Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above: (a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A. (b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution. (c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. (d) If the Employee is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement. (e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 3 contracts
Samples: Employment Agreement (Innovate Biopharmaceuticals, Inc.), Employment Agreement (Innovate Biopharmaceuticals, Inc.), Employment Agreement (Innovate Biopharmaceuticals, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second first calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. To the extent required by Section 409A, any portion of the severance benefits payable to Executive under Section 5(c)(ii) that are contingent on the Executive’s execution and non-revocation of the Release and that could be paid in the calendar year in which Executive terminates employment or in the immediately following calendar year, depending on when the Release becomes effective shall be paid on the first payroll date in such immediately following calendar year or such later date required by Section 5(c)(ii) (with all remaining payments of such severance benefits to be paid as if no such delay had occurred).
(d) If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 3 contracts
Samples: Executive Employment Agreement (Kiromic Biopharma, Inc.), Executive Employment Agreement (Kiromic Biopharma, Inc.), Executive Employment Agreement (Kiromic Biopharma, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second first calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. To the extent required by Section 409A, any portion of the severance benefits payable to Executive under Section 5(c)(ii) above that are contingent on the Executive’s execution and non-revocation of the Release and that could be paid in the calendar year in which Executive terminates employment or in the immediately following calendar year, depending on when the Release becomes effective shall be paid on the first payroll date in such immediately following calendar year to the extent required by Section 409A or such later date required by Section 5(c)(ii) above (with all remaining payments of such severance benefits to be paid as if no such delay had occurred).
(d) If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 2 contracts
Samples: Executive Employment Agreement (Kiromic Biopharma, Inc.), Executive Employment Agreement (Kiromic Biopharma, Inc.)
Section 409A Matters. This Restated Agreement It is intended that all of the severance benefits and other payments payable under the Original Letter, as amended by this Amended Letter, satisfy, to comply the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, will be construed and interpreted in a manner that makes such amounts compliant with the requirements Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of the Internal Revenue Code of 1986Treasury Regulation Section 1.409A-2(b)(2)(iii)), as amended and the Treasury Regulations and other applicable guidance thereunder your right to receive any installment payments hereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (severance payments, reimbursements or any of its provisionsotherwise) contravenes one or more requirements of Section 409A, such provision shall be interpreted treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and applied in a matter that does not result in a Section 409A violationdistinct payment. Without limiting Notwithstanding any provision to the generality contrary herein, if you are deemed by the Company at the time of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a your “separation from service” (as defined in under Treasury Regulation Section 409A. The Severance Benefits shall be deemed 1.409A-1(h) and without regard to alternate definitions thereunder, a “Separation from Service”) to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If the Employee is a “specified employee” (as defined in for purposes of Code Section 409A) on 409A(a)(2)(B)(i), and if any of the termination date and a payments or benefits due upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed payment commencement of any portion of such payments or benefits is required by Section 409A in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A such payments shall not be paid until provided to you prior to the earlier earliest of (i) the first day expiration of the 7th six-month following period measured from the date of Employee’s “separation your Separation from service” as defined in Section 409AService with the Company, or (ii) the date of Employee’s deathyour death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of the such applicable deferral Code Section 409A(a)(2)(B)(i) period, all payments deferred under pursuant to this clause paragraph shall be paid in a lump sum to you, and any remaining severance benefits payments due shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from as otherwise provided herein or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion applicable agreement. No interest shall be due on any amounts so deferred. For purposes of the Companythis Amended Letter, any reference to termination of employment shall be construed to mean a Separation from Service.
Appears in 2 contracts
Samples: Offer Letter (Acelrx Pharmaceuticals Inc), Offer Letter (Acelrx Pharmaceuticals Inc)
Section 409A Matters. This Restated (a) Notwithstanding any other provision in this Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986contrary, as amended if and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To to the extent that there Code Section 409A is deemed to apply to any ambiguity as benefit under this Agreement, it is the general intention of the Company that such benefits shall, to whether this Restated Agreement (the extent practicable, comply with, or any of its provisions) contravenes one or more requirements of be exempt from, Code Section 409A, and this Agreement shall, to the extent practicable, be construed in accordance therewith. Deferrals of benefits distributable pursuant to this Agreement that are otherwise exempt from Code Section 409A in a manner that would cause Code Section 409A to apply shall not be permitted unless such deferrals are in compliance with or otherwise exempt from Code Section 409A.
(b) Notwithstanding any other provision of this Agreement, no payments shall be interpreted made and applied in no benefits shall be provided under this Agreement as a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon Executive’s termination of employment unless Executive has a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series within the meaning of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Code Section 409A (as opposed to exempt from Section 409A)in connection with such termination of employment, and Executive and the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent Company acknowledge and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as agree that a result of an “involuntary separation from service” under Section 409Amay come before, if after or coincide with any such termination of employment and that the payments otherwise to be made at a termination of employment and that the benefits otherwise to be provided at a termination of employment shall only be made or provided at the time of the related “separation from service”. Furthermore, Executive and the Company acknowledge and agree that all conditions necessary or any part of any payment to establish be made or benefit to be provided to Executive during the six (6) month and one (1) day period which starts on the date Executive has a “separation from service” (other than by reason of Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits death) shall be delayed and then paid (in a lump sum without interest) or provided in full no later than December 31st (without interest) on the first business day which comes six (6) months and one (1) day after the date of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If “separation from service” if the Employee Company acting in good faith determines that Executive is a “specified employee” within in the meaning of Code Section 409A.
