Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A. (b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.” (c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable. (d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 5 contracts
Sources: Executive Employment Agreement (CalAmp Corp.), Executive Employment Agreement (CalAmp Corp.), Executive Employment Agreement (CalAmp Corp.)
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, any exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder of 1986, as amended (“Section 409A”), including those provided under Treasury Regulations Sections 1.409A 1(b)(4) or an exemption from Section 409A. The Company shall undertake to administer, interpretand 1.409A 1(b)(9), and construe this Agreement will be construed to the greatest extent possible as consistent therewith, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in the event that if Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after the Initial Payment Period deferred pursuant to this paragraph shall be paid at in a lump sum, and any remaining payments due shall be paid as otherwise provided herein. No interest shall be due on any amounts so deferred. To the times set forth extent any payments are subject to a release and the release revocation period spans two calendar years, amounts will be paid (or will commence to be paid) in the second of the two years to the extent required to avoid adverse taxation under Section 6(d)(i) or Section 6(e), as applicable.409A.
(db) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the Codeexpenses eligible for reimbursement, all or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of calendar the Executive’s taxable year following the calendar taxable year in which the expense occurred.was incurred. The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Code Section 409A but do not satisfy an exemption from, or the conditions of, Code Section 409A.
Appears in 3 contracts
Sources: Employment Agreement, Employment Agreement (Axovant Sciences Ltd.), Employment Agreement (Axovant Sciences Ltd.)
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations Sections 1.409A-1(b)(4) and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret1.409A-1(b)(9), and construe this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), the Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in if the event that Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of the Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after the Initial Payment Period deferred pursuant to this paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, and any remaining payments due shall be paid as applicableotherwise provided herein. No interest shall be due on any amounts so deferred.
(db) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the Codeexpenses eligible for reimbursement, all or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of calendar the Executive’s taxable year following the calendar taxable year in which the expense occurredwas incurred.
(c) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, or the conditions of, Section 409A.
Appears in 3 contracts
Sources: Employment Agreement (Myovant Sciences Ltd.), Employment Agreement (Myovant Sciences Ltd.), Employment Agreement (Myovant Sciences Ltd.)
Section 409A Compliance. (ai) The intent of the parties agree is that payments and benefits under this Agreement is intended to comply with the requirements of Internal Revenue Code Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) or an exemption from Section 409A. The Company shall undertake and, accordingly, to administerthe maximum extent permitted, interpret, and construe this Agreement shall be interpreted to be in a manner that does not result in compliance therewith. In no event whatsoever shall the imposition on Executive of Company be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on the Executive by Code Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Code Section 409A.
(bii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”” Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (B) the date of the Executive’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 22(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(ciii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (A) all such expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (B) any right to such reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(iv) For purposes of Code Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(v) Notwithstanding anything herein any other provision of this Agreement to the contrary, in the no event shall any payment under this Agreement that Executive is a constitutes “specified Executivenonqualified deferred compensation” (within the meaning for purposes of Code Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, 409A be subject to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the offset by any other amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as unless otherwise permitted by Code Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.409A.
Appears in 3 contracts
Sources: Employment Agreement (BigBear.ai Holdings, Inc.), Employment Agreement (Commercial Vehicle Group, Inc.), Employment Agreement (Commercial Vehicle Group, Inc.)
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder of 1986, as amended (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer), interpretprovided under Treasury Regulations Sections 1.409A-1(b)(4), and construe 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), the Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in the event that if Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after the Initial Payment Period deferred pursuant to this paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, and any remaining payments due shall be paid as applicableotherwise provided herein. No interest shall be due on any amounts so deferred.
(db) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the Codeexpenses eligible for reimbursement, all or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of calendar the Executive’s taxable year following the calendar taxable year in which the expense occurred.was incurred. The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any compensation under this Agreement constitutes deferred compensation subject to Code Section 409A but does not satisfy an exemption from, or the conditions of, Code Section 409A.
Appears in 3 contracts
Sources: Employment Agreement (Dermavant Sciences LTD), Separation Agreement and General Release (Dermavant Sciences LTD), Employment Agreement (Dermavant Sciences LTD)
Section 409A Compliance. (a) The parties agree that this Agreement It is intended that any benefits under the Agreement satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake Agreement will be construed to administer, interpretthe greatest extent possible as consistent with those provisions, and construe this to the extent not so exempt, the Agreement (and any definitions hereunder) will be construed in a manner that does not result in complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), the imposition on Executive of Executive’s right to receive any additional taxinstallment payments under the Agreement (whether severance payments, penaltyif any, or interest under Section 409A. Each payment under this Agreement otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this the Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this the Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrary, contrary in the event that Agreement, if the Executive is deemed by the Company at the time of a separation from service to be a “specified Executive” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under the Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of the Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after deferred pursuant to the Initial Payment Period paragraph shall be paid at the times set forth in Section 6(d)(i) a lump sum, and any remaining payments due shall be paid as or Section 6(e), as applicableotherwise provided herein. No interest shall be due on any amounts so deferred.
(db) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for any other benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any of the Codetaxable year, all and (iii) such payments shall be made on or before the last day of calendar the Executive’s taxable year following the calendar taxable year in which the expense occurredwas incurred.
(c) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of the Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, or the conditions of, Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Myovant Sciences Ltd.), Employment Agreement (Myovant Sciences Ltd.)
Section 409A Compliance. (a) The parties agree intend that payments and benefits under this Agreement is intended to comply with the requirements of or are exempt from Section 409A of and, accordingly, to the Code maximum extent permitted this Agreement shall be interpreted and the regulations and guidance promulgated thereunder (“Section 409A”) administered to be in compliance therewith or an exemption from Section 409A. exempt therefrom. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on Executive by Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment employment, to the extent that such amounts or benefits constitute nonqualified deferred compensation within the meaning of Section 409A, unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary;” provided, however, that in the event that Executive is incurs a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment PeriodTermination Event”) exceed that is not a “separation from service” within the amount referenced in Treas. Regs. meaning of Section 1.409A-1(b)(9)(iii)(A) (the “Limit”409A and amounts or benefits would, but for this Section 28(c), then be payable to Executive in connection with such Termination Event, Executive’s subsequent separation from service within the meaning of Section 409A shall be deemed to have occurred under the same circumstances as such Termination Event, and such amounts and benefits that ultimately become payable upon such subsequent separation from service shall be calculated as of the date of such Termination Event.
(c) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, (i) to the extent that any portion payment of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall base salary or other compensation is to be paid at for a specified continuing period of time beyond the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary date of Executive’s termination of employmentemployment in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made on a monthly basis, and (iiiii) to the extent that any portion payment of base salary or other compensation is to be paid in a lump sum, such payments that are payable after the Initial Payment Period lump sum amount shall be paid at as soon as practicable following Executive’s separation from service and in all events within ninety (90) days thereafter (subject to the times six (6) month delay set forth in Section 6(d)(i) or Section 6(e4(b)). Notwithstanding the foregoing, as applicable.
