Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death.
Appears in 9 contracts
Samples: Executive Employment Agreement, Executive Employment Agreement (Solei Systems, Inc.), Executive Employment Agreement (Grow Condos, Inc.)
Payment Delay. To the maximum extent permitted under section 409A of the CodeIf, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation Separation from serviceService, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and determines that Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion that delayed commencement of any portion of the Company Deferred Payments is required to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the that portion of the Excess Amount that is payable within Deferred Payments will not be provided to Executive until the six earlier of (6i) the expiration of the six-month period following measured from the date of Executive’s Termination Date with Separation from Service, (ii) the Company (or any successor thereto) for six (6) months following date of Executive’s Termination Date with death, or (iii) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount shall expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all Deferred Payments deferred under the Payment Delay will be paid in a lump sum to Executive within ten (10) 30 days following the date that such expiration, and any remaining payments due under this Agreement will be paid as otherwise provided in this Agreement. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of Code at the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative time of Executive’s estate within sixty Separation from Service will be made by the Company, in its discretion, in accordance with Section 409A (60) days after including, without limitation, Treasury Regulations Section 1.409A-1(i)). For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Executive’s deathright to receive the payments under this Agreement, including the severance payments and benefits, will be treated as a right to receive a series of separate payments and, accordingly, each installment payment will at all times be considered a separate and distinct payment.
Appears in 6 contracts
Samples: Employment Agreement (iBio, Inc.), Employment Agreement (iBio, Inc.), Employment Agreement (iBio, Inc.)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payments payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to the Executive during the six (6) six-month period following the Executive’s Termination Date of Employment that does not qualify within either of the foregoing exceptions and constitutes is deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of the Executive’s separation from serviceTermination of Employment, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) Aqua America in accordance with the CompanyAqua America’s (or any successor thereto) “specified employee” determination policy), then the Company Aqua America shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) six-month period following the Executive’s Termination Date with the Company (or any successor thereto) of Employment for six (6) months following the Executive’s Termination Date with the Company (or any successor thereto)of Employment. The delayed Excess Amount shall be paid in a lump sum to the Executive within ten thirty (1030) days following the date that is six (6) months following the Executive’s Termination Date with of Employment, and any amount payable to the Company (or any successor thereto). If Executive dies during after the expiration of such six (6) month period under this Agreement shall continue to be paid to the Executive in accordance with the terms of this Agreement. If the Executive dies during such six-month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of the Executive’s estate within sixty thirty (6030) days after the Executive’s death, and any amounts not delayed shall be paid to the personal representative of the Executive’s estate in accordance with the terms of this Agreement.
Appears in 6 contracts
Samples: Executive Employment Agreement (Aqua America Inc), Executive Employment Agreement (Aqua America Inc), Executive Employment Agreement (Aqua America Inc)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 8 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive's termination of employment constitutes a “'separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), (ii) if any of the “Excess Amount.” If amounts described in Sections 8(a)(i)-(ii) above constitute non-qualified deferred compensation subject to Section 409A of the Code then any such amounts that become payable hereunder shall in all cases be paid in two installment payments pursuant to the terms described in the last paragraph of Section 8(a), provided that the first lump-sure payment shall be paid on the 60th day following Executive's Separation from Service subject to clause (iii) of this Section 9(a) and (iii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(1) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then such portion of Executive's termination benefits described in Section 8 shall not be provided to Executive prior to the Company shall postpone earlier of (A) the commencement expiration of the payment six-month period measured from the date of Executive's Separation from Service, (B) the date of Executive's death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the portion of the Excess Amount that is payable within the six (6applicable Code Section 409A(a)(2)(B)(i) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten thirty (1030) days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 3 contracts
Samples: Employment Agreement (Toughbuilt Industries, Inc), Employment Agreement (Toughbuilt Industries, Inc), Employment Agreement (Toughbuilt Industries, Inc)
Payment Delay. To the maximum extent permitted under section Section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-"short- term deferral exception” " under Treas. Reg. Treasury Regulation §1.409A-1(b)(4l.409A-l(b)(4), and any remaining amount is intended to comply with the “"separation pay exception” " under Treas. Reg. Treasury Regulation §1.409A-1(b)(9)(iiil.409A-1(b)(9)(iii); providedprovided , however, any amount payable to Executive during the six (6) month period following Executive’s 's Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section Section 409A of the Code, then such amount shall hereinafter be referred to as the “"Excess Amount.” ". If at the time of Executive’s 's separation from service, the Company’s 's (or any entity required to be aggregated with the Company under section Section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “"specified employee” " (as defined in section Section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s 's (or any successor thereto) “"specified employee” " determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s 's Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s 's estate within sixty (60) days after Executive’s 's death.
Appears in 3 contracts
Samples: Executive Employment Agreement (CUI Global, Inc.), Executive Employment Agreement (CUI Global, Inc.), Executive Employment Agreement (CUI Global, Inc.)
Payment Delay. To the maximum extent permitted under section 409A of the CodeSection 409A, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive Employee during the six (6) month period following ExecutiveEmployee’s Termination Date last day of employment with the Company that does not qualify within either of the foregoing exceptions this exception and constitutes deferred compensation subject to the requirements of section Section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of ExecutiveEmployee’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the CodeSection 409A) stock is publicly-traded on an established securities market or otherwise and Executive Employee is a “specified employee” (as defined in section Section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following ExecutiveEmployee’s Termination Date last day of employment with the Company (or any successor thereto) for six (6) months following ExecutiveEmployee’s Termination Date last day of employment with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive Employee within ten thirty (1030) days following the date that is six (6) months following ExecutiveEmployee’s Termination Date last day of employment with the Company (or any successor thereto)) and any amounts payable after such six (6) month period shall be paid in accordance with its original schedule. If Executive Employee dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the CodeSection 409A, such Excess Amount shall be paid to the personal representative of ExecutiveEmployee’s estate within sixty (60) days after ExecutiveEmployee’s death.
Appears in 3 contracts
Samples: Employment Agreement (WCG Clinical, Inc.), Employment Agreement (WCG Clinical, Inc.), Employment Agreement (WCG Clinical, Inc.)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, but subject to the exceptions set forth in Section 7.2 below, to the extent permitted under section any payments to Executive pursuant to Section 5 or Section 6 hereof, are treated as non-qualified deferred compensation subject to Section 409A of the Code, the severance benefits then (i) no such amount shall be payable under this Agreement are intended pursuant to comply Section 5 or Section 6, as applicable, unless Executive’s termination of employment constitutes a “separation from service” with the Company, as such term is defined in Treasury Regulation § 1.409A-1(h) or any successor provision thereto (a “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4Separation from Service”), and (ii) if Executive, at the time of his Separation from Service, is determined by the Company to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code and the Company determines that delayed commencement of any remaining amount is intended to comply with portion of the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount termination benefits payable to Executive during pursuant to this Agreement is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) (any such delayed commencement, a “Payment Delay”), then, such portion of the compensation payable to Executive pursuant to Section 5 or Section 6 (as applicable) shall not be paid or otherwise provided to Executive prior to the earliest of (A) the expiration of the six (6) month period following measured from the date of Executive’s Termination Date that does not qualify within either Separation from Service, (B) the date of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section Executive’s death or (C) such other date as is permitted under Section 409A of the Code, then such amount shall hereinafter be referred to as . Upon the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A expiration of the Codeapplicable Code Section 409A(a)(2)(B)(i) stock is publicly-traded on an established securities market or otherwise and Executive is deferral period, all payments deferred pursuant to a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount Payment Delay shall be paid in a lump sum to Executive within ten (10) 10 days following such expiration, without interest, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall made by the Board in accordance with the Company terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) or any successor provision thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death.
