for purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes ), including any deferral of determining time of (but not entitlement to) the payment or provision of deferred compensation benefits for the 409A Deferral Period as provided above.
(v) References under this Agreement under Section 409A of the Code in connection with the to Executive’s termination of employment, termination of employment will shall be read deemed to mean refer to the date upon which Executive has experienced a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of Code. All payments made under this Agreement, a Agreement shall constitute “specified employeeseparate payments” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).
Appears in 2 contracts
Samples: Employment Agreement (First Data Corp), Employment Agreement (First Data Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Internal Revenue Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Internal Revenue Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Employee under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder).
(ii) Neither the Executive Employee nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company.
(bB) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate Federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described.
(iii) If the Executive Employee is a “specified employee” for purposes employee of a publicly traded corporation as required by Section 409A(a)(2)(B)(i) of the Internal Revenue Code, any payment or provision of benefits in connection with the Executive’s a separation from service payment event (as determined for purposes of Section 409A of the Internal Revenue Code) shall not be made until six months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive If a series of separate payments and benefits to Change in Control occurs but the fullest extent allowed by Section 409A Change in Control does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Internal Revenue Code.
(d) For purposes , then payment of determining time of (but not entitlement to) the payment any amount or provision of deferred compensation any benefit under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered to be nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code otherwise fails to comply withshall be deferred until another permissible payment event contained in Section 409A of the Internal Revenue Code occurs (e.g., or be exempt fromdeath, disability, separation from service from the requirements Company and its affiliated companies as defined for purposes of Section 409A of the Internal Revenue Code.), including any deferral of payment or provision of benefits for the 409A Deferral Period as provided above ..
Appears in 2 contracts
Samples: Employment Agreement (Dollar General Corp), Employment Agreement (Dollar General Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment Any compensation or benefit benefits which is are provided or available to the Executive pursuant to or in connection with any plan or program (including without limitation this Agreement letter agreement) to which Xxxxxx or any of its subsidiaries or affiliates is a party and which is considered to be provided under a nonqualified deferred compensation plan or program subject to IRC Section 409A of the Code shall be provided and paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of IRC Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting The Executive hereby consents to the amendment of any such plan or program as may be determined by Xxxxxx to be necessary or appropriate to evidence or further evidence required compliance with IRC Section 409A of 409A. In the Code, the following shall apply:
(a) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder).
(b) If event the Executive is a “specified employee” for purposes of employee described in IRC Section 409A(a)(2)(B)(i) whose nonqualified deferred compensation subject to IRC Section 409A must be deferred until six (6) months after his separation from service, then payment of the Code, any payment amount or provision of benefits in connection with the Executive’s separation from service (as determined for purposes of any benefit under this letter agreement which is considered to be nonqualified deferred compensation subject to IRC Section 409A of the Code) shall not be made deferred until six (6) months after the Executive’s separation from service (the “409A Deferral Period”), absent an intervening payment event under IRC Section 409A such as his death. In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event event, benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as Xxxxxx once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 2 contracts
Samples: Employment Agreement (Massey Energy Co), Employment Agreement (Massey Energy Co)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred a deferral of compensation subject to within the meaning of Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliancenoncompliance and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in accordance with such intent. The provisions of this Section 11(p) shall qualify and supersede all other provisions of this Agreement as necessary to fulfill the foregoing intention while to the maximum possible extent preserving the economic benefits otherwise intended hereunder. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized, after consulting with Executive, to amend this Agreement, to void or amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be necessary to comply, or to evidence or further evidence required compliance, with Section 409A of the Code. Any such amendment shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive of the applicable provision without violating the provisions of Section 409A of the Code.
(ii) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code. Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to the amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company; and
(B) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described; Provided, such delay in payment shall occur only in a manner that satisfies the requirements of Section 409A of the Code (including any transition or grandfather rules and regulations thereunder).
(biii) If at the time of any separation from service Executive is a “specified employee” for purposes employee at a time in which the Company (or successor) is a publicly traded corporation, within the meaning of Section 409A(a)(2)(B)(i) of the CodeCode and regulations thereunder, to the minimum extent required to satisfy Section 409A(a)(2)(B)(i) of the Code and regulations thereunder, any payment or provision of benefits to Executive in connection with the Executive’s his separation from service (as determined for purposes of Section 409A of the Code) shall not be made until postponed and paid in a lump sum on the first business day following the date that is six months after the Executive’s separation from service (the “409A Deferral Period”). In , and the event such remaining payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in after the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferredso postponed, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as promptly after the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For If a “change of ownership or effective control of the Company or of the ownership of a substantial portion of the assets of the Company” under Section 280G of the Code (“280G CiC”) occurs which does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code, then payment of any amount or provision of any benefit payable pursuant to such 280G CiC under this Agreement which is considered to be a deferral of compensation subject to Section 409A of the Code shall be postponed until another permissible payment event contained in Section 409A of the Code occurs (e.g., death, disability, separation from service from the Company and its affiliated companies as defined for purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes ), including any deferral of determining time of (but not entitlement to) the payment or provision of deferred compensation benefits for the 409A Deferral Period as provided above.