(d) With regard with respect to any provision herein payments that are intended to fall under the short-term deferral exemption from Section 409A, unless this Agreement provides for reimbursement of costs a specified and expenses or in-kind benefits, except as permitted by Section 409A of objectively determinable payment schedule to the Codecontrary, all such payments shall be made on or before as soon as practicable after the last day right to payment vests and in all events by March 15 of the calendar year following the calendar year in which the expense occurredright to payment vests. For purposes of this Section 28(d), a right to payment will be treated as having vested when it is no longer subject to a substantial risk of forfeiture within the meaning of Section 409A.
(d) (i) To the extent that any such cash payment or continuing benefit to be provided is nonqualified deferred compensation subject to Section 409A, then such payments or benefits shall be made or commence upon the sixtieth (60th) day following Executive’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Executive’s termination of employment, and any payments made thereafter shall continue as provided therein. The delayed benefits shall in any event expire at the time such benefits would have expired had such benefits commenced immediately following Executive’s separation from service.
Appears in 2 contracts
Sources: Employment Agreement (Dial Global, Inc. /De/), Employment Agreement (Dial Global, Inc. /De/)
Section 409A Compliance. It is intended that all benefits and compensation payable pursuant to this Agreement are exempt from or, alternatively, comply with Code Section 409A (a) The parties agree and any legally binding guidance promulgated under Code Section 409A, including, without limitation, the Final Treasury Regulations), and this Agreement will be interpreted, administered and operated accordingly. In the event that any provision of this Agreement is intended inconsistent with Code Section 409A or such guidance, then the applicable provisions of Code Section 409A shall supersede such inconsistent provision. In accordance with the foregoing, the Consultant shall not have a legally binding right to any distribution made to Consultant in error. Notwithstanding the foregoing, in no event will any of the Company, its parent, or their respective subsidiaries, affiliates, or officers, directors, employees, or agents have any liability for failure of this Agreement to be exempt from or comply with the requirements of Code Section 409A and none of the foregoing guarantees that the Agreement is exempt from or complies with Code Section 409A. For all purposes under Code Section 409A, the Consultant’s right to receive any payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company. A “termination of engagement” (or any other term to that to that effect) under this Agreement shall mean a “separation from service” under Code Section 409A and Final Treasury Regulation 1.409A-1(h) and the default presumptions thereof. Notwithstanding any other provision of this Agreement to the contrary, if the Board (or its delegate) determines in its discretion that termination payments due under this Agreement are “nonqualified deferred compensation” subject to Section 409A of the Code and that the Consultant is a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code and the regulations and other guidance promulgated thereunder (“issued thereunder, then such termination payments, to the extent that they are nonqualified deferred compensation subject to Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in 409A of the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement Code shall be treated as a separate payment for paid on the first payroll date of the seventh month following the month in which the Consultant’s termination occurs. For purposes of Section 409A.
(b) A termination of employment shall not this Agreement, whether the Consultant is a “specified employee” will be deemed to have occurred for purposes of determined in accordance with written procedures adopted by the Board. Notwithstanding any other provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in to the event extent that Executive is a any reimbursement of expenses constitutes “specified Executivedeferred compensation” (within the meaning of under Code Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit reimbursement shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A provided no later than December 31 of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurredwas incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year.
Appears in 2 contracts
Sources: Consulting Agreement (FriendFinder Networks Inc.), Consulting Agreement (FriendFinder Networks Inc.)
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder of 1986, as amended (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer), interpretprovided under Treasury Regulations Sections 1.409A-1(b)(4), and construe 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1,409A-2(b)(2)(iii)), the Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in the event that if Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after the Initial Payment Period deferred pursuant to this paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, and any remaining payments due shall be paid as applicableotherwise provided herein. No interest shall be due on any amounts so deferred.
(db) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the Codeexpenses eligible for reimbursement, all or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of calendar the Executive’s taxable year following the calendar taxable year in which the expense occurred.was incurred. The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any compensation under this Agreement constitutes deferred compensation subject to Code Section 409 A but does not satisfy an exemption from, or the conditions of, Code Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Dermavant Sciences LTD), Employment Agreement (Dermavant Sciences LTD)
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder of 1986, as amended (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer), interpretprovided under Treasury Regulations Sections 1.409A-1(b)(4), and construe 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations
Section 1. 409A-2(b)(2)(iii)), the Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in the event that if Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after the Initial Payment Period deferred pursuant to this paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, and any remaining payments due shall be paid as applicableotherwise provided herein. No interest shall be due on any amounts so deferred.
(db) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the Codeexpenses eligible for reimbursement, all or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of calendar the Executive’s taxable year following the calendar taxable year in which the expense occurred.was incurred. The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any compensation under this Agreement constitutes deferred compensation subject to Code Section 409A but does not satisfy an exemption from, or the conditions of, Code Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Dermavant Sciences LTD), Employment Agreement (Dermavant Sciences LTD)
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder of 1986, as amended (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer), interpretprovided under Treasury Regulations Sections 1.409A-1(b)(4), and construe 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in the event that if Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after the Initial Payment Period deferred pursuant to this paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, as applicable.
(d) With regard to and any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such remaining payments due shall be made paid as otherwise provided herein. No interest shall be due on or before the last day of calendar year following the calendar year in which the expense occurredany amounts so deferred.
Appears in 2 contracts
Sources: Employment Agreement (Myovant Sciences Ltd.), Employment Agreement (Myovant Sciences Ltd.)
Section 409A Compliance. (a) 19.1 The intent of the parties agree is that payments and benefits under this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Section 409A”) or an exemption from ); accordingly, to the maximum extent permitted, this Agreement will be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Section 409A, such modification will be made in good faith and will, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and the Company of the applicable provision without violating the provisions of Section 409A. The In no event whatsoever will the Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on Executive by Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Section 409A.
(b) 19.2 A termination of employment shall will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and409A, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall will mean “separation from service.”
(c) ” Notwithstanding anything herein to the contrarycontrary in this Agreement, in the event that if Executive is a “specified Executive” (within the meaning of Section 409A) deemed on the date of termination of Executive’s employment with to be a “specified employee” within the Company and the payments described in meaning under Section 6(d)(i) or Section 6(e409A(a)(2)(B), as applicable, then with regard to any payment or the provision of any benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service,” such payment or benefit will not be paid within made or provided until the first 6 months following date that is the earlier of (A) the expiration of the six-month period measured from the date of such termination “separation from service” of employment Executive, and (B) the “Initial Payment Period”) exceed date of Executive’s death, to the amount referenced extent required under Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 19.2 (whether they would have otherwise been payable in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall delay) will be paid at the times set forth or reimbursed to Executive in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period shall and benefits due under this Agreement will be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein 19.3 To the extent that provides for reimbursement of costs and expenses reimbursements or other in-kind benefitsbenefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, except as permitted by Section 409A of the Code, (A) all such payments shall expenses or other reimbursements hereunder will be made on or before the last day of calendar the taxable year following the calendar taxable year in which such expenses were incurred by Executive, (B) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year will in any way affect the expense occurredexpenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
19.4 For purposes of Section 409A, Executive’s right to receive any installment payments pursuant to this Agreement is treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period is within the sole discretion of the Company.
