Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 9 contracts
Samples: Severance Agreement (Terreno Realty Corp), Severance Agreement (Terreno Realty Corp), Severance Agreement (Terreno Realty Corp)
Section 409A. (a) Anything The parties intend that this Agreement and the payments and benefits provided hereunder be exempt from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to this Agreement, the parties intend that this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary notwithstanding, contrary:
(i) if at the time Executive is deemed on the date of the Executive’s separation from service termination to be a "specified employee" within the meaning of that term under Section 409A, then with regard to any payment that is considered a "deferral of compensation" under Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement payable on account of the Executive’s a "separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service," such payment shall not be payable and such benefit shall not be provided until made on the date that which is the earlier of (A) the date that is six months and one day after the Executive’s date of such "separation from service, or " of the Executive and (B) the date of the Executive’s death. If any 's death (the "Delay Period"), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 13(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delayed cash payment is otherwise payable on an installment basis, delay) shall be paid to the first payment shall include Executive in a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provisionlump sum, and the balance of the installments all remaining payments due under this Agreement shall be payable paid or provided in accordance with their original schedule.the normal payment dates specified for those payments in this Agreement;
(bii) To to the extent that any payment payments or benefit described in benefits under this Agreement constitutes “nonare conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 60-qualified deferred compensation” under day post-termination period, then, subject to Section 409A of the Code, 13(b)(i) and to the extent that such payment or benefit is payable upon the Executive’s termination of employmentnot exempt under Section 409A, then such payments or benefits shall be payable only upon made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive’s “;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, and the Executive's right to reimbursement shall not be subject to liquidation or exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive's right to receive a series of installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within 30 days"), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a "deferral of compensation" for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service" within the meaning of Section 409A, and for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)."
(c) The parties intend that Company and the Executive agree to work together in good faith to consider amendments to this Agreement will and to take such reasonable actions that may be administered necessary, appropriate, or desirable to avoid imposition of additional tax or income recognition on the Executive under Section 409A, in accordance with Section 409A of each case to the Codemaximum extent permitted by applicable law. To the extent that Notwithstanding any provision of this Agreement is ambiguous as to its compliance with the contrary, (i) in no event will the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Code. The parties agree Company or any of its employees, officers, directors or agents in the event it is determined that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully any payment or benefit provided hereunder does not comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 9 contracts
Samples: Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
Section 409A. (a) Anything in this Agreement Notwithstanding any provision to the contrary notwithstandingin this Agreement, if Executive is deemed at the time of his Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code which would subject Executive to a tax obligation under Section 409A of the Code, such portion of Executive’s separation benefits shall not be provided to Executive prior to the earlier of (i) the expiration of the six- month period measured from service the date of Executive’s Separation from Service or (ii) the date of Executive’s death. Upon the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 4.3(a) shall be paid in a lump sum to Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein.
(b) Any reimbursements payable to Executive pursuant to the Agreement shall be paid to Executive no later than 30 days after Executive provides the Company with a written request for reimbursement, and to the extent that any such reimbursements are deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the CodeCode (i) such amounts shall be paid or reimbursed to Executive promptly, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) but in no event later than December 31 of the Codeyear following the year in which the expense is incurred, then to (ii) the extent amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or benefit that the Executive becomes entitled to under this Agreement on account of the reimbursement in any other taxable year, and (iii) Executive’s separation from service would be considered deferred compensation subject right to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment payments or reimbursement shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, subject to liquidation or (B) the Executive’s death. If exchange for any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)other benefit.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive installment payments under the Agreement shall be 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 all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either partydistinct payment.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 9 contracts
Samples: Executive Employment Agreement (F45 Training Holdings Inc.), Executive Employment Agreement (F45 Training Holdings Inc.), Executive Employment Agreement (F45 Training Holdings Inc.)
Section 409A. (a) Anything in It is intended that each installment of the payments provided under this Agreement, if any, is a separate “payment” for purposes of Section 409A and the payments satisfy, to 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)(9)(iii) and 1.409A-1(b)(9)(v). Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement to providing for the contrary notwithstanding, if at payment of “deferred compensation” (as such term is defined in Section 409A and the time Treasury Regulations promulgated thereunder) upon or following a termination of the Executive’s employment unless such termination is also a “separation from service service” from the Company within the meaning of Section 409A and Section 1.409A-1(h) of the CodeTreasury Regulations and, for purposes of any such provision of this Agreement, references to a “separation,” “termination,” “termination of employment” or like terms shall mean “separation from service.”
(b) Notwithstanding anything to the contrary in this Agreement, if the Company determines (i) that on the date his employment with the Company terminates or at such other time that the Company determines to be relevant, Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i(as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of the Code, then Company and (ii) that any payments to the extent any payment or benefit that the Executive becomes entitled be provided to under him pursuant to this Agreement on account of the Executive’s separation from service would be considered deferred compensation are or may become subject to the 20 percent additional tax under Section 409A(a)(1)(B) or any other taxes or penalties imposed pursuant to under Section 409A(a) of 409A if provided at the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Codetime otherwise required under this Agreement, then such payment payments shall not be payable and such benefit shall not be provided delayed until the date that is the earlier of (A) six months and one day after the Executive’s date of his “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) with the Company, or (B) or, if earlier, the Executive’s date of his death. If any such Any payments delayed cash payment is otherwise payable pursuant to this Section shall be made in a lump sum on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance business day of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the seventh month following Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in (as such term is defined under Treasury Regulation Section 1.409A-1(h)), or, if earlier, the date of his death.
(c) The parties intend In addition, to the extent that any reimbursement, fringe benefit or other, similar plan or arrangement in which Executive participates during the term of his employment under this Agreement will or thereafter provides for a “deferral of compensation” within the meaning of Section 409A, then such amount shall be administered reimbursed in accordance with Section 409A 1.409A-3(i)(1)(iv) of the Code. To Treasury Regulations, including (i) the extent amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), (ii) subject to any provision shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of this Agreement is ambiguous as to its compliance with Section 409A an expense under such plan or arrangement must be made on or before the last day of the Code, calendar year following the provision shall be read calendar year in such a manner so that all payments hereunder comply with Section 409A of which the Code. The parties agree that this Agreement may be amended, as reasonably requested by either partyexpense was incurred, and as may be necessary (iii) the right to fully comply with Section 409A of the Code and all related rules and regulations in order any reimbursement or in-kind benefit is not subject to preserve the payments and benefits provided hereunder without additional cost to either partyliquidation or exchange for another benefit.
(d) The For the avoidance of doubt, any payment due under this Agreement within a period following Executive’s termination of employment or other event, shall be made on a date during such period as determined by the Company makes no representation or warranty and shall have no liability in its sole discretion.
(e) Notwithstanding any other provision to the Executive or contrary, in no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Section 409A and the Treasury Regulations promulgated thereunder be subject to offset by any other person amount unless otherwise permitted by Section 409A.
(f) This Agreement is intended to comply with the applicable requirements under Section 409A and the related Treasury Regulations and guidance issued by the Department of the Treasury, as modified from time to time, including exceptions and exemptions provided for therein (the “409A Requirements”). Accordingly, this Agreement shall be administered, construed and interpreted in a manner to comply with the 409A Requirements. Specifically, and without limiting the foregoing, if any provisions of terms set forth in this Agreement are determined considered to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions ofbe ambiguous, such Sectionterms shall be administered, construed and interpreted in a manner to comply with the 409A Requirements.
Appears in 9 contracts
Samples: Executive Employment Agreement (Delek US Holdings, Inc.), Executive Employment Agreement (Delek US Holdings, Inc.), Executive Employment Agreement (Delek US Holdings, Inc.)
Section 409A. (a) Anything in It is intended that this Agreement will comply with Section 409A of the Code (and any regulations and guidelines issued thereunder), to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision to the contrary notwithstandingin this Agreement, if at Employee is deemed on the time date of the Executive’s his “separation from service service” (within the meaning of Treas. Reg. Section 409A of the Code, the Company determines that the Executive is 1.409A-1(h)) to be a “specified employee” (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i) of the Code1.409A-1(i)), then with regard to the extent any payment or benefit that the Executive becomes entitled is required to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed delayed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i409A(a)(2)(B) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is made prior to the earlier of (A) six months and one day after the Executive’s separation from service, or (Bi) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance expiration of the installments shall be payable in accordance with their original schedule.
six (b) To 6)-month period measured from the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A date of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the ExecutiveEmployee’s “separation from service.,” The determination or (ii) the date of Employee’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 26 (whether and when they would have otherwise been payable in a separation from service has occurred single sum or in installments in the absence of such delay) shall be made paid to Employee in a lump sum and any remaining payments due under this Agreement shall be paid in accordance with the presumptions set forth in Treasury Regulation normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, to the extent required to comply with Section 409A of the Code or an exemption thereto, for purposes of determining Employee’s entitlement to any compensation payable upon his termination of employment, Employee’s employment will be deemed to have terminated on the date of Employee’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h).
(c) The parties intend that with the Company. Whenever payments under this Agreement will are to be administered made in accordance with installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A of the Code. To No action or failure to act, pursuant to this Section 26 shall subject the extent Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect Employee from the obligation to pay any taxes pursuant to Section 409A of the Code. With respect to any reimbursement or in-kind benefit arrangements of the Company that any provision constitute deferred compensation for purposes of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision following conditions shall be read applicable: (i) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a manner so limit on the amount that may be reimbursed or paid if such limit is imposed on all payments hereunder comply with Section 409A participants), (ii) any reimbursement must be made on or before the last day of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either partycalendar year following the calendar year in which the expense was incurred, and as may be necessary (iii) the right to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and reimbursement or in-kind benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation is not subject to Section 409A of the Code but do not satisfy an exemption from, liquidation or the conditions of, such Sectionexchange for another benefit.
Appears in 8 contracts
Samples: Employment Agreement (BRP Group, Inc.), Employment Agreement (BRP Group, Inc.), Employment Agreement (BRP Group, Inc.)
Section 409A. (a) Anything The parties intend that this Agreement and the payments and benefits provided hereunder be exempt from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to this Agreement, the parties intend that this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary notwithstanding, contrary:
(i) if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B)(i) of the Code409A, then with regard to the extent any payment or benefit that the Executive becomes entitled to is considered a “deferral of compensation” under this Agreement Section 409A payable on account of the Executive’s a “separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service,” such payment shall not be payable and such benefit shall not be provided until made on the date that which is the earlier of (A) the date that is six months and one day after the Executive’s date of such “separation from service, or ” of the Executive and (B) the date of the Executive’s death. If any death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 13(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delayed cash payment is otherwise payable on an installment basis, delay) shall be paid to the first payment shall include Executive in a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provisionlump sum, and the balance of the installments all remaining payments due under this Agreement shall be payable paid or provided in accordance with their original schedule.the normal payment dates specified for those payments in this Agreement;
(bii) To to the extent that any payment payments or benefit described in benefits under this Agreement constitutes “nonare conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 60-qualified deferred compensation” under day post-termination period, then, subject to Section 409A of the Code, 13(b)(i) and to the extent that such payment or benefit is payable upon the Executive’s termination of employmentnot exempt under Section 409A, then such payments or benefits shall be payable only upon made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive (provided that if any such reimbursements constitute taxable income to the Executive, such reimbursements shall be paid no later than March 15 of the calendar year following the calendar year in which the expenses to be reimbursed were incurred). No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, and the Executive’s right to reimbursement shall not be subject to liquidation in exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).”
(c) The parties intend that Company and the Executive agree to work together in good faith to consider amendments to this Agreement will and to take such reasonable actions that may be administered necessary, appropriate, or desirable to avoid imposition of additional tax or income recognition on the Executive under Section 409A, in accordance with Section 409A of each case to the Codemaximum extent permitted. To the extent that Notwithstanding any provision of this Agreement is ambiguous as to its compliance with the contrary, (i) in no event will the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Code. The parties agree Company or any of its employees, officers, directors or agents in the event it is determined that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully any payment or benefit provided hereunder does not comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 8 contracts
Samples: Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
Section 409A. It is intended that all of the severance benefits and other payments payable under this letter satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations 1.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A 1(b)(9), and this letter will be construed to the greatest extent possible as consistent with those provisions. For purposes of Code Section 409A (aincluding, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), your right to receive any installment payments under this letter (whether severance payments, reimbursements or otherwise) Anything in this Agreement shall be 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 distinct payment. Notwithstanding any provision to the contrary notwithstandingin this letter, if you are deemed by the Company at the time of the Executive’s separation your Separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is Service to be a “specified employee” within the meaning for purposes of Code Section 409A(a)(2)(B)(i) ), and if any of the Codepayments 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 commencement of any payment or benefit that the Executive becomes entitled portion of such payments is required in order to avoid a prohibited distribution under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of and the Coderelated adverse taxation under Section 409A, such payment shall not be payable and such benefit payments shall not be provided until to you prior to the date that is the earlier earliest of (A) six months and one day after the Executive’s separation from service, or (Bi) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provisionyour Separation from Service with the Company, and (ii) the balance date of the installments shall be payable in accordance with their original schedule.
your death or (biii) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Codefirst business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to you, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such any remaining payments or benefits due shall be payable only upon paid as otherwise provided herein or in the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred applicable agreement. No interest shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)due on any amounts so deferred.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 8 contracts
Samples: Employment Agreement (Eiger BioPharmaceuticals, Inc.), Employment Agreement (FIGS, Inc.), Employment Agreement (Eiger BioPharmaceuticals, Inc.)
Section 409A. (a) Anything in It is intended that this Agreement will comply with Section 409A, to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of this Agreement is necessary in order for it to comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 13.14 shall subject the Companies to any claim, liability, or expense, and the Companies shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A.
(b) Notwithstanding any provision to the contrary notwithstandingin this Agreement, if at the time Executive is deemed on the date of the Executive’s his “separation from service service” (within the meaning of Treas. Reg. Section 409A of 1.409A-1(h)) with the Code, the Company determines that the Executive is Companies to be a “specified employee” (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i) of the Code1.409A-1(i)), then with regard to the extent any payment or benefit that the Executive becomes entitled to is considered deferred compensation under this Agreement Section 409A payable on account of the Executive’s a “separation from service would service” that is required to be considered deferred compensation subject to the 20 percent additional tax imposed delayed pursuant to Section 409A(a409A(a)(2)(B) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code(after taking into account any applicable exceptions to such requirement), such payment shall not be payable and such or benefit shall not be made or provided until on the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (Bi) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance expiration of the installments shall be payable in accordance with their original schedule.
six (b) To 6)-month period measured from the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A date of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.,” The determination or (ii) the date of the Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 13.14 (whether and when they would have otherwise been payable in a separation from service has occurred single sum or in installments in the absence of such delay) shall be made paid or reimbursed to the Executive in a lump sum and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the presumptions set forth in Treasury Regulation normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment, references to the Executive’s “termination of employment” (and corollary terms, including the end of the Employment Period) with the Companies shall be construed to refer to the Executive’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Companies.
(c) The parties intend With respect to any reimbursement or in-kind benefit arrangements of the Companies and its subsidiaries that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be applicable: (i) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a limit on the amount that may be reimbursed or paid), (ii) any reimbursement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Whenever a payment under this Agreement will specifies a payment period with reference to a number of days (e.g., “payment shall be administered in accordance with Section 409A made within thirty (30) days after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the CodeCompanies. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all Whenever payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of under this Agreement are determined to constitute deferred compensation subject be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 8 contracts
Samples: Employment Agreement (Krispy Kreme Doughnuts Inc), Employment Agreement (Krispy Kreme Doughnuts Inc), Employment Agreement (Krispy Kreme Doughnuts Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning For purposes of Section 409A of the Code, each payment under Section 5 is hereby designated as a separate payment for purposes of Treasury Regulation 1.409A-2(b)(2). If the Company determines that the Executive is you are a “specified employee” within the meaning of under Section 409A(a)(2)(B)(i) of the CodeCode at the time of your Separation, then (i) any payments under this Agreement, to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account they are not exempt from Section 409A of the Executive’s separation from service would be considered deferred compensation Code (including by operation of the next following sentence) and otherwise subject to the 20 percent additional tax taxes imposed pursuant to under Section 409A(a409A(a)(1) of the Code as (a result of “Deferred Payment”), will commence on the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of first business day following (A) six months and one day after the Executive’s separation expiration of the six-month period measured from service, your Separation or (B) the Executive’s death. If any such delayed cash payment is date of your death and (ii) the installments that otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during prior to such date will be paid in a lump sum when such payments commence. Notwithstanding the sixforegoing, any amount paid under this Agreement that either (1) satisfies the requirements of the “short-month period but for term deferral” rule set forth in Treasury Regulation 1.409A-1(b)(4); or (2) (A) qualifies as a payment made as a result of an involuntary separation from service pursuant to Treasury Regulation 1.409A-1(b)(9)(iii), and (B) does not exceed the application Section 409A Limit will not constitute a Deferred Payment. The provisions of this provisionAgreement are intended to comply with, and or be exempt from, the balance requirements of Section 409A of the installments shall Code so that none of the payments and benefits to be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in provided under this Agreement constitutes “non-qualified deferred compensation” will be subject to the additional tax imposed under Section 409A of the Code, and any ambiguities herein will be interpreted to so comply or be exempt. You and the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made Company agree to work together in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that good faith to consider amendments to this Agreement will be administered in accordance with and to take such reasonable actions as are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to you under Section 409A of the Code. To In no event will the extent Company reimburse you for any taxes that any provision may be imposed on you as result of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 8 contracts
Samples: Employment Agreement (Boingo Wireless, Inc.), Employment Agreement (Boingo Wireless Inc), Employment Agreement (Boingo Wireless Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the ExecutiveEmployee’s “separation from service service” within the meaning of Section 409A of the Code, the Company determines that the Executive Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive Employee becomes entitled to under this Agreement on account of the ExecutiveEmployee’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the ExecutiveEmployee’s separation from service, or (B) the ExecutiveEmployee’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so as not to be part of this Agreement or in compliance with Section 409A of the Code so that all payments hereunder are either exempt or comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of applying Section 409A, any exemptions thereto and Treasury Regulation Section 1.409A-2(b)(2).