(v) References under this Agreement under Section 409A of the Code in connection with the to Executive’s termination of employment, termination of employment will shall be read deemed to mean refer to the date upon which Executive has experienced a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of Code. All payments made under this Agreement, a Agreement shall constitute “specified employeeseparate payments” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).
Appears in 1 contract
Samples: Employment Agreement (Xo Group Inc.)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to a deferral of within the meaning of Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be necessary to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder); provided, no such amendment shall be effective without Executive’s consent to the extent reducing the economic value of the Agreement to Executive (as determined on a pre-tax basis).
(ii) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to the amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company; and
(B) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described; Provided, such delay in payment shall occur only in a manner that satisfies the requirements of Section 409A of the Code and regulations thereunder.
(biii) If at the time of any separation from service Executive is a “specified employee” for purposes employee at a time in which the Company (or successor) is a publicly traded corporation, within the meaning of Section 409A(a)(2)(B)(i) of the CodeCode and regulations thereunder, to the minimum extent required to satisfy Section 409A(a)(2)(B)(i) of the Code and regulations thereunder, any payment or provision of benefits to Executive in connection with the Executive’s his separation from service (as determined for purposes of Section 409A of the Code) shall not be made until postponed and paid in a lump sum on the first business day following the date that is six months after the Executive’s separation from service (the “409A Deferral Period”). In , and the event such remaining payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the after 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferredso postponed, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as promptly after the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive If a series of separate payments and benefits to the fullest extent allowed by Section 409A 280G CiC occurs which does not constitute a change in ownership of the Code.
(d) For purposes Company or in the ownership of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A a substantial portion of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A assets of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether Company as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of provided in Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i409A(a)(2)(A)(v) of the Code.
(f) Notwithstanding , then payment of any amount or provision of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided payable pursuant to such 280G CiC under this Agreement and which is considered deferred to be a deferral of compensation subject to Section 409A of the Code otherwise fails to comply withshall be postponed until another permissible payment event contained in Section 409A of the Code occurs (e.g., or be exempt fromdeath, disability, separation from service from the requirements Company and its affiliated companies as defined for purposes of Section 409A of the Code), including any deferral of payment or provision of benefits for the 409A Deferral Period as provided above.
Appears in 1 contract
Samples: Employment Agreement (DGC Properties of Kentucky, LLC)
Nonqualified Deferred Compensation Omnibus Provision. It is The payments and benefits under this Agreement are intended to satisfy the exclusion from Section 409A of the Code for payments made upon an involuntary separation from service, or as a short-term deferral, or otherwise. However, to the extent that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Code Code, it shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. Each term of this Agreement shall be interpreted in accordance with an applicable exclusion from 409A of the Code or, to the extent no exclusion is available, in a manner that is compliant with Section 409A of the Code. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(a) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Code.
(b) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder)Code.
(bc) If the Executive is a “specified employee” employee of a publicly traded corporation for purposes of Section 409A(a)(2)(B)(i) of the Code, and any payment or provision of any benefit hereunder is considered deferred compensation subject to Section 409A of the Code, any payment or provision of benefits in connection with the Executive’s a separation from service payment event (as determined for purposes of Section 409A of the Code) ), as opposed to another payment event permitted under Section 409A, or an amount payable that is not considered deferred compensation subject to Section 409A, shall not be made until the date that is six months after the Executive’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the right to reimbursement from the Company as soon as the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreementearlier, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A date of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Codedeath.
Appears in 1 contract
Samples: Change in Control Severance Agreement (Hibbett Sports Inc)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder).
(ii) Neither the Executive Employee nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the payment, there is a dispute as to amount due or the proper recipient of such payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company.
(bB) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate Federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described.
(iii) If the Executive Employee is a “specified employee” for purposes employee of a publicly traded corporation as required by Section 409A(a)(2)(B)(i) of the Code, and any payment or provision of any benefit hereunder is subject to Section 409A any payment or provision of benefits in connection with the Executive’s a separation from service payment event (as determined for purposes of Section 409A of the Code) ), as opposed to another payment event permitted under Section 409A, shall not be made until six months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive If a series of separate payments and benefits to Change in Control occurs but the fullest extent allowed by Section 409A Change in Control does not constitute a change in ownership of the Code.