19.5 Notwithstanding any provision of this Agreement to the contrary, in no event will any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Clene Inc.), Employment Agreement (Tottenham Acquisition I LTD)
Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(Al.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), . as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 2 contracts
Sources: Executive Employment Agreement (CalAmp Corp.), Executive Employment Agreement (CalAmp Corp.)
Section 409A Compliance. (a) 19.1 The intent of the parties agree is that payments and benefits under this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Section 409A”) or an exemption from ); accordingly, to the maximum extent permitted, this Agreement will be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Section 409A, such modification will be made in good faith and will, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and the Company of the applicable provision without violating the provisions of Section 409A. The In no event whatsoever will the Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on Executive by Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Section 409A.
(b) 19.2 A termination of employment shall will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and409A, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall will mean “separation from service.”
(c) ” Notwithstanding anything herein to the contrarycontrary in this Agreement, in the event that if Executive is a “specified Executive” (within the meaning of Section 409A) deemed on the date of termination of Executive’s employment with to be a “specified employee” within the Company and the payments described in meaning under Section 6(d)(i) or Section 6(e409A(a)(2)(B), as applicable, then with regard to any payment or the provision of any benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service,” such payment or benefit will not be paid within made or provided until the first 6 months following date that is the earlier of (A) the expiration of the six-month period measured from the date of such termination “separation from service” of employment Executive, and (B) the “Initial Payment Period”) exceed date of Executive’s death, to the amount referenced extent required under Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 19.2 (whether they would have otherwise been payable in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall delay) will be paid at the times set forth or reimbursed to Executive in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period shall and benefits due under this Agreement will be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein 19.3 To the extent that provides for reimbursement of costs and expenses reimbursements or other in-kind benefitsbenefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, except as permitted by Section 409A of the Code, (A) all such payments shall expenses or other reimbursements hereunder will be made on or before the last day of calendar the taxable year following the calendar taxable year in which such expenses were incurred by Executive, (B) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year will in any way affect the expense occurredexpenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
19.4 For purposes of Section 409A, Executive’s right to receive any installment payments pursuant to this Agreement is treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period is within the sole discretion of the Company.
19.5 Notwithstanding any provision of this Agreement to the contrary, in no event will any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A. [Remainder of page intentionally left blank; signature page follows]
Appears in 2 contracts
Sources: Employment Agreement (Clene Inc.), Employment Agreement (Clene Inc.)
Section 409A Compliance. (a) The parties Parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executiveemployee” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 six (6) months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first (1st) business day after the 6th month six (6)-month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree that this This Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive Employee of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive Employee is a “specified Executiveemployee” (within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit (whether under this Agreement or otherwise) that is considered deferred compensation under Section 409A payable on account of a “separation from service,” and that is not exempt from Section 409A as involuntary separation pay or a short-term deferral (or otherwise), to the extent necessary to avoid the imposition of excise taxes under Section 409A) on , such payment or benefit shall be made or provided at the date which is the earlier of termination (i) the expiration of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following six (6)-month period measured from the date of such termination “separation from service” of employment Employee or (B) the date of Employee’s death (the “Initial Payment Delay Period”) exceed ). Upon the amount referenced in Treas. Regs. expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(b)(9)(iii)(A6.13(c) (whether they would have otherwise been payable in a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit delay) shall be paid at the times set forth or reimbursed to Employee in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employmentsum without interest, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period and benefits due under this Agreement shall be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code409A, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.. In witness whereof, this Change of Control Agreement has been executed as of the date first set forth above. AVANIR Pharmaceuticals, Inc. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, PH.D. ▇▇▇▇▇ ▇. ▇▇▇▇▇ Chairman, Compensation Committee Employee /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Print Name)
Appears in 1 contract
Sources: Change of Control Agreement (Avanir Pharmaceuticals, Inc.)
Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A1,409A-l(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract
Section 409A Compliance. To the extent the Special Termination Indemnity Payment is subject to Section 409A of the United States Internal Revenue Code of 1986, as ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ (a) The parties agree that "▇▇▇▇"), such Payment shall be paid as provided in this Agreement is intended to comply upon separation from service with the requirements Employer and all of its affiliates or, in the case of a Specified Employee, on the earliest to occur of (i) death, and (ii) 6 months after a separation from service with the Employer and all of its affiliates. "Specified Employee" shall mean a "key employee" (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Employer or an affiliate. Novelis intends that the Agreement and any Payments to be paid hereunder be exempt from the application of Section 409A of the Code or meet the requirements of paragraphs (2), (3) and (4) of subsection (a) of Section 409A of the Code (and any successor provisions of the Code) and the regulations and other guidance promulgated issued thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake the "Requirements"), to administer, interpretthe extent applicable, and construe this Agreement be operated in a manner accordance with such Requirements so that does not result any compensation deferred in the imposition on Executive of connection with such Payments (and any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(bapplicable investment earnings) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, included in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by income under Section 409A of the Code. If any provision of the Agreement is found to be in violation of the Requirements, all then such payments provision shall be made on deemed to be modified or before restricted to the last day of calendar year following extent and in the calendar year manner necessary to render such provision in which conformity with the expense occurredRequirements, or shall be deemed excised from the Agreement, and the Agreement shall be construed and enforced to the maximum extent permitted by the Requirements as if such provision had been originally incorporated in the Agreement as so modified or restricted, or as if such provision had not been originally incorporated in the Agreement, as the case may be.
Appears in 1 contract
Section 409A Compliance. (ai) The intent of the parties agree is that payments and benefits under this Agreement is intended to comply with the requirements of Internal Revenue Code Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) or an exemption from Section 409A. The Company shall undertake and, accordingly, to administerthe maximum extent permitted, interpret, and construe this Agreement shall be interpreted to be in a manner that does not result in compliance therewith. In no event whatsoever shall the imposition on Executive of Company be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on the Executive by Code Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Code Section 409A.
(bii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”” Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (B) the date of the Executive’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 21(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(ciii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (A) all such expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (B) any right to such reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(iv) For purposes of Code Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(v) Notwithstanding anything herein any other provision of this Agreement to the contrary, in the no event shall any payment under this Agreement that Executive is a constitutes “specified Executivenonqualified deferred compensation” (within the meaning for purposes of Code Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, 409A be subject to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the offset by any other amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as unless otherwise permitted by Code Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.409A.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree To the extent that any payment or benefit under this Agreement is subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), it is intended that this Agreement is intended as applied to that payment or benefit comply in all respects with the requirements of Code Section 409A of 409A, and that the Code Agreement shall be administered and interpreted consistent with that intent. The Company, the Bank and the regulations Executive agree to work together in good faith to limit or avoid any taxes, penalties or excise taxes applicable to payment and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe benefits under this Agreement in a manner that does not result compliance with Section 409A; however, the Company and the Bank shall have no liability to the Executive, or his successor or beneficiary, in the imposition on event that taxes, penalties or excise taxes are ultimately determined to be applicable to any payment or benefit received by the Executive nor for reporting in good faith any payment of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated benefit as a separate payment for purposes of subject to Code Section 409A.