(as defined in Section 409Ac) on With respect to items eligible for reimbursement under the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409Aterms of this Agreement, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day amount of such expenses eligible for reimbursement in any taxable year shall not affect the 7th month following the date of Employee’s “separation from service” as defined expenses eligible for reimbursement in Section 409Aanother taxable year, or (ii) no such reimbursement may be exchanged or liquidated for another payment or benefit, and (iii) any reimbursements of such expenses shall be made as soon as practicable under the date of Employee’s death. Upon circumstances but in any event no later than the expiration end of the applicable deferral period, all calendar year following the calendar in which the related expenses were incurred.
(d) The Company and Executive intend that each installment of payments deferred and benefits provided under this clause Agreement shall be paid in treated as a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.separate identified payment for purposes of Code Section 409A.
(e) The Company makes no representation In the event that this Restated Agreement will be exempt from or compliant with Code Section 409A requires that any special terms, provision or conditions be included in this Agreement, then such terms, provisions and makes no affirmative undertaking conditions shall, to preclude the extent practicable, be deemed to be made a part of this Agreement, and terms used in this Agreement shall be construed in accordance with Code Section 409A from applying, but does reserve if and to the right to unilaterally amend extent required. Executive acknowledges and agrees that nothing in this Restated Agreement shall be construed as may be necessary or advisable to permit a covenant by the Agreement to be in documentary and operational compliance with Section 409A which determination Company that no payment will be made in or benefit will be provided under this Agreement which will be subject to taxation under Code Section 409A or as a guarantee or indemnity by the sole discretion of Company for the Companytax consequences to the payments and benefits called for under this Agreement including any tax consequences under Code Section 409A. Executive further agrees that Executive shall be the only person responsible for paying all taxes due with respect to such payments and benefits.
Appears in 2 contracts
Samples: Employment Agreement (Wingstop Inc.), Employment Agreement (Wingstop Inc.)
Section 409A Matters. This Restated (i) Payments pursuant to this Agreement is are intended to comply with or be exempt from Code Section 409A and accompanying Department of Treasury regulations and other interpretive guidance promulgated thereunder (collectively, “Section 409A”) and, to the extent applicable, the provisions of this Agreement will be administered, interpreted and construed accordingly. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be or become subject to Section 409A, the Company may unilaterally adopt such amendments to this Agreement and/or to adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A 409A; provided, however, that this Section 3(g) shall not create an obligation on the part of the Internal Revenue Code of 1986Company to adopt any such amendment, as amended and policy or procedure or take any such other action, nor shall the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is Company have any ambiguity as liability for failing to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distributiondo so.
(cii) To Executive shall have no right to specify the extent calendar year during which any payment hereunder shall be made. All reimbursements and in-kind benefits provided pursuant to this Agreement shall be made in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv) such that any reimbursements or in-kind benefits will be deemed payable at a specified time or on a fixed schedule relative to a permissible payment event. Specifically, (A) the Severance Benefits are intended to be exempt from Section 409A as a result amounts reimbursed and in-kind benefits under this Agreement during Executive’s taxable year may not affect the amounts reimbursed or in-kind benefits provided in any other taxable year, (B) the reimbursement of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish eligible expense shall be made on or before the last day of Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar taxable year following the calendar taxable year in which the Executive’s employment terminated unless expense was incurred, and (C) the right to reimbursement or an in-kind benefit is not subject to liquidation or exchange for another time period is applicablebenefit.
(diii) If Notwithstanding any provision of this Agreement to the Employee is a “specified employee” contrary, the Company and Executive agree that no benefit or benefits under this Agreement, including, without limitation, any severance payments or benefits payable under Section 3 hereof, shall be paid to Executive during the six (as defined 6)-month period following the Separation Date if paying such amounts at the time or times indicated in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid this Agreement would constitute a prohibited distribution under Section 409A409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, EXTERRAN CORPORATION PAGE 4 OF 12 CHANGE OF CONTROL AGREEMENT then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until on the first (1st) business day next following the earlier of (i) the first date that is six (6) months and one day of the 7th month following the date of EmployeeExecutive’s “separation from service” as defined in Section 409Atermination of employment, or (ii) the date of EmployeeExecutive’s death. Upon death or (iii) such earlier date as complies with the expiration requirements of Section 409A, the applicable deferral period, all payments deferred under this clause Company shall be paid in pay Executive a lump lump-sum and any remaining severance benefits shall be paid per amount equal to the schedule specified in this Restated Agreementcumulative amount that would have otherwise been payable to Executive during such period (without interest).
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 2 contracts
Samples: Change of Control Agreement (Exterran Corp), Change of Control Agreement (Exterran Corp)
Section 409A Matters. This Restated (a) Notwithstanding any other provision in this Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986contrary, as amended if and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To to the extent that there Code Section 409A is deemed to apply to any ambiguity as benefit under this Agreement, it is the general intention of the Company that such benefits shall, to whether this Restated Agreement (the extent practicable, comply with, or any of its provisions) contravenes one or more requirements of be exempt from, Code Section 409A, and this Agreement shall, to the extent practicable, be construed in accordance therewith. Deferrals of benefits distributable pursuant to this Agreement that are otherwise exempt from Code Section 409A in a manner that would cause Code Section 409A to apply shall not be permitted unless such deferrals are in compliance with or otherwise exempt from Code Section 409A.