(c) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Employee during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(d) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Employee’s termination of employment, then such payments or benefits shall be payable only upon the Employee’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(e) The Company makes no representation or warranty and shall have no liability to the Executive Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 7 contracts
Samples: Severance and Change in Control Agreement (Zafgen, Inc.), Severance and Change in Control Agreement (Zafgen, Inc.), Severance and Change in Control Agreement (Zafgen, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company Employer determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six (6) months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any payments delayed pursuant to this Section 20(a) shall bear interest during the period of such delay at the simple rate of 5% per annum.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code and that the compensation arrangements under this Agreement be in full compliance with Section 409A of the Code. This Agreement shall be construed in a manner to give effect to such intention. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon Executive’s termination of employment, then such payments or benefits shall be payable only upon Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) Each payment under this Agreement or otherwise (including any installment payments) shall be treated as a separate payment for purposes of Section 409A of the Code.
(e) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement must be provided by the Employer or incurred by Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The Company amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(f) The Employer makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 7 contracts
Samples: Employment Agreement (Sl Green Operating Partnership, L.P.), Employment Agreement (Sl Green Operating Partnership, L.P.), Employment Agreement (Sl Green Operating Partnership, L.P.)
Section 409A. (a) Anything in All severance payments to be made upon a termination of employment under this Agreement to the contrary notwithstanding, if at the time may be made only upon a “separation of the Executive’s separation from service service” within the meaning of Section 409A of the CodeCode and the Department of Treasury regulations and other guidance promulgated thereunder. Notwithstanding any provision to the contrary in this Agreement, if Employee is deemed by the Company determines that at the Executive is time of Employee’s separation from service to be a “specified employee” within the meaning for purposes of Code Section 409A(a)(2)(B)(i) of the Code401A(a)(2)(B)(i), then to the extent delayed commencement of any payment or benefit that portion of the Executive becomes benefits to which Employee is entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject is required in order to the 20 percent additional tax imposed pursuant to Section 409A(a) of the avoid a prohibited distribution under Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code), such payment shall not be payable and such benefit portion of Employee’s benefits shall not be provided until the date that is to Employee prior to the earlier of (A) six months and one day after the Executive’s separation from service, or (Bi) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the ExecutiveEmployee’s “separation from of service.” The determination with the Company or (ii) the date of whether and when a separation from service has occurred Employee’s death. Upon the first business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 5 shall be made paid in accordance with a lump sum to Employee, and any remaining payments due under the presumptions set forth in Agreement shall be paid as otherwise provided herein. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-1(h1.409A-2(b)(2)(iii).
(c) The parties intend that ), Employee’s right to receive installment payments under this Agreement will shall be administered in accordance with Section 409A 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 distinct payment. It is intended that none of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the severance payments and benefits to be provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation will be subject to Section 409A of the Code but do not satisfy an exemption fromand any ambiguities herein will be interpreted to be so exempt. Employee and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A of the conditions ofCode. Notwithstanding anything to the contrary contained herein, to the extent that any amendment to this Agreement with respect to the payment of any severance payments or benefits would constitute under Code Section 409A a delay in a payment or a change in the form of payment, then such Sectionamendment must be done in a manner that complies with Code Section 409A(a)(4)(C).
Appears in 7 contracts
Samples: Management Retention Agreement (Heron Therapeutics, Inc. /De/), Management Retention Agreement (Heron Therapeutics, Inc. /De/), Management Retention Agreement (Heron Therapeutics, Inc. /De/)
Section 409A. (a) Anything in It is intended that any amounts payable under this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation shall either be exempt from service within the meaning of or comply with Section 409A of the CodeCode (including the Treasury regulations and other published guidance relating thereto) (“Code Section 409A”) so as not to subject the Executive to payment of any additional tax, penalty or interest imposed under Code Section 409A. The provisions of this Agreement shall be construed and interpreted to avoid the Company determines that imputation of any such additional tax, penalty or interest under Code Section 409A yet preserve (to the nearest extent reasonably possible) the intended benefit payable to the Executive. Any installment payments provided for in this Agreement shall be treated as a series of separate payments for purposes of Code Section 409A.
(b) If the Executive is a “specified employee” within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(i) as of the Codedate of the Executive’s Separation from Service, then the Executive shall not be entitled to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a5.3(b) of the Code as a result of the application of Section 409A(a)(2)(B)(ior (c) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (Ai) the date which is six (6) months and one day after the Executive’s separation his or her Separation from serviceService for any reason other than death, or (Bii) the date of the Executive’s death. If The provisions of this Section 20(b) shall only apply if, and to the extent, required to avoid the imputation of any such delayed cash payment is tax, penalty or interest pursuant to Code Section 409A. Any amounts otherwise payable on an installment basis, to the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during Executive upon or in the six-six (6) month period but for following the application Executive’s Separation from Service that are not so paid by reason of this provisionSection 20(b) shall be paid (without interest) as soon as practicable (and in all events within thirty (30) days) after the date that is six (6) months after the Executive’s Separation from Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the balance date of the installments shall be payable in accordance with their original scheduleExecutive’s death).
(bc) To the extent that any payment benefits pursuant to Section 5.3(b)(ii) or benefit described in this Agreement constitutes “non-qualified deferred compensation” under reimbursements pursuant to Section 409A of the Code, and 4.2 are taxable to the extent that Executive, any reimbursement payment due to the Executive pursuant to any such payment provision shall be paid to the Executive on or benefit is payable upon before the last day of the Executive’s termination of employment, then such payments or benefits shall be payable only upon taxable year following the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made taxable year in accordance with which the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Coderelated expense was incurred. The parties agree benefits and reimbursements pursuant to such provisions are not subject to liquidation or exchange for another benefit and the amount of such benefits and reimbursements that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive receives in one taxable year shall not affect the amount of such benefits or reimbursements that the Executive receives in any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Sectiontaxable year.
Appears in 7 contracts
Samples: Employment Agreement (Cepton, Inc.), Employment Agreement (Cepton, Inc.), Employment Agreement (Growth Capital Acquisition Corp.)
Section 409A. (a) Anything Notwithstanding any other provision in this the Agreement to the contrary notwithstandingcontrary, if at and to the time extent that Section 409A is deemed to apply to any benefit under the Agreement, it is the general intention of the Companies that such benefits shall, to the extent practicable, comply with, or be exempt from, Section 409A, and the Agreement shall, to the extent practicable, be construed in accordance therewith. Deferrals of benefits distributable pursuant to the Agreement that are otherwise exempt from Section 409A in a manner that would cause Section 409A to apply shall not be permitted unless such deferrals are in compliance with or otherwise exempt from Section 409A. In the event that the Companies (or a successors thereto) have any stock which is publicly traded on an established securities market or otherwise and the Executive is determined to be a “specified employee” (as defined under Section 409A), any payment of deferred compensation subject to Section 409A to be made to the Executive upon a separation from service may not be made before the date that is six months after the Executive’s separation from service within the meaning of Section 409A of the Code(or death, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(hif earlier).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as the Executive becomes subject to its compliance with Section 409A of the Codesix-month delay rule, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A that would have been made to the Executive during the six months following his or her separation from service, if any, will be accumulated and paid to the Executive during the seventh month following his or her separation from service, and any remaining payments due will be made in their ordinary course as described in the Agreement. For the purposes herein, the phrase “termination of employment” or similar phrases will be interpreted in accordance with the term “separation from service” as defined under Section 409A if and to the extent required under Section 409A. Whenever payments under the Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. To the extent not otherwise specified in the Agreement, all (A) reimbursements and (B) in-kind benefits provided under the Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (1) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in the Agreement); (2) 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; (3) the reimbursement of an eligible expense shall be made no later than the last day of the Code but do calendar year following the year in which the expense is incurred; and (4) the right to reimbursement or in kind benefits is not satisfy an exemption fromsubject to liquidation or exchange for another benefit. Further, (i) in the event that Section 409A requires that any special terms, provisions, or conditions be included in the Agreement, then such terms, provisions and conditions ofshall, such Sectionto the extent practicable, be deemed to be made a part of the Agreement, and (ii) terms used in the Agreement shall be construed in accordance with Section 409A if and to the extent required. Neither the Companies, its or their Affiliates, the Board, the Committee, the board of directors of the Company, nor its or their designees or agents makes any representations that the payments and benefits provided under the Agreement comply with Section 409A, and in no event will the Companies, its or their Affiliates, the Board, the Committee, the board of directors of the Company, nor its or their designees or agents be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Executive (or any person claiming through him or her) on account of non-compliance with Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Code Section 409A shall be paid under the applicable exception.
Appears in 7 contracts
Samples: Employment Agreement (Volato Group, Inc.), Employment Agreement (Volato Group, Inc.), Employment Agreement (Volato Group, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 7 contracts
Samples: Employment Agreement (Eloqua, Inc.), Executive Employment Agreement (Monotype Imaging Holdings Inc.), Executive Employment Agreement (Monotype Imaging Holdings Inc.)
Section 409A. (a) Anything in It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the contrary notwithstandinggreatest extent possible, if at the time of exemptions from the Executive’s separation from service within the meaning application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code” and “Section 409A”) provided under Treasury Regulations 1.409A-1(b)(4), the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i1.409A-1(b)(5) of the Codeand 1.409A-1(b)(9), then and this Agreement will be construed to the greatest extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code possible as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance consistent with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Codethose provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that such payment or benefit is complies with Section 409A. All payments and benefits that are payable upon the Executive’s a termination of employment, then such payments or benefits employment hereunder shall be payable paid or provided only upon the Executive’s “separation from service.” The determination from the Company (within the meaning of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Section 409A). For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-1(h1.409A-2(b)(2)(iii).
(c) The parties intend that ), Executive’s right to receive any installment payments under this Agreement will (whether severance payments, reimbursements or otherwise) shall be administered 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 distinct payment. Notwithstanding any provision to the contrary in accordance with this Agreement, if Executive is deemed by the Company at the time of Executive’s termination to be a “specified employee” for purposes of Section 409A 409A(a)(2)(B)(i), and if any of the Code. To payments upon termination set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent that delayed commencement of any provision portion of this Agreement such payments is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations required in order to preserve avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Executive’s termination with the Company, (ii) the date of Executive’s death or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Code but do not satisfy an exemption fromfirst business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 7 shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Sectionapplicable agreement. No interest shall be due on any amounts so deferred.
Appears in 7 contracts
Samples: Executive Employment Agreement (Prelude Therapeutics Inc), Executive Employment Agreement (Prelude Therapeutics Inc), Executive Employment Agreement (Prelude Therapeutics Inc)
Section 409A. (a) Anything in Notwithstanding anything herein to the contrary, to the maximum extent permitted by applicable law, the compensation to be paid to the Grantee pursuant to this Agreement is intended to qualify as a “short-term deferral” pursuant to Section 1.409A-1(b)(4) of the Regulations or to otherwise be exempt from the scope of “deferred compensation” under Section 409A of the Code as restricted property governed by Section 83 of the Code, and this Agreement shall be interpreted consistently therewith. However, to the contrary notwithstanding, if at extent the time payment of any compensation hereunder in connection with the ExecutiveGrantee’s separation termination of employment does not qualify for an exception from service within the meaning of treatment as “deferred compensation” subject to Section 409A of the Code, then (a) such amount shall not be payable unless the Company determines that Grantee’s termination of employment constitutes a “separation from service” within the Executive meaning of Section 1.409A-1(h) of the Regulations and (b) if the Grantee is a “specified employee” within the meaning at such time for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed payment of any payment portion of the Performance Units or benefit that shares of the Executive becomes Company’s Common Stock to which the Grantee is entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject is required in order to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as avoid a result of the application of prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such payment portion of the Performance Units or shares of the Company’s Common Stock shall not be payable and such benefit shall not be provided until the date that is paid to Grantee prior to the earlier of (A) six months and one day after the Executive’s separation from service, or (Bx) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application of this provision, and the balance date of the installments Grantee’s “separation from service” with the Company or (y) the date of the Grantee’s death. Upon the earlier of such dates, settlement of all Performance Units shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described occur as otherwise provided in this Agreement. In the event compensation payable pursuant to this Agreement constitutes is otherwise determined to constitute “non-qualified deferred compensation” under within the meaning of Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits this Agreement shall be payable only upon the Executive’s “separation from service.” The determination of whether interpreted and when a separation from service has occurred shall be made in accordance administered consistently with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)terms thereof.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 7 contracts
Samples: Performance Unit Award Agreement (Pinnacle Financial Partners Inc), Performance Unit Award Agreement (Pinnacle Financial Partners Inc), Special Performance Unit Award Agreement (Pinnacle Financial Partners Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 6 contracts
Samples: Executive Employment Agreement (Monotype Imaging Holdings Inc.), Executive Employment Agreement (Monotype Imaging Holdings Inc.), Executive Employment Agreement (Monotype Imaging Holdings Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s “separation from service service” within the meaning of Section 409A of the Code, the Company Eastern determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (Ai) six (6) months and one (1) day after the Executive’s separation from service, or and (Bii) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by Eastern or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(d) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The Company determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(e) Eastern makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute non-qualified deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 6 contracts
Samples: Change in Control Agreement (Eastern Bankshares, Inc.), Change in Control Agreement (Eastern Bankshares, Inc.), Change in Control Agreement (Eastern Bankshares, Inc.)
Section 409A. (a) Anything in For the avoidance of doubt, the Restricted Share Units granted under this Agreement are intended to the contrary notwithstanding, if at the time of the Executive’s separation be exempt from service within the meaning of or otherwise comply with Section 409A of the CodeCode and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be either exempt from or in compliance therewith. In no event whatsoever shall the Company determines be liable for any additional tax, interest or penalty that may be imposed on the Executive Participant by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) Notwithstanding any other payment schedule provided herein to the contrary, if the Participant is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B)(i409A(a)(2)(B) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to due under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes considered “non-qualified deferred compensation” under Section 409A of the CodeCode payable on account of a Participant’s “separation from service” shall not be made until the date which is the earlier of (A) the expiration of the six (6) month period measured from the date of such “separation from service” of the Participant, and (B) the date of Participant’s death (the “Delay Period”) to the extent that required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 15(b) shall be paid to the Participant in a lump sum in accordance with the Agreement.
(c) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in Code Section 409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code Section 409A (and, more specifically, Treasury Regulation 1.409A-1(h)) and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(d) For the avoidance of doubt, any payment or benefit is payable upon the Executivedue under this Agreement within a period following Participant’s termination of employment, then such payments death, Disability, Retirement or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred other event, shall be made on a date during such period as determined by the Company in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)its sole discretion.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 6 contracts
Samples: Restricted Share Unit Award Agreement (United Natural Foods Inc), Restricted Share Unit Award Agreement (United Natural Foods Inc), Restricted Share Unit Award Agreement (United Natural Foods Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive It is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend intended that this Agreement and the Award will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code (and all related rules any regulations and regulations guidelines issued thereunder), to the extent the Agreement and Award are subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to preserve comply with Section 409A, the payments and benefits provided hereunder without additional cost parties hereto will negotiate in good faith to either party.