(b) A Notwithstanding any provision to the contrary in this Agreement, no amount will be payable pursuant to this Agreement in connection with the termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a Executive termination of employment unless such the termination is also of the Executive’s employment constitutes a “separation from {Clients/1836/00406836.DOCX/ } 8 service” within the meaning of Treasury Regulations Section 409A 1.409A-1(h) and, for purposes of Code Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement will be treated as a right to receive a series of separate and distinct payments. Notwithstanding any such provision of to the contrary in this Agreement, references if the Executive is deemed at the time of his separation from service to be a “termination,specified employee” of a “termination publicly traded” company for purposes of employment,” Section 409A(a)(2)(B)(i) of the Code, if Separation Pay or like terms shall mean any other payments or benefits or any portion thereof must be delayed to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of the Executive’s Separation Pay or other applicable payments or benefits will be delayed until the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Bank under Code Section 6(d)(i409A, or (ii) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such Executive’s death; at which time all payments that are payable during the Initial Payment Period that does not exceed the Limit shall delayed pursuant to this sentence will be paid at in a lump sum to the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period shall due under this Agreement will be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicableotherwise provided herein.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract
Section 409A Compliance. (ai) The intent of the parties agree is that payments and benefits under this Agreement is intended to comply with the requirements of Internal Revenue Code Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) or an exemption from Section 409A. The Company shall undertake and, accordingly, to administerthe maximum extent permitted, interpret, and construe this Agreement shall be interpreted to be in a manner that does not result in compliance therewith. In no event whatsoever shall the imposition on Executive of Company be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on the Executive by Code Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Code Section 409A.
(bii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”” Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (B) the date of the Executive’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 24(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(ciii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (A) all such expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (B) any right to such reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(iv) For purposes of Code Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(v) Notwithstanding anything herein any other provision of this Agreement to the contrary, in the no event shall any payment under this Agreement that Executive is a constitutes “specified Executivenonqualified deferred compensation” (within the meaning for purposes of Code Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, 409A be subject to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the offset by any other amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as unless otherwise permitted by Code Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.409A.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder of 1986, as amended (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer), interpretprovided under Treasury Regulations Sections 1.409A‑1(b)(4), and construe 1.409A‑1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A‑2(b)(2)(iii)), the Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in the event that if Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after the Initial Payment Period deferred pursuant to this paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, and any remaining payments due shall be paid as applicableotherwise provided herein. No interest shall be due on any amounts so deferred.
(db) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the Codeexpenses eligible for reimbursement, all or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of calendar the Executive’s taxable year following the calendar taxable year in which the expense occurred.was incurred. The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Code Section 409A but do not satisfy an exemption from, or the conditions of, Code Section 409A.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree that this This Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive Employee of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive Employee is a “specified Executiveemployee” (within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit (whether under this Agreement or otherwise) that is considered deferred compensation under Section 409A payable on account of a “separation from service,” and that is not exempt from Section 409A as involuntary separation pay or a short-term deferral (or otherwise), to the extent necessary to avoid the imposition of excise taxes under Section 409A) on , such payment or benefit shall be made or provided at the date which is the earlier of termination (i) the expiration of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following six (6)-month period measured from the date of such termination “separation from service” of employment Employee or (B) the date of Employee’s death (the “Initial Payment Delay Period”) exceed ). Upon the amount referenced in Treas. Regs. expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(b)(9)(iii)(A6.13(c) (whether they would have otherwise been payable in a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit delay) shall be paid at the times set forth or reimbursed to Employee in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employmentsum without interest, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period and benefits due under this Agreement shall be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code409A, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.. In witness whereof, this Severance and Change of Control Agreement has been executed as of the date first set forth above. Arrowhead Pharmaceuticals, Inc. By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President and CEO Employee /s/ ▇▇▇▇▇▇▇ ▇’▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇’▇▇▇▇▇
Appears in 1 contract
Sources: Severance and Change of Control Agreement (Arrowhead Pharmaceuticals, Inc.)
Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“"Section 409A”") or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “"separation from service” " within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “"termination,” “" "termination of employment,” " or like terms shall mean “"separation from service.”"
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “"specified Executive” employee" (within the meaning of Section 409A) on the date of termination of Executive’s 's employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 six months following the date of such termination of employment (the “"Initial Payment Period”") exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “"Limit”"), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th six-month anniversary of Executive’s 's termination of employment, employment and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred."
Appears in 1 contract
Sources: Employment Agreement (CalAmp Corp.)
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder of 1986, as amended (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer), interpretprovided under Treasury Regulations Sections 1.409A-1(b)(4), and construe 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in the event that if Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary date of Executive’s termination of employment, and death or (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.such
Appears in 1 contract
Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A1.409A-1 (b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) 6(d)fil or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree that this This Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive Employee of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive Employee is a “specified Executiveemployee” (within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit (whether under this Agreement or otherwise) that is considered deferred compensation under Section 409A payable on account of a “separation from service,” and that is not exempt from Section 409A as involuntary separation pay or a short-term deferral (or otherwise), to the extent necessary to avoid the imposition of excise taxes under Section 409A) on , such payment or benefit shall be made or provided at the date which is the earlier of termination (i) the expiration of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following six (6)-month period measured from the date of such termination “separation from service” of employment Employee or (B) the date of Employee’s death (the “Initial Payment Delay Period”) exceed ). Upon the amount referenced in Treas. Regs. expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(b)(9)(iii)(A6.13(c) (whether they would have otherwise been payable in a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit delay) shall be paid at the times set forth or reimbursed to Employee in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employmentsum without interest, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period and benefits due under this Agreement shall be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code409A, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.. In witness whereof, this Change of Control Agreement has been executed as of the date first set forth above. AVANIR Pharmaceuticals, Inc. By: ▇▇▇▇▇ ▇▇▇▇▇▇ President & Chief Executive Officer Employee (Signature) (Print Name)
Appears in 1 contract
Sources: Change of Control Agreement (Avanir Pharmaceuticals, Inc.)
Section 409A Compliance. (ai) The intent of the parties agree is that payments and benefits under this Agreement is intended to comply with the requirements of Internal Revenue Code Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) or an exemption from Section 409A. The Company shall undertake and, accordingly, to administerthe maximum extent permitted, interpret, and construe this Agreement shall be interpreted to be in a manner that does not result in compliance therewith. In no event whatsoever shall the imposition on Executive of Company be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on the Executive by Code Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Code Section 409A.
(bii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”” Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (B) the date of the Executive’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 25(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(ciii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (A) all such expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (B) any right to such reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in- kind benefits to be provided, in any other taxable year.
(iv) For purposes of Code Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(v) Notwithstanding anything herein any other provision of this Agreement to the contrary, in the no event shall any payment under this Agreement that Executive is a constitutes “specified Executivenonqualified deferred compensation” (within the meaning for purposes of Code Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, 409A be subject to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the offset by any other amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as unless otherwise permitted by Code Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.409A.