(b) Notwithstanding any other provision of this Agreement, no payments shall be interpreted made and applied in no benefits shall be provided under this Agreement as a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon Executive’s termination of employment unless Executive has a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series within the meaning of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Code Section 409A (as opposed to exempt from Section 409A)in connection with such termination of employment, and Executive and the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent Company acknowledge and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as agree that a result of an “involuntary separation from service” under Section 409Amay come before, if after or coincide with any such termination of employment and that the payments otherwise to be made at a termination of employment and that the benefits otherwise to be provided at a termination of employment shall only be made or provided at the time of the related “separation from service”. Furthermore, Executive and the Company acknowledge and agree that all conditions necessary or any part of any payment to establish be made or benefit to be provided to Executive during the six (6) month and one (1) day period which starts on the date Executive has a “separation from service” (other than by reason of Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits death) shall be delayed and then paid (in a lump sum without interest) or provided in full no later than December 31st (without interest) on the first business day which comes six (6) months and one (1) day after the date of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If “separation from service” if the Employee Company acting in good faith determines that Executive is a “specified employee” within in the meaning of Code Section 409A.
(as defined in Section 409Ac) on With respect to items eligible for reimbursement under the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409Aterms of this Agreement, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day amount of such expenses eligible for reimbursement in any taxable year shall not affect the 7th month following the date of Employee’s “separation from service” as defined expenses eligible for reimbursement in Section 409Aanother taxable year, or (ii) no such reimbursement may be exchanged or liquidated for another payment or benefit, and (iii) any reimbursements of such expenses shall be made as soon as practicable under the date of Employee’s death. Upon circumstances but in any event no later than the expiration end of the applicable deferral period, all calendar year following the calendar in which the related expenses were incurred.
(d) The Company and Executive intend that each installment of payments deferred and benefits provided under this clause Agreement shall be paid in treated as a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.separate identified payment for purposes of Code Section 409A.
(e) The Company makes no representation In the event that this Restated Agreement will be exempt from or compliant with Code Section 409A requires that any special terms, provision or conditions be included in this Agreement, then such terms, provisions and makes no affirmative undertaking conditions shall, to preclude the extent practicable, be deemed to be made a part of this Agreement, and terms used in this Agreement shall be construed in accordance with Code Section 409A from applying, but does reserve if and to the right to unilaterally amend extent required.
(f) Executive acknowledges and agrees that nothing in this Restated Agreement shall be construed as may be necessary or advisable to permit a covenant by the Agreement to be in documentary and operational compliance with Section 409A which determination Company that no payment will be made in or benefit will be provided under this Agreement which will be subject to taxation under Code Section 409A or as a guarantee or indemnity by the sole discretion of Company for the Companytax consequences to the payments and benefits called for under this Agreement including any tax consequences under Code Section 409A. Executive further agrees that Executive shall be the only person responsible for paying all taxes due with respect to such payments and benefits.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (Wingstop Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. To the extent required by Section 409A, any portion of the severance benefits payable to Executive under Section 5(c)(ii) that are contingent on the Executive’s execution and non-revocation of the Release and that could be paid in the calendar year in which Executive terminates employment or in the immediately following calendar year, depending on when the Release becomes effective shall be paid on the first payroll date in such immediately following calendar year or such later date required by Section 5(c)(ii) (with all remaining payments of such severance benefits to be paid as if no such delay had occurred).
(d) If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Innovate Biopharmaceuticals, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. To the extent required by Section 409A, any portion of the severance benefits payable to Executive under Section 5(c)(ii) that are contingent on the Executive’s execution and non- revocation of the Release and that could be paid in the calendar year in which Executive terminates employment or in the immediately following calendar year, depending on when the Release becomes effective shall be paid on the first payroll date in such immediately following calendar year or such later date required by Section 5(c)(ii) (with all remaining payments of such severance benefits to be paid as if no such delay had occurred).
(d) If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Innovate Biopharmaceuticals, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any 21791365.5 238823-10002 compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second first calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. To the extent required by Section 409A, any portion of the severance benefits payable to Executive under Section 5(c)(ii) above that are contingent on the Executive’s execution and non-revocation of the Release and that could be paid in the calendar year in which Executive terminates employment or in the immediately following calendar year, depending on when the Release becomes effective shall be paid on the first payroll date in such immediately following calendar year to the extent required by Section 409A or such later date required by Section 5(c)(ii) above (with all remaining payments of such severance benefits to be paid as if no such delay had occurred).
(d) If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Kiromic Biopharma, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above::
(a) a. For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.409A.
(b) To x. Xx the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution..
(c) To x. Xx the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second first calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. To the extent required by Section 409A, any portion of the severance benefits payable to Executive under Section 5(c)(ii) that are contingent on the Executive’s execution and non-revocation of the Release and that could be paid in the calendar year in which Executive terminates employment or in the immediately following calendar year, depending on when the Release becomes effective shall be paid on the first payroll date in such immediately following calendar year or such later date required by Section 5(c)(ii) (with all remaining payments of such severance benefits to be paid as if no such delay had occurred).
(d) d. If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement..
(e) e. The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company..
Appears in 1 contract
Samples: Executive Employment Agreement (Kiromic Biopharma, Inc.)
Section 409A Matters. This Restated (a) Notwithstanding any other provision in this Agreement is intended to comply with the requirements of contrary, if and to the extent that Section 409A of the Internal Revenue Code is deemed to apply to any payment or benefit under this Agreement, it is the general intention of 1986the Company that such payment or benefit shall, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To to the extent practicable, comply with, or be exempt from, Section 409A of the Code, and this Agreement shall, to the extent practicable, be construed in accordance with such intent. Deferrals of payments or benefits distributable pursuant to this Agreement that there is are otherwise exempt from Section 409A of the Code in a manner that would cause Section 409A of the Code to apply shall not be permitted unless such deferrals are in compliance with or otherwise exempt from Section 409A of the Code.