Appears in 3 contracts
Samples: Employment Agreement (Collectors Universe Inc), Employment Agreement (Collectors Universe Inc), Employment Agreement (Collectors Universe Inc)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance payments and benefits payable provided under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §§ 1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §§ 1.409A-1(b)(9)(iii); provided, however, if any amount payable to Executive during the six (6) month period following Executive’s the Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s the Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s the Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s the Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death. The Company makes no representation that any or all of the payments and benefits provided under this Agreement will be exempt from or comply with section 409A of the Code and makes no undertaking to preclude section 409A of the Code from applying to any such payment or benefit.
Appears in 3 contracts
Samples: Executive Employment Agreement (Costco Wholesale Corp /New), Executive Employment Agreement (Costco Wholesale Corp /New), Executive Employment Agreement (Costco Wholesale Corp /New)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Sections 2 or 3 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (ii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in Section 2 or 3, as the six case may be, shall not be provided to Executive prior to the earlier of (6A) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (B) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death or (C) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 3 contracts
Samples: Severance Agreement (Questcor Pharmaceuticals Inc), Severance Agreement (Questcor Pharmaceuticals Inc), Severance Agreement (Questcor Pharmaceuticals Inc)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 3 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (ii) if Executive, at the time of Executive’s separation her Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in Section 3 shall not be provided to Executive prior to the six earlier of (6A) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (B) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death, or (C) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of her Separation from Service shall made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 3 contracts
Samples: Employment Agreement (Endologix Inc /De/), Employment Agreement (Endologix Inc /De/), Employment Agreement (Endologix Inc /De/)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 8 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “‘separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), (ii) if any of the “Excess Amount.” If amounts described in Sections 8(a) (i)-(ii) above constitute non-qualified deferred compensation subject to Section 409A of the Code then any such amounts that become payable hereunder shall in all cases be paid in two installment payments pursuant to the terms described in the last paragraph of Section 8(a), provided that the first lump- sure payment shall be paid on the 60th day following Executive’s Separation from Service subject to clause (iii) of this Section 9(a) and (iii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employeeExecutive” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(1) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then such portion of Executive’s termination benefits described in Section 8 shall not be provided to Executive prior to the Company shall postpone earlier of (A) the commencement expiration of the payment six-month period measured from the date of Executive’s Separation from Service, (B) the date of Executive’s death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the portion of the Excess Amount that is payable within the six (6applicable Code Section 409A(a)(2)(B)(i) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten thirty (1030) days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified Executive” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 2 contracts
Samples: Employment Agreement (Toughbuilt Industries, Inc), Employment Agreement (Toughbuilt Industries, Inc)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 8 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive's termination of employment constitutes a "'separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a "Separation from Service"), (ii) if any of the “Excess Amount.” If amounts described in Sections 8(a)(i)-(ii) above constitute non-qualified deferred compensation subject to Section 409A of the Code then any such amounts that become payable hereunder shall in all cases be paid in two installment payments pursuant to the terms described in the last paragraph of Section 8(a), provided that the first lump-sure payment shall be paid on the 60th day following Executive's Separation from Service subject to clause (iii) of this Section 9(a) and (iii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A a "specified Executive" for purposes of the CodeSection 409A(a)(2)(B)(i) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(1) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policysuch delayed commencement, a "Payment Delay"), then such portion of Executive's termination benefits described in Section 8 shall not be provided to Executive prior to the Company shall postpone earlier of (A) the commencement expiration of the payment six-month period measured from the date of Executive's Separation from Service, (B) the date of Executive's death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the portion of the Excess Amount that is payable within the six (6applicable Code Section 409A(a)(2)(B)(i) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten thirty (1030) days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a "specified Executive" for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 2 contracts
Samples: Employment Agreement (Toughbuilt Industries, Inc), Employment Agreement (Toughbuilt Industries, Inc)
Payment Delay. To (1) Notwithstanding anything in the maximum extent permitted under section 409A Agreement to the contrary, including Section 16 of the CodeAgreement, in no event may severance payments provided for therein upon a termination of employment commence to be paid prior to the severance benefits payable under this Agreement are intended to comply with date that is eighteen (18) months following the Third Amendment Effective Date (the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iiiDelayed Commencement Date”); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If if at the time of the Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the CodeSection 409A) stock is publicly-traded on an established securities market or otherwise and the Executive is a “specified employee” (as defined in section Section 409A and determined in the sole discretion of the Code Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then, if required under Section 409A, such severance payments shall not commence until the date that is six (6) months following the Executive’s date of termination, if such date is later than the Delayed Commencement Date.
(2) Subject to subsection (1), if at the time of the Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under Section 409A) stock is publicly-traded on an established securities market or otherwise and the Executive is a “specified employee” (as defined in Section 409A and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount payments that is are determined to be deferred compensation subject to Section 409A that are payable within the six (6) month period following the Executive’s Termination Date date of termination with the Company (or any successor thereto) for six (6) months following the Executive’s Termination Date date of termination with the Company (or any successor thereto). The delayed Excess Amount amount shall be paid in a lump sum to the Executive within ten (10) days following the date that is six (6) months following the Executive’s Termination Date date of termination with the Company (or any successor thereto)) and any amounts payable after such six (6) month period shall be paid to the Executive in accordance with the original schedule. If the Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Codeamount, such Excess Amount delayed amount shall be paid to the personal representative of the Executive’s estate within sixty (60) days after the Executive’s death.
(3) In the event of any delay in payment under this subsection (b) upon the Executive’s termination of employment, the amount delayed shall accrue interest, at the prime rate (as stated in The Wall Street Journal) in effect on the Executive’s termination date, until the payment date for such delayed amount.”