Appears in 1 contract
Sources: Employment Agreement (Veritiv Corp)
Section 409A Compliance. (a) The parties agree that To the extent the Executive would otherwise be entitled to any payment (whether pursuant to this Agreement is intended or otherwise) during the six months beginning on termination of employment that would be subject to comply with the requirements of additional tax imposed under Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake ), the payment will be paid to administer, interpret, and construe this Agreement in a manner that does not result in the imposition Executive on Executive the earlier of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes the six-month anniversary of Section 409A.
(b) A the Executive’s date of termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for or the payment of any amounts Executive’s death or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” disability (within the meaning of Section 409A). Similarly, to the extent the Executive would otherwise be entitled to any benefit (other than a payment) during the six months beginning on termination of employment that would be subject to the Section 409A additional tax, the benefit will be delayed and will begin being provided (together, if applicable, with an adjustment to compensate the Executive for the delay) on the earlier of the six-month anniversary of the date of termination termination, death or disability (within the meaning of Section 409A).
(b) It is the Company’s intention that the benefits and rights to which the Executive could become entitled pursuant to the provisions of this Agreement will comply with Section 409A. If the Executive or the Company believes, at any time, that any of such benefit or right does not comply, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such arrangement such that it complies (with the most limited reasonable economic effect on the Executive and on the Company).
(c) The Company shall indemnify the Executive’s employment , on a fully grossed-up basis, for any additional tax, interest, penalties or other liabilities payable or incurred by the Executive by reason of the failure of any provision of this Agreement to comply with Section 409A and that cannot be reasonably cured by an amendment negotiated in good faith pursuant to Section 15.12(b) hereof. The provisions of Sections 8.1 through 8.4 of the Agreement, relating to Gross-Up Payments as therein defined, shall apply with respect to any payment required under this Section 15.12(c).
8. All other provisions of the Agreement remain unchanged and in full force and effect. Human Resources, Compensation and Benefits Committee of the Board of Directors of Technical Olympic U.S.A., Inc. By: /s/ M▇▇▇▇▇▇ ▇▇▇▇▇▇ M▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ S▇▇▇▇ ▇▇▇▇▇ S▇▇▇▇ ▇▇▇▇▇ By: /s/ L▇▇▇▇ ▇▇▇▇▇▇ L▇▇▇▇ ▇▇▇▇▇▇ /s/ A▇▇▇▇▇▇ ▇. Mon A▇▇▇▇▇▇ ▇. Mon AGREEMENT made as of January 13, 2006, between Technical Olympic USA, Inc., a Delaware corporation (the “Company”), and A▇▇▇▇▇▇ ▇. Mon (“Employee”). To carry out the purposes of the Technical Olympic USA, Inc. Annual and Long-Term Incentive Plan (the “Plan”), by affording Employee the opportunity to purchase shares of Class A common stock, par value $.01, (“Stock”) of Technical Olympic USA, Inc. (the “Company”), the Company and the payments described in Section 6(d)(i) or Section 6(e), Employee hereby agree as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.follows:
Appears in 1 contract
Section 409A Compliance. (a) The parties agree It is intended that this Agreement is intended to will comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the any regulations and guidance guidelines promulgated thereunder (collectively, “Section 409A”) or an exemption from Section 409A. The Company shall undertake ), to administer, interpretthe extent the Agreement is subject thereto, and construe this the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that does preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 24 shall subject the Company to any claim, liability, or expense, and the Company shall not result have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A of the Code.
(b) Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed on the date of his or her “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after taking into account any applicable exceptions to such requirement), such payment or benefit shall be made or provided on the date that is the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service,” or (ii) the date of the Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 24 (whether they would have otherwise been payable in a single sum or in installments in the imposition on absence of such delay) shall be paid or reimbursed to the Executive of in a lump sum and any additional tax, penalty, or interest under Section 409A. Each payment remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified for purposes them herein. Notwithstanding any provision of Section 409A.
(b) A termination of employment shall not be deemed this Agreement to have occurred the contrary, for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such employment, references to the Executive’s “termination is also a of employment” (and corollary terms) with the Company shall be construed to refer to Executive’s “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Treas. Reg. Section 409A1.409A-1(h)) on with the date Company.
(c) With respect to any reimbursement or in-kind benefit arrangements of termination of Executive’s employment with the Company and its subsidiaries that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the payments described in Section 6(d)(i) or Section 6(e), as following conditions shall be applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then : (i) the amount eligible for reimbursement, or in-kind benefits provided, under any portion of such payments arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that are payable during the Initial Payment Period health and dental plans may impose a limit on the amount that does not exceed the Limit shall may be paid at the times set forth in Section 6(d)(i) reimbursed or Section 6(epaid), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall must be made on or before the last day of the calendar year following the calendar year in which the expense occurred.was incurred, and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. If, under the terms of this Agreement, it is possible for a payment that is subject to Section 409A to be made in two separate taxable years, payment shall be made in the later taxable year
Appears in 1 contract
Section 409A Compliance. (a) The parties agree It is intended that this Agreement is intended to will comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the any regulations and guidance guidelines promulgated thereunder (collectively, “Section 409A”) or an exemption from Section 409A. The Company shall undertake ), to administer, interpretthe extent the Agreement is subject thereto, and construe this the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that does preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 24 shall subject the Company to any claim, liability, or expense, and the Company shall not result have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A of the Code.
(b) Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed on the date of his or her “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after taking into account any applicable exceptions to such requirement), such payment or benefit shall be made or provided on the date that is the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service,” or (ii) the date of the Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 24 (whether they would have otherwise been payable in a single sum or in installments in the imposition on absence of such delay) shall be paid or reimbursed to the Executive of in a lump sum and any additional tax, penalty, or interest under Section 409A. Each payment remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified for purposes them herein. Notwithstanding any provision of Section 409A.
(b) A termination of employment shall not be deemed this Agreement to have occurred the contrary, for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such employment, references to the Executive’s “termination is also a of employment” (and corollary terms) with the Company shall be construed to refer to Executive’s “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Treas. Reg. Section 409A1.409A-1(h)) on with the date Company.
(c) With respect to any reimbursement or in-kind benefit arrangements of termination of Executive’s employment with the Company and its subsidiaries that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the payments described in Section 6(d)(i) or Section 6(e), as following conditions shall be applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then : (i) the amount eligible for reimbursement, or in-kind benefits provided, under any portion of such payments arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that are payable during the Initial Payment Period health and dental plans may impose a limit on the amount that does not exceed the Limit shall may be paid at the times set forth in Section 6(d)(i) reimbursed or Section 6(epaid), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall must be made on or before the last day of the calendar year following the calendar year in which the expense occurredwas incurred, and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. If, under the terms of this Agreement, it is possible for a payment that is subject to Section 409A to be made in two separate taxable years, payment shall be made in the later taxable year.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executiveemployee” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 six months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th six-month anniversary of Executive’s termination of employment, employment and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract
Sources: Employment Agreement (CalAmp Corp.)