(b) Notwithstanding any ambiguity as to whether other provision of this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409AAgreement, such provision no payments shall be interpreted made and applied in no benefits shall be provided under this Agreement as a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon Executive’s termination of employment unless such termination of employment constitutes a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series within the meaning of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A)of the Code, and Executive and the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent Company acknowledge and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as agree that a result of an “involuntary separation from service” under Section 409Amay come before, if after or coincide with any such termination of employment and that the payments otherwise to be made at a termination of employment and the benefits otherwise to be provided at a termination of employment shall only be made or provided at the time of the related “separation from service”. Furthermore, Executive and the Company acknowledge and agree that all conditions necessary or any part of any deferred compensation payment to establish be made or benefit to be provided to Executive during the six (6) month and one (1) day period which starts on the date Executive has a “separation from service” (other than by reason of Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits death) shall be delayed and then paid (in a lump sum without interest) or provided in full no later than December 31st (without interest) on the first business day which comes six (6) months and one (1) day after the date of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If “separation from service” if the Employee Company acting in good faith determines that Executive is a “specified employee” (as defined in within the meaning of Section 409A) on 409A of the termination date Code and a delayed payment that such delay is required by to comply with Section 409A of the Code.
(c) With respect to avoid a prohibited distribution items eligible for reimbursement under Section 409Athe terms of this Agreement, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day amount of such expenses eligible for reimbursement in any taxable year shall not affect the 7th month following the date of Employee’s “separation from service” as defined expenses eligible for reimbursement in Section 409Aanother taxable year, or (ii) no such reimbursement may be exchanged or liquidated for another payment or benefit, and (iii) any reimbursements of such expenses shall be made as soon as practicable under the date of Employee’s death. Upon circumstances but in any event no later than the expiration end of the applicable deferral period, all calendar year following the calendar in which the related expenses were incurred.
(d) The Company and Executive intend that each installment of payments deferred and benefits provided under this clause Agreement shall be paid in treated as a lump sum and any remaining severance benefits shall be paid per separate identified payment for purposes of Section 409A of the schedule specified in this Restated AgreementCode.
(e) The Company makes no representation In the event that Section 409A of the Code requires that any special terms, provision or conditions be included in this Restated Agreement, then such terms, provisions and conditions shall, to the extent practicable, be deemed to be made a part of this Agreement, and terms used in this Agreement will shall be exempt from or compliant construed in accordance with Section 409A of the Code if and makes to the extent required.
(f) Executive acknowledges and agrees that nothing in this Agreement shall be construed as a covenant by the Company that no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination payment will be made in the sole discretion or benefit will be provided under this Agreement which will be subject to taxation under Section 409A of the CompanyCode or as a guarantee or indemnity by the Company for the tax consequences to the payments and benefits called for under this Agreement including any tax consequences under Section 409A of the Code. Executive further agrees that Executive shall be the only person responsible for paying all taxes due with respect to such payments and benefits.
Appears in 1 contract
Samples: Employment Agreement (Wingstop Inc.)
Section 409A Matters. This Restated Agreement is intended (a) For purposes of this Agreement, no payment will be made to comply with Employee upon termination of Employee’s employment unless such termination constitutes a “separation from service” within the requirements meaning of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance BenefitsCode”), and Section 1.409A-1(h) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.regulations promulgated thereunder.
(b) To the extent any payments to which Employee becomes entitled under this Restated Agreement contains payments which are agreement, or any agreement or plan referenced herein, in connection with Employee’s separation from service from the Company constitute deferred compensation subject to Section 409A of the Code (as opposed to exempt from Section 409Athe “Deferred Payments”), the Executive’s rights to such payments are will be paid on, or in the case of installments, will not subject commence, until the sixtieth (60th) day following Employee’s separation from service, or if later, such time as required by Section 6(c). Except as required by 6(c), any installment payments that would have been made to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only Employee during the sixty (60) day period immediately following Employee’s separation from service but for the preceding sentence will be transferred by paid to Employee on the sixtieth (60th) day following Employee’s separation from service and the remaining payments will or the laws of descent and distributionbe made as provided herein.
(c) To If Employee is deemed at the extent the Severance Benefits are intended time of such separation from service to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If the Employee is a “specified employeespecified” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” employee under Section 409A of the Code, then any Deferred Payment(s) shall not be paid made or commence until the earlier earliest of (i) the first day expiration of the 7th month following six (6)‑month period measured from the date of Employee’s “separation from service” (as such term is at the time defined in Treasury Regulations under Section 409A, 409A of the Code with the Company or (ii) the date of Employee’s deathdeath following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Employee, including (without limitation) the additional twenty percent (20%) tax for which Employee would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, all any payments deferred under which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this clause paragraph shall be paid to Employee or Employee’s beneficiary in a one lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreementsum.
(ed) The To the extent any payments to which Employee becomes entitled under this agreement, or any agreement or plan referenced herein, in connection with Employee’s separation from service from the Company makes no representation that this Restated Agreement will be exempt from or compliant with constitute deferred compensation subject to Section 409A of the Code, the Employee and makes no affirmative undertaking the Company may make changes to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary avoid adverse tax consequences under Section 409A. Each payment and operational compliance with benefit payable hereunder is intended to constitute a separate payment for purposes of Section 409A which determination will be made in the sole discretion 1.409A-2(b)(2) of the CompanyTreasury Regulations.