Appears in 2 contracts
Samples: Employment Agreement (Micros Systems Inc), Employment Agreement (Micros Systems Inc)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to the Executive during the six (6) 6 month period following the Executive’s Termination Date termination date that does not qualify within either of the foregoing exceptions and constitutes is deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of the Executive’s separation from servicetermination of employment, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and the Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) 6 month period following the Executive’s Termination Date termination date with the Company (or any successor thereto) for six (6) 6 months following the Executive’s Termination Date termination date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to the Executive within ten (10) 10 days following the date that is six (6) 6 months following the Executive’s Termination Date termination date with the Company (or any successor thereto). If the Executive dies during such six (6) 6 month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of the Executive’s estate within sixty (60) 60 days after the Executive’s death.
Appears in 2 contracts
Samples: Employment Agreement (Internet Capital Group Inc), Employment Agreement (Internet Capital Group Inc)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under any payments to Executive pursuant to this Agreement are intended to comply with the “shortnon-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (A) to the extent required by Section 409A of the Code, no amount shall hereinafter be referred to as the “Excess Amount.” If payable unless Executive’s termination of employment constitutes a Separation from Service and (B) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, such that delayed commencement of any portion of the termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) stock of the Code (any such delayed commencement, a “Payment Delay”), then such portion of the payments to be made to Executive shall not be provided to Executive prior to the earlier of (A) the expiration of the six-month period measured from the date of Executive’s Separation from Service, (B) the date of Executive’s death or (C) such earlier date as is publicly-traded permitted under Section 409A. Upon the expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum with interest on an established securities market or the foregoing at the applicable federal rate for instruments of less than one year, to Executive within 30 days following such expiration, and any remaining payments due under the Agreement shall be paid as otherwise and provided herein. The determination of whether Executive is a “specified employee” (for purposes of Section 409A(a)(2)(B)(i) of the Code as defined of the time of his Separation from Service shall be made by the Company in section accordance with the terms of Section 409A of the Code and determined in the sole discretion of the Company applicable guidance thereunder (or including without limitation Treasury Regulation Section 1.409A-1(i) and any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor provision thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death.
Appears in 2 contracts
Samples: Employment Agreement (Image Entertainment Inc), Employment Agreement (Image Entertainment Inc)
Payment Delay. To the maximum extent permitted under section 409A of the CodeSection 409A, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the CodeSection 409A, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the CodeSection 409A) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section Section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the CodeSection 409A, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death.
Appears in 2 contracts
Samples: Employment Severance Benefits Agreement (Blue Marble Energy Corp), Employment Severance Benefits Agreement (Blue Marble Energy Corp)
Payment Delay. To Notwithstanding any provision to the maximum extent permitted under section 409A contrary in this Agreement, if on the date of the CodeExecutive’s termination of employment, the Executive is a “specified employee” (as such term is defined in section 409A(a)(2)(B)(i) of the Code and its corresponding regulations) as determined by the Board (or its delegate) in its sole discretion in accordance with its “specified employee” determination policy, then all cash severance benefits payments payable to the Executive under this Agreement that are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount Code shall hereinafter be referred to as postponed for a period of six months following the “Excess Amount.” If at the time of Executive’s “separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount postponed amounts shall be paid to the Executive in a lump sum to Executive within ten (10) 30 days following after the date that is six (6) 6 months following the Executive’s Termination Date “separation from service” with the Company (or any successor thereto). If the Executive dies during such six (6) six-month period and prior to the payment of the portion of postponed cash amounts hereunder, the Excess Amount that is required to be amounts delayed on account of section 409A of the Code, such Excess Amount Code shall be paid to the personal representative of the Executive’s estate within sixty (60) 60 days after Executive’s death. If any of the cash payments payable pursuant to this Agreement are delayed due to the requirements of section 409A of the Code, there shall be added to such payments interest during the deferral period at an annualized rate of interest equal to 5%. Any such payments shall be deposited into an irrevocable grantor trust which meets the requirements of Internal Revenue Service Revenue Procedure 92-65 (as amended or superseded from time to time), the trustee of which shall be a financial institution selected by the Company with the approval of the Executive (which approval shall not be unreasonably withheld or delayed), and payment to the Executive under this Agreement shall be adjusted for investment experience of the investments made with the assets of such trust, as determined by the trustee without election by the Executive, which investments shall consist of short-term investment-grade fixed-income securities or units of interest in mutual funds or other pooled investment vehicles designed to invest primarily in such securities.
Appears in 2 contracts
Samples: Employment Agreement (Institutional Financial Markets, Inc.), Employment Agreement (Institutional Financial Markets, Inc.)
Payment Delay. To the maximum extent permitted under section 409A of the CodeIf, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation Separation from serviceService, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and determines that Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion that delayed commencement of any portion of the Company Deferred Payments is required to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the that portion of the Excess Amount that is payable within Deferred Payments will not be provided to Executive until the six earlier of (6i) the expiration of the six-month period following measured from the date of Executive’s Termination Date with Separation from Service; (ii) the Company (or any successor thereto) for six (6) months following date of Executive’s Termination Date with death; or (iii) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount shall expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all Deferred Payments deferred under the Payment Delay will be paid in a lump sum to Executive within ten (10) 30 days following the date that such expiration, and any remaining payments due under this Agreement will be paid as otherwise provided in this Agreement. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of Code at the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative time of Executive’s estate within sixty Separation from Service will be made by the Company, in its discretion, in accordance with Section 409A (60) days after including, without limitation, Treasury Regulations Section 1.409A-1(i)). For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Executive’s deathright to receive the payments under this Agreement, including the severance payments and benefits, will be treated as a right to receive a series of separate payments and, accordingly, each installment payment will at all times be considered a separate and distinct payment.
Appears in 2 contracts
Samples: Employment Agreement (Nava Health Md, LLC), Employment Agreement (Nava Health Md, LLC)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 8 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive's termination of employment constitutes a “'separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), (ii) if any of the “Excess Amount.” If amounts described in Sections 8(a)(i)-(ii) above constitute non-qualified deferred compensation subject to Section 409A of the Code then any such amounts that become payable hereunder shall in all cases be paid in two installment payments pursuant to the terms described in the last paragraph of Section 8(a), provided that the first lump-sure payment shall be paid on the 60th day following Executive's Separation from Service subject to clause (iii) of this Section 9(a) and (iii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employeeExecutive” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(1) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then such portion of Executive's termination benefits described in Section 8 shall not be provided to Executive prior to the Company shall postpone earlier of (A) the commencement expiration of the payment six-month period measured from the date of Executive's Separation from Service, (B) the date of Executive's death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the portion of the Excess Amount that is payable within the six (6applicable Code Section 409A(a)(2)(B)(i) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten thirty (1030) days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified Executive” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 2 contracts
Samples: Employment Agreement (Toughbuilt Industries, Inc), Employment Agreement (Toughbuilt Industries, Inc)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section any payments to Executive pursuant to this Section 5 or Section 6 below, are treated as non-qualified deferred compensation subject to Section 409A of the Code, the severance benefits then (i) no such amount shall be payable under pursuant to this Agreement are intended to comply Section 5 or Section 6, as applicable, unless Executive’s termination of employment constitutes a “separation from service” with the Company, as such term is defined in Treasury Regulation § 1.409A-1(h) or any successor provision thereto (a “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4Separation from Service”), and (ii) if Executive, at the time of his Separation from Service, is determined by the Company to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code and the Company determines that delayed commencement of any remaining amount is intended to comply with portion of the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount termination benefits payable to Executive during pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (any such delayed commencement, a “Payment Delay”), then, such portion of the compensation payable to Executive pursuant to this Section 5 or Section 6 shall not be provided to Executive prior to the earlier of (A) the expiration of the six (6) month period following measured from the date of Executive’s Termination Date that does not qualify within either Separation from Service, (B) the date of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section Executive’s death or (C) such earlier date as is permitted under Section 409A of the Code, then such amount shall hereinafter be referred to as . Upon the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A expiration of the Codeapplicable Code Section 409A(a)(2)(B)(i) stock is publicly-traded on an established securities market or otherwise and Executive is deferral period, all payments deferred pursuant to a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount Payment Delay shall be paid in a lump sum to Executive within ten (10) 10 days following such expiration, without interest, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall made by the Company in accordance with the Company terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) or any successor provision thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death.