Section 409A Compliance. (a) The parties agree that believe that, if amounts are paid at the time or times indicated in this Agreement is intended Agreement, the payments will not be required to comply with be delayed for six months under 409(a)(2)(B) of the requirements Internal Revenue Code of 1986, as amended (the “Code”). Notwithstanding anything to the contrary in this Agreement, however, if, at the time of the Executive’s “separation from service” within the meaning of Section 409A of the Code and Code, the regulations and guidance promulgated thereunder (Company determines that the Executive is a “specified employee” within the meaning of Section 409A”409A(a)(2)(B)(i) of the Code, then, to the extent any payment or an exemption from Section 409A. The Company shall undertake benefit that the Executive becomes entitled to administer, interpret, and construe under this Agreement in on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a manner result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that does not result in is the imposition on Executive earlier of any additional tax, penalty(A) six months and one day after the Executive’s separation from service, or interest (B) the Executive’s death.
(b) To the extent that any payment or benefit under or pursuant to this Agreement is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service” to the extent necessary to comply with Section 409A. 409A of the Code. The determination of whether and when a “separation from service” has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A 1(h). Each payment made under this Agreement shall be treated as a separate payment for purposes of Section 409A.409A of the Code.
(bc) A termination The parties intend that this Agreement will be administered in accordance with Section 409A of employment shall not be deemed to have occurred for purposes of the Code. To the extent that any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references ambiguous as to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment its compliance with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments the provision shall be made on read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to comply fully with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder.
(d) The Company makes no representation or before warranty and shall have no liability to the last day Executive or any other person if any provisions of calendar year following this Agreement are determined to constitute deferred compensation subject to Section 409A of the calendar year in which Code but do not satisfy an exemption from, or the expense occurredconditions of, such Section.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree that this This Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive Employee of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive Employee is a “specified Executiveemployee” (within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit (whether under this Agreement or otherwise) that is considered deferred compensation under Section 409A payable on account of a “separation from service,” and that is not exempt from Section 409A as involuntary separation pay or a short-term deferral (or otherwise), to the extent necessary to avoid the imposition of excise taxes under Section 409A) on , such payment or benefit shall be made or provided at the date which is the earlier of termination (i) the expiration of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following six (6)-month period measured from the date of such termination “separation from service” of employment Employee or (B) the date of Employee’s death (the “Initial Payment Delay Period”) exceed ). Upon the amount referenced in Treas. Regs. expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(b)(9)(iii)(A6.13(c) (whether they would have otherwise been payable in a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit delay) shall be paid at the times set forth or reimbursed to Employee in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employmentsum without interest, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period and benefits due under this Agreement shall be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code409A, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.. In witness whereof, this Severance and Change of Control Agreement has been executed as of the date first set forth above. Arrowhead Pharmaceuticals, Inc. By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President and CEO Employee /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Appears in 1 contract
Sources: Severance and Change of Control Agreement (Arrowhead Pharmaceuticals, Inc.)
Section 409A Compliance. (a) The parties agree that believe that, if amounts are paid at the time or times indicated in this Agreement is intended Agreement, the payments will not be required to comply with be delayed for six months under 409(a)(2)(B) of the requirements Internal Revenue Code of 1986, as amended (the “Code”). Notwithstanding anything to the contrary in this Agreement, however, if, at the time of the Executive’s “separation from service” within the meaning of Section 409A of the Code and Code, the regulations and guidance promulgated thereunder (Company determines that the Executive is a “specified employee” within the meaning of Section 409A”409A(a)(2)(B)(i) of the Code, then, to the extent any payment or an exemption from Section 409A. The Company shall undertake benefit that the Executive becomes entitled to administer, interpret, and construe under this Agreement in on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a manner result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that does not result in is the imposition on Executive earlier of any additional tax, penalty(A) six months and one day after the Executive’s separation from service, or interest (B) the Executive’s death.
(b) To the extent that any payment or benefit under or pursuant to this Agreement is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service” to the extent necessary to comply with Section 409A. 409A of the Code. The determination of whether and when a “separation from service” has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A 1(h). Each payment made under this Agreement shall be treated as a separate payment for purposes of Section 409A.409A of the Code.
(bc) A termination The parties intend that this Agreement will be administered in accordance with Section 409A of employment shall not be deemed to have occurred for purposes of the Code. To the extent that any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references ambiguous as to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment its compliance with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments the provision shall be made on read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to comply fully with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder.
(d) The Company makes no representation or before warranty and shall have no liability to the last day Executive or any other person if any provisions of calendar year following this Agreement are determined to constitute deferred compensation subject to Section 409A of the calendar year in which Code but do not satisfy an exemption from, or the expense occurred.conditions of, such Section. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Appears in 1 contract
Section 409A Compliance. For purposes of this Agreement, all references to Employee's termination of employment means the date Employee ceases to be an employee of the Employer or an Affiliate (defined below). Notwithstanding the preceding sentence, Employee must incur a "separation from service" as that term is defined in Section 409A of the Internal Revenue Code of 1986, as amended ("Code") and the Treasury regulations issued thereunder, to terminate employment under this Agreement. Hence, Employee shall not be deemed to terminate employment in the case of any departure or change in employment status if the Employer (or an Affiliate) and Employee anticipate that Employee will continue to provide services to the Employer or an Affiliate (as an employee or independent contractor) at a level in excess of 20% of the level of services being provided by Employee prior to such departure or change in status, as measured over the past three (3) years (or shorter period of actual employment.) Further, an employee who becomes an independent contractor to the Employer or an Affiliate and who does not incur a "separation from service" upon becoming an independent contractor, shall not be deemed to terminate employment until the contractor relationship is completely terminated with no expectation by the Employer (or an Affiliate) and the employee of any further service relationship. The term "Affiliate" means (a) The parties agree each other corporation, if any, which is a member of the same "controlled group of corporations" as the Employer as determined under Code Section 414(b) (which incorporates the rules of Section 1563(a) of the Code), provided that in applying Code Section 1563(a)(1), (a)(2) and (a)(3) for this Agreement purpose, the language "at least 50 percent" shall be used instead of "at least 80 percent" each place it appears, and (b) each other trade or business (whether or not incorporated), if any, which is intended to comply under "common control" (as such term is described in Section 414(c) of the Code) with the requirements Employer, provided that in applying Treasury regulation §1.414(c)-2 for this purpose, the language "at least 50 percent" shall be used instead of "at least 80 percent" each place it appears. Notwithstanding the foregoing, the provisions of Treasury regulation §1.414(c)-5 shall also apply for determining whether a corporation, trade or business is affiliated with the Employer. Any payment or benefit that Employee receives shall be treated as a "separate payment" for the application of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from serviceCode.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executive” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract
Section 409A Compliance. (ai) The intent of the parties agree is that payments and benefits under this Agreement is intended to comply with the requirements of Internal Revenue Code Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) or an exemption from Section 409A. The Company shall undertake and, accordingly, to administerthe maximum extent permitted, interpret, and construe this Agreement shall be interpreted and administered to be in a manner that does not result in compliance therewith. In no event whatsoever shall the imposition on Executive of Company be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on the Executive by Code Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Code Section 409A.