Appears in 1 contract
Samples: Employment Agreement (Splunk Inc)
Section 409A Matters. This Restated Employee and the Company agree that this Agreement is intended to comply with the requirements of Section 409A and the regulations promulgated thereunder or an exemption from Section 409A. In the event that after execution of this Agreement either Employee or the Company makes a determination inconsistent with the preceding sentence, Employee or the Company shall promptly notify the other of the Internal Revenue Code basis for her or its determination. The parties agree to renegotiate in good faith the timing of 1986, the payments to be made under this Agreement (but not the amounts of such payments) if it is mutually determined that this Agreement as amended structured would have adverse tax consequences to Employee. Employee and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent Company agree that there is any ambiguity as all payments to whether be made upon a termination of employment under this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall may only be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable made upon a “separation from service” as defined in under Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time Employee acknowledges and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, agrees if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If the Employee is a “specified employee” (as defined in Section 409A) on within the termination date and a delayed payment is required by meaning of Section 409A and the final regulations and any guidance promulgated thereunder at the time of Employee’s termination, any payment to avoid a prohibited distribution under be made or benefit to be provided to Employee pursuant to Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall 2 will be paid delayed until the earlier of (ia) the first payroll date that occurs on or after the date six (6) months and one (1) day of the 7th month following the date of Employee’s “separation from service” , and (b) within 10 business days of Employee’s death occurring after the separation from service date, to the extent necessary for this Agreement and such payment or benefit to comply with Section 409A; provided that, if any payment to be made or benefit to be provided to Employee is delayed as defined a result of this Section 17, such delayed payment or benefit will be paid to Employee in a lump-sum as soon as permitted under Section 409A. Nothing set forth in this Section 17 shall be construed to modify or limit the provisions of Section 1(b). For purposes of this Agreement, each amount to be paid or benefit to be provided hereunder shall be construed as a separate identified payment for purposes of Section 409A. In addition, if the Company reasonably determines that a change in applicable law following the date of this Agreement causes the payments to be made or benefits to be provided to be payable to Employee without delay but in another manner that complies with Section 409A, or (ii) Employee and the date of Employee’s death. Upon Company agree to amend this Agreement to reform the expiration of payment provisions set forth in Section 2 to provide to Employee economic benefits that are as close as reasonably possible to those contemplated by Section 2 but that still comply with Section 409A. Subject to the applicable deferral periodforegoing, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with interpreted, construed and administered in a manner that satisfies the requirements of Section 409A so that none of the retirement payments and makes no affirmative undertaking benefits to preclude be provided hereunder will be subject to the additional tax imposed under Section 409A from applying, but does reserve 409(a) (1) of the right Code and any ambiguities herein will be interpreted to unilaterally amend so comply. Notwithstanding the parties’ intent and commitment to work together to effect amendments of this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational ensure its compliance with the requirements of Section 409A which determination will 409A, should it be made in the sole discretion of the Companydetermined that any payment or benefit provided hereunder is subject to Section 409A(a)(1), Employee shall be responsible for any resulting additional tax or penalties legally applied to her thereunder.
Appears in 1 contract
Samples: Retirement Agreement (Alfacell Corp)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. To the extent required by Section 409A, any portion of the severance benefits payable to Executive under Section 5(c)(ii) that are contingent on the Executive’s execution and non-revocation of the Release and that could be paid in the calendar year in which Executive terminates employment or in the immediately following calendar year, depending on when the Release becomes effective shall be paid on the first payroll date in such immediately following calendar year or such later date required by Section 5(c)(ii) (with all remaining payments of such severance benefits to be paid as if no such delay had occurred).
(d) If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Innovate Biopharmaceuticals, Inc.)
Section 409A Matters. This Restated (i) Payments pursuant to this Agreement is are intended to comply with or be exempt from Code Section 409A and accompanying Department of Treasury regulations and other interpretive guidance promulgated thereunder (collectively, “Section 409A”) and, to the extent applicable, the provisions of this Agreement will be administered, interpreted and construed accordingly. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be or become subject to Section 409A, the Company may unilaterally adopt such amendments to this Agreement and/or to adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A 409A; provided, however, that this Section 3(g) shall not create an obligation on the part of the Internal Revenue Code of 1986Company to adopt any such amendment, as amended and policy or procedure or take any such other action, nor shall the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is Company have any ambiguity as liability for failing to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distributiondo so.
(cii) To Executive shall have no right to specify the extent calendar year during which any payment hereunder shall be made. All reimbursements and in-kind benefits provided pursuant to this Agreement shall be made in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv) such that any reimbursements or in-kind benefits will be deemed payable at a specified time or on a fixed schedule relative to a permissible payment event. Specifically, (A) the Severance Benefits are intended to be exempt from Section 409A as a result amounts reimbursed and in-kind benefits under this Agreement during Executive’s taxable year may not affect the amounts reimbursed or in-kind benefits provided in any other taxable year, (B) the reimbursement of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish eligible expense shall be made on or before the last day of Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar taxable year following the calendar taxable year in which the Executive’s employment terminated unless expense was incurred, and (C) the right to reimbursement or an in-kind benefit is not subject to liquidation or exchange for another time period is applicablebenefit.