(d) The Company makes no representation or warranty and shall have no liability amend the Agreement in a manner that preserves the original intent of the parties to the Executive or extent reasonably possible. Notwithstanding any other person if any provisions provision of this Agreement are determined to constitute deferred compensation the contrary, for purposes of this Agreement, the Employee’s employment will be deemed to have terminated on the date of the Employee’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company. Notwithstanding any provision to the contrary in this Agreement, if the Employee is deemed on the date of his or her “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after taking into account any applicable exceptions to such requirement), such payment shall not be made prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Employee’s “separation from service,” or (ii) the date of the Employee’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments delayed pursuant hereto (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Employee in a lump sum and any remaining payments due under this Agreement shall be paid in accordance with the normal payment dates specified for them herein. No action or failure to act, pursuant to this Section 11 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Employee from the obligation to pay any taxes, interest or penalties pursuant to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such SectionCode.
Appears in 6 contracts
Samples: Restricted Share Unit Agreement (Arch Capital Group Ltd.), Restricted Share Unit Agreement (Arch Capital Group Ltd.), Restricted Share Unit Agreement (Arch Capital Group Ltd.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any payments delayed pursuant to this Section 5.4(a) shall bear interest during the period of such delay at a rate of interest equal to the short-term applicable federal rate for annually compounding obligations for purposes of Section 1274(d) of the Code, or any successor provision, for the month in which such payment otherwise would have been paid.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.”
4. Except as expressly amended hereby, the Employment Agreement continues in full force and effect in accordance with its terms. The Employment Agreement, together with any Exhibits thereto and this Amendment, constitutes the entire understanding and agreement of the parties hereto regarding the employment of the Executive.
5. This Amendment shall be governed and construed in accordance with the laws of the State of Colorado, without regard to any principles of conflicts of laws which could cause the application of the laws of any jurisdiction other than the State of Colorado.
6. This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original but all such counterparts together shall constitute one and the same instrument. Each counterpart may consist of two copies hereof each signed by one of the parties hereto.
Appears in 6 contracts
Samples: Employment Agreement (DCT Industrial Trust Inc.), Employment Agreement (DCT Industrial Trust Inc.), Employment Agreement (DCT Industrial Trust Inc.)
Section 409A. (a) Anything The Company and the Executive intend that the payments and benefits provided for in this Agreement either be exempt from Section 409A of the Internal Revenue Code (the “Code”), or be provided in a manner that complies with Section 409A of the Code, and any ambiguity herein shall be interpreted so as to be consistent with the intent of this Section 9. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A of the Code or damages for failing to comply with Section 409A. Notwithstanding anything contained herein to the contrary notwithstandingcontrary, all payments and benefits under Section 6 of this Agreement shall be paid or provided only at the time of a termination of the Executive’s employment that constitutes a “separation from service” from the Company within the meaning of Section 409A of the Code and the regulations and guidance promulgated thereunder (determined after applying the presumptions set forth in Treas. Reg. Section 1.409A-1(h)(1)) and the payment of the severance benefits to be made under Section 6 of this Agreement shall be treated as a right to a series of separate payments in accordance with Treasury Regulation Section 1.409A-2(b)(2)(iii). Further, if at the time of the Executive’s separation from service within termination of employment with the meaning Company, the Executive is a “specified employee” as defined in Section 409A of the Code as determined by the Company in accordance with Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in payments or benefits ultimately paid or provided to the Executive) until the date that is at least six (6) months following the Executive’s termination of employment with the Company (or the earliest date permitted under Section 409A of the Code), whereupon the Company will pay the Executive a lump-sum amount equal to the cumulative amounts that would have otherwise been previously paid to the Executive under this Agreement during the period in which such payments or benefits were deferred. Thereafter, payments will resume in accordance with this Agreement. Notwithstanding anything to the contrary in this Agreement, in-kind benefits and reimbursements provided under this Agreement during any calendar year shall not affect in-kind benefits or reimbursements to be provided in any other calendar year, other than an arrangement providing for the reimbursement of medical expenses referred to in Section 105(b) of the Code, and are not subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary in this Agreement, reimbursement requests must be timely submitted by the Executive and, if timely submitted, reimbursement payments shall be promptly made to the Executive following such submission, but in no event later than December 31st of the calendar year following the calendar year in which the expense was incurred. In no event shall the Executive be entitled to any reimbursement payments after December 31st of the calendar year following the calendar year in which the expense was incurred. This paragraph shall only apply to in-kind benefits and reimbursements that would result in taxable compensation income to the Executive. Any tax gross-up payments contemplated by this Agreement shall be paid by the end of the calendar year next following the calendar year in which the Executive remits the related taxes to the applicable governmental entity. Additionally, in the event that following the date hereof the Company or the Executive reasonably determines that any compensation or benefits payable under this Agreement may be subject to Section 409A of the Code, the Company determines that and the Executive is a “specified employee” within shall work together to adopt such amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effect), or take any other commercially reasonable actions necessary or appropriate to (x) exempt the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to compensation and benefits payable under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, Code and/or preserve the intended tax treatment of the compensation and benefits provided with respect to the extent that such payment this Agreement or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance (y) comply with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A requirements of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either partyDepartment of Treasury guidance.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 6 contracts
Samples: Employment Agreement (Wheels Up Experience Inc.), Employment Agreement (Wheels Up Experience Inc.), Employment Agreement (Wheels Up Experience Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any payments delayed pursuant to this Section 4(a) shall bear interest during the period of such delay at a rate of interest equal to the short-term applicable federal rate for annually compounding obligations for purposes of Section 1274(d) of the Code, or any successor provision, for the month in which such payment otherwise would have been paid.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 6 contracts
Samples: Change in Control Agreement (DCT Industrial Operating Partnership LP), Change in Control Agreement (DCT Industrial Trust Inc.), Change in Control Agreement (DCT Industrial Trust Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) . The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) . The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. With respect to any fees, expenses and taxes that Executive may otherwise be entitled to reimbursement under this Agreement, Executive shall provide evidence of such reimbursable expenses to the Company within 30 days of incurring such expenses and the Company shall reimburse the Executive for such expenses within 30 days of receiving such evidence.”
12. The Agreement otherwise remains in full force and effect as to all other provisions under said Agreement.
Appears in 5 contracts
Samples: Executive Severance Agreement (Zoll Medical Corp), Executive Severance Agreement (Zoll Medical Corp), Executive Severance Agreement (Zoll Medical Corp)
Section 409A. (a) Anything in this This Agreement is intended to comply with the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning requirements of Section 409A of the Code, the Company determines that the Executive is a Code and regulations promulgated thereunder (“specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h409A”).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of in this Agreement is ambiguous as to its compliance with Section 409A of the Code409A, the provision shall be read in such a manner so that all no payments hereunder comply with due under this Agreement shall be subject to an "additional tax" as defined in Section 409A 409A(a)(1)(B) of the Code. The parties agree that For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may be amendedExecutive, as reasonably requested by either partydirectly or indirectly, and as may be designate the calendar year of payment.
(b) Notwithstanding anything to the contrary contained herein, if necessary to fully comply with the restriction in Section 409A(a)(2)(B) of the Code concerning payments to “specified employees,” any payment on account of Executive’s separation from service that would otherwise be due hereunder within six months after such separation shall nonetheless be delayed until the first business day of the seventh month following Executive’s date of termination and the first such payment shall include the cumulative amount of any payments that would have been paid prior to such date if not for such restriction, together with interest on such cumulative amount during the period of such restriction at a rate, per annum, equal to the applicable federal short-term rate (compounded monthly) in effect under Section 1274(d) of the Code on the date of termination. For purposes of Section 2 hereof, Executive shall be a “specified employee” for the 12-month period beginning on the first day of the fourth month following each “Identification Date” if he is a “key employee” (as defined in Section 416(i) of the Code without regard to Section 416(i)(5) thereof) of the Company at any time during the 12-month period ending on the “Identification Date.” For purposes of the foregoing, the Identification Date shall be December 31. Notwithstanding anything contained herein to the contrary, Executive shall not be considered to have terminated employment with the Company for purposes of Section 2 hereof unless he would be considered to have incurred a “termination of employment” from the Company within the meaning of Treasury Regulation §1.409A-1(h)(1)(ii).
(c) Executive acknowledges that any tax liability incurred by Executive under Section 409A of the Code and all related rules and regulations in order to preserve is solely the payments and benefits provided hereunder without additional cost to either partyresponsibility of Executive.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Severance Agreement (Id Systems Inc), Severance Agreement (Id Systems Inc), Severance Agreement (Id Systems Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (Ai) six months and one day after the Executive’s separation from service, or (Bii) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of separation from service occurs, from such date of separation from service until the payment.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). To the extent required by Section 409A of the Code, each reimbursement or in-kind benefit provided under the Agreement shall be provided in accordance with the following: (i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (ii) any reimbursement of an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (iii) any right to reimbursements or in-kind benefits under the Agreement shall not be subject to liquidation or exchange for another benefit.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Executive Retention Agreement (Anika Therapeutics, Inc.), Executive Retention Agreement (Anika Therapeutics, Inc.), Executive Retention Agreement (Anika Therapeutics, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Change in Control Agreement (Anthera Pharmaceuticals Inc), Change in Control Agreement (Anthera Pharmaceuticals Inc), Change in Control Agreement (Anthera Pharmaceuticals Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent and if any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent interest, penalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall not be payable and such or benefit shall not be provided until prior to the date that is the earlier of (A) six months and one day after the Executive’s separation Separation from serviceService (defined below), or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) . The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To For purposes of clarity, to the extent that any provision payment or benefit hereunder is payable upon a termination of this Agreement is ambiguous as to its compliance with Executive’s employment, then such payments or benefits shall only be payable upon Executive’s “Separation from Service.” The term “Separation from Service” shall mean Executive’s ‘separation from service’ from the Company, an affiliate of the Company or a successor entity within the meaning set forth in Section 409A of the Code, determined in accordance with the provision presumptions set forth in Treasury Regulation Section 1.409A-1(h). All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be read provided by the Company or incurred by the Executive during the time periods set forth in such a manner so that all payments hereunder comply with Section 409A this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the Codetaxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided, or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) . The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Sectionsection.
Appears in 5 contracts
Samples: Executive Agreement (Irobot Corp), Executive Agreement (Irobot Corp), Executive Agreement (Irobot Corp)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Executive Employment Agreement (Monotype Imaging Holdings Inc.), Executive Employment Agreement (Monotype Imaging Holdings Inc.), Executive Employment Agreement (Monotype Imaging Holdings Inc.)
Section 409A. (a) Anything in If it is determined that any amount due the Executive under the terms of this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is has been structured in a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts manner that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable result in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” adverse tax treatment under Section 409A of the CodeCode (“Section 409A”), the parties agree to cooperate in taking all reasonable measures to restructure the arrangement to minimize or avoid such adverse tax treatment without materially impairing Executive’s economic rights and without materially increasing the cost to the Company. Each payment made under this Agreement (including each separate installment payment in the case of a series of installment payments) shall be deemed to be a separate payment for purposes of Section 409A. Amounts payable under this Agreement shall be deemed not to be a “deferral of compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation §§ 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under subparagraph (iii)) and other applicable provisions of Section 409A. For purposes of this Agreement, with respect to payments of any amounts that such payment or benefit is payable upon the Executive’s are considered to be “deferred compensation” subject to Section 409A, references to “termination of employment”, then such payments “termination”, or benefits words and phrases of similar import, shall be payable only upon deemed to refer to the Executive’s “separation from service.” The determination as defined in Section 409A, and shall be interpreted and applied in a manner that is consistent with the requirements of whether Section 409A. Notwithstanding anything to the contrary in this Agreement, any payment or benefit under this Agreement or otherwise that is exempt from Section 409A pursuant to Treasury Regulation § 1.409A-1(b)(9)(v)(A) or (C) (relating to certain reimbursements and when a in-kind benefits) shall be paid or provided to the Executive only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the second calendar year following the calendar year in which the Executive’s “separation from service has occurred shall be made in accordance with service” occurs; and provided further that such expenses are reimbursed no later than the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A last day of the Codethird calendar year following the calendar year in which the Executive’s “separation from service” occurs. To the extent that any expense reimbursement, or the provision of this Agreement any in-kind benefit is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation be subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), the amount of the Code but do not satisfy an exemption fromany such expenses eligible for reimbursement, or the conditions ofprovision of any in-kind benefit, in one calendar year shall not affect the payment or provision of in-kind benefits or expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), and in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such Sectionexpenses, and in no event shall any right reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
Appears in 5 contracts
Samples: Employment Agreement (Eagle Bulk Shipping Inc.), Employment Agreement (Eagle Bulk Shipping Inc.), Employment Agreement (Eagle Bulk Shipping Inc.)
Section 409A. (ai) Anything in The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the Executive notifies the Company (with specificity as to the reason therefore) that the Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A, the Company shall, after consulting with the Executive, reform such provision to try to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A.
(ii) Notwithstanding any provision to the contrary notwithstandingin this Agreement, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B)(i) of the Code409A(a)(2)(B), then with regard to the extent any payment or the provision of any benefit that the Executive becomes entitled to under this Agreement on account constitutes an item of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to under Section 409A(a) 409A and becomes payable by reason of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon shall not be made or provided (subject to the Executive’s termination last sentence of employment, then such payments or benefits shall be payable only upon this Section 6(k)(ii)) prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service.” The determination (as such term is defined under Code Section 409A), and (ii) the date of Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 6(k)(ii) (whether and when they would have otherwise been payable in a separation from service has occurred single sum or in installments in the absence of such delay) shall be made paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)normal payment dates specified for them herein.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (BeesFree, Inc.), Merger Agreement (National Holdings Corp), Employment Agreement (National Holdings Corp)
Section 409A. (a) Anything It is intended that any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with Section 409A of the Code (including the Treasury regulations and other published guidance relating thereto) (“Section 409A”) so as not to subject the Executive to payment of any interest or additional tax imposed under Section 409A. To the extent that any amount payable under this Agreement would trigger the additional tax imposed by Section 409A, the Agreement shall be construed and interpreted in a manner to avoid such additional tax yet preserve (to the nearest extent reasonably possible) the intended benefit payable to the Executive.
(b) Notwithstanding any provision of this Agreement to the contrary notwithstandingcontrary, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(i) as of the Codedate of the Executive’s Separation from Service, then the Executive shall not be entitled to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a4(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (Ai) the date which is six (6) months and one day after the Executive’s separation Separation from serviceService for any reason other than death, or (Bii) the date of the Executive’s death. If Any amounts otherwise payable to the Executive upon or in the six (6) month period following the Executive’s Separation from Service that are not so paid by reason of this Section 11(b) shall be paid as soon as practicable (and in all events within thirty (30) days) after the date that is six (6) months after the Executive’s Separation from Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the date of the Executive’s death), and any such delayed cash payments shall be increased by an amount equal to interest on such payments for the period commencing with the date such payment would have otherwise been made but for this Section 11(b) (the “Original Payment Date”) and ending on the date such payment is otherwise payable on actually made, at an installment basisinterest rate equal to the prime rate in effect as of the Original Payment Date plus one point (for this purpose, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during prime rate will be based on the six-month period but for the application rate published from time to time in The Wall Street Journal). The provisions of this provisionSection 11(b) shall only apply if, and to the balance extent, required to avoid the imputation of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment tax, penalty or benefit described in this Agreement constitutes “non-qualified deferred compensation” under interest pursuant to Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Severance Agreement (Apria, Inc.), Executive Vice President Severance Agreement (Apria, Inc.), Executive Severance Agreement (Apria Healthcare Group Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the ExecutiveEmployee’s “separation from service service” within the meaning of Section 409A of the Code, the Company Bank determines that the Executive Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive Employee becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the ExecutiveEmployee’s separation from service, or (B) the ExecutiveEmployee’s death; provided, however, that in the case of benefits, the Employee may elect to pay for the costs of such benefits during such delay period in exchange for reimbursement of such costs after the end of the delay period. If any Any such delayed cash payment is otherwise payable on shall earn interest at an installment basis, annual rate equal to the first payment shall include a catchapplicable federal short-up payment covering amounts that would otherwise have been paid during term rate published by the six-month period but Internal Revenue Service for the application month in which the date of this provisionseparation from service occurs, and from such date of separation from service until the balance of the installments shall be payable in accordance with their original schedulepayment.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Employee’s termination of employment, then such payments or benefits shall be payable only upon the Employee’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company Bank makes no representation or warranty and shall have no liability to the Executive Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (Randolph Bancorp, Inc.), Employment Agreement (Randolph Bancorp, Inc.), Employment Agreement (Randolph Bancorp, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any payments delayed pursuant to this Section 5.4(a) shall bear interest during the period of such delay at a rate of interest equal to the short-term applicable federal rate for annually compounding obligations for purposes of Section 1274(d) of the Code, or any successor provision, for the month in which such payment otherwise would have been paid.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (DCT Industrial Trust Inc.), Employment Agreement (DCT Industrial Trust Inc.), Employment Agreement (DCT Industrial Trust Inc.)