Appears in 2 contracts
Samples: Employment Agreement (Coast Distribution System Inc), Employment Agreement (Collectors Universe Inc)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 8 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “’separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), (ii) if any of the “Excess Amount.” If amounts described in Sections 8(a)(i)-(ii) above constitute non-qualified deferred compensation subject to Section 409A of the Code then any such amounts that become payable hereunder shall in all cases be paid in two installment payments pursuant to the terms described in the last paragraph of Section 8(a), provided that the first lump-sure payment shall be paid on the 60th day following Executive’s Separation from Service subject to clause (iii) of this Section 9(a) and (iii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employeeExecutive” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(1) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then such portion of Executive’s termination benefits described in Section 8 shall not be provided to Executive prior to the Company shall postpone earlier of (A) the commencement expiration of the payment six-month period measured from the date of Executive’s Separation from Service, (B) the date of Executive’s death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the portion of the Excess Amount that is payable within the six (6applicable Code Section 409A(a)(2)(B)(i) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten thirty (1030) days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified Executive” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 2 contracts
Samples: Employment Agreement (Monetiva Inc.), Employment Agreement (Toughbuilt Industries, Inc)
Payment Delay. To the maximum extent permitted under section Section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Date of Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section Section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section Section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section Section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Date of Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date termination date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s Date of Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty thirty (6030) days after Executive’s death.
Appears in 2 contracts
Samples: Employment Agreement (Marlin Business Services Corp), Employment Agreement (Marlin Business Services Corp)
Payment Delay. To Notwithstanding any provision to the maximum extent permitted under contrary herein, if at the time of Executive’s termination of employment the Company’s stock is publicly traded and Executive is a ‘specified employee’ (as such term is defined in section 409A 409A(2)(B)(i) of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4Code and its corresponding regulations), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable then all cash payments to Executive during the six (6) month period following Executive’s Termination Date pursuant to this Section 12 that does not qualify within either of the foregoing exceptions and constitutes are deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount Code shall hereinafter not be referred paid to Executive until as soon as administratively practicable following the “Excess Amount.” If at expiration of the time six month period following the date of Executive’s separation from serviceTermination Date, but not later than the Company’s (or any entity required to be aggregated with first Company payroll date that occurs after the Company under section 409A end of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the such six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto)period. The delayed Excess Amount Any postponed amounts shall be paid to Executive in a lump sum to Executive within ten thirty (1030) days following after the date that is six (6) months following Executive’s Termination Date of Termination, and any amounts payable to Executive after the expiration of such six (6) month period under this Agreement shall continue to be paid to Executive in accordance with the Company (or any successor thereto)terms of this Agreement. If Executive dies during such six (6) six-month period and prior to the payment of the portion of postponed cash amounts hereunder, the Excess Amount that is required to be delayed amounts withheld on account of section 409A of the Code, such Excess Amount Code shall be paid to the personal representative of Executive’s estate within sixty thirty (6030) days after the date of Executive’s death. If any of the cash payments payable pursuant to this Section 12 are deferred due to such requirements, there shall be added to such payments interest during the deferral period at a rate, per annum, equal to the applicable federal short-term deferral rate (compounded monthly) in effect under section 1274(d) of the Code on Executive’s Termination Date.”
8. Section 15 of the Employment Agreement is hereby amended in its entirety to read as follows:
Appears in 2 contracts
Samples: Employment Agreement (Integra Lifesciences Holdings Corp), Employment Agreement (Integra Lifesciences Holdings Corp)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 3 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (ii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in Section 3 shall not be provided to Executive prior to the six earlier of (6A) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (B) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death, or (C) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 2 contracts
Samples: Employment Agreement (Endologix Inc /De/), Employment Agreement (Endologix Inc /De/)
Payment Delay. To the maximum extent permitted under section Section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “"short-term deferral exception” " under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “"separation pay exception” " under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s 's Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section Section 409A of the Code, then such amount shall hereinafter be referred to as the “"Excess Amount.” " If at the time of Executive’s 's separation from service, the Company’s 's (or any entity required to be aggregated with the Company under section Section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “"specified employee” " (as defined in section Section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s 's (or any successor thereto) “"specified employee” " determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s 's Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s 's estate within sixty (60) days after Executive’s 's death.
Appears in 1 contract
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 8 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “’separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), (ii) if any of the “Excess Amount.” If amounts described in Sections 8(a) (i)-(ii) above constitute non-qualified deferred compensation subject to Section 409A of the Code then any such amounts that become payable hereunder shall in all cases be paid in two installment payments pursuant to the terms described in the last paragraph of Section 8(a), provided that the first lump- sure payment shall be paid on the 60th day following Executive’s Separation from Service subject to clause (iii) of this Section 9(a) and (iii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employeeExecutive” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(1) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then such portion of Executive’s termination benefits described in Section 8 shall not be provided to Executive prior to the Company shall postpone earlier of A) the commencement expiration of the payment six-month period measured from the date of Executive’s Separation from Service, (B) the date of Executive’s death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the portion of the Excess Amount that is payable within the six (6applicable Code Section 409A(a)(2)(B)(i) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten thirty (1030) days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified Executive” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under Notwithstanding anything in this Agreement to the contrary, to the extent any payments to you pursuant to Section 1 of Part Two are intended to comply with the “shorttreated as non-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes qualified deferred compensation subject to the requirements of section Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), then such (A) no amount shall hereinafter be referred payable pursuant to such section unless your termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (B) if you, at the time of Executive’s separation your Separation from serviceService, are determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employeeExecutive” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to you pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within your termination benefits described in Section 1 of Part Two, shall not be provided to you prior to the six earlier of (6x) the expiration of the six-month period following Executive’s Termination Date with measured from the Company date of the your Separation from Service, (y) the date of your death or any successor thereto(z) for six (6such earlier date as is permitted under Section 409A. Upon the expiration of the applicable Code Section 409A(a)(2)(B)(i) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive you within ten (10) 30 days following such expiration, and any remaining payments due under the date that is six (6Agreement shall be paid as otherwise provided herein. The determination of whether you are a “specified Executive” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of your Separation from Service shall made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Samples: Severance Agreement (Cortex Pharmaceuticals Inc/De/)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “"short-term deferral exception” " under Treas. Reg. §1.409A-1(b)(4l.409A- I (b)(4), and any remaining amount is intended to comply with the “"separation pay exception” " under Treas. Reg. §1.409A-1(b)(9)(iiil.409A-l(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s 's Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “"Excess Amount.” If at " Ifat the time of Executive’s 's separation from service, the Company’s 's (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “"specified employee” (as employee"(as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s 's (or any successor thereto) “"specified employee” " determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s 's Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). The thereto).The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s 's estate within sixty (60) days after Executive’s 's death.