(diii) If Notwithstanding any provision of this Agreement to the Employee is a “specified employee” contrary, the Company and Executive agree that no benefit or benefits under this Agreement, including, without limitation, any severance payments or benefits payable under Section 3 hereof, shall be paid to Executive during the six (as defined 6)-month period following the Separation Date if paying such amounts at the time or times indicated in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid this Agreement would constitute a prohibited distribution under Section 409A409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until on the first (1st) business day next following the earlier of (i) the first date that is six (6) months and one day of the 7th month following the date of EmployeeExecutive’s “separation from service” as defined in Section 409Atermination of employment, or (ii) the date of EmployeeExecutive’s death. Upon death or (iii) such earlier date as complies with the expiration requirements of Section 409A, the applicable deferral period, all payments deferred under this clause Company shall be paid in pay Executive a lump lump-sum and any remaining severance benefits shall be paid per amount equal to the schedule specified in this Restated Agreementcumulative amount that would have otherwise been payable to Executive during such period (without interest).
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). a. To the extent that there is any ambiguity as to whether applicable, this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision Plan shall be interpreted and applied consistent and in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, accordance with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), 409A. Notwithstanding any provision of this Plan to the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409Acontrary, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid Company determines that any compensation or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If the Employee is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred benefits payable under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will Plan may not either be exempt from or compliant with Section 409A 409A, the Company may, with the Executive’s prior written consent, adopt such amendments to this Plan or adopt other policies and makes no affirmative undertaking procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to preclude (i) exempt the compensation and benefits payable under this Plan from Section 409A from applyingand/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A; provided, however, that this Section 16(a) does not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, and in any event, no such action shall reduce the amount of compensation that is owed to the Executive under this Plan without the Executive’s prior written consent.
b. To the extent permitted under Section 409A, any separate payment or benefit under this Plan or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A.
c. To the extent that any payments or reimbursements provided to the Executive under this Plan are deemed to constitute compensation to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed to the Executive reasonably promptly, but does reserve not later than December 31 of the year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to unilaterally amend such payments or reimbursement shall not be subject to liquidation or exchange for any other benefit.
d. For purposes of Section 409A, the Executive’s right to receive any installment payments under this Restated Agreement Plan shall be treated as may a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be necessary or advisable to permit the Agreement to be in documentary considered a separate and operational compliance with Section 409A which determination will be made in the sole discretion of the Companydistinct payment.
Appears in 1 contract
Samples: Separation Benefits Plan and Employment Agreement (Waste Connections, Inc.)
Section 409A Matters. This Restated Agreement is intended Payments to comply with the requirements Employee under Section 5.2 (or, if applicable, under Section 6.1 in lieu of Section 5.2)shall be bifurcated into two portions, consisting of the portion, if any, that includes the maximum amount of the payments that does not constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations portion, if any, that includes the excess of the total payments and other applicable guidance thereunder (“Section 409A”)that does constitute nonqualified deferred compensation. To Payments shall first be made from the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter portion that does not result in a Section 409A violation. Without limiting the generality consist of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits nonqualified deferred compensation until such portion is exhausted and then shall be deemed to be series of separate paymentsmade from the portion that does constitute nonqualified deferred compensation. Notwithstanding the foregoing, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If because the Employee is a “specified employee” (as defined in Section 409A409A(a)(3)(B)(i) on of the Code, the commencement of the delivery of the portion that constitutes nonqualified deferred compensation will be delayed to the date that is 6 months and one day after the Employee’s termination date and a of employment (the “Earliest Payment Date”). Any payments that are delayed payment is required by Section 409A pursuant to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A the preceding sentence shall be paid until pro rata during the earlier period beginning on the Earliest Payment Date and ending on the date that is 12 months following termination of (ithe Employee’s employment. The determination of whether, and the extent to which, any of the payments to be made to the Employee hereunder are nonqualified deferred compensation shall be made after the application of all applicable exclusions under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended to qualify for the exclusion for separation pay due to involuntary separation from service set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the first last day of the 7th month second taxable year of the Employee following the date taxable year of the Employee in which the Employee’s “separation from service” as defined in Section 409A, or (ii) the date termination of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreementemployment occurs.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Employment Agreement (Oclaro, Inc.)
Section 409A Matters. This Restated Notwithstanding anything else provided herein, to the extent any payments provided under this Amended Agreement is intended in connection with Executive’s termination of employment constitute deferred compensation subject to comply with the requirements of Section 409A of the Internal Revenue Code Code, and Executive is deemed at the time of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as such termination of employment to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the specified Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish then such payment shall not be made or commence until the earlier of (i) the expiration of the 6-month period measured from Executive’s entitlement separation from service from the Company or (ii) the date of Executive’s death following such a separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive including, without limitation, the additional twenty-percent (20%) tax for which Executive would otherwise be liable under Section 409A(a)(1)(B) in the absence of such Severance Benefits a deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been satisfiedpaid during the period between Executive’s termination of employment and the first payment date but for the application of this provision, all Severance Benefits shall be paid or provided in full no later than December 31st and the balance of the second installments (if any) will be payable in accordance with their original schedule. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Amended Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the Executive’s employment terminated unless provision of any in-kind benefit be subject to liquidation or exchange for another time period benefit. To the extent that any provision of this Amended Agreement is applicable.
(d) If the Employee is a “specified employee” (ambiguous as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under its compliance with Section 409A, then no Severance Benefits the provision will be read in such a manner so that constitute all payments hereunder comply with Section 409A. To the extent any payment under this Amended Agreement may be classified as a “nonshort-qualified deferred compensationterm deferral” under Section 409A shall be paid until within the earlier meaning of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause such payment shall be paid in deemed a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt short-term deferral, even if it may also qualify for an exemption from or compliant with Section 409A and makes no affirmative undertaking to preclude under another provision of Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.409A.