Section 409A. (a) Anything in For the avoidance of doubt, the Restricted Share Units granted under this Agreement are intended to the contrary notwithstanding, if at the time of the Executive’s separation be exempt from service within the meaning of or otherwise comply with Section 409A of the CodeCode and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be either exempt from or in compliance therewith. In no event whatsoever shall the Company determines be liable for any additional tax, interest or penalty that may be imposed on the Executive Participant by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) Notwithstanding any other payment schedule provided herein to the contrary, if the Participant is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B)(i409A(a)(2)(B) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to due under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes considered “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is Code payable upon the Executive’s termination on account of employment, then such payments or benefits shall be payable only upon the Executivea Participant’s “separation from service.” The determination shall not be made until the date which is the earlier of whether and when a (A) the expiration of the six (6) month period measured from the date of such “separation from service has occurred service” of the Participant, and (B) the date of Participant’s death (the “Delay Period”) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 15(b) shall be made paid to the Participant in a lump sum in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)Agreement.
(c) The parties intend that this Agreement will A termination of employment shall not be administered in accordance with Section 409A deemed to have occurred for purposes of the Code. To the extent that any provision of this Agreement providing for the payment of “deferred compensation” (as such term is ambiguous as to its compliance with defined in Code Section 409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code Section 409A (and, more specifically, Treasury Regulation 1.409A-1(h)) and, for purposes of the Code, the any such provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined Agreement, references to constitute deferred compensation subject to Section 409A a “termination,” “termination of the Code but do not satisfy an exemption from, employment” or the conditions of, such Sectionlike terms shall mean “separation from service.”
Appears in 5 contracts
Samples: Performance Based Vesting Restricted Share Unit Award Agreement (United Natural Foods Inc), Performance Based Vesting Restricted Share Unit Award Agreement (United Natural Foods Inc), Performance Based Vesting Restricted Share Unit Award Agreement (United Natural Foods Inc)
Section 409A. (a) Anything in this Agreement If any payment, compensation or other benefit provided to the contrary notwithstandingEmployee in connection with [his/her] employment termination is determined, if at the time of the Executive’s separation from service in whole or in part, to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the CodeInternal Revenue Code of 1986, as amended (“Section 409A”) and the Employee is a specified employee as defined in Section 409A(a)(2)(B)(i), then no portion of such “nonqualified deferred compensation” shall be paid before the earlier of (i) the day that is six (6) months plus one (1) day after the date of termination or (ii) five (5) days following the Employee’s death (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to the Employee during the period between the date of termination and the New Payment Date shall be paid to the Employee in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. Notwithstanding the foregoing, to the extent that the foregoing applies to the provision of any ongoing welfare benefits to the Employee that would not be required to be delayed if the premiums therefor were paid by the Employee, the Employee shall pay the full cost of premiums for such welfare benefits during the six-month period and the Company determines shall pay the Employee an amount equal to the amount of such premiums paid by the Employee during such six-month period promptly after its conclusion.
(b) The Parties hereto acknowledge and agree that the Executive interpretation of Section 409A and its application to the terms of this Agreement is a uncertain and may be subject to change as additional guidance and interpretations become available. Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company to the Employee that would be deemed to constitute “specified employeenonqualified deferred compensation” within the meaning of Section 409A(a)(2)(B)(i409A are intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Employee agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereof) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved. Notwithstanding the foregoing, the Company makes no guarantee of any federal, state or local tax consequences with respect to the interpretation of Section 409A and its application to the terms of this Agreement, and the Company shall have no liability for any adverse tax consequences of the CodeEmployee, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application any violation of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).409A.
(c) The parties intend that Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will shall be administered paid in accordance with Section 409A no event later than the end of the Codetaxable year following the taxable year in which the Employee incurs such expense. To With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A, (i) the extent right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year, provided, however, that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Internal Revenue Code of 1986, as amended, solely because such expenses are subject to a limit related to the period the arrangement is in effect.
(d) If under this Agreement, an amount is paid in two or more installments, for purposes of Section 409A, each installment shall be treated as a separate payment.
(e) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement is ambiguous as to its compliance with Section 409A providing for the payment of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and any amounts or benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A upon or following a termination of employment unless such termination is also a “separation from service” as defined in Treas. Reg. Section 1.409A-1(h), including the Code but do not satisfy an exemption fromdefault presumptions, and for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “terminate,” “termination of employment” or the conditions of, such Sectionlike terms shall mean separation from service.
Appears in 5 contracts
Samples: Employment Agreement, Employment Agreement (Dave & Buster's Entertainment, Inc.), Employment Agreement (Dave & Buster's Entertainment, Inc.)
Section 409A. (a) Anything in It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the contrary notwithstandinggreatest extent possible, if at the time of exemptions from the Executive’s separation from service within the meaning application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code” and “Section 409A”) provided under Treasury Regulations 1.409A-1(b)(4), the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i1.409A-1(b)(5) of the Codeand 1.409A-1(b)(9), then and this Agreement will be construed to the greatest extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code possible as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance consistent with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Codethose provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that such payment or benefit is complies with Section 409A. All payments and benefits that are payable upon the Executive’s a termination of employment, then such payments or benefits employment hereunder shall be payable paid or provided only upon the Executive’s “separation from service.” The determination from the Company (within the meaning of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Section 409A). For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-1(h1.409A-2(b)(2)(iii).
(c) The parties intend that ), Executive’s right to receive any installment payments under this Agreement will (whether severance payments, reimbursements or otherwise) shall be administered 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 distinct payment. Notwithstanding any provision to the contrary in accordance with this Agreement, if Executive is deemed by the Company at the time of Executive’s termination to be a “specified employee” for purposes of Section 409A 409A(a)(2)(B)(i), and if any of the Code. To payments upon termination set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent that delayed commencement of any provision portion of this Agreement such payments is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations required in order to preserve avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Executive’s termination with the Company, (ii) the date of Executive’s death or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Code but do not satisfy an exemption fromfirst business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Sectionapplicable agreement. No interest shall be due on any amounts so deferred.
Appears in 5 contracts
Samples: Executive Employment Agreement (Neoleukin Therapeutics, Inc.), Executive Employment Agreement (Neoleukin Therapeutics, Inc.), Executive Employment Agreement (Neoleukin Therapeutics, Inc.)
Section 409A. It is intended that all of the severance benefits and other payments payable under this letter satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations 1.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A 1(b)(9), and this letter will be construed to the greatest extent possible as consistent with those provisions. For purposes of Code Section 409A (aincluding, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), your right to receive any installment payments under this letter (whether severance payments, reimbursements or otherwise) Anything in this Agreement shall be 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 distinct payment. Notwithstanding any provision to the contrary notwithstandingin this letter, if you are deemed by Freshworks at the time of the Executive’s separation your Separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is Service to be a “specified employee” within the meaning for purposes of Code Section 409A(a)(2)(B)(i) ), and if any of the Codepayments upon Separation from Service set forth herein and/or under any other agreement with Freshworks are deemed to be “deferred compensation”, then to the extent delayed commencement of any payment or benefit that the Executive becomes entitled portion of such payments is required in order to avoid a prohibited distribution under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of and the Coderelated adverse taxation under Section 409A, such payment shall not be payable and such benefit payments shall not be provided until to you prior to the date that is the earlier earliest of (A) six months and one day after the Executive’s separation from service, or (Bi) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provisionyour Separation from Service with Freshworks, and (ii) the balance date of the installments shall be payable in accordance with their original schedule.
your death or (biii) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Codefirst business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to you, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such any remaining payments or benefits due shall be payable only upon paid as otherwise provided herein or in the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred applicable agreement. No interest shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)due on any amounts so deferred.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Offer Letter (Freshworks Inc.), Offer Letter (Freshworks Inc.), Offer Letter (Freshworks Inc.)
Section 409A. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, if at the time of the Executive’s separation from service any compensation or benefits payable under this Agreement that constitutes “nonqualified deferred compensation” (“Deferred Compensation”) within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and which is designated under this Agreement as payable upon your termination of employment shall be payable only upon your “separation from service” with the Company determines within the meaning of Section 409A of the Code (a “Separation from Service”) and, except as otherwise provided under this paragraph, any such compensation or benefits shall not be paid, or, in the case of installments, shall not commence payment, until the sixtieth (60th) day following your Separation from Service. Any installment payments that would have been made to you during the Executive is sixty (60) day period immediately following your Separation from Service but for the preceding sentence shall be paid to you on the sixtieth (60th) day following your Separation from Service and the remaining payments shall be made as provided in this Agreement. Notwithstanding any provision herein to the contrary, if you are deemed by the Company at the time of your Separation from Service to be a “specified employee” within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of any payment or benefit that portion of the Executive becomes benefits to which you are entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject is required in order to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as avoid a result of the application of prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit portion of your benefits shall not be provided until the date that is to you prior to the earlier of (A) six months and one day after the Executive’s separation from service, or (Bof(i) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provisionyour Separation from Service with the Company or (ii) the date of your death. Upon the first business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to the preceding sentence shall be paid in a lump sum to you (or your estate or beneficiaries), and the balance of the installments any remaining payments due to you under this Agreement shall be payable in accordance with their original schedule.
(b) paid as otherwise provided herein. To the extent that any payment or benefit described in reimbursements under this Agreement constitutes “non-qualified deferred compensation” under are subject to the provisions of Section 409A of the Code, and any such reimbursements payable to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits you shall be paid to you no later than December 31 of the year following the year in which the expense was incurred, the amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year, and your right to reimbursement under this Agreement will not be subject to liquidation or exchange for another benefit. Your right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred on Company payroll dates, shall be made in accordance with the presumptions set forth in treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Treasury Regulation Section 1.409A-1(h1.409A-2(b)(2)(iii).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (Zeltiq Aesthetics Inc), Employment Agreement (REVA Medical, Inc.), Employment Agreement (REVA Medical, Inc.)
Section 409A. (a) Anything in If Executive becomes eligible for payments under this Agreement to the contrary notwithstanding, if at the time on account of the Executive’s his “separation from service service,” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, (the “Code, the Company determines that the ”) and Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) 409A of the Code, then to the extent as determined by Corporation, any payment or benefit that the Executive becomes entitled to under this Agreement on account portion of the payments that either do not qualify under the “short-term deferral rule” or exceed two times the lesser of (A) Executive’s “annualized compensation” for the calendar year preceding Executive’s separation from service would (in each case, as those terms are defined under Section 409A of the Code), or (B) the maximum amount that may be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to taken into account under Section 409A(a401(a)(17) of the Code as a result of for the application of year in which Executive’s separation from service occurs, and which are not otherwise exempt from Section 409A(a)(2)(B)(i) 409A of the Code, such shall be accrued, without interest, and its payment shall not be payable and such benefit shall not be provided delayed until the date that is first day of the earlier of (A) six months and one day after the seventh month following Executive’s separation from service, or (B) the if earlier, Executive’s death, at which point the accrued amount will be paid in a single, lump sum cash payment. If any such delayed cash payment is otherwise payable on an installment basisFurthermore, the first payment Corporation shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provisionnot be required to make, and the balance of the installments Executive shall not be payable in accordance with their original schedule.
(b) To the extent that required to receive, any severance or other payment or benefit described in under this Agreement constitutes “non-qualified deferred compensation” at such time as the making of such payment or the provision of such benefit or the receipt thereof shall result in a tax to Executive arising under Section 409A of the Code. The preceding provisions, and however, shall not be construed as a guarantee by the Corporation of any particular tax effect to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) Executive under this Agreement. The parties intend agree that this Agreement will be administered in accordance with Section 409A for purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision severance amounts payable under this Agreement shall be read treated as a right to a series of separate payments. This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the Code. This Agreement shall be administered, interpreted and construed in such a manner so that all payments hereunder comply consistent with Section 409A of the Code. The parties Corporation and Executive agree that they will execute any and all amendments to this Agreement may be amended, as reasonably requested by either party, and as they mutually agree in good faith may be necessary to fully comply ensure compliance with the provisions of Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either partyCode.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (ImmunoCellular Therapeutics, Ltd.), Employment Agreement (ImmunoCellular Therapeutics, Ltd.), Employment Agreement (ImmunoCellular Therapeutics, Ltd.)
Section 409A. (ai) Anything in this Agreement Notwithstanding anything to the contrary notwithstandingin this Agreement, no severance pay or benefits payable upon separation that is payable to Executive, if at any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation (together, the time of the Executive’s “Payments”) under Section 409A will be payable until Executive has a “separation from service service” within the meaning of Section 409A of 409A
(ii) Notwithstanding anything to the Codecontrary in this Agreement, the Company determines that the if Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then then, if required, the Payments, which are otherwise due to Executive on or within the 6 month period following Executive’s termination will accrue, to the extent required, during such payments 6 month period and will become payable in a lump sum payment on the date 6 months and 1 day following the date of Executive’s termination of employment or benefits shall the date of Executive’s death, if earlier. All subsequent Payments, if any, will be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions payment schedule applicable to each payment or benefit.
(iii) Any amounts paid under this Agreement that satisfy the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1(h)Regulations will not constitute Payments for purposes of clause (i) above.
(civ) Each payment and benefit payable under the Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
(v) Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit (as defined below) will not constitute a Payment for purposes of clause (i) above.
(vi) The parties intend that this Agreement will be administered in accordance foregoing provisions are intended to comply with the requirements of Section 409A so that none of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the severance payments and benefits to be provided hereunder without will be subject to the additional cost tax imposed under Section 409A, and any ambiguities herein will be interpreted to either party.
(d) so comply. The Company makes no representation or warranty and shall have no liability Executive agree to the Executive or any other person if any provisions of work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are determined necessary, appropriate or desirable to constitute deferred compensation subject avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 5 contracts
Samples: Employment Agreement (Impinj Inc), Colleran Employment Agreement (Impinj Inc), Colleran Employment Agreement (Impinj Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service The parties intend that any amounts payable hereunder that could constitute “deferred compensation” within the meaning of Section 409A will comply with Section 409A, and this Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A.
(i) Notwithstanding the Codeforegoing, the Company determines does not guarantee any particular tax effect, and Employee shall be solely responsible and liable for the satisfaction of all taxes, penalties and interest that may be imposed on or for the account of Employee in connection with the Agreement, (including any taxes, penalties and interest under Section 409A), and neither the Company nor any affiliate shall have any obligation to indemnify or otherwise hold Employee (or any beneficiary) harmless from any or all of such taxes, penalties or interest.
(ii) Notwithstanding anything in the Agreement to the contrary, in the event that the Executive Employee is deemed to be a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to Code and the extent any payment or benefit that Employee is not “disabled” within the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application meaning of Section 409A(a)(2)(B)(i409A(a)(2)(C) of the Code, such payment no payments in this Agreement that are “deferred compensation” subject to Section 409A shall not be payable and such benefit shall not be provided until made to the Employee prior to the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application date of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the ExecutiveEmployee’s “separation from service.” The determination (as defined in Section 409A) or, if earlier, Employee’s date of whether and when death. Following any applicable six month delay, all such delayed payments will be paid in a separation from service has occurred shall single lump sum on the earliest date permissible under Section 409A that is also a business day. For purposes of Section 409A, each of the payments that may be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)under this Agreement is designated as a separate payment.
(ciii) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability With respect to the Executive or time of payments of any other person if any provisions of this amounts under the Agreement that are determined to constitute “deferred compensation compensation” subject to Section 409A 409A, references in the Agreement to “termination of employment” (and substantially similar phrases) shall mean “separation from service” within the Code but do not satisfy an exemption from, or the conditions of, such Section.meaning of Section 409A.