(d) For purposes Company or in the ownership of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A a substantial portion of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A assets of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether Company as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of provided in Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i409A(a)(2)(A)(v) of the Code.
(f) Notwithstanding , then payment of any amount or provision of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to under this Agreement and which is considered to be nonqualified deferred compensation subject to Section 409A of the Code otherwise fails to comply withshall be deferred until another permissible payment event contained in Section 409A of the Code occurs (e.g., or be exempt fromdeath, disability, separation from service from the requirements Company and its affiliated companies as defined for purposes of Section 409A of the Code), including any deferral of payment or provision of benefits for the 409A Deferral Period as provided above.
Appears in 1 contract
Samples: Change in Control Agreement (Transcommunity Financial Corp)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment Any compensation or benefit benefits which is are provided or available to the Executive pursuant to or in connection with any plan or program (including without limitation this Agreement letter agreement) to which Mxxxxx or any of its subsidiaries or affiliates is a party and which is considered to be provided under a nonqualified deferred compensation plan or program subject to IRC Section 409A of the Code shall be provided and paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of IRC Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting The Executive hereby consents to the amendment of any such plan or program as may be determined by Mxxxxx to be necessary or appropriate to evidence or further evidence required compliance with IRC Section 409A of 409A. In the Code, the following shall apply:
(a) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder).
(b) If event the Executive is a “specified employee” for purposes of employee described in IRC Section 409A(a)(2)(B)(i) whose nonqualified deferred compensation subject to IRC Section 409A must be deferred until six (6) months after his separation from service, then payment of the Code, any payment amount or provision of benefits in connection with the Executive’s separation from service (as determined for purposes of any benefit under this letter agreement which is considered to be nonqualified deferred compensation subject to IRC Section 409A of the Code) shall not be made deferred until six (6) months after the Executive’s 's separation from service (the “409A Deferral Period”), absent an intervening payment event under IRC Section 409A such as his death. In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event event, benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as Mxxxxx once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) . For purposes of this Agreementletter agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed allowable by IRC Section 409A of the Code.
(d) For 409A, and for purposes of determining time of (but not entitlement to) the payment or provision of nonqualified deferred compensation under this Agreement under for purposes of IRC Section 409A of the Code in connection with the Executive’s a termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of IRC Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty 20 percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month 36)-month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 1 contract
Nonqualified Deferred Compensation Omnibus Provision. It Notwithstanding any other provision of this Agreement, it is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Code shall be provided and paid and provided in a manner, and at such time, including without limitation, limitation payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., e.g. death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the The following rules shall apply:
(a) Neither Notwithstanding any other provision of this Agreement, the Company's Compensation Committee or Board of Directors is authorized to amend this Agreement, to amend or void any election made by the Executive nor the Company shall take any action under this Agreement and/or to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not such manner as may be in compliance determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder).
(b) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment.
(c) If the Executive is a “specified employee” key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) and any of the Company's stock is publicly traded on an established securities market or otherwise, then payment of any amount or provision of any benefit under this Agreement which is considered deferred compensation subject to Section 409A of the Code shall be deferred for purposes of six (6) months as required by Section 409A(a)(2)(B)(i) of the Code, any payment or provision of benefits in connection with the Executive’s separation from service (as determined for purposes of Section 409A of the Code) shall not be made until six months after the Executive’s separation from service Code (the “"409A Deferral Period”"). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s 's expense, with the Executive having the a right to reimbursement from the Company as soon as once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(cd) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, employment and date of termination or cessation of employment will be read to mean a “"separation from service” " within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more less than twenty percent (20%) 50% of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes With regard to any provision herein that provides for reimbursement of this Agreementexpenses subject to Code Section 409A, a “specified employee” except as permitted by Code Section 409A, (a) the right to reimbursement is not subject to liquidation or exchange for purposes another benefit, and (b) the amount of Section 409A(a)(2)(B)(i) of expenses eligible for reimbursement provided during any taxable year shall not affect the Code expenses eligible for reimbursement in any other taxable year. All reimbursements shall be determined on reimbursed in accordance with the basis of Company's reimbursement policies but in no event later than the applicable twelve-month period ending on calendar year following the specified employee identification date designated by calendar year in which the Company consistently for purposes of this Agreement and similar agreements or, if no such designation related expense is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Codeincurred.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 1 contract
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company CompuCredit and its affiliates as defined for purposes of Section 409A of the Internal Revenue Code), and in such form, as complies with the applicable requirements of Section 409A of the Internal Revenue Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Internal Revenue Code, the following shall apply:
(a) Neither the Executive Employee nor the Company CompuCredit shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder).