409A (bii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) ” Notwithstanding anything herein to the contrarycontrary in this Agreement, in if the event that Executive is a “specified Executive” (within the meaning of Section 409A) deemed on the date of termination to be a “specified employee” within the meaning of Executive’s employment with the Company and the payments described in that term under Code Section 6(d)(i) or Section 6(e409A(a)(2)(B), as applicable, then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be paid within made or provided until the first 6 months following date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such termination “separation from service” of employment the Executive, and (B) the “Initial Payment Period”) exceed date of the amount referenced in Treas. Regs. Executive’s death, to the extent required under Code Section 1.409A-1(b)(9)(iii)(A409A Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 19(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit delay) shall be paid at or reimbursed to the times set forth Executive in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period and benefits due under this Agreement shall be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract
Sources: Executive Employment Agreement (Gores Holdings VIII Inc.)
Section 409A Compliance. (a) The parties agree that this This Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive Employee of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive Employee is a “specified Executiveemployee” (within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit (whether under this Agreement or otherwise) that is considered deferred compensation under Section 409A payable on account of a “separation from service,” and that is not exempt from Section 409A as involuntary separation pay or a short-term deferral (or otherwise), to the extent necessary to avoid the imposition of excise taxes under Section 409A) on , such payment or benefit shall be made or provided at the date which is the earlier of termination (i) the expiration of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following six (6)-month period measured from the date of such termination “separation from service” of employment Employee or (B) the date of Employee’s death (the “Initial Payment Delay Period”) exceed ). Upon the amount referenced in Treas. Regs. expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(b)(9)(iii)(A6.13(c) (whether they would have otherwise been payable in a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit delay) shall be paid at the times set forth or reimbursed to Employee in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employmentsum without interest, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period and benefits due under this Agreement shall be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code409A, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.. In witness whereof, this Severance and Change of Control Agreement has been executed as of the date first set forth above. Arrowhead Pharmaceuticals, Inc. By: /s/ ▇▇▇▇▇▇▇ ▇’▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇’▇▇▇▇▇, COO & General Counsel Employee /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Severance and Change of Control Agreement (Arrowhead Pharmaceuticals, Inc.)
Section 409A Compliance. (ai) The intent of the parties agree is that paymaits and benefits under this Agreement is intended to comply with the requirements of Internal Revenue Code Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) or an exemption from Section 409A. The Company shall undertake and, accordingly, to administerthe maximum extent permitted, interpret, and construe this Agreement shall be interpreted and administered to be in a manner that does not result in compliance therewith. In no event whatsoever shall the imposition on Executive of Company be liable for any additional tax, penalty, interest or interest under penalty that may be imposed on the Executive by Code Section 409A. Each payment under this Agreement shall be treated as a separate payment 409A or damages for purposes of failing to comply with Code Section 409A.409A
(bii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”” Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (B) the date of the Executive’s death, to the extent required under Code Section 409A Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 19(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(ciii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (A) all such expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (B) any right to such reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(iv) For purposes of Code Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(v) Notwithstanding anything herein any other provision of this Agreement to the contrary, in the no event shall any payment under this Agreement that Executive is a constitutes “specified Executivenonqualified deferred compensation” (within the meaning for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract
Sources: Executive Employment Agreement (Gores Holdings VIII Inc.)
Section 409A Compliance. (a) The parties agree that this Agreement It is intended that any benefits under the Agreement satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake Agreement will be construed to administer, interpretthe greatest extent possible as consistent with those provisions, and construe this to the extent not so exempt, the Agreement (and any definitions hereunder) will be construed in a manner that does not result in complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), the imposition on Executive of Executive’s right to receive any additional taxinstallment payments under the Agreement (whether severance payments, penaltyif any, or interest under Section 409A. Each payment under this Agreement otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this the Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this the Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrary, contrary in the event that Agreement, if the Executive is deemed by the Company at the time of a separation from service to be a “specified Executive” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under the Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of the Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after deferred pursuant to the Initial Payment Period paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, as applicable.
(d) With regard to and any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such remaining payments due shall be made paid as or otherwise provided herein. No interest shall be due on or before the last day of calendar year following the calendar year in which the expense occurredany amounts so deferred.
Appears in 1 contract
Sources: Employment Agreement
Section 409A Compliance. (a) The parties agree It is intended that any benefits under this Agreement is intended satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and guidance promulgated thereunder of 1986, as amended (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer), interpretprovided under Treasury Regulations Sections 1.409A-1(b)(4), and construe 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under complies with Section 409A. Each payment For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), the Executive’s right to receive any installment payments under this Agreement (whether severance payments, if any, or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrarycontrary in this Agreement, in the event that if Executive is deemed by the Company at the time of a separation from service to be a “specified Executiveemployee” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under this Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after the Initial Payment Period deferred pursuant to this paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, and any remaining payments due shall be paid as applicableotherwise provided herein. No interest shall be due on any amounts so deferred.
(d▇) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the Codeexpenses eligible for reimbursement, all or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of calendar the Executive’s taxable year following the calendar taxable year in which the expense occurred.was incurred. The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any compensation under this Agreement constitutes deferred compensation subject to Code Section 409A but does not satisfy an exemption from, or the conditions of, Code Section 409A.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree that this This Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive Employee of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive Employee is a “specified Executiveemployee” (within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit (whether under this Agreement or otherwise) that is considered deferred compensation under Section 409A payable on account of a “separation from service,” and that is not exempt from Section 409A as involuntary separation pay or a short-term deferral (or otherwise), to the extent necessary to avoid the imposition of excise taxes under Section 409A) on , such payment or benefit shall be made or provided at the date which is the earlier of termination (i) the expiration of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 months following six (6)-month period measured from the date of such termination “separation from service” of employment Employee or (B) the date of Employee’s death (the “Initial Payment Delay Period”) exceed ). Upon the amount referenced in Treas. Regs. expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 1.409A-1(b)(9)(iii)(A6.13(c) (whether they would have otherwise been payable in a single sum or in installments in the “Limit”), then (i) any portion absence of such payments that are payable during the Initial Payment Period that does not exceed the Limit delay) shall be paid at the times set forth or reimbursed to Employee in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in a lump sum, on the first business day after the 6th month anniversary of Executive’s termination of employmentsum without interest, and (iii) any portion of such remaining payments that are payable after the Initial Payment Period and benefits due under this Agreement shall be paid at or provided in accordance with the times set forth in Section 6(d)(i) or Section 6(e), as applicablenormal payment dates specified for them herein.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code409A, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.. In witness whereof, this Severance and Change of Control Agreement has been executed as of the date first set forth above. Arrowhead Pharmaceuticals, Inc. By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President and CEO Employee /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Severance and Change of Control Agreement (Arrowhead Pharmaceuticals, Inc.)
Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under pursuant to the terms of this Agreement shall be treated as considered a separate payment for purposes of Section 409A.