Appears in 5 contracts
Samples: Employment Agreement (Aveon Group L.P.), Employment Agreement (Aveon Group L.P.), Employment Agreement (Aveon Group L.P.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (Albany Molecular Research Inc), Employment Agreement (Albany Molecular Research Inc), Separation Agreement (Albany Molecular Research Inc)
Section 409A. (a) Anything in this Agreement Notwithstanding any provision to the contrary notwithstanding, if at the time of in this Agreement: (i) no amount shall be payable pursuant to Section 4.5.2(b) unless the Executive’s termination of employment constitutes a “separation from service service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, and U.S. Department of Treasury regulations and other interpretive guidance thereunder (“Section 409A”) and unless, on or prior to the 60th day following the date of termination (A) the Executive executes a waiver and release of claims agreement in the Company’s customary form which is reasonably satisfactory to both the Company and the Executive and (B) such waiver and release of claims agreement shall become effective prior to such 60th day; and (ii) if the Executive is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the termination benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Executive’s termination benefits shall not be provided to Executive prior to the earlier of (A) the expiration of the six-month period measured from the date of the Executive’s “separation from service” with the Company (as such term is defined in the Treasury Regulations issued under Section 409A of the Code) or (B) the date of Executive’s death. Upon the earlier of such dates, all payments deferred pursuant to this Section 6(c)(ii) shall be paid in a lump sum to the Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. For purposes of Section 409A of the Code, the Company determines Executive’s right to receive installment payments pursuant to Section 4.5.2(b) shall be treated as a right to receive a series of separate and distinct payments. To the extent that any reimbursement of any expense under Sections 2.5 or 4.5.2(a) or in-kind benefits provided under this Agreement are deemed to constitute taxable compensation to the Executive, such amounts will be reimbursed or provided no later than December 31 of the year following the year in which the expense was incurred. The amount of any such expenses reimbursed or in-kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, the Executive’s right to such reimbursement or payment of any such expenses will not be subject to liquidation or exchange for any other benefit, and the Executive may not, directly or indirectly, designate the calendar year of payment. No acceleration of the time and form of payment of any nonqualified deferred compensation to the Executive shall occur unless and to the extent permitted by Section 409A. The determination of whether the Executive is a “specified employee” within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account Code as of the Executive’s time of his separation from service would be considered deferred compensation subject to shall made by the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made Company in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A terms of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either partyany successor provision thereto).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (Hylete, Inc.), Employment Agreement (Hylete, Inc.), Employment Agreement (Hylete)
Section 409A. (a) Anything in It is the intention of both parties that the benefits and rights to which Executive could be entitled pursuant to this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of be interpreted in accordance with Section 409A of the CodeCode and Department of Treasury regulations and other interpretive guidance issued thereunder (“Section 409A”), and the provisions and definitions of this Agreement shall be construed in a manner consistent with that intention. If either Executive or the Company determines determines, at any time, that any such benefit or right that is subject to Section 409A does not so comply, such party shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Section 409A (with the most limited possible economic effect on Executive is a “specified employee” within and on the meaning of Company), it being understood that that this Section 409A(a)(2)(B)(i15(a) shall not create an obligation on the part of the CodeCompany to adopt any such amendment, then policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so.
(b) If and to the extent required to comply with Section 409A, any payment or benefit that the Executive becomes entitled required to be paid under this Agreement on account of the termination of Executive’s employment or service (or any other similar term) shall be made only in connection with a “separation from service would service” with respect to Executive within the meaning of Section 409A.
(c) Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be considered paid prior to the earliest date on which it may be paid without violating Section 409A.
(d) Notwithstanding anything else provided herein, to the extent any payments provided under this Agreement in connection with Executive’s termination of employment constitute deferred compensation subject to Section 409A, and Executive is deemed at the 20 percent additional tax imposed pursuant time of such termination of employment to be a “specified employee” under Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code409A, then such payment shall not be payable and such benefit shall not be provided made or commence until the date that is the earlier of (Ai) six months and one day after the expiration of the 6-month period measured from Executive’s separation Separation from service, Service from the Company; or (Bii) such earlier date upon which such payment can be paid under Section 409A without resulting in a prohibited distribution, including the date of Executive’s death. If any ; provided, however, that such delayed cash payment is otherwise payable on an installment basisdeferral shall only be effected to the extent required to avoid adverse tax treatment to Executive including, without limitation, the additional tax for which Executive would otherwise be liable under Section 409A(a)(1)(B) in the absence of such a deferral. The first payment shall thereof will include a catch-up payment covering amounts the amount that would have otherwise have been paid during the six-month period between Executive’s termination of employment and the first payment date but for the application of this provision, and the balance of the installments shall (if any) will be payable in accordance with their original schedule.
(be) To the extent that any payment or benefit described in under this Agreement constitutes may be classified as a “nonshort-qualified deferred compensationterm deferral” under within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. Any right to a series of installment payments pursuant to this Agreement is intended to constitute a right to a series of separate payments for purposes of Section 1.409A-2(b)(2) of the CodeTreasury Regulations. Except as otherwise expressly provided herein, and to the extent that such payment any expense reimbursement or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of any in-kind benefit under this Agreement is ambiguous as determined to its compliance with be subject to Section 409A of the Code, the provision shall be read in amount of any such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption fromexpenses eligible for reimbursement, or the conditions ofprovision 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 Sectionexpenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
Appears in 5 contracts
Samples: Employment Agreement (Offerpad Solutions Inc.), Employment Agreement (Offerpad Solutions Inc.), Employment Agreement (Offerpad Solutions Inc.)
Section 409A. (ai) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six (6) months and one (1) day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month six (6)-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at an annual rate equal to the prime rate reported by The Wall Street Journal as of the date of separation from service, from such date of separation from service until the payment.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(cii) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(diii) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service”. The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(iv) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (Albany Molecular Research Inc), Employment Agreement (Albany Molecular Research Inc), Employment Agreement (Albany Molecular Research Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s “separation from service service” within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (Ai) six (6) months and one (1) day after the Executive’s separation from service, or (Bii) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment hereunder that is paid in instalment (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each instalment payment hereunder shall at all times be considered a separate and distinct payment. Neither the Company nor the Executive shall have the right to accelerate or defer any payment (or installment) hereunder unless permitted or required by Code Section 409A.
(c) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(d) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(de) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 5 contracts
Samples: Employment Agreement (Voyager Therapeutics, Inc.), Employment Agreement (Voyager Therapeutics, Inc.), Employment Agreement (Voyager Therapeutics, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company Employer determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at a simple annual rate equal to 5% per annum, from the date such payment would have been made if not for the operation of this Section until the payment is actually made.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company Employer makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Employment Agreement (GPT Operating Partnership LP), Employment Agreement (GPT Operating Partnership LP), Employment Agreement (Gramercy Capital Corp)
Section 409A. It is intended that all of the severance benefits and other payments payable under this letter satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this letter will be construed to the greatest extent possible as consistent with those provisions. For purposes of Code Section 409A (aincluding, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), your right to receive any installment payments under this letter (whether severance payments, reimbursements or otherwise) Anything in this Agreement shall be 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 distinct payment. Notwithstanding any provision to the contrary notwithstandingin this letter, if you are deemed by the Company at the time of the Executive’s separation your Separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is Service to be a “specified employee” within the meaning for purposes of Code Section 409A(a)(2)(B)(i) ), and if any of the Codepayments 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 commencement of any payment or benefit that the Executive becomes entitled portion of such payments is required in order to avoid a prohibited distribution under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of and the Coderelated adverse taxation under Section 409A, such payment shall not be payable and such benefit payments shall not be provided until to you prior to the date that is the earlier earliest of (A) six months and one day after the Executive’s separation from service, or (Bi) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provisionyour Separation from Service with the Company, and (ii) the balance date of the installments shall be payable in accordance with their original schedule.
your death or (biii) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Codefirst business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to you, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such any remaining payments or benefits due shall be payable only upon paid as otherwise provided herein or in the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred applicable agreement. No interest shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)due on any amounts so deferred.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Offer of Employment (Dynamics Special Purpose Corp.), Employment Agreement (Dynamics Special Purpose Corp.), Offer of Employment (Dynamics Special Purpose Corp.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the ExecutiveEmployee’s “separation from service service” within the meaning of Section 409A of the Code, the Company determines that the Executive Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive Employee becomes entitled to under this Agreement on account of the ExecutiveEmployee’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the ExecutiveEmployee’s separation from service, or (B) the ExecutiveEmployee’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Employee during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(d) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Employee’s termination of employment, then such payments or benefits shall be payable only upon the Employee’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(e) The Company makes no representation or warranty and shall have no liability to the Executive Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Change in Control Agreement (Emagin Corp), Change in Control Agreement (CAPSTONE TURBINE Corp), Change in Control Agreement (Emagin Corp)
Section 409A. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, if to the extent the Employee would otherwise be entitled to a payment during the six months beginning on the Date of Termination that would be subject to the additional tax imposed under Section 409A of the Code, (i) the payment will not be made to the Employee and instead will be made, at the time election of the ExecutiveCompany, either to a trust in compliance with Rev. Proc. 92-64 or an escrow account established to fund such payments (provided that such funds shall be at all times subject to the creditors of the Company and its affiliates) and (ii) the payment, together with interest thereon at the rate of “prime” plus 1%, will be paid to the Employee on the earlier of the six-month anniversary of Date of Termination or the Employee’s separation from service death or disability (within the meaning of Section 409A of the Code). Similarly, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes Employee would otherwise be entitled to under this Agreement any benefit (other than a cash payment) during the six months beginning on account the Date of the Executive’s separation from service Termination that would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered delayed and will begin being provided (together, if applicable, with an adjustment to compensate the Employee for the delay, with such adjustment to be determined in accordance with the Company’s reasonable good faith discretion) on the earlier of the six-month anniversary of the Date of Termination or the Employee’s death or disability (within the meaning of Section 409A of the Code). To The Company will establish the extent trust or escrow account, as applicable, no later than ten days following the Employee’s Date of Termination. It is the intention of the parties that any provision the payments and benefits to which the Employee could become entitled in connection with termination of employment under this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The In the event that the parties agree determine that this Agreement may be amendedany such benefit or right does not so comply, as they will negotiate reasonably requested by either party, and as may be necessary in good faith to fully comply with Section 409A of amend the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions terms of this Agreement are determined such that it complies (in a manner that attempts to constitute deferred compensation subject to Section 409A minimize the economic impact of such amendment on the Code but do not satisfy an exemption from, or Employee and the conditions of, such SectionCompany).
Appears in 4 contracts
Samples: Employment Agreement (Cambrex Corp), Employment Agreement (Cambrex Corp), Employment Agreement (Cambrex Corp)
Section 409A. (a) Anything in It is the Parties’ intent that all payments pursuant to this Agreement be exempt from, or compliant with, Section 409A of the Code (“Section 409A”) and that this Agreement be interpreted acccordingly.
(b) The following rules shall apply with respect to distribution of the payments, if any, to be provided to the contrary notwithstandingExecutive under the Agreement, if at as applicable:
(i) It is intended that each installment of the time payments under the Agreement shall be treated as a separate “payment” for purposes of Section 409A. Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.
(ii) If, as of the date of the Executive’s “separation from service service” from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A 409A), then each installment of the Codepayments shall be made on the dates and terms otherwise set forth in this Agreement with respect to such payments.
(iii) If, as of the Company determines that date of the Executive’s “separation from service” from the Company, the Executive is a “specified employee” (within the meaning of Section 409A(a)(2)(B)(i) of the Code409A), then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of then:
(A) six months Each payment due under the Agreement that, in accordance with the dates and one day after terms set forth herein, will in all circumstances, be paid within the Executive’s separation from service, or short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms otherwise set forth in the Agreement with respect to such payments; and
(B) Each payment due under the Executive’s death. If any such delayed cash payment Agreement that is otherwise payable on an installment basisnot described in Section 18(b)(iii)(A) and that would, the first payment shall include a catch-up payment covering amounts that would otherwise have been absent this subsection, be paid during within the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon following the Executive’s “separation from service” from the Company and on account of the Executive’s “separation from service” shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with any such payments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent payments, if any, being paid in accordance with the dates and terms otherwise set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any payment if and to the maximum extent that that such payment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any payment that qualifies for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs.
(c) Subject to this Section 18, any payments that may be due under the Agreement on account of termination of employment shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The determination of whether and when a the Executive’s separation from service from the Company has occurred shall be made and in accordance with a manner consistent with, and based on the presumptions set forth in in, Treasury Regulation Section 1.409A-1(h).
(c. Solely for purposes of this Section 18(c), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) The parties intend that this Agreement will be administered in accordance with Section 409A and 414(c) of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.
(e) The Company makes no representation or warranty and shall have no liability to the Executive or to any other person Person if any of the provisions of this the Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but that do not satisfy an exemption from, or the conditions of, such Sectionthat section.
Appears in 4 contracts
Samples: Employment Agreement (Endurance International Group Holdings, Inc.), Employment Agreement (Endurance International Group Holdings, Inc.), Employment Agreement (Endurance International Group Holdings, Inc.)
Section 409A. (a) Anything in this Agreement Notwithstanding anything to the contrary notwithstandingin this Agreement, no severance pay or benefits to be paid or provided to Executive, if at the time of the Executive’s any, pursuant to this Agreement, will be payable until Executive has a “separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employeeservice” within the meaning of Section 409A(a)(2)(B)(i409A, and the regulations promulgated thereunder (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code, then to ”). To the extent (i) any payment or benefit that the payments to which Executive becomes entitled to under this Agreement on account Agreement, or any agreement or plan referenced herein, in connection with the termination of the Executive’s separation from service would be considered employment with and/or services to the Company constitute deferred compensation subject to Section 409A and (ii) Executive is deemed at the 20 percent additional tax imposed pursuant time of such termination of employment to be a “specified” employee under Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code409A, then such payment or payments shall not be payable and such benefit shall not be provided made or commence until the date that is the earlier of (A) the expiration of the six months and one day after the (6)-month period measured from Executive’s separation from service, termination or (B) the date of Executive’s death. If any death following such delayed cash payment is otherwise payable on an installment basistermination; provided, the first payment however, that such deferral shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall only be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and 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) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that such payment period (whether in a single sum or benefit is payable upon in installments) in the absence of this paragraph shall be paid to Executive or Executive’s termination of employment, then such payments or benefits shall be beneficiary in one lump sum (without interest). Each payment and benefit payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that under this Agreement will be administered in accordance with is intended to constitute separate payments for purposes of Section 409A 1.409A-2(b)(2) of the CodeTreasury Regulations. To the extent that any provision of this Agreement is ambiguous as necessary to its compliance comply with Section 409A of the Code, if the provision shall designated payment period for any payment under this Agreement begins in one taxable year and ends in the next taxable year, the payment will be read made in such a manner so that all payments hereunder comply with Section 409A of the Codelater taxable year. The parties agree that To the extent any payment under this Agreement may be amendedclassified as a “short-term deferral” within the meaning of Section 409A, as reasonably requested by either partysuch payment shall be deemed a short-term deferral, and as even if it may be necessary also qualify for an exemption from Section 409A under another provision of Section 409A. The foregoing provisions are intended to fully comply with the requirements of Section 409A so that none of the Code and all related rules and regulations in order to preserve the severance payments and benefits to be provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Executive or any other person if any provisions of and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are determined necessary, appropriate or desirable to constitute deferred compensation subject avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 4 contracts
Samples: Change of Control Severance Agreement (Fortinet, Inc.), Change of Control Severance Agreement (Fortinet, Inc.), Change of Control Severance Agreement (Fortinet, Inc.)
Section 409A. (a) Anything in It is intended that any amounts payable pursuant to this Agreement to will either be exempt from or comply with the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning requirements of Section 409A of the CodeCode (and any regulations and guidelines issued thereunder) and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision to the contrary in this Agreement, if Employee is deemed on the Company determines that date of Employee’s “separation from service” (within the Executive is meaning of Treas. Reg. Section 1.409A-1(h)) to be a “specified employee” (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i) of the Code1.409A-1(i)), then with regard to the extent any payment or benefit that the Executive becomes entitled is required to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed delayed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i409A(a)(2)(B) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is made prior to the earlier of (Aa) the expiration of the six months and one day after (6)-month period measured from the Executivedate of Employee’s “separation from service, ,” or (Bb) the Executivedate of Employee’s deathdeath (the “Delay Period”). If any such delayed cash payment is otherwise payable on an installment basis, Upon the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance expiration of the Delay Period, all payments delayed pursuant to this Section 26 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid to Employee in a lump sum and any remaining payments due under this Agreement shall be paid in accordance with their original schedule.
(b) To the normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, to the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under required to comply with Section 409A of the CodeCode or an exemption thereto, and for purposes of determining Employee’s entitlement to the extent that such payment or benefit is any compensation payable upon the ExecutiveEmployee’s termination of employment, then such payments or benefits shall Employee’s employment will be payable only upon deemed to have terminated on the Executivedate of Employee’s “separation from service.” The determination (within the meaning of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Treas. Reg. Section 1.409A-1(h).