Appears in 1 contract
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement any payments to Employee pursuant to Section 8 are intended to comply with the “shorttreated as non-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Employee’s termination of employment constitutes a “separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), (ii) if any of the “Excess Amount.” If amounts described in Sections 8(a)(i)-(ii) or 8(c)(i)-(ii) above constitute non-qualified deferred compensation subject to Section 409A of the Code then any such amounts that become payable hereunder shall in all cases be paid in two installment payments pursuant to the terms described in the last paragraph of Section 8(a), provided that the first lump-sum payment shall be paid on the 60th day following Employee’s Separation from Service subject to clause (iii) of this Section 9(a) and (iii) if Employee, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Employee pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then such portion of Employee’s termination benefits described in Section 8 shall not be provided to Employee prior to the Company shall postpone earlier of (A) the commencement expiration of the payment six-month period measured from the date of Employee’s Separation from Service, (B) the date of Employee’s death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the portion of the Excess Amount that is payable within the six (6applicable Code Section 409A(a)(2)(B)(i) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive Employee within ten thirty (1030) days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Employee is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance payments and benefits payable provided under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §§ 1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under TreasXxxxx. Reg. §§ 1.409A-1(b)(9)(iii); provided, however, if any amount payable to Executive during the six (6) month period following Executive’s the Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s the Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s the Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s the Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death. The Company makes no representation that any or all of the payments and benefits provided under this Agreement will be exempt from or comply with section 409A of the Code and makes no undertaking to preclude section 409A of the Code from applying to any such payment or benefit.
Appears in 1 contract
Samples: Executive Employment Agreement (Costco Wholesale Corp /New)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 4.1 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (ii) if Executive, at the time of Executive’s separation her Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in Section 4.1 shall not be provided to Executive prior to the six earlier of (6A) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (B) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death or (C) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of her Separation from Service shall made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 3 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (ii) if Executive, at the time of Executive’s separation her Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in Section 3 shall not be provided to Executive prior to the six earlier of (6A) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (B) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death, or (C) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of her Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section Section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-"short‐ term deferral exception” " under Treas. Reg. Treasury Regulation §1.409A-1(b)(4l.409A-l(b)(4), and any remaining amount is intended to comply with the “"separation pay exception” " under Treas. Reg. Treasury Regulation §1.409A-1(b)(9)(iiil.409A-1(b)(9)(iii); providedprovided , however, any amount payable to Executive during the six (6) month period following Executive’s 's Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section Section 409A of the Code, then such amount shall hereinafter be referred to as the “"Excess Amount.” ". If at the time of Executive’s 's separation from service, the Company’s 's (or any entity required to be aggregated with the Company under section Section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “"specified employee” " (as defined in section Section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s 's (or any successor thereto) “"specified employee” " determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s 's Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s 's estate within sixty (60) days after Executive’s 's death.
Appears in 1 contract
Samples: Executive Employment Agreement (Orbital Infrastructure Group, Inc.)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payments payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under TreasXxxxx. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to the Executive during the six (6) six-month period following the Executive’s Termination Date of Employment that does not qualify within either of the foregoing exceptions and constitutes is deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of the Executive’s separation from serviceTermination of Employment, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policyCode), then the Company Essential shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) six-month period following the Executive’s Termination Date with the Company (or any successor thereto) of Employment for six (6) months following the Executive’s Termination Date with the Company (or any successor thereto)of Employment. The delayed Excess Amount shall be paid in a lump sum to the Executive within ten thirty (1030) days following the date that is six (6) months following the Executive’s Termination Date with of Employment, and any amount payable to the Company (or any successor thereto). If Executive dies during after the expiration of such six (6) month period under this Agreement shall continue to be paid to the Executive in accordance with the terms of this Agreement. If the Executive dies during such six-month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of the Executive’s estate within sixty thirty (6030) days after the Executive’s death, and any amounts not delayed shall be paid to the personal representative of the Executive’s estate in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (Essential Utilities, Inc.)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the cash severance benefits payment payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay ?short-term deferral exception” ? under Treas. Reg. §1.409A-1(b)(9)(iiisection 1.409A- 1(b)(4); provided, however, any amount payable to Executive the Officer during the six (6) month period following Executive’s Termination Date the Officer?s termination date that does not qualify within either of the foregoing exceptions such exception and constitutes is deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “?Excess Amount.” ? If at the time of Executive’s separation from servicethe Officer?s termination of employment, the Company’s Company?s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive the Officer is a “?specified employee” ? (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s Company?s (or any successor thereto) “?specified employee” ? determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date the Officer?s termination date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date the Officer?s termination date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive the Officer within ten (10) days following the date that is six (6) months following Executive’s Termination Date the Officer?s termination date with the Company (or any successor thereto). If Executive the Officer dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s the Officer?s estate within sixty (60) days after Executive’s the Officer?s death.
Appears in 1 contract
Samples: Non Competition Agreement (Pep Boys Manny Moe & Jack)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under TreasXxxxx. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-publicly traded on an established securities market or otherwise and Executive is a “specified /s/ Xxxxxx Xxxxxx Executive’s Initials employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death.