(b) If the Executive Employee is a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, any payment or provision of benefits in connection with the Executive’s a separation from service (as determined for purposes of Section 409A of the Internal Revenue Code) shall not be made until the earlier of (i) Employee’s death or (ii) six (6) months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as CompuCredit once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Internal Revenue Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Internal Revenue Code in connection with the Executive’s a termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Internal Revenue Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive Employee would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(eg) For purposes of this Agreement, a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code shall be determined on the basis of the applicable twelve12-month period ending on the specified employee identification date designated by the Company CompuCredit consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Internal Revenue Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 1 contract
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to a deferral within the meaning of Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be necessary to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder); provided, no such amendment shall be effective without Executive’s consent to the extent reducing the economic value of the Agreement to Executive (as determined on a pre-tax basis).
(ii) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to the amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company; and
(B) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described; Provided, such delay in payment shall occur only in a manner that satisfies the requirements of Section 409A of the Code and regulations thereunder.
(biii) If at the time of any separation from service Executive is a “specified employee” for purposes employee at a time in which the Company (or successor) is a publicly traded corporation, within the meaning of Section 409A(a)(2)(B)(i) of the CodeCode and regulations thereunder, to the minimum extent required to satisfy Section 409A(a)(2)(B)(i) of the Code and regulations thereunder, any payment or provision of benefits to Executive in connection with the Executive’s his separation from service (as determined for purposes of Section 409A of the Code) shall not be made until postponed and paid in a lump sum on the first business day following the date that is six months after the Executive’s separation from service (the “409A Deferral Period”). In , and the event such remaining payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the after 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferredso postponed, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as promptly after the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For If a 280G CiC occurs which does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code, then payment of any amount or provision of any benefit payable pursuant to such 280G CiC under this Agreement which is considered to be a deferral of compensation subject to Section 409A of the Code shall be postponed until another permissible payment event contained in Section 409A of the Code occurs (e.g., death, disability, separation from service from the Company and its affiliated companies as defined for purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes ), including any deferral of determining time of (but not entitlement to) the payment or provision of deferred compensation benefits for the 409A Deferral Period as provided above.
(v) References under this Agreement under Section 409A of the Code in connection with the to Executive’s termination of employment, termination of employment will shall be read deemed to mean refer to the date upon which Executive has experienced a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of Code. All payments made under this Agreement, a Agreement shall constitute “specified employeeseparate payments” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). [Signature Page Follows This Page]
Appears in 1 contract
Samples: Employment Transition Agreement (Dollar General Corp)
Nonqualified Deferred Compensation Omnibus Provision. (a) It is intended that any payment or benefit which is compensation provided pursuant to or in connection with under this Agreement be administered and paid in a manner which is considered will not result in the imposition of additional federal income taxes on Executive under Code Section 409A. The provisions of this Agreement relating to amounts which constitute deferred compensation under Code Section 409A are intended to be deferred construed accordingly. If any compensation subject to Section 409A or benefits provided by this Agreement may result in the application of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(a) Neither Company shall, at the Executive nor request of Executive, seek to modify this Agreement in the least restrictive manner necessary in order to comply with the provisions of Section 409A and/or any rules, regulations or other regulatory guidance issued under such statutory provision and without any diminution in the value of the payments to Executive; provided, however, that in connection with any such modification the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Section 409A of the Code (including any transition required to increase amounts or grandfather rules thereunder).
(b) If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, any payment benefits otherwise payable to or provision of benefits in connection with the provided to Executive’s separation from service (as determined for purposes of Section 409A of the Code) shall not be made until six months after the Executive’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral PeriodNevertheless, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the right to reimbursement from the Company as soon as the 409A Deferral Period ends, and the balance tax treatment of the benefits provided under the Agreement is not warranted or guaranteed. Neither the Company, nor its directors, officers, employees or advisers, shall be provided held liable for any taxes, interest, penalties or other monetary amounts owed by Executive as otherwise scheduled.
(c) For purposes a result of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series the application of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(db) For purposes Notwithstanding anything in this Agreement to the contrary, to the extent necessary to comply with Code Section 409A, the amount of determining time of (but not entitlement to) any expenses eligible for reimbursement or the payment or provision of deferred compensation any in-kind benefits under this Agreement in any taxable year of Executive shall not affect the expenses eligible for reimbursement or the provision of in-kind benefits in any other taxable year, and (b) the reimbursement of expenses or in-kind benefits under this Agreement shall be made or provided no later than on or before the last day of Executive’s taxable year following the taxable year in which the expense was incurred, except to the extent earlier reimbursement is required under this Agreement or applicable Company policies and procedures. No right of Executive to reimbursement of expenses under this Agreement shall be subject to liquidation or exchange for another benefit.