Appears in 1 contract
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations and other applicable guidance thereunder its corresponding regulations (“Section 409A”). To the extent that there is any ambiguity as to whether , or an exemption thereto, and payments may only be made under this Restated Agreement (or any of its provisions) contravenes one or more requirements of upon an event and in a manner permitted by Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral applicable. Separation Benefits provided under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as under the “separation pay exception” to the maximum extent applicable. Further, any payments that qualify for the “short-term deferral” exception or another exception under Section 409A shall be paid under the applicable exception. All separation payments to be made upon a result termination of an employment under this Agreement may only be made upon a “involuntary separation from service” under Section 409A. For purposes of Section 409A, if all conditions necessary the right to establish a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event may the Executive’s entitlement , directly or indirectly, designate the calendar year of a payment. If a payment that is subject to such Severance Benefits have been satisfiedexecution of the release could be made in more than one taxable year, all Severance Benefits payment shall be paid made in the later taxable year. All reimbursements and in-kind benefits provided under the Agreement shall be made or provided in full accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than December 31st the last day of the second calendar year following the calendar year in which the Executive’s employment terminated unless expense is incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another time period is applicable.
(d) benefit. If the Employee Executive is treated as a “specified employee” (as defined determined by the Company in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” its discretion in accordance with applicable regulations under Section 409A shall of the Code) at the time of his or her separation from service (within the meaning of Section 409A of the Code) from the Company and each employer treated as a single employer with the Company under Section 414(b) or (c) of the Code, and if any amount(s) of nonqualified deferred compensation (within the meaning of Section 409A of the Code) are payable under this Agreement by reason of the Employee’s separation from service, then payment of the amounts so treated as nonqualified deferred compensation which would otherwise be paid payable during the six month period following the Employee’s separation from service will be delayed until the earlier of (i) the first business day of the 7th month which is at least six months and one day following the date of Employee’s “such separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration death of the applicable deferral periodEmployee, all payments deferred or (iii) such earlier date on which payment is permitted under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(eSection 409A(a)(2)(B) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the CompanyCode.
Appears in 1 contract
Section 409A Matters. This Restated (a) Notwithstanding any term or condition in the Agreement to the contrary, if the Employee is intended to comply with a “specified employee” (within the requirements meaning of Section 409A 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder amended, (“Section 409ACode”)) at the time of his termination of employment with the Employers and is entitled to payments under the Agreement which are on account of “involuntary separation of service” within the meaning of Treasury Regulation Section 1.409A-1(n), amounts payable to the Employee, notwithstanding anything in this Agreement to the contrary, during the first six (6) consecutive months immediately following the month in which such termination of employment occurs shall be suspended after the total of such payments equal the lesser of the amount specified under Treasury Regulation 1.409A-1(a)(9)(iii)(A)(1) or (2). If the Employee is such a “specified employee” at the time of his termination of employment with the Employers and is entitled to payments under the Agreement which are not on account of such “involuntary separation of service”, amounts payable to the Employee, notwithstanding anything in this Agreement to the contrary, during the first six (6) consecutive months immediately following the month in which such termination of employment occurs shall be suspended. To the extent that there is any ambiguity such payments payable during such six (6) month period are suspended as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409Aprovided herein, such provision amounts shall be interpreted and applied paid in a matter that does not result in a Section 409A violation. Without limiting the generality single sum as of the above:
first regular payroll date of the applicable entity of Holdings, immediately following the last day of the sixth consecutive month immediately following the month in which such termination of employment occurs, along with interest on such suspended amounts at the rate of twelve percent (a12%) For clarity, per annum from the severance benefits specified date such amounts would have otherwise been paid but to the date they are paid. Payments otherwise payable after such six (6) month period shall be made as otherwise provided in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.Agreement.
(b) To Notwithstanding any inconsistent provision in the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A)Agreement, the ExecutiveEmployee’s rights to expense account reports must be submitted no later than January 31 immediately following the calendar year in which his termination of employment with the Employers occurs and such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only reimbursements must be transferred by will or paid no later than March 15 immediately following the laws calendar year in which such termination of descent and distributionemployment occurs.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If the Employee is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day Agreement affords Employee the right to elect the timing for distribution of the 7th month following the date payments for termination of Employee’s “separation from service” as defined in Section 409A, or employment described herein and (ii) the date of Employee’s death. Upon the expiration an election is required under Section 409(a) of the Code and applicable deferral periodregulations to avoid penalties or excise taxes, all payments deferred under this clause shall be paid Employee hereby elects payment in a lump sum and any remaining severance benefits shall be paid per sum, in accordance with the schedule specified in this Restated Agreementapplicable law and/or regulations.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Thermadyne Australia Pty Ltd.)