(c) The parties intend that with the Company Group. Whenever payments under this Agreement will are to be administered made (i) pursuant to different provisions hereof or (ii) in accordance with installments, each such payment or installment shall be deemed to be a separate payment for purposes of Section 409A of the Code. To No action or failure to act, pursuant to this Section 26 shall subject the extent Company Group to any claim, liability, or expense, and the Company Group shall not have any obligation to indemnify or otherwise protect Employee from the obligation to pay any taxes pursuant to Section 409A of the Code. With respect to any reimbursement or in-kind benefit arrangements of the Company Group that any provision constitute deferred compensation for purposes of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision following conditions shall be read applicable: (A) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a manner so limit on the amount that may be reimbursed or paid if such limit is imposed on all payments hereunder comply with Section 409A participants), (B) any reimbursement must be made on or before the last day of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either partycalendar year following the calendar year in which the expense was incurred, and as may be necessary (C) the right to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and reimbursement or in-kind benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation is not subject to Section 409A of the Code but do not satisfy an exemption from, liquidation or the conditions of, such Sectionexchange for another benefit.
Appears in 4 contracts
Samples: Retention Agreement (Superior Group of Companies, Inc.), Retention Agreement (Superior Group of Companies, Inc.), Retention Agreement (Superior Group of Companies, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s “separation from service service” within the meaning of Section 409A of the Code, the Company Eastern determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (Ai) six (6) months and one (1) day after the Executive’s separation from service, or and (Bii) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) The Parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The Parties agree that this Agreement may be amended, as reasonably requested by either Party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either Party.
(c) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by Eastern or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(d) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(ce) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company Eastern makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute non-qualified deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Change in Control Agreement (Eastern Bankshares, Inc.), Change in Control Agreement (Eastern Bankshares, Inc.), Change in Control Agreement (Eastern Bankshares, Inc.)
Section 409A. (a) Anything in It is intended that any amounts payable under this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation shall either be exempt from service within the meaning of or comply with Section 409A of the CodeCode (including the Treasury regulations and other published guidance relating thereto) (“Code Section 409A”) so as not to subject the Executive to payment of any additional tax, penalty or interest imposed under Code Section 409A. The provisions of this Agreement shall be construed and interpreted to avoid the Company determines that imputation of any such additional tax, penalty or interest under Code Section 409A yet preserve (to the nearest extent reasonably possible) the intended benefit payable to the Executive. Any installment payments provided for in this Agreement shall be treated as a series of separate payments for purposes of Code Section 409A.
(b) If the Executive is a “specified employee” within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(i) as of the Codedate of the Executive’s Separation from Service, then the Executive shall not be entitled to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a5.3(b) of the Code as a result of the application of Section 409A(a)(2)(B)(ior (c) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (Ai) the date which is six (6) months and one day after the Executive’s separation his Separation from serviceService for any reason other than death, or (Bii) the date of the Executive’s death. If The provisions of this Section 21(b) shall only apply if, and to the extent, required to avoid the imputation of any such delayed cash payment is tax, penalty or interest pursuant to Code Section 409A. Any amounts otherwise payable on an installment basis, to the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during Executive upon or in the six-six (6) month period but for following the application Executive’s Separation from Service that are not so paid by reason of this provisionSection 21(b) shall be paid (without interest) as soon as practicable (and in all events within thirty (30) days) after the date that is six (6) months after the Executive’s Separation from Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the balance date of the installments shall be payable in accordance with their original scheduleExecutive’s death).
(bc) To the extent that any payment benefits pursuant to Section 5.3(b)(ii) or benefit described in this Agreement constitutes “non-qualified deferred compensation” under reimbursements pursuant to Section 409A of the Code, and 4.2 are taxable to the extent that Executive, any reimbursement payment due to the Executive pursuant to any such payment provision shall be paid to the Executive on or benefit is payable upon before the last day of the Executive’s termination of employment, then such payments or benefits shall be payable only upon taxable year following the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made taxable year in accordance with which the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Coderelated expense was incurred. The parties agree benefits and reimbursements pursuant to such provisions are not subject to liquidation or exchange for another benefit and the amount of such benefits and reimbursements that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive receives in one taxable year shall not affect the amount of such benefits or reimbursements that the Executive receives in any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Sectiontaxable year.
Appears in 4 contracts
Samples: Employment Agreement (Next Bridge Hydrocarbons, Inc.), Employment Agreement (Next Bridge Hydrocarbons, Inc.), Employment Agreement (Next Bridge Hydrocarbons, Inc.)
Section 409A. (a) Anything in It is intended that any amounts payable pursuant to this Agreement to will either be exempt from or comply with the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning requirements of Section 409A of the CodeCode (and any regulations and guidelines issued thereunder) and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision to the contrary in this Agreement, if Employee is deemed on the Company determines that date of Employee’s “separation from service” (within the Executive is meaning of Treas. Reg. Section 1.409A-1(h)) to be a “specified employee” (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i) of the Code1.409A-1(i)), then with regard to the extent any payment or benefit that the Executive becomes entitled is required to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed delayed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i409A(a)(2)(B) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is made prior to the earlier of (Aa) the expiration of the six months and one day after (6)-month period measured from the Executivedate of Employee’s “separation from service, ,” or (Bb) the Executivedate of Employee’s deathdeath (the “Delay Period”). If any such delayed cash payment is otherwise payable on an installment basis, Upon the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance expiration of the Delay Period, all payments delayed pursuant to this Section 22 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid to Employee in a lump sum and any remaining payments due under this Agreement shall be paid in accordance with their original schedule.
(b) To the normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, to the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under required to comply with Section 409A of the CodeCode or an exemption thereto, and for purposes of determining Employee’s entitlement to the extent that such payment or benefit is any compensation payable upon the ExecutiveEmployee’s termination of employment, then such payments or benefits shall Employee’s employment will be payable only upon deemed to have terminated on the Executivedate of Employee’s “separation from service.” The determination (within the meaning of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Treas. Reg. Section 1.409A-1(h).
(c) The parties intend that with the Company Group. Whenever payments under this Agreement will are to be administered made (i) pursuant to different provisions hereof or (ii) in accordance with installments, each such payment or installment shall be deemed to be a separate payment for purposes of Section 409A of the Code. To No action or failure to act, pursuant to this Section 22 shall subject the extent Company Group to any claim, liability, or expense, and the Company Group shall not have any obligation to indemnify or otherwise protect Employee from the obligation to pay any taxes pursuant to Section 409A of the Code. With respect to any reimbursement or in-kind benefit arrangements of the Company Group that any provision constitute deferred compensation for purposes of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision following conditions shall be read applicable: (A) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a manner so limit on the amount that may be reimbursed or paid if such limit is imposed on all payments hereunder comply with Section 409A participants), (B) any reimbursement must be made on or before the last day of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either partycalendar year following the calendar year in which the expense was incurred, and as may be necessary (C) the right to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and reimbursement or in-kind benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation is not subject to Section 409A of the Code but do not satisfy an exemption from, liquidation or the conditions of, such Sectionexchange for another benefit.
Appears in 4 contracts
Samples: Change in Control Agreement (Superior Group of Companies, Inc.), Change in Control Agreement (Superior Group of Companies, Inc.), Change in Control Agreement (Superior Group of Companies, Inc.)
Section 409A. (a) Anything The parties intend that this Agreement and the payments and benefits provided hereunder be exempt from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to this Agreement, the parties intend that this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary notwithstanding, contrary:
(i) if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B)(i) of the Code409A, then with regard to the extent any payment or benefit that the Executive becomes entitled to is considered a “deferral of compensation” under this Agreement Section 409A payable on account of the Executive’s a “separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service,” such payment shall not be payable and such benefit shall not be provided until made on the date that which is the earlier of (A) the date that is six months and one day after the Executive’s date of such “separation from service, or ” of the Executive and (B) the date of the Executive’s death. If any death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 14(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delayed cash payment is otherwise payable on an installment basis, delay) shall be paid to the first payment shall include Executive in a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provisionlump sum, and the balance of the installments all remaining payments due under this Agreement shall be payable paid or provided in accordance with their original schedule.the normal payment dates specified for those payments in this Agreement;
(bii) To to the extent that any payment payments or benefit described in benefits under this Agreement constitutes “nonare conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 60-qualified deferred compensation” under day post-termination period, then, subject to Section 409A of the Code, 14(b)(i) and to the extent that such payment or benefit is payable upon the Executive’s termination of employmentnot exempt under Section 409A, then such payments or benefits shall be payable only upon made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, and the Executive’s right to reimbursement shall not be subject to liquidation or exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive’s right to receive a series of installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).”
(c) The parties intend that Company and the Executive agree to work together in good faith to consider amendments to this Agreement will and to take such reasonable actions that may be administered necessary, appropriate, or desirable to avoid imposition of additional tax or income recognition on the Executive under Section 409A, in accordance with Section 409A of each case to the Codemaximum extent permitted by applicable law. To the extent that Notwithstanding any provision of this Agreement is ambiguous as to its compliance with the contrary, (i) in no event will the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Code. The parties agree Company or any of its employees, officers, directors or agents in the event it is determined that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully any payment or benefit provided hereunder does not comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 4 contracts
Samples: Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
Section 409A. (a) Anything in Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and operated to the contrary notwithstanding, if at extent possible so that the time of payments set forth herein either shall be exempt from the Executive’s separation from service within the meaning requirements of Section 409A of the CodeInternal Revenue Code of 1986, as amended (“Section 409A”) or shall comply with the requirements of such provision; provided however that in no event shall the Employer be liable to the Employee for or with respect to any taxes, penalties or interest which may be imposed upon the Employee pursuant to Section 409A. To the extent that any amount payable pursuant to this Agreement constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on the date of the Employee’s “separation from service,” as such term is defined in Treas. Reg. Section 1.409A-1(h)(1), from the Employer (“Separation from Service”), the Company determines that the Executive Employee is a “specified employee,” within as such term is defined in Treas. Reg. Section 1.409-1(i), as determined from time to time by the meaning of Section 409A(a)(2)(B)(i) of the CodeEmployer, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment 409A Payment shall not be payable and such benefit shall not be provided until made to the date that is Employee earlier than the earlier of (Ai) six (6) months and one day after the ExecutiveEmployee’s separation Separation from service, Service; or (Bii) the Executivedate of Employee’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts The 409A Payment under this Agreement that would otherwise be made during such period shall be aggregated and paid in one lump sum, with interest (compounded monthly) at the prime rate reported by the Wall Street Journal on the date the payment otherwise would have been paid during made, on the six-first business day following the end of the six (6) month period but for or following the application of this provision, and the balance date of the installments shall be payable in accordance Employee’s death, whichever is earlier. The Employee hereby acknowledges that Employee has been advised to seek and has sought the advice of a tax advisor with their original schedule.
(b) To respect to the extent that tax consequences to the Employee of all payments pursuant to this Agreement, including any payment adverse tax consequences or benefit described in this Agreement constitutes “non-qualified deferred compensation” penalty taxes under Section 409A and applicable federal and state tax law. Employee hereby agrees to bear the entire risk of any such adverse federal and state tax consequences and penalty taxes in the Codeevent any payment pursuant to this Agreement is deemed to be subject to Section 409A, and that no representations have been made to the extent that such Employee relating to the tax treatment of any payment or benefit is payable upon pursuant to this Agreement under Section 409A and the Executive’s corresponding provisions of any applicable state income tax laws. If payments under Section 6(c) constitute 409A Payment, references within Section 6(c) and this Section 9(i) to termination of employment, then such payments employment or benefits similar language shall be payable only upon the Executivemean Employee’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made as defined in accordance with the presumptions set forth in Treasury Regulation Treas. Reg. Section 1.409A-1(h).
(c) The parties intend that , including the default presumptions thereunder. No 409A Payment payable under this Agreement will shall be administered subject to acceleration or to any change in accordance the specified time or method of payment, except as otherwise provided under this Agreement and consistent with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 4 contracts
Samples: Employment Agreement (Supertel Hospitality Inc), Employment Agreement (Supertel Hospitality Inc), Employment Agreement (Supertel Hospitality Inc)
Section 409A. (a) Anything in this Agreement Notwithstanding anything to the contrary notwithstandingin this Agreement, if at the time of the Executive’s separation from service within the meaning of any benefit provided under this Agreement is subject to Section 409A of the CodeCode and such benefit otherwise is payable in connection with the Employee’s termination of employment, then the following will apply:
(i) such benefit will not be payable unless such termination constitutes a “separation from service” (as such term is defined in Treasury Regulations Section 1.409A-1(h) without regard to any alternative definition thereunder) (“Separation from Service”);
(ii) if the Employee’s Separation from Service occurs at a time during the calendar year when the release of claims described in Section 7 could become effective in the calendar year following the calendar year in which such Separation from Service occurs, then for purposes of such benefit, the Company determines that release of claims will not be deemed effective any earlier than the Executive latest permitted effective date set forth therein (which date, in all cases, will be in the subsequent calendar year); and
(iii) if the Employee is a “specified employee” within the meaning of (as determined in accordance with Section 409A(a)(2)(B)(i) 409A of the CodeCode and related Treasury guidance and regulations) as of the date of the Employee’s Separation from Service, then then, solely to the extent any payment or benefit that necessary to avoid the Executive becomes entitled to under this Agreement on account imposition of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional adverse personal tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” consequences under Section 409A of the Code, (A) the commencement of such benefit payments will be delayed until the earlier of (1) the date that is six (6) months and one (1) day after such Separation from Service and (2) the date of the Employee’s death (such applicable date, the “Delayed Initial Payment Date”), and (B) the Company will (1) pay the Employee a lump sum amount equal to the extent sum of any benefit payments that the Employee otherwise would have received through the Delayed Initial Payment Date if the commencement of such payment or benefit is payable upon payments had not been delayed pursuant to this paragraph and (2) commence paying the Executive’s termination balance, if any, of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made benefit in accordance with the presumptions set forth in applicable payment schedule. It is intended that each installment of any benefit payable under this Agreement be regarded as a separate “payment” for purposes of Treasury Regulation Regulations Section 1.409A-1(h1.409A-2(b)(2)(i).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Change of Control Severance Agreement (Threshold Pharmaceuticals Inc), Change of Control Severance Agreement (Threshold Pharmaceuticals Inc), Change of Control Severance Agreement (Threshold Pharmaceuticals Inc)
Section 409A. (a) Anything in this Agreement to It is the contrary notwithstanding, if at the time intention of the Executive’s separation from service within Company and the meaning of Section 409A of the Code, the Company determines Executive that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision provisions of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and the final regulations promulgated thereunder (including the transition rules thereof), and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to shall be construed and interpreted in a manner consistent with Section 409A of the Code but do and such final regulations. To the extent necessary to avoid imposition of any additional tax or interest penalties under Section 409A (such tax and interest penalties, a “Section 409A Tax”), notwithstanding the timing of payment provided in any other Section of this Agreement, the timing of any payment, distribution or benefit pursuant to this Agreement shall be subject to a six-month delay in a manner consistent with Section 409A(a)(2)(B)(i) of the Code, provided that (a) the Executive shall be credited with interest in respect of such payment, distribution or benefit during such six-month period at the rate set forth in Section 16 and (b) if the Executive dies during such six-month period, any such delayed payments shall not satisfy be further delayed, and shall be immediately payable to the Executive’s devisee, legatee or other designee or, should there be no such designee, to the Executive’s estate in accordance with the applicable provisions of this Agreement. From and after the Effective Date and for the remainder of the term of this Agreement, (i) the Company shall administer and operate this Agreement in compliance with Section 409A of the Code and the final regulations promulgated thereunder and any other applicable rules, regulations or other guidance promulgated thereunder as in effect from time to time, (ii) in the event that the Company determines, after conducting a reasonable review, that any provision of this Agreement does not comply with Section 409A of the Code or any such rules, regulations or guidance and that the Executive may become subject to a Section 409A Tax, the Company and the Executive shall negotiate in good faith to amend or modify such provision to avoid the application of such Section 409A Tax, provided that such amendment or modification shall not (and the Executive shall not be obligated to consent to any such amendment or modification that would) reduce the economic value to the Executive of such provision, and (iii) in the event that, notwithstanding the foregoing, the Executive is subject to a Section 409A Tax with respect to any such provision, then except to the extent such Section 409A Tax is attributable to the Executive’s breach of the Executive’s obligations under the immediately preceding clause (ii), the Executive shall be entitled to receive an exemption fromadditional payment from the Company (a “409A Gross-Up Payment”) in an amount such that, after payment by the Executive of all taxes (and any interest or penalties imposed with respect to such taxes), including any income and employment taxes (and any interest and penalties imposed with respect thereto) and any Section 409A Tax imposed upon the conditions of409A Gross-Up Payment, the Executive retains an amount of the 409A Gross-Up Payment equal to the Section 409A Tax imposed with respect to such Sectionprovision. The provisions of Sections 8(c) and (d) shall apply mutatis mutandis to any claim by the Internal Revenue Service that, if successful, would give rise to a 409A Gross-Up Payment by the Company.