(c) Notwithstanding anything in this Agreement to the contrary, to the extent that any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code in connection with the (“Non-Exempt Deferred Compensation”) would otherwise be payable or distributable hereunder by reason of Executive’s termination of employment, such Non-Exempt Deferred Compensation will not be payable or distributable to Executive by reason of such circumstance unless the circumstances giving rise to such termination of employment will be read to mean a meet any description or definition of “separation from service” within the meaning of in Section 409A of the Code where it is reasonably anticipated and applicable regulations (without giving effect to any elective provisions that no further services may be available under such definition). This provision does not affect the dollar amount or prohibit the vesting of any Non-Exempt Deferred Compensation upon a termination of employment, however defined. If this provision prevents the payment or distribution of any Non-Exempt Deferred Compensation, such payment or distribution shall be made at the time and in the form that would be performed after that date or that have applied absent the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirtynon-409A-six (36) month periodconforming event.
(ed) For purposes Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would constitute Non-Exempt Deferred Compensation would otherwise be payable or distributable under this Agreement by reason of this AgreementExecutive’s separation from service during a period in which he is a Specified Employee (as defined below), a “specified employee” for purposes then, subject to any permissible acceleration of payment by the Company under Treas. Reg. Section 409A(a)(2)(B)(i1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes): (i) the Code shall amount of such Non-Exempt Deferred Compensation that would otherwise be determined on payable during the basis of the applicable twelvesix-month period ending immediately following Executive’s separation from service will be accumulated through and paid or provided on the specified employee identification date designated by first day of the Company consistently for purposes of this Agreement and similar agreements seventh month following Executive’s separation from service (or, if no Executive dies during such designation is madeperiod, based on the default rules and regulations under Section 409A(a)(2)(B)(iwithin 30 days after Executive’s death) of the Code.
(f) Notwithstanding any of the provisions of this Agreementin either case, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement “Required Delay Period”); and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.(ii)
Appears in 1 contract
Samples: Employment Agreement (Prestige Brands Holdings, Inc.)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is compensation provided pursuant to or in connection with under this Agreement be administered and paid in a manner which is considered will not result in the imposition of additional federal income taxes on the Executive under Code Section 409A. The provisions of this Agreement relating to amounts which constitute deferred compensation under Code Section 409A are intended to be deferred construed accordingly. If any compensation subject to Section 409A or benefits provided by this Agreement may result in the application of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(a) Neither Company shall, at the Executive nor request of the Company shall take any action Executive, seek to accelerate or delay modify this Agreement in the payment least restrictive manner necessary in order to comply with the provisions of any monies and/or provision of any benefits in any matter which would not be in compliance with Section 409A and/or any rules, regulations or other regulatory guidance issued under such statutory provision and without any diminution in the value of the Code (including any transition or grandfather rules thereunder).
(b) If payments to the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the CodeExecutive; provided, any payment or provision of benefits however, that in connection with the Executive’s separation from service (as determined for purposes of Section 409A of the Code) shall not be made until six months after the Executive’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the right to reimbursement from the Company as soon as the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, modification the Company shall not be liable required to increase amounts or benefits otherwise payable to or provided to Executive. Notwithstanding anything in this Agreement to the Executive if contrary, to the extent necessary to comply with Code Section 409A, (a) the amount of any payment expenses eligible for reimbursement or benefit which is to be provided pursuant to the provision of any in-kind benefits under this Agreement and which is considered deferred compensation subject to Section 409A in any taxable year of the Code otherwise fails to comply withExecutive shall not affect the expenses eligible for reimbursement or the provision of in-kind benefits in any other taxable year, and (b) the reimbursement of expenses or in-kind benefits under this Agreement shall be exempt from, made or provided no later than on or before the requirements of Section 409A last day of the CodeExecutive’s taxable year following the taxable year in which the expense was incurred, except to the extent earlier reimbursement is required under this Agreement or applicable Company policies and procedures.
Appears in 1 contract
Samples: Employment Agreement (Prestige Brands Holdings, Inc.)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred a deferral of compensation subject to within the meaning of Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be necessary to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder); provided, no such amendment shall be effective without Executive's consent to the extent reducing the economic value of the Agreement to Executive (as determined on a pre-tax basis).