Appears in 1 contract
Samples: Executive Employment Agreement (Chavant Capital Acquisition Corp.)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive you during the six (6) month 6)-month period following Executive’s Termination Date your termination date that does not qualify within either of the foregoing exceptions and constitutes is deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation from serviceyour termination of employment, the CompanyActua’s (or any entity required to be aggregated with the Company Actua under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is you are a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion Xx. X. Kirk Xxxxxx Xxxxx 10, 2017 of the Company Actua (or any successor thereto) in accordance with the CompanyActua’s (or any successor thereto) “specified employee” determination policy), then the Company Actua shall postpone or cause to be postponed the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month 6)-month period following Executive’s Termination Date your termination date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date your termination date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive you within ten (10) days following the date that is six (6) months following Executive’s Termination Date your termination date with the Company (or any successor thereto). If Executive dies you die during such six (6) month 6)-month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s your estate within sixty (60) days after Executive’s your death.. We trust that our commitment to protect the financial security of you and your family will strengthen your loyalty to Actua. Our sincere belief is that the current Actua team, including you, is outstanding and will drive our success against our business plan. This success will provide meaningful financial rewards to our shareholders and employees. This letter is not intended to modify your status as an at-will employee of the Company and all other employment terms and conditions remain the same. Sincerely, /s/ Xxxxxx X. Xxxxxxx, III Xxxxxx X. Xxxxxxx, III Chief Executive Officer Acknowledged and agreed as of March 10, 2017:
Appears in 1 contract
Samples: Severance Agreement (Actua Corp)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “"short-term deferral exception” " under Treas. Reg. §1.409A-1(b)(4l.409A- I (b)(4), and any remaining amount is intended to comply with the “"separation pay exception” " under Treas. Reg. §1.409A-1(b)(9)(iiil.409A-l(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s 's Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “"Excess Amount.” " If at the time of Executive’s 's separation from service, the Company’s 's (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “"specified employee” (as employee"(as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s 's (or any successor thereto) “"specified employee” " determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s 's Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). The thereto).The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s 's estate within sixty (60) days after Executive’s 's death.
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payments payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under TreasXxxxx. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to the Executive during the six (6) six-month period following the Executive’s Termination Date of Employment that does not qualify within either of the foregoing exceptions and constitutes is deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of the Executive’s separation from serviceTermination of Employment, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) Essential in accordance with the CompanyEssential’s (or any successor thereto) “specified employee” determination policy), then the Company Essential shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) six-month period following the Executive’s Termination Date with the Company (or any successor thereto) of Employment for six (6) months following the Executive’s Termination Date with the Company (or any successor thereto)of Employment. The delayed Excess Amount shall be paid in a lump sum to the Executive within ten thirty (1030) days following the date that is six (6) months following the Executive’s Termination Date with of Employment, and any amount payable to the Company (or any successor thereto). If Executive dies during after the expiration of such six (6) month period under this Agreement shall continue to be paid to the Executive in accordance with the terms of this Agreement. If the Executive dies during such six-month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of the Executive’s estate within sixty thirty (6030) days after the Executive’s death., and any amounts not delayed shall be paid to the personal representative of the Executive’s estate in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Change in Control Agreement (Essential Utilities, Inc.)
Payment Delay. To the maximum extent permitted under section Section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive the Employee during the six (6) month period following Executivethe Employee’s Termination Date separation date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section Section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executivethe Employee’s separation from service, the Company’s CSS' (or any entity required to be aggregated with the Company CSS under section Section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive the Employee is a “specified employee” (as defined in section Section 409A of the Code and determined in the sole discretion of the Company CSS (or any successor thereto) in accordance with the Company’s CSS’ (or any successor thereto) “specified employee” determination policy), then the Company CSS shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executivethe Employee’s Termination Date separation date with the Company CSS (or any successor thereto) for six (6) months following Executivethe Employee’s Termination Date separation date with the Company CSS (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive the Employee within ten thirty (1030) days following the date that is six (6) months following Executivethe Employee’s Termination Date separation date with the Company CSS (or any successor thereto). If Executive the Employee dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executivethe Employee’s estate within sixty (60) days after Executivethe Employee’s death.
Appears in 1 contract
Payment Delay. To Notwithstanding any provision to the maximum extent permitted under section 409A contrary in this Agreement, if any of the Code, the cash severance benefits payable under this Agreement payments are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If Code and at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A termination of the Code) stock is publicly-traded on an established securities market or otherwise and employment Executive is a “‘specified employee” ’ (as such term is defined in section 409A 409A(2)(B)(i) of the Code and its corresponding regulations), as determined in the sole discretion of by the Company (or any successor thereto) ), in its sole discretion in accordance with the Company’s (or any successor thereto) “its ‘specified employee” ’ determination policy), then the Company all cash payments to Executive pursuant to this Agreement shall postpone the commencement be postponed for a period of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date ‘separation from service’ with the Company (or any successor thereto). The delayed Excess Amount postponed amounts shall be paid to Executive in a lump sum to Executive within ten thirty (1030) days following after the date that is six (6) months following Executive’s Termination Date ‘separation from service’ with the Company (or any successor thereto), and any amounts payable to Executive after the expiration of such six (6) month period under this Agreement shall continue to be paid to Executive in accordance with the terms of this Agreement. If Executive dies during such six (6) six-month period and prior to the payment of the portion of postponed cash amounts hereunder, the Excess Amount that is required to be amounts delayed on account of section 409A of the Code, such Excess Amount Code shall be paid to the personal representative of the Executive’s estate within sixty (60) days after Executive’s death, and any amounts not delayed shall be paid to the personal representative of the Executive’s estate in accordance with the terms of this Agreement. If any of the cash payments payable pursuant to this Agreement are delayed due to the requirements of section 409A of the Code, there shall be added to such payments interest during the deferral period at an annualized rate of interest equal to 5%.
Appears in 1 contract
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during pursuant to the six (6) month period following Executive’s section entitled “Termination Date that does not qualify within either of by the foregoing exceptions and constitutes Company Without Cause or Termination by Executive for Good Reason” above or the section entitled “Cash Severance Upon Termination Without Cause or for Good Reason” above are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (ii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in the six section entitled “Termination by the Company Without Cause or Termination by Executive for Good Reason” above or the section entitled “Cash Severance Upon Termination Without Cause or for Good Reason” above, as the case may be, shall not be provided to Executive prior to the earlier of (6A) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (B) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death or (C) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 10 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (A) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (B) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in Section 10, shall not be provided to Executive prior to the six earlier of (6x) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (y) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death or (z) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Samples: Employment Agreement (Cortex Pharmaceuticals Inc/De/)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “"short-term deferral exception” " under Treas. Reg. §1.409A-1(b)(4Reg.§1.409A-1(b)(4), and any remaining amount is intended to comply with the “"separation pay exception” " under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s 's Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “"Excess Amount.” " If at the time of Executive’s 's separation from service, the Company’s Corporation's (or any entity required to be aggregated with the Company Corporation under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “"specified employee” " (as defined in section 409A of the Code and determined in the sole discretion of the Company Corporation (or any successor thereto) in accordance with the Company’s Corporation's (or any successor thereto) “"specified employee” " determination policy), then the Company Corporation shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s 's Termination Date with the Company Corporation (or any successor thereto) for six (6) months following Executive’s 's Termination Date with the Company Corporation (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s 's Termination Date with the Company Corporation (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s 's estate within sixty (60) days after Executive’s 's death.