Appears in 4 contracts
Samples: Employment Agreement (Manor Care Inc), Employment Agreement (Manor Care Inc), Employment Agreement (Manor Care Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made by the Company in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Employment Agreement (Omthera Pharmaceuticals, Inc.), Employment Agreement (Omthera Pharmaceuticals, Inc.), Employment Agreement (Omthera Pharmaceuticals, Inc.)
Section 409A. The payments and benefits under this Agreement are intended to qualify for an exemption from application of Section 409A of the Code (a“Section 409A”) or comply with its requirements to the extent necessary to avoid adverse personal tax consequences under Section 409A, and any ambiguities herein shall be interpreted accordingly. To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A, and to the extent that such payment or benefit is payable upon the termination of your employment, then such payments or benefits will be payable only upon your “separation from service.” The determination of whether and when a separation from service has occurred will be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s your separation from service within the meaning of Section 409A of the Codeservice, the Company determines that the Executive is you are a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes you become entitled to under this Agreement on account of the Executive’s your separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall will not be payable and such benefit shall will not be provided until the date that is the earlier of (A) six months and one day after the Executive’s your separation from service, or (B) the Executive’s your death, or (C) such earlier date as permitted under Section 409A without imposition of adverse taxation. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall will include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall will be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall will have no liability to the Executive you or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.Section 409A.
Appears in 4 contracts
Samples: Severance Agreement (Rapid7, Inc.), Severance Agreement (Rapid7, Inc.), Severance Agreement (Rapid7, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the ExecutiveEmployee’s “separation from service service” within the meaning of Section 409A of the Code, the Company determines that the Executive Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive Employee becomes entitled to under this Agreement on account of the ExecutiveEmployee’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the ExecutiveEmployee’s separation from service, or (B) the ExecutiveEmployee’s death. If any Any such delayed cash payment is otherwise payable on shall earn interest at an installment basis, annual rate equal to the first payment shall include a catchapplicable federal short-up payment covering amounts that would otherwise have been paid during term rate published by the six-month period but Internal Revenue Service for the application month in which the date of this provisionseparation from service occurs, and from such date of separation from service until the balance of the installments shall be payable in accordance with their original schedulepayment.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(dc) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Employee during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The Company makes no representation amount of in-kind benefits provided or warranty and reimbursable expenses incurred in one taxable year shall have no liability not affect the in-kind benefits to be provided or the Executive or expenses eligible for reimbursement in any other person if any provisions of this Agreement are determined taxable year. Such right to constitute deferred compensation reimbursement or in-kind benefits is not subject to Section 409A of the Code but do not satisfy an exemption from, liquidation or the conditions of, such Sectionexchange for another benefit.
Appears in 4 contracts
Samples: Change in Control Protection Agreement (Boston Private Financial Holdings Inc), Change in Control Protection Agreement (Boston Private Financial Holdings Inc), Change in Control Protection Agreement (Boston Private Financial Holdings Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company Employer determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of separation from service occurs, from such date of separation from service until the payment.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h1.409A-l(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation . No action or warranty failure by the Employer in good faith to act, pursuant to this Section 8(c), shall subject the Employer to any claim, liability, or expense, and the Employer shall not have no liability any obligation to indemnify or otherwise protect Executive from the Executive or obligation to pay any other person if any provisions of this Agreement are determined to constitute deferred compensation subject taxes pursuant to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such SectionCode.
Appears in 4 contracts
Samples: Employment Agreement (NSTS Bancorp, Inc.), Employment Agreement (NSTS Bancorp, Inc.), Employment Agreement (NSTS Bancorp, Inc.)
Section 409A. (a1) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c2) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read interpreted in such a manner so that all payments hereunder comply with Section 409A of the Code or will be exempt from Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d3) The Company makes no representation or warranty determination of whether and when a separation from service has occurred shall have no liability to be made after applying the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to presumptions set forth in Treasury Regulation Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section1.409A-1(h).
Appears in 4 contracts
Samples: Employment Agreement (Trustwave Holdings, Inc.), Employment Agreement (Trustwave Holdings, Inc.), Employment Agreement (Trustwave Holdings, Inc.)
Section 409A. (aAny payments made by the Company pursuant to Sections 3(b)(ii), 3(b)(iii) Anything in and 3(b)(iv) of this Agreement (except for unpaid annual short-term incentive compensation earned in the calendar year immediately preceding the calendar year in which the termination of Executive’s employment occurs, which shall be paid to the contrary notwithstanding, if at the time Executive when paid to other similarly situated executives of the Company) shall be paid or commence on the first payroll date occurring on or after the thirtieth (30th) day following the effective date of Executive’s “separation from service service” within the meaning of Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). For purposes of applying the provisions of Section 409A to this Agreement, each separately identified amount to which Executive is entitled under this Agreement shall be treated as a separate payment. In addition, to the extent permissible under Section 409A, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments. Executive shall receive no additional compensation following any termination except as provided herein. In the event of any termination, Executive shall resign all positions with the Company determines that the and its subsidiaries. If Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i409A, then payments identified in Section 3(b) of this Agreement shall not commence until six (6) months following “separation from service” within the Code, then meaning of Section 409A to the extent any payment or benefit that necessary to avoid the Executive becomes entitled to under this Agreement on account imposition of the Executive’s separation from service would be considered deferred compensation subject to additional twenty percent (20%) tax under Section 409A (and in the 20 percent additional tax imposed pursuant to Section 409A(a) case of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basispayments, the first payment shall include a catch-up payment covering amounts all installment payments required by this subsection that otherwise would otherwise have been paid made during the such six-month period but for period). If the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit payments described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of 3(b) must be delayed for six (6) months pursuant to the Codepreceding sentence, and Executive shall not be entitled to additional compensation to compensate for such delay period. Upon the date such payment would otherwise commence, the Company shall reimburse Executive for such payments, to the extent that such payment or benefit is payable upon payments otherwise would have been paid by the Executive’s termination of employment, then Company had such payments or benefits shall be payable only commenced upon the Executive’s “separation from service.” The determination within the meaning of whether and when a separation from service has occurred Section 409A. Any remaining payments shall be made provided by the Company in accordance with the presumptions set forth in Treasury Regulation schedule and procedures specified herein. This Agreement is intended to satisfy the requirements of Section 1.409A-1(h).
(c) The parties intend that 409A with respect to amounts subject thereto, and shall be interpreted and construed consistent with such intent. Any reimbursements by the Company to Executive of any eligible expenses under this Agreement will that are not excludable from Executive’s income for Federal income tax purposes (the “Taxable Reimbursements”) shall be administered in accordance with Section 409A made by no later than the last day of the Codetaxable year of Executive following the year in which the expense was incurred. To The amount of any Taxable Reimbursements, and the extent value of any in-kind benefits to be provided to Executive, during any taxable year of Executive shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year of Executive. The right to Taxable Reimbursement, or in-kind benefits, shall not be subject to liquidation or exchange for another benefit. Notwithstanding the foregoing, the Company does not make any representation to Executive that the payments or benefits provided under this Agreement are exempt from, or satisfy, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify or hold harmless Executive or any beneficiary for any tax, additional tax, interest or penalties that Executive or any beneficiary may incur in the event that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amendedor any amendment or modification thereof, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if action taken with respect thereto, is deemed to violate any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.requirements of Section 409A.
Appears in 4 contracts
Samples: Employment Agreement (TherapeuticsMD, Inc.), Employment Agreement (TherapeuticsMD, Inc.), Employment Agreement (TherapeuticsMD, Inc.)
Section 409A. (a) Anything in All severance payments to be made upon a termination of employment under this Agreement to the contrary notwithstanding, if at the time may be made only upon a “separation of the Executive’s separation from service service” within the meaning of Section 409A of the CodeCode and the Department of Treasury regulations and other guidance promulgated thereunder. Notwithstanding any provision to the contrary in this Agreement, if Employee is deemed by the Company determines that at the Executive is time of Employee’s separation from service to be a “specified employee” within the meaning for purposes of Code Section 409A(a)(2)(B)(i) of the Code401A(a)(2)(B)(i), then to the extent delayed commencement of any payment or benefit that portion of the Executive becomes benefits to which Employee is entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject is required in order to the 20 percent additional tax imposed pursuant to Section 409A(a) of the avoid a prohibited distribution under Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code), such payment shall not be payable and such benefit portion of Employee’s benefits shall not be provided until the date that is to Employee prior to the earlier of (A) six months and one day after the Executive’s separation from service, or (Bi) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the ExecutiveEmployee’s “separation from of service.” The determination with the Company or (ii) the date of whether and when a separation from service has occurred Employee’s death. Upon the first business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 7 shall be made paid in accordance with a lump sum to Employee, and any remaining payments due under the presumptions set forth in Agreement shall be paid as otherwise provided herein. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-1(h1.409A-2(b)(2)(iii).
(c) The parties intend that ), Employee’s right to receive installment payments under this Agreement will shall be administered in accordance with Section 409A 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 distinct payment. It is intended that none of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the severance payments and benefits to be provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation will be subject to Section 409A of the Code but do not satisfy an exemption fromand any ambiguities herein will be interpreted to be so exempt. Employee and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A of the conditions ofCode. Notwithstanding anything to the contrary contained herein, to the extent that any amendment to this Agreement with respect to the payment of any severance payments or benefits would constitute under Code Section 409A a delay in a payment or a change in the form of payment, then such Sectionamendment must be done in a manner that complies with Code Section 409A(a)(4)(C).
Appears in 4 contracts
Samples: Employment Agreement (Apricus Biosciences, Inc.), Employment Agreement (Apricus Biosciences, Inc.), Employment Agreement (Apricus Biosciences, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent Notwithstanding any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application other provision of this provisionAgreement, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent it is intended that any payment or benefit described which is provided pursuant to or in connection with this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and which is considered to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do shall be provided and paid in a manner, and at such time, including without limitation payment and provision of benefits only in connection with the occurrence of a permissible payment event contained in Section 409A (e.g., separation from service from the Company and its affiliates as defined for purposes of Section 409A of the Code), and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by the Company at the time of his Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order a failure to comply with section 409A of the Code, such portion of Executive’s benefits shall not satisfy an exemption frombe provided to Executive prior to the earlier of (a) the expiration of the six-month period measured from the date of Executive’s Separation from Service or (b) the date of Executive’s death. Upon the first business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 12 shall be paid in a lump sum to Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments payable hereunder shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment. Notwithstanding anything herein to the contrary, all taxable reimbursements and in-kind benefits provided by the Company under this Agreement shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred by Executive during the period of time specified in the Agreement; (ii) any in-kind benefits must be provided by the Company during the period of time specified in the Agreement; (iii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the conditions ofexpenses eligible for reimbursement, such Sectionor in-kind benefits to be provided, in any other calendar year; and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding the foregoing, in no event will the Company or any of its officers, directors or employees be liable to Executive or any other person if any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the Code fails to be exempt from or comply with Section 409A of the Code.
Appears in 4 contracts
Samples: Executive Employment Agreement (ConversionPoint Holdings, Inc.), Executive Employment Agreement (ConversionPoint Holdings, Inc.), Executive Employment Agreement (ConversionPoint Holdings, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of separation from service occurs, from such date of separation from service until the payment.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Employment Agreement (Anika Therapeutics, Inc.), Employment Agreement (Camden National Corp), Employment Agreement (Anika Therapeutics Inc)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the ExecutiveEmployee’s “separation from service service” within the meaning of Section 409A of the Code, the Company determines that the Executive Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive Employee becomes entitled to under this Agreement on account of the ExecutiveEmployee’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the ExecutiveEmployee’s separation from service, or (B) the ExecutiveEmployee’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. No such amendment shall have the effect of accelerating or deferring any payment or benefit hereunder, except as may be permitted under Section 409A of the Code.
(c) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Employee during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(d) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Employee’s termination of employment, then such payments or benefits shall be payable only upon the Employee’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(e) The Company makes no representation or warranty and shall have no liability to the Executive Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Change in Control Agreement (Bancplus Corp), Change in Control Agreement (Bancplus Corp), Change in Control Agreement (Bancplus Corp)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive’s separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 4 contracts
Samples: Employment Agreement (BJ's Wholesale Club Holdings, Inc.), Employment Agreement (BJ's Wholesale Club Holdings, Inc.), Employment Agreement (BJ's Wholesale Club Holdings, Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation “Separation from service within the meaning of Section 409A of the CodeService” (as defined below), the Company Bank determines that the Executive is a “specified employeeSpecified Employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation Separation from service Service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation Separation from serviceService, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of Separation from Service occurs, from such date of Separation from Service until the payment date.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation Separation from serviceService.” The determination For purposes of this Agreement, a “Separation from Service” shall have occurred if the Bank and the Executive reasonably anticipate that either no further services will be performed by the Executive after the date of termination (whether and when a separation as an employee or as an independent contractor) or the level of further services performed is less than fifty (50) percent of the average level of bona fide services in the thirty-six (36) months immediately preceding the termination. For all purposes hereunder, the definition of Separation from service has occurred Service shall be made in accordance interpreted consistent with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Employment Agreement (PCSB Financial Corp), Employment Agreement (PCSB Financial Corp), Employment Agreement (PCSB Financial Corp)
Section 409A. To the greatest extent permissible under Section 409A of the Internal Revenue Code of 1986, as amended (athe “Code”), and Treasury Regulations promulgated thereunder (collectively, “Section 409A”), the payments to Executive under this Agreement are intended to be exempt from Section 409A, including pursuant to Treasury Regulation sections 1.409A-1(b)(4) Anything (the “short term deferral” exemption) or 1.409A-1(b)(9) (the “separation pay” exemption), and shall be administered accordingly. Notwithstanding anything in this Agreement to the contrary notwithstanding, if at contrary:
(a) To the time of the Executive’s separation from service extent any amounts or benefits payable pursuant to this Agreement constitute “deferred compensation” (within the meaning of Section 409A 409A) and are not exempt from the applicability of Section 409A, then the Code, the Company determines that the Executive following shall be applicable under this Agreement:
(i) If any amount paid pursuant to this Agreement is a “specified employee” deferred compensation within the meaning of Section 409A(a)(2)(B)(i409A, payable as a result of a termination of the Executive’s employment, and as of the date of termination of employment giving rise to payment of such amount the Executive is a Specified Employee, then amount(s) that would otherwise be payable during the six (6) month period immediately following such date of termination shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code, then to on the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until first business day after the date that is the earlier of six (A6) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon following the Executive’s “separation from service.” The determination (within the meaning of whether and when Section 409A) (the “Delayed Payment Date”). As used in this Agreement, the term “Specified Employee” means a separation from service has occurred shall be made “specified employee” as defined in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c409A(a)(2)(B)(i) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision By way of this Agreement is ambiguous clarification, “specified employee” means a “key employee” (as to its compliance with defined in Section 409A 416(i) of the Code, the provision shall be read in such a manner so that all payments hereunder comply with disregarding Section 409A 416(i)(5) of the Code) of Employer. The parties agree that this Agreement may Executive shall be amendedtreated as a key employee if the Executive meets the requirement of Section 416(i)(1)(A)(i), as reasonably requested by either party(ii), and as may be necessary to fully comply with Section 409A or (iii) of the Code and all related rules and regulations in order to preserve at any time during the payments and benefits provided hereunder without additional cost to either partytwelve (12) month period ending on an “identification date.
(d) The Company makes no representation or warranty and ” For purposes of any “Specified Employee” determination hereunder, the “identification date” shall have no liability to mean the Executive or any other person if any provisions last day of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.each calendar year;
Appears in 3 contracts
Samples: Executive Employment Agreement (GEE Group Inc.), Executive Employment Agreement (GEE Group Inc.), Executive Employment Agreement (GEE Group Inc.)
Section 409A. To the greatest extent permissible under Section 409A of the Internal Revenue Code of 1986, as amended (athe "Code"), and Treasury Regulations promulgated thereunder (collectively, "Section 409A"), the payments to Executive under this Agreement are intended to be exempt from Section 409A, including pursuant to Treasury Regulation sections 1.409A-1(b)(4) Anything (the "short term deferral" exemption) or 1.409A-1(b)(9) (the "separation pay" exemption), and shall be administered accordingly. Notwithstanding anything in this Agreement to the contrary notwithstanding, if at contrary:
(a) To the time of the Executive’s separation from service extent any amounts or benefits payable pursuant to this Agreement constitute "deferred compensation" (within the meaning of Section 409A 409A) and are not exempt from the applicability of Section 409A, then the following shall be applicable under this Agreement:
(i) If any amount paid pursuant to this Agreement is deferred compensation within the meaning of Section 409A, payable as a result of a termination of the Executive's employment, and as of the date of termination of employment giving rise to payment of such amount the Executive is a Specified Employee, then amount(s) that would otherwise be payable during the six (6) month period immediately following such date of termination shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code, on the Company determines first business day after the date that is six (6) months following the Executive is a “specified employee” Executive's "separation from service" (within the meaning of Section 409A) (the "Delayed Payment Date"). As used in this Agreement, the term "Specified Employee" means a "specified employee" as defined in Section 409A(a)(2)(B)(i) of the Code. By way of clarification, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to "specified employee" means a "key employee" (as defined in Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i416(i) of the Code, such payment disregarding Section 416(i)(5) of the Code) of Employer. The Executive shall not be payable and such benefit shall not be provided until treated as a key employee if the date that is Executive meets the earlier requirement of Section 416(i)(1)(A)(i), (A) six months and one day after the Executive’s separation from serviceii), or (Biii) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve at any time during the payments and benefits provided hereunder without additional cost to either partytwelve (12) month period ending on an "identification date.