(ii) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) To the extent otherwise permissible under this Agreement (other than this Section 14(q)), payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient's control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to the amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company; and
(B) Payments shall be delayed in any circumstances in which the payment will violate federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described; Provided, such delay in payment shall occur only in a manner that satisfies the requirements of Section 409A of the Code and regulations thereunder.
(biii) If at the time of any separation from service Executive is a “specified employee” for purposes within the meaning of Section 409A(a)(2)(B)(i) of the CodeCode and regulations thereunder, to the minimum extent required to satisfy Section 409A(a)(2)(B)(i) of the Code and regulations thereunder, any payment or provision of benefits to Executive in connection with the Executive’s his separation from service (as determined for purposes of Section 409A of the Code) shall not be made until postponed and paid in a lump sum on the first business day following the date that is six months after the Executive’s 's separation from service (or the date of Executive's death if earlier) (the “409A Deferral Period”). In , and the event such remaining payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in after the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferredso postponed, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s 's expense, with the Executive having the a right to reimbursement from the Company as soon as promptly after the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For If a “change of ownership or effective control of the Company or of the ownership of a substantial portion of the assets of the Company” under Section 280G of the Code (“280G CiC”) occurs which does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code, then payment of any amount or provision of any benefit payable pursuant to such 280G CiC under this Agreement which is considered to be a deferral of compensation subject to Section 409A of the Code shall be postponed until another permissible payment event contained in Section 409A of the Code occurs (e.g., death, disability, separation from service from the Company and its affiliated companies as defined for purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes ), including any deferral of determining time of (but not entitlement to) the payment or provision of deferred compensation benefits for the 409A Deferral Period as provided above.
(v) References under this Agreement under Section 409A of the Code in connection with the to Executive’s termination of employment, 's termination of employment will shall be read deemed to mean refer to the date upon which Executive has experienced a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of Code. All payments made under this Agreement, a Agreement shall constitute “specified employeeseparate payments” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).
Appears in 1 contract
Samples: Employment Agreement (Wendy's Co)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred a deferral of compensation subject to within the meaning of Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliancenoncompliance and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in accordance with such intent. The provisions of this Section 12(p) shall qualify and supersede all other provisions of this Agreement as necessary to fulfill the foregoing intention while to the maximum possible extent preserving the economic benefits otherwise intended hereunder. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized, after consulting with Executive, to amend this Agreement, to void or amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be necessary to comply, or to evidence or further evidence required compliance, with Section 409A of the Code. Any such amendment shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive of the applicable provision without violating the provisions of Section 409A of the Code.
(ii) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code. Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to the amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company; and
(B) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described; Provided, such delay in payment shall occur only in a manner that satisfies the requirements of Section 409A of the Code (including any transition or grandfather rules and regulations thereunder).
(biii) If at the time of any separation from service Executive is a “specified employee” for purposes employee at a time in which the Company (or successor) is a publicly traded corporation, within the meaning of Section 409A(a)(2)(B)(i) of the CodeCode and regulations thereunder, to the minimum extent required to satisfy Section 409A(a)(2)(B)(i) of the Code and regulations thereunder, any payment or provision of benefits to Executive in connection with the Executive’s his separation from service (as determined for purposes of Section 409A of the Code) shall not be made until postponed and paid in a lump sum on the first business day following the date that is six months after the Executive’s separation from service (the “409A Deferral Period”). In , and the event such remaining payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in after the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferredso postponed, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as promptly after the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For If a “change of ownership or effective control of the Company or of the ownership of a substantial portion of the assets of the Company” under Section 280G of the Code (“280G CiC”) occurs which does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code, then payment of any amount or provision of any benefit payable pursuant to such 280G CiC under this Agreement which is considered to be a deferral of compensation subject to Section 409A of the Code shall be postponed until another permissible payment event contained in Section 409A of the Code occurs (e.g., death, disability, separation from service from the Company and its affiliated companies as defined for purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes ), including any deferral of determining time of (but not entitlement to) the payment or provision of deferred compensation benefits for the 409A Deferral Period as provided above.
(v) References under this Agreement under Section 409A of the Code in connection with the to Executive’s termination of employment, termination of employment will shall be read deemed to mean refer to the date upon which Executive has experienced a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that Code. All payments (including for the level avoidance of bona fide services the Executive would perform after that date (whether as an employee or independent contractordoubt any right to a series of installment payments) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of made under this Agreement, a Agreement shall constitute “specified employeeseparate payments” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).
Appears in 1 contract
Samples: Employment Agreement (Xo Group Inc.)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company Purpose Financial and its affiliates as defined for purposes of Section 409A of the Internal Revenue Code), and in such form, as complies with the applicable requirements of Section 409A of the Internal Revenue Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Internal Revenue Code, the following shall apply:
(a) Neither the Executive Employee nor the Company Purpose Financial shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder).