Appears in 1 contract
Payment Delay. To (1) Notwithstanding anything in the maximum extent permitted under section 409A Agreement to the contrary, including Section 16 of the CodeAgreement, in no event may severance payments provided for therein upon a termination of employment commence to be paid prior to the severance benefits payable under this Agreement are intended to comply with date that is eighteen (18) months following the Thirteenth Amendment Effective Date (the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iiiDelayed Commencement Date”); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If if at the time of the Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the CodeSection 409A) stock is publicly-traded on an established securities market or otherwise and the Executive is a “specified employee” (as defined in section Section 409A and determined in the sole discretion of the Code Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then, if required under Section 409A, such severance payments shall not commence until the date that is six (6) months following the Executive’s date of termination, if such date is later than the Delayed Commencement Date.
(2) Subject to subsection (1), if at the time of the Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under Section 409A) stock is publicly-traded on an established securities market or otherwise and the Executive is a “specified employee” (as defined in Section 409A and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount payments that is are determined to be deferred compensation subject to Section 409A that are payable within the six (6) month period following the Executive’s Termination Date date of termination with the Company (or any successor thereto) for six (6) months following the Executive’s Termination Date date of termination with the Company (or any successor thereto). The delayed Excess Amount amount shall be paid in a lump sum to the Executive within ten (10) days following the date that is six (6) months following the Executive’s Termination Date date of termination with the Company (or any successor thereto)) and any amounts payable after such six (6) month period shall be paid to the Executive in accordance with the original schedule. If the Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Codeamount, such Excess Amount delayed amount shall be paid to the personal representative of the Executive’s estate within sixty (60) days after the Executive’s death.
(3) In the event of any delay in payment under this subsection (b) upon the Executive’s termination of employment, the amount delayed shall accrue interest, at the prime rate (as stated in The Wall Street Journal) in effect on the Executive’s termination date, until the payment date for such delayed amount.”
Appears in 1 contract
Payment Delay. To Notwithstanding any provision to the maximum extent permitted under section 409A contrary in this Agreement, if on the date of the CodeExecutive’s termination of employment, the Executive is a “specified employee” (as such term is defined in section 409A(a)(2)(B)(i) of the Code and its corresponding regulations) as determined by the Board (or its delegate) in its sole discretion in accordance with its “specified employee” determination policy, then all cash severance benefits payments payable to the Executive under this Agreement that are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount Code shall hereinafter be referred to as the “Excess Amount.” If at the time postponed for a period of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following the Executive’s Termination Date “separation from service” with the Company (or any successor thereto). The delayed Excess Amount postponed amounts shall be paid to the Executive in a lump sum to Executive within ten (10) days following on the date that is six (6) months and one (1) day following the Executive’s Termination Date “separation from service” with the Company (or any successor thereto). If the Executive dies during such six (6) six-month period and prior to the payment of the portion of postponed cash amounts hereunder, the Excess Amount that is required to be amounts delayed on account of section 409A of the Code, such Excess Amount Code shall be paid to the personal representative of the Executive’s estate within sixty on the sixtieth (6060th) days day after Executive’s death. If any of the cash payments payable pursuant to this Agreement are delayed due to the requirements of section 409A of the Code, there shall be added to such payments interest during the deferral period at an annualized rate of interest equal to the prime rate as reported in the Wall Street Journal (or, if unavailable, a comparable source) at the relevant time. . All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to liquidation or exchange for another benefit.
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section Section 409A of the Code, the cash severance benefits payments payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to the Executive during the six (6) six-month period following the Executive’s Termination Date termination date that does not qualify within either of the foregoing exceptions and constitutes is deemed as deferred compensation subject to the requirements of section Section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of the Executive’s separation from servicetermination of employment, the CompanyEmployer’s (or any entity required to be aggregated with the Company Employer under section Section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and the Executive is a “specified employee” (as defined in section Section 409A of the Code and determined in the sole discretion of the Company Employer (or any successor thereto) in accordance with the CompanyEmployer’s (or any successor thereto) “specified employee” determination policy), then the Company Employer shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) six-month period following the Executive’s Termination Date termination date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company Employer (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to the Executive within ten (10) 10 days following the date that is six (6) months following the Executive’s Termination Date termination date with the Company Employer (or any successor thereto). If the Executive dies during such six (6) six-month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of the Executive’s estate within sixty (60) days after the Executive’s death.
Appears in 1 contract
Samples: Employment Agreement (Elan Corp PLC)
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 8 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), (ii) if any of the “Excess Amount.” If amounts described in Sections 8(a)(i)-(ii) above constitute non-qualified deferred compensation subject to Section 409A of the Code then any such amounts that become payable hereunder shall in all cases be paid in two installment payments pursuant to the terms described in the last paragraph of Section 8(a), provided that the first lump-sure payment shall be paid on the 60th day following Executive’s Separation from Service subject to clause (iii) of this Section 9(a) and (iii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(1) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then such portion of Executive’s termination benefits described in Section 8 shall not be provided to Executive prior to the Company shall postpone earlier of (A) the commencement expiration of the payment six-month period measured from the date of Executive’s Separation from Service, (B) the date of Executive’s death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the portion of the Excess Amount that is payable within the six (6applicable Code Section 409A(a)(2)(B)(i) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten thirty (1030) days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable payments to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes pursuant to Section 3 are treated as non-qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless Executive’s termination of employment constitutes a “separation from service” with the Company (as the such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Excess Amount.” If Separation from Service”), and (ii) if Executive, at the time of Executive’s separation his Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in Section 3 shall not be provided to Executive prior to the six earlier of (6A) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (B) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death, or (C) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under the date that Agreement shall be paid as otherwise provided herein. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of his Separation from Service shall made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount Code shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation from service, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s (or any successor thereto) “specified employee” determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty (60) days after Executive’s death.
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section 409A of the Code, the severance benefits payable under this Agreement are intended to comply with the “"short-term deferral exception” " under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “"separation pay exception” " under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s 's Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “"Excess Amount.” " If at the time of Executive’s 's separation from service, the Company’s 's (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “"specified employee” " (as defined in section 409A of the Code and determined in the sole discretion of the Company (or any successor thereto) in accordance with the Company’s 's (or any successor thereto) “"specified employee” " determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Executive’s 's Termination Date with the Company (or any successor thereto) for six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive within ten (10) days following the date that is six (6) months following Executive’s 's Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s 's estate within sixty (60) days after Executive’s 's death.