(b) 409A. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts amount or benefits benefit upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Internal Revenue Code Section 409A (“Section 409A”) and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) ” Notwithstanding anything herein to the contrarycontrary in this Agreement, in the event that Executive is if you are a “specified Executiveemployee” (within the meaning of Section 409A) on the date of termination your separation from service, then any payments or benefits that otherwise would be payable pursuant to the terms of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid this Agreement within the first 6 months following the date of such termination of employment your separation from service (the “Initial Payment 409A Suspension Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion shall instead be paid in a lump sum within 14 days after the end of the 6-month period following your separation from service, or your death, if sooner, but only to the extent that such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but benefits provide for the Limit“deferral of compensation” within the meaning of Section 409A, after application of the exemptions provided in Sections 1.409A-1(b)(4) shall be paidand 1.409A-1(b)(9)(ii)-(v) thereof. After the M▇▇▇▇ ▇▇▇▇▇▇▇ 409A Suspension Period, you will receive any remaining payments and benefits due in lump sum, on accordance with the first business day after terms of this Agreement (as if there had not been any suspension beforehand). The Company will cooperate with you in making any amendments to this Agreement that you reasonably request to avoid the 6th month anniversary imposition of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) taxes or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by penalties under Section 409A of the Code, all Code provided that such payments shall be made on or before the last day changes do not provide you with additional benefits (other than de minimis benefits) under this terms of calendar year following the calendar year in which the expense occurredthis Agreement.
Appears in 1 contract
Sources: Employment Agreement (Proteostasis Therapeutics, Inc.)
Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) Notwithstanding anything herein to the contrary, in the event that Executive is a “specified Executiveemployee” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e), as applicable, to be paid within the first 6 six months following the date of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on the first business day after the 6th six-month anniversary of Executive’s termination of employment, employment and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred...
Appears in 1 contract
Sources: Employment Agreement (CalAmp Corp.)
Section 409A Compliance. (a) The parties agree that this Agreement It is intended that any benefits under the Agreement satisfy, to comply with the requirements greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake Agreement will be construed to administer, interpretthe greatest extent possible as consistent with those provisions, and construe this to the extent not so exempt, the Agreement (and any definitions hereunder) will be construed in a manner that does not result in complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), the imposition on Executive of Executive’s right to receive any additional taxinstallment payments under the Agreement (whether severance payments, penaltyif any, or interest under Section 409A. Each payment under this Agreement otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment for purposes of Section 409A.
(b) hereunder shall at all times be considered a separate and distinct payment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this the Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this the Agreement, references to a “resignation,” “termination,” “termination of employment,” or like terms shall mean “separation from service.”
(c) . Notwithstanding anything herein any provision to the contrary, contrary in the event that Agreement, if the Executive is deemed by the Company at the time of a separation from service to be a “specified Executive” (within the meaning for purposes of Section 409A) on the date of termination of Executive’s employment with the Company and the payments described in Section 6(d)(i) or Section 6(e409A(a)(2)(B)(i), as applicable, and if any payments or benefits that the Executive becomes entitled to under the Agreement on account of such separation from service are deemed to be paid within “deferred compensation,” then to the first 6 months following the date extent delayed commencement of such termination of employment (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during or benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the Initial Payment Period that does related adverse taxation under Section 409A, such payments shall not exceed be provided prior to the Limit shall be paid at earliest of (i) the times set forth in Section 6(d)(i) or Section 6(e), as applicableexpiration of the six-month period measured from the date of separation from service, (ii) any portion the date of the Executive’s death or (iii) such payments that exceed earlier date as permitted under Section 409A without the Limit (and would have been payable during the Initial Payment Period but for the Limit) shall be paid, in lump sum, on imposition of adverse taxation. Upon the first business day after following the 6th month anniversary of Executive’s termination of employment, and (iii) any portion expiration of such period, all payments that are payable after deferred pursuant to the Initial Payment Period paragraph shall be paid at the times set forth in Section 6(d)(i) or Section 6(e)a lump sum, as applicable.
(d) With regard to and any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such remaining payments due shall be made paid as or otherwise provided herein. No interest shall be due on or before the last day of calendar year following the calendar year in which the expense occurredany amounts so deferred.
Appears in 1 contract
Section 409A Compliance. (a) The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or an exemption from Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Each payment under this Agreement shall be treated as a separate payment for For purposes of Section 409A.
(b) A this Agreement, all references to Employee’s termination of employment shall not means the date Employee ceases to be deemed to have occurred for purposes an employee of any provision of this Agreement providing for the payment of any amounts Employer or benefits upon or following a termination of employment unless such termination is also an Affiliate (defined below). Notwithstanding the preceding sentence, Employee must incur a “separation from service” within the meaning of as that term is defined in Section 409A andof the Internal Revenue Code of 1986, for purposes as amended (“Code”) and the Treasury regulations issued thereunder, to terminate employment under this Agreement. Hence, Employee shall not be deemed to terminate employment in the case of any departure or change in employment status if the Employer (or an Affiliate) and Employee anticipate that Employee will continue to provide services to the Employer or an Affiliate (as an employee or independent contractor) at a level in excess of 20% of the level of services being provided by Employee prior to such provision departure or change in status, as measured over the past three (3) years (or shorter period of this Agreementactual employment.) Further, references an employee who becomes an independent contractor to the Employer or an Affiliate and who does not incur a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
” upon becoming an independent contractor, shall not be deemed to terminate employment until the contractor relationship is completely terminated with no expectation by the Employer (cor an Affiliate) Notwithstanding anything herein to and the contraryemployee of any further service relationship. The term “Affiliate” means (a) each other corporation, in the event that Executive if any, which is a member of the same “specified Executivecontrolled group of corporations” as the Employer as determined under Code Section 414(b) (which incorporates the rules of Section 1563(a) of the Code), provided that in applying Code Section 1563(a)(1), (a)(2) and (a)(3) for this purpose, the language “at least 50 percent” shall be used instead of “at least 80 percent” each place it appears, and (b) each other trade or business (whether or not incorporated), if any, which is under “common control” (within the meaning of Section 409A) on the date of termination of Executive’s employment with the Company and the payments as such term is described in Section 6(d)(i414(c) or Section 6(e)of the Code) with the Employer, as applicableprovided that in applying Treasury regulation §1.414(c)-2 for this purpose, to be paid within the first 6 months following the date of such termination of employment (the language “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then (i) any portion of such payments that are payable during the Initial Payment Period that does not exceed the Limit at least 50 percent” shall be paid used instead of “at least 80 percent” each place it appears. Notwithstanding the times set forth in Section 6(d)(i) foregoing, the provisions of Treasury regulation §1.414(c)-5 shall also apply for determining whether a corporation, trade or Section 6(e), business is affiliated with the Employer. Any payment or benefit that Employee receives shall be treated as applicable, (ii) any portion of such payments that exceed the Limit (and would have been payable during the Initial Payment Period but a “separate payment” for the Limit) shall be paid, in lump sum, on the first business day after the 6th month anniversary application of Executive’s termination of employment, and (iii) any portion of such payments that are payable after the Initial Payment Period shall be paid at the times set forth in Section 6(d)(i) or Section 6(e), as applicable.
(d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.
Appears in 1 contract