(b) If the Executive Employee is a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, any payment or provision of benefits in connection with the Executive’s a separation from service event (as determined for purposes of Section 409A of the Internal Revenue Code) shall not be made until the earlier of (i) Employee’s death or (ii) six (6) months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as Purpose Financial once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the Executive’s termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 1 contract
Samples: Employment Agreement (Purpose Financial Holdings, Inc.)
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code (“Section 409A”) shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code409A), and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code409A, the following shall apply:
(a) Neither the Executive Employee nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder).
(b) If the Executive Given Employee is a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Code), any payment payments or provision of benefits in connection with the ExecutiveEmployee’s separation from service event (as determined for purposes of Section 409A of the Code409A) shall not be made until the earlier of (i) Employee’s death or (ii) October 6, 2010, which is the first day immediately following six (6) months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid (subject to the terms of the Agreement) in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as once the 409A Deferral Period ends, and the balance of the benefits shall be provided (subject to the terms of the Agreement) as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.409A.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Code in connection with the ExecutiveAgreement, Employee’s termination of employment, termination of employment Effective Date will be read to mean constitute a “separation from service” within the meaning of Section 409A of the Code where with respect to Employee’s employment relationship with Company given it is reasonably anticipated that no further consulting services would be performed after that date or that the level of bona fide services the Executive would Employee will perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty will not exceed 20 percent (20%) of the Employee’s average level of bona fide services performed for Company over the 36 months immediately preceding thirty-six (36) month periodthe Effective Date.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of other provision hereof, in the provisions of this Agreement, the Company shall not be liable to the Executive if event any payment or benefit which is compensation payable hereunder fails to be provided pursuant to this Agreement and which is considered deferred compensation subject to exempt from or comply with Section 409A and results in additional taxes, interest and/or penalties assessed against Employee as result of the Code otherwise fails to comply with, or be exempt from, the requirements a violation of Section 409A of the Code., then Company shall pay to or on Employee’s behalf an amount equal to such taxes, interest and/or penalties assessed against Employee. The payment shall be made as soon as practicable after calculation of such payment by Company in good faith, but in no event later than the date the taxes, interest and/or penalties are required to be remitted. Employee agrees to take such actions Company reasonably requests under the circumstances to mitigate or challenge any such additional taxes, interest and/or penalties. If Company reasonably requests that Employee take action to mitigate or challenge any such taxes, interest and/or penalties and the Employee complies with such request, Company shall, at its expense, provide Employee with such information and such expert advice and assistance from Company’s independent accountants, lawyers and other advisors as Employee reasonably requests
Appears in 1 contract
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company Atlanticus and its affiliates as defined for purposes of Section 409A of the Internal Revenue Code), and in such form, as complies with the applicable requirements of Section 409A of the Internal Revenue Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Internal Revenue Code, the following shall apply:
(a) Neither the Executive Employee nor the Company Atlanticus shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Internal Revenue Code (including any transition or grandfather rules thereunder).
(b) If the Executive Employee is a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, any payment or provision of benefits in connection with the Executive’s a separation from service event (as determined for purposes of Section 409A of the Internal Revenue Code) shall not be made until the earlier of (i) Employee’s death or (ii) six (6) months after the ExecutiveEmployee’s separation from service (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefits may be provided during the 409A Deferral Period at the ExecutiveEmployee’s expense, with the Executive Employee having the a right to reimbursement from the Company as soon as Atlanticus once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Internal Revenue Code.
(d) For purposes of determining time of (but not entitlement to) the payment or provision of deferred compensation under this Agreement under Section 409A of the Internal Revenue Code in connection with the Executive’s a termination of employment, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Internal Revenue Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive Employee would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” employee for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code shall be determined on the basis of the applicable twelve12-month period ending on the specified employee identification date designated by the Company Atlanticus consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Internal Revenue Code.
(f) Notwithstanding any of the provisions other provision of this Agreement, the Company Atlanticus shall not be liable to the Executive Employee if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Internal Revenue Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code.
Appears in 1 contract
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment Any compensation or benefit benefits which is are provided or available to the Executive pursuant to or in connection with any plan or program (including without limitation this Agreement letter agreement) to which Xxxxxx or any of its subsidiaries or affiliates is a party and which is considered to be provided under a nonqualified deferred compensation plan or program subject to IRC Section 409A of the Code shall be provided and paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of IRC Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting The Executive hereby consents to the amendment of any such plan or program as may be determined by Xxxxxx to be necessary or appropriate to evidence or further evidence required compliance with IRC Section 409A of 409A. In the Code, the following shall apply:
(a) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder).