Section 409A Matters. This Restated Agreement is intended Payments to comply with the requirements Employee under Section 6.2 or 6.3 (or, if applicable, under Section 7.1 in lieu of Section 6.2) shall be bifurcated into two portions, consisting of the portion, if any, that includes the maximum amount of the payments that does not constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations portion, if any, that includes the excess of the total payments and other applicable guidance thereunder (“Section 409A”)that does constitute nonqualified deferred compensation. To Payments shall first be made from the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter portion that does not result in a Section 409A violation. Without limiting the generality consist of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits nonqualified deferred compensation until such portion is exhausted and then shall be deemed to be series of separate paymentsmade from the portion that does constitute nonqualified deferred compensation. Notwithstanding the foregoing, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If because the Employee is a “specified employee” (as defined in Section 409A409A(a)(3)(B)(i) on of the Code, the commencement of the delivery of the portion that constitutes nonqualified deferred compensation will be delayed to the date that is 6 months and one day after the Employee’s termination date and a of employment (the “Earliest Payment Date”). Any payments that are delayed payment is required by Section 409A pursuant to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A the preceding sentence shall be paid until pro rata during the earlier period beginning on the Earliest Payment Date and ending on the date that is 12 months following termination of (ithe Employee’s employment. The determination of whether, and the extent to which, any of the payments to be made to the Employee hereunder are nonqualified deferred compensation shall be made after the application of all applicable exclusions under Treasury Reg. Section 1.409A-1(b)(9). Any payments that are intended to qualify for the exclusion for separation pay due to involuntary separation from service set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the first last day of the 7th month second taxable year of the Employee following the date taxable year of the Employee in which the Employee’s “separation from service” as defined in Section 409A, or (ii) the date termination of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreementemployment occurs.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Employment Agreement (Oclaro, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:: H#628229
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If the Employee is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employeethe Executive’s “separation from service” as defined in Section 409A, or (ii) the date of Employeethe Executive’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Clearside Biomedical, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If the Employee is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th seventh month following the date of Employeethe Executive’s “separation from service” as defined in Section 409A, or (ii) the date of Employeethe Executive’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the this Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“"Section 409A”"). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “"Severance Benefits”") are only payable upon a “"separation from service” " as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s 's rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “"involuntary separation from service” " under Section 409A, if all conditions necessary to establish the Executive’s 's entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s 's employment terminated unless another time period is applicable.
(d) If the Employee is a “"specified employee” " (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “"non-qualified deferred compensation” " under Section 409A shall be paid until the earlier of (i) the first day of the 7th ?111 month following the date of Employee’s “the Executive's "separation from service” " as defined in Section 409A, or (ii) the date of Employee’s the Executive's death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Clearside Biomedical, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second first calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable. To the extent required by Section 409A, any portion of the severance benefits payable to Executive under Section 5(c)(ii) above that are contingent on the Executive’s execution and non-revocation of the Release and that could be paid in the calendar year in which Executive terminates employment or in the immediately following calendar year, depending on when the Release becomes effective shall be paid on the first payroll date in such immediately following calendar year to the extent required by Section 409A or such later date required by Section 5(c)(ii) above (with all remaining payments of such severance benefits to be paid as if no such delay had occurred).
(d) If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employee’s “separation from service” as defined in Section 409A, or (ii) the date of Employee’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Kiromic Biopharma, Inc.)
Section 409A Matters. This Restated Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other applicable guidance thereunder (“Section 409A”). To the extent that there is any ambiguity as to whether this Restated Agreement (or any of its provisions) contravenes one or more requirements of Section 409A, such provision shall be interpreted and applied in a matter that does not result in a Section 409A violation. Without limiting the generality of the above:
(a) For clarity, the severance benefits specified in this Restated Agreement (the “Severance Benefits”) are only payable upon a “separation from service” as defined in Section 409A. The Severance Benefits shall be deemed to be a series of separate payments, with each installment being treated as a separate payment. The time and form of payment of any compensation may not be deferred or accelerated to the extent it would result in an impermissible acceleration or deferral under Section 409A.
(b) To the extent this Restated Agreement contains payments which are subject to Section 409A (as opposed to exempt from Section 409A), the Executive’s rights to such payments are not subject to anticipation, alienation, sale, transfer, pledge, encumbrance, attachment or garnishment and, where applicable, may only be transferred by will or the laws of descent and distribution.
(c) To the extent the Severance Benefits are intended to be exempt from Section 409A as a result of an “involuntary separation from service” under Section 409A, if all conditions necessary to establish the Executive’s entitlement to such Severance Benefits have been satisfied, all Severance Benefits shall be paid or provided in full no later than December 31st of the second calendar year following the calendar year in which the Executive’s employment terminated unless another time period is applicable.
(d) If the Employee Executive is a “specified employee” (as defined in Section 409A) on the termination date and a delayed payment is required by Section 409A to avoid a prohibited distribution under Section 409A, then no Severance Benefits that constitute “non-qualified deferred compensation” under Section 409A shall be paid until the earlier of (i) the first day of the 7th month following the date of Employeethe Executive’s “separation from service” as defined in Section 409A, or (ii) the date of Employeethe Executive’s death. Upon the expiration of the applicable deferral period, all payments deferred under this clause shall be paid in a lump sum and any remaining severance benefits shall be paid per the schedule specified in this Restated Agreement.
(e) To the extent that any severance payments are deferred compensation under Section 409A, and are not otherwise exempt from the application of Section 409A, then, if the period during which the Executive may consider and sign the Release spans two calendar years, the payment of severance will not be made or begin until the later calendar year.
(f) The Company makes no representation that this Restated Agreement will be exempt from or compliant with Section 409A and makes no affirmative undertaking to preclude Section 409A from applying, but does reserve the right to unilaterally amend this Restated Agreement as may be necessary or advisable to permit the Agreement to be in documentary and operational compliance with Section 409A which determination will be made in the sole discretion of the Company.
Appears in 1 contract
Samples: Executive Employment Agreement (Clearside Biomedical, Inc.)