Appears in 1 contract
Payment Delay. To Notwithstanding anything herein to the maximum contrary, to the extent permitted under section 409A of any payments to the Code, the severance benefits payable under this Agreement Executive pursuant to Section 3 are intended to comply with the “shorttreated as non-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes qualified deferred compensation subject to the requirements of section Section 409A of the Code, then such (i) no amount shall hereinafter be referred payable pursuant to such section unless the Executive’s termination of employment constitutes a “separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), and (ii) if the “Excess Amount.” If Executive, at the time of Executive’s separation her Separation from serviceService, is determined by the Company’s (or any entity required Company to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion Company determines that delayed commencement of any portion of the Company termination benefits payable to the Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the such portion of the Excess Amount that is payable within Executive’s termination benefits described in Section 3 shall not be provided to the six Executive prior to the earlier of (6A) the expiration of the six-month period following measured from the date of the Executive’s Termination Date with Separation from Service, (B) the Company (or any successor thereto) for six (6) months following date of the Executive’s Termination Date with death, or (C) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to Executive within ten (10) 30 days following such expiration, and any remaining payments due under this Agreement shall be paid as otherwise provided herein. The determination of whether the date that Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date of the Code as of the time of her Separation from Service shall made by the Company in accordance with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment terms of the portion of the Excess Amount that is required to be delayed on account of section Section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s estate within sixty Code and applicable guidance thereunder (60including without limitation Treasury Regulation Section 1.409A-1(i) days after Executive’s deathand any successor provision thereto).
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section Section 409A of the Code, the cash severance benefits payments payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during if on the six (6) month period following Executivedate of Employee’s Termination Date that does not qualify within either termination of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executiveemployment Employer’s separation from service, the Company’s stock (or stock of any entity other company required to be aggregated with the Company under section Employer for purposes of Section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive Employee is a “specified employee” (as such term is defined in section 409A Section 409A(a)(2)(B)(i) of the Code and its corresponding regulations) as determined in by the sole discretion Board of the Company Directors (or any successor theretoits delegate) in its discretion in accordance with the Company’s (or any successor thereto) its “specified employee” determination policy), then all severance payments payable to Employee under this Agreement that are deemed to be deferred compensation subject to the Company shall postpone the commencement requirements of Section 409A of the payment of the portion of the Excess Amount that is Code and payable within the six (6) month period following Executive’s Termination Date with the Company (or any successor thereto) for six (6) months following ExecutiveEmployee’s Termination Date “separation from service” shall be postponed for a period of six months following Employee’s “separation from service” with the Company (or any successor thereto)Employer. The delayed Excess Amount postponed amounts shall be paid to Employee in a lump sum to Executive within ten (10) 30 days following after the date that is six (6) months following ExecutiveEmployee’s Termination Date “separation from service” with the Company (or any successor thereto)Employer. If Executive Employee dies during such six (6) six-month period and prior to the payment of the portion of postponed cash amounts hereunder, the Excess Amount that is required to be amounts delayed on account of section Section 409A of the Code, such Excess Amount Code shall be paid to the personal representative of ExecutiveEmployee’s estate within sixty (60) 60 days after ExecutiveEmployee’s death.
Appears in 1 contract
Samples: Employment Agreement (Embarq CORP)
Payment Delay. To the maximum extent permitted under section 409A of the Code, the cash severance benefits payments payable under this Agreement letter agreement are intended to comply with the “‘short-term deferral exception” ’ under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “‘separation pay exception” ’ under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to the Executive during the six (6) six-month period following Executive’s Termination Date your termination date that does not qualify within either of the foregoing exceptions and constitutes is deemed as deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “‘Excess Amount.” ’ If at the time of Executive’s separation from serviceyour termination of employment, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and Executive is you are a “‘specified employee” ’ (as defined in section 409A of the Code and determined in the sole discretion of the Company CSS (or any successor thereto) in accordance with the CompanyCSS’s (or any successor thereto) “‘specified employee” ’ determination policy), then the Company CSS shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) six-month period following Executive’s Termination Date your ‘separation from service’ with the Company CSS (or any successor thereto) for six (6) months following Executive’s Termination Date your ‘separation from service’ with the Company CSS (or any successor thereto). The delayed Excess Amount shall be paid in a lump sum to Executive you within ten thirty (1030) days following the date that is six (6) months following Executive’s Termination Date the your ‘separation from service’ with the Company CSS (or any successor thereto). If Executive dies during , and any amount payable to you after the expiration of such six (6) month period under this letter agreement shall continue to be paid to you in accordance with the terms of this letter agreement. If you die during such six-month period and prior to the payment of the portion of the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative of Executive’s your estate within sixty (60) days after Executive’s your death, and any amounts not delayed shall be paid to the personal representative of your estate in accordance with the terms of this letter agreement.
Appears in 1 contract
Payment Delay. To the maximum extent permitted under section 409A of the CodeIf, the severance benefits payable under this Agreement are intended to comply with the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Executive during the six (6) month period following Executive’s Termination Date that does not qualify within either of the foregoing exceptions and constitutes deferred compensation subject to the requirements of section 409A of the Code, then such amount shall hereinafter be referred to as the “Excess Amount.” If at the time of Executive’s separation Separation from serviceService, the Company’s (or any entity required to be aggregated with the Company under section 409A of the Code) stock is publicly-traded on an established securities market or otherwise and determines that Executive is a “specified employee” (as defined in section 409A for purposes of Section 409A(a)(2)(B)(i) of the Code and determined in the sole discretion that delayed commencement of any portion of the Company Deferred Payments is required to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (or any successor thereto) in accordance with the Company’s (or any successor thereto) such delayed commencement, a “specified employee” determination policyPayment Delay”), then the Company shall postpone the commencement of the payment of the that portion of the Excess Amount that is payable within Deferred Payments will not be provided to Executive until the six earlier of (6i) the expiration of the six-month period following measured from the date of Executive’s Termination Date with Separation from Service, (ii) the Company (or any successor thereto) for six (6) months following date of Executive’s Termination Date with death, or (iii) such earlier date as is permitted under Section 409A. Upon the Company (or any successor thereto). The delayed Excess Amount shall expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all Deferred Payments deferred under the Payment Delay will be paid in a lump sum to Executive within ten (10) 30 days following the date that such expiration, and any remaining payments due under this Agreement will be paid as otherwise provided in this Agreement. The determination of whether Executive is six (6a “specified employee” for purposes of Section 409A(a)(2)(B)(i) months following Executive’s Termination Date with the Company (or any successor thereto). If Executive dies during such six (6) month period and prior to the payment of the portion of Code at the Excess Amount that is required to be delayed on account of section 409A of the Code, such Excess Amount shall be paid to the personal representative time of Executive’s estate within sixty Separation from Service will be made by the Company, in its discretion, in accordance with Section 409A (60) days after including, without limitation, Treasury Regulations Section 1.409A-1(i)). For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Executive’s death.right to receive the payments under this Agreement, including the severance payments and benefits, will be treated as a right to receive a series of separate payments and, accordingly, each installment payment will at all times be considered a separate and distinct payment.
Appears in 1 contract
Samples: Employment Agreement (Wayside Technology Group, Inc.)