(b) If event the Executive is a “specified employee” for purposes of employee described in IRC Section 409A(a)(2)(B)(i) whose nonqualified deferred compensation subject to IRC Section 409A must be deferred until six (6) months after his separation from service, then payment of the Code, any payment amount or provision of benefits in connection with the Executive’s separation from service (as determined for purposes of any benefit under this letter agreement which is considered to be nonqualified deferred compensation subject to IRC Section 409A of shall be deferred to the Code) shall not be made extent required by IRC Section 409A until six (6) months after the Executive’s 's separation from service (the “409A Deferral Period”), absent an intervening payment event under IRC Section 409A such as his death. In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event event, benefits are required to be deferred, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as Xxxxxx once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(c) . For purposes of this Agreementletter agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed allowable by IRC Section 409A of the Code.
(d) For 409A, and for purposes of determining time payment of (but not entitlement to) the payment or provision of nonqualified deferred compensation under this Agreement under for purposes of IRC Section 409A of the Code in connection with the Executive’s a termination of employment, termination of employment will be read to mean a “"separation from service” " within the meaning of IRC Section 409A of the Code where it is reasonably anticipated that no further services service would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty 20 percent (20%) of the average level of bona fide services performed over the immediately immediationly preceding thirty-six (36) month period.
(e) For purposes of this Agreement, a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code.
Appears in 1 contract
Nonqualified Deferred Compensation Omnibus Provision. It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to a deferral of within the meaning of Section 409A of the Code shall be paid and provided in a manner, and at such time, including without limitation, payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A of the Code (e.g., death, disability, separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply:
(ai) Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be necessary to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder); provided, no such amendment shall be effective without Executive’s consent to the extent reducing the economic value of the Agreement to Executive (as determined on a pre-tax basis).
(ii) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter manner which would not be in compliance with Section 409A of the Code (including any transition or grandfather rules thereunder). Notwithstanding the foregoing:
(A) Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute as to the amount due or the proper recipient of such benefit payment, additional time is needed to calculate the amount payable, or the payment would jeopardize the solvency of the Company; and
(B) Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the terms of a loan agreement to which the Company is a party and that the violation would cause material harm to the Company; or (2) where the Company reasonably anticipates that the payment will violate federal securities laws or other applicable laws; provided that any payment delayed by operation of this clause (B) will be made at the earliest date at which the Company reasonably anticipates that the payment will not be limited or cause the violations described; Provided, such delay in payment shall occur only in a manner that satisfies the requirements of Section 409A of the Code and regulations thereunder.
(biii) If at the time of any separation from service Executive is a “specified employee” for purposes employee at a time in which the Company (or successor) is a publicly traded corporation, within the meaning of Section 409A(a)(2)(B)(i) of the CodeCode and regulations thereunder, to the minimum extent required to satisfy Section 409A(a)(2)(B)(i) of the Code and regulations thereunder, any payment or provision of benefits to Executive in connection with the Executive’s his separation from service (as determined for purposes of Section 409A of the Code) shall not be made until postponed and paid in a lump sum on the first business day following the date that is six months after the Executive’s separation from service (the “409A Deferral Period”). In , and the event such remaining payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the after 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferredso postponed, any such benefits benefit may be provided during the 409A Deferral Period at the Executive’s expense, with the Executive having the a right to reimbursement from the Company as soon as promptly after the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.
(civ) For If a 280G CiC occurs which does not constitute a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code, then payment of any amount or provision of any benefit payable pursuant to such 280G CiC under this Agreement which is considered to be a deferral of compensation subject to Section 409A of the Code shall be postponed until another permissible payment event contained in Section 409A of the Code occurs (e.g., death, disability, separation from service from the Company and its affiliated companies as defined for purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code.
(d) For purposes ), including any deferral of determining time of (but not entitlement to) the payment or provision of deferred compensation benefits for the 409A Deferral Period as provided above.
(v) References under this Agreement under Section 409A of the Code in connection with the to Executive’s termination of employment, termination of employment will shall be read deemed to mean refer to the date upon which Executive has experienced a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period.
(e) For purposes of Code. All payments made under this Agreement, a Agreement shall constitute “specified employeeseparate payments” for purposes of Section 409A(a)(2)(B)(i) of the Code shall be determined on the basis of the applicable twelve-month period ending on the specified employee identification date designated by the Company consistently for purposes of this Agreement and similar agreements or, if no such designation is made, based on the default rules and regulations under Section 409A(a)(2)(B)(i) of the Code.
(f) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of Section 409A of the Code. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).
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