(d) The Company makes no representation or warranty and " For purposes of any "Specified Employee" determination hereunder, the "identification date" shall have no liability to mean the Executive or any other person if any provisions last day of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.each calendar year; and
Appears in 3 contracts
Samples: Executive Employment Agreement (Grove, Inc.), Executive Employment Agreement (Grove, Inc.), Executive Employment Agreement (GEE Group Inc.)
Section 409A. (a) Anything This Agreement is intended to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and its corresponding regulations, or an exemption thereto, and payments may only be made under this Agreement upon an event and in a manner permitted by section 409A of the Code, to the extent applicable. Severance benefits under this Agreement are intended to be exempt from section 409A of the Code under the “short-term deferral” exception, to the maximum extent applicable, and then under the “separation pay” exception, to the maximum extent applicable. Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, if at the time of the Executive’s separation from service within the meaning of Section required by section 409A of the Code, the Company determines that if the Executive is considered a “specified employee” within for purposes of section 409A of the meaning Code and if payment of Section 409A(a)(2)(B)(iany amounts under this Agreement is required to be delayed for a period of six (6) months after separation from service pursuant to section 409A of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section delayed as required by section 409A of the Code, and the accumulated amounts shall be paid in a lump-sum payment within ten (10) days after the end of the six (6)-month period. If the Executive dies during the postponement period prior to the extent that such payment or benefit is payable upon of benefits, the amounts withheld on account of section 409A of the Code shall be paid to the personal representative of the Executive’s termination estate within sixty (60) days after the date of employment, then such payments or benefits shall be payable only upon the Executive’s death.
(b) All payments to be made upon a termination of employment under this Agreement may only be made upon a “separation from service.” The determination under section 409A of whether the Code. For purposes of section 409A of the Code, each payment hereunder shall be treated as a separate payment, and when the right to a separation from service has occurred 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, directly or indirectly, designate the fiscal year of a payment. Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive’s designating the fiscal year of payment of any amounts of deferred compensation subject to section 409A of the Code, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)later taxable year.
(c) The parties intend that All reimbursements and in-kind benefits provided under this Agreement will shall be administered made or provided in accordance with Section 409A the requirements of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section section 409A of the Code, including, where applicable, the provision shall requirement that (i) any reimbursement be read for expenses incurred during the period specified in such this Agreement, (ii) the amount of expenses eligible for reimbursement, or in- kind benefits provided, during a manner so that all payments hereunder comply with Section 409A fiscal year not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other fiscal year, (iii) the reimbursement of an eligible expense be made no later than the last day of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either partyfiscal year following the year in which the expense is incurred, and as may (iv) the right to reimbursement or in-kind benefits not be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, liquidation or the conditions of, such Sectionexchange for another benefit.
Appears in 3 contracts
Samples: Employment Agreement (NewLake Capital Partners, Inc.), Employment Agreement (NewLake Capital Partners, Inc.), Employment Agreement (NewLake Capital Partners, Inc.)
Section 409A. This Agreement is intended to be written, administered, interpreted and construed in a manner such that no payment provided under the Agreement become subject to (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service gross income inclusion set forth within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a409A(a)(1)(A) of the Code as a result of or (b) the application of interest and additional tax set forth within Section 409A(a)(2)(B)(i409A(a)(1)(B) of the CodeCode (collectively, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service“Section 409A Penalties”), or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basisincluding, where appropriate, the first payment shall include a catch-up payment covering amounts construction of defined terms to have meanings that would otherwise have been paid during not cause the six-month period but imposition of Section 409A Penalties. Notwithstanding the foregoing, no particular tax result for Employee with respect to any income recognized by Employee in connection with this Agreement is guaranteed. Notwithstanding anything to the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described contrary in this Agreement, with respect to any amounts payable to Employee under this Agreement constitutes in connection with a termination of Employee’s service with the Company that would be considered “non-qualified deferred compensation” under Section 409A of the Code, and in no event shall a termination of service be considered to have occurred under this Agreement unless such termination constitutes Employee’s “Separation from Service” with the Company. Notwithstanding anything to the contrary in this Agreement, to the maximum extent that such payment or benefit is permitted by applicable law, amounts payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred to Employee pursuant to this Agreement shall be made in accordance with the presumptions set forth in reliance upon Treasury Regulation Section 1.409A-1(h1.409A-1(b)(4) (relating to short-term deferrals).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To However, to the extent that any provision of this Agreement is ambiguous such payments are treated as “non-qualified deferred compensation” subject to its compliance with Section 409A of the Code, and if Employee is deemed at the provision time of his Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of any payment to which Employee is entitled under this Agreement is required in order to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such payment shall not be made to Employee prior to the earlier of (A) the expiration of the six-month period measured from the date of Employee’s Separation from Service or (B) the date of Employee’s death. Upon the earlier of such dates, such payment deferred pursuant to this Section 3 shall be read paid in such a manner so that all payments hereunder comply lump sum to Employee (or to Employee’s estate). The determination of whether Employee is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the terms of Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with applicable guidance thereunder (including without limitation Treasury Regulation Section 409A of the Code 1.409A-1(i) and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either partyany successor provision thereto).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Severance Agreement (Southcross Energy Partners, L.P.), Severance Agreement (Southcross Energy Partners, L.P.), Severance Agreement (Southcross Energy Partners, L.P.)
Section 409A. (a1) Anything in this Agreement to the contrary notwithstanding, if at (1) on the time date of termination of Employee’s employment with the Company, any of the ExecutiveCompany’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive stock is a “specified employee” publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code) and (2) as a result of such termination, then to the extent Employee would receive any payment or benefit that that, absent the Executive becomes entitled to under application of this Agreement on account of the Executive’s separation from service paragraph 9(j), would be considered deferred compensation subject to the 20 percent interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i409A(2)(B)(i) of the Code, then no such payment shall not be payable and such benefit shall not be provided until prior to the date that is the earlier earliest of (Ai) six 6 months and one day after the ExecutiveEmployee’s separation from servicetermination date, (ii) the Employee’s death or (Biii) the Executive’s death. If any such delayed cash other date as will cause such payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, not to be subject to such interest and the balance of the installments shall be payable in accordance with their original scheduleadditional tax.
(b2) To It is the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A intention of the Code, and to the extent parties that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that under this Agreement will not be administered in accordance with Section 409A of subject to the Code. To the extent that any provision of this Agreement is ambiguous as additional tax imposed pursuant to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations this Agreement shall be interpreted accordingly. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving Employee the economic benefits described herein in order to preserve the payments and benefits provided hereunder without additional cost to either partya manner that does not result in such tax being imposed.
(d3) All taxable expenses or other reimbursements or in-kind benefits under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by Employee, (ii) any right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(4) The Company makes no representation or warranty and Employee shall have no liability right to designate the date of any payment hereunder.
(5) Each payment provided for in this Agreement shall, to the Executive or any other person if any provisions extent permissible under Code Section 409A, be deemed a separate payment for purposes of this Agreement are determined to constitute deferred compensation subject to Code Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 3 contracts
Samples: Employment Agreement (Venoco, Inc.), Employment Agreement (Venoco, Inc.), Employment Agreement (Venoco, Inc.)
Section 409A. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (athe “Code”) Anything in this Agreement to the contrary notwithstandingextent any amount payable hereunder is deferred compensation subject to Code Section 409A, and will be interpreted accordingly. Notwithstanding anything herein to the contrary, (i) if at the time of Employee’s termination of employment with the ExecutiveCompany and its affiliates Employee is a “specified employee” as defined in Section 409A of the Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) and such payments shall be paid to Employee in a single lump sum as soon as practicable (and in all events within fifteen (15) days) after the date that is six (6) months following Employee’s separation from service termination of employment with the Company and its affiliates (or the earliest date as is permitted under Section 409A of the Code without any accelerated or additional tax) and (ii) if any other payments of money or other benefits due to Employee hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that is reasonably expected not to cause such an accelerated or additional tax. To the fullest extent permitted under Code Section 409A, each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Section 409A of the Code, and references herein to Employee’s “termination of employment” shall refer to Employee’s separation from service with the Company determines that the Executive is a “specified employee” and its affiliates within the meaning of Section 409A(a)(2)(B)(i) 409A of the Code, then to . To the extent any payment reimbursements or benefit that the Executive becomes entitled in-kind benefits due to Employee under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes constitute “non-qualified deferred compensation” under Section 409A of the Code, and any such reimbursements or in-kind benefits shall be paid to Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that Employee’s receipt of any in-kind benefits from the Company or its affiliates must be delayed pursuant to this Section 27 due to Employee’s status as a “specified employee,” Employee may elect to instead purchase and receive such payment benefits during the period in which the provision of benefits would otherwise be delayed by paying the Company (or benefit is payable upon its affiliates) for the Executive’s termination fair market value of employment, then such payments or benefits (as determined by the Company in good faith) during such period. Any amounts paid by Employee pursuant to the preceding sentence shall be payable only upon reimbursed to Employee (with interest thereon) as described above on the Executive’s “date that is (6) months following Employee’ separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of amount payable under this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Code Section 409A 409A, and the period during which Employee has to execute and or revoke a release prior to payment straddles a calendar year the payment shall not commence or be paid until the second calendar year. The Company shall consult with Employee in good faith regarding the implementation of the Code but do not satisfy an exemption from, provisions of this Section 27; provided that neither the Company nor any of its employees or the conditions of, such Sectionrepresentatives shall have any liability to Employee with respect thereto.
Appears in 3 contracts
Samples: Employment Agreement (BJ Services, Inc.), Employment Agreement (BJ Services, Inc.), Employment Agreement (BJ Services, Inc.)
Section 409A. (a) Anything in Unless otherwise expressly provided, any payment of compensation by Company to Executive, whether pursuant to this Agreement to or otherwise, shall be made within two and one-half months (21/2 months) after the contrary notwithstanding, if at the time later of the end of the calendar year of the Company’s fiscal year in which Executive’s separation from service within the meaning right to such payment vests (i.e., is not subject to a “substantial risk of forfeiture” for purposes of Code Section 409A of the Internal Revenue Code of 1986, as amended (“Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h”).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code). To the extent that any provision severance payments (including payments on termination for “good reason”) come within the definition of this Agreement is ambiguous “involuntary severance” under Code Section 409A, such amounts up to the lesser of two times the Executive’s annual compensation for the year preceding the year of termination or two times the 401(a)(17) limit for the year of termination, shall be excluded from “deferred compensation” as allowed under Code Section 409A, and shall not be subject to its the following Code Section 409A compliance requirements. All payments of “nonqualified deferred compensation” (within the meaning of Section 409A) are intended to comply with the requirements of Code Section 409A, and shall be interpreted in accordance therewith. Neither party individually or in combination may accelerate any such deferred payment, except in compliance with Code Section 409A 409A, and no amount shall be paid prior to the earliest date on which it is permitted to be paid under Code Section 409A. In the event that Executive is determined to be a “key employee” (as defined in Code Section 416(i) (without regard to paragraph (5) thereof)) of Company at a time when its stock is deemed to be publicly traded on an established securities market, payments determined to be “nonqualified deferred compensation” payable following termination of employment shall be made no earlier than the earlier of (i) the last day of the Codesixth (6th) complete calendar month following such termination of employment, or (ii) Executive’s death, consistent with the provision provisions of Code Section 409A. Any payment delayed by reason of the prior sentence shall be read paid out in a single lump sum at the end of such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations required delay period in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability catch up to the Executive original payment schedule. Notwithstanding anything herein to the contrary, no amendment may be made to this Agreement if it would cause the Agreement or any other person if any provisions of this Agreement are determined payment hereunder not to constitute deferred compensation subject to be in compliance with Code Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 3 contracts
Samples: Executive Employment Agreement (Auriga Laboratories, Inc.), Employment Agreement (Biogold Fuels CORP), Employment Agreement (Biogold Fuels CORP)
Section 409A. (a) Anything in For the avoidance of doubt, the Restricted Share Units granted under this Agreement are intended to the contrary notwithstanding, if at the time of the Executive’s separation be exempt from service within the meaning of or otherwise comply with Section 409A of the CodeCode and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be either exempt from or in compliance therewith. In no event whatsoever shall the Company determines be liable for any additional tax, interest or penalty that may be imposed on the Executive Participant by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) Notwithstanding any other payment schedule provided herein to the contrary, if the Participant is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B)(i409A(a)(2)(B) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to due under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes considered “non-qualified deferred compensation” under Section 409A of the CodeCode payable on account of a Participant’s “separation from service” shall not be made until the date which is the earlier of (A) the expiration of the six (6) month period measured from the date of such “separation from service” of the Participant, and (B) the date of Participant’s death (the “Delay Period”) to the extent that required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 15(b) shall be paid to the Participant in a lump sum in accordance with the Agreement.
(c) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in Code Section 409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code Section 409A (and, more specifically, Treasury Regulation 1.409A-1(h)) and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(d) For the avoidance of doubt, any payment or benefit is payable upon due under this Agreement within a period following the ExecutiveParticipant’s termination of employment, then such payments death, Disability or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred other event, shall be made on a date during such period as determined by the Company in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)its sole discretion.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Restricted Share Unit Award Agreement (United Natural Foods Inc), Restricted Share Unit Award Agreement (United Natural Foods Inc), Performance Based Vesting Restricted Share Unit Award Agreement (United Natural Foods Inc)
Section 409A. (a) Anything in It is intended that this Agreement will comply with Section 409A, to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of this Agreement is necessary in order for it to comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. Notwithstanding any provision to the contrary notwithstandingin this Agreement, if at the time Executive is deemed on the date of the Executive’s his “separation from service service” (within the meaning of Treas. Reg. Section 409A 1.409A-1(h)) to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code, the Company determines portion, if any, of such payment so required to be delayed shall not be made prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of his “separation from service”, or (ii) the date of his death (the “Delay Period”). Upon the expiration of the Delay Period, all payments delayed pursuant to this Section shall be paid to the Executive in a lump sum, and any remaining payments shall be made as provided in the Agreement and in a manner in accordance with Section 409A. The Companies shall not have any obligation to indemnify or otherwise protect the Executive from any obligation to pay any taxes pursuant to Section 409A. In the event that this Agreement or any compensation payable hereunder shall be deemed not to comply with (or be exempt from) Section 409A, then neither the Companies, the Board, the Board of Directors of KKDC, nor its or their designees or agents, shall be liable to the Executive or other persons for actions, decisions or determinations made in good faith. With respect to any reimbursement or in-kind benefit arrangements of the Companies and their subsidiaries that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be applicable: (a) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the Executive is health and dental plans may impose a “specified employee” within limit on the meaning of Section 409A(a)(2)(B)(iamount that may be reimbursed or paid), (b) any reimbursement must be made on or before the last day of the Codecalendar year following the calendar year in which the expense was incurred, then and (c) the right to the extent any reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Whenever a payment or benefit that the Executive becomes entitled to under this Agreement on account specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the Companies. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. Any reimbursement by the Company pursuant to Section 12.01(c) herein shall be made to the Executive not later than the end of the Executive’s separation from service would be considered deferred compensation subject to taxable year following the 20 percent additional tax imposed pursuant to Section 409A(a) of taxable year in which he remits the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedulerelated taxes.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Employment Agreement (Krispy Kreme Doughnuts Inc), Employment Agreement (Krispy Kreme Doughnuts Inc), Employment Agreement (Krispy Kreme Doughnuts Inc)
Section 409A. (a1) Anything in Each payment under this Agreement is intended to be a separate payment which is compliant with or excepted from Section 409A, including, but not limited to, by compliance with the contrary notwithstanding, if at short-term deferral exception as specified in Treasury Regulation § 1.409A-1(b)(4) and the time of the Executive’s involuntary separation from service pay exception within the meaning of Section 409A Treasury Regulation § 1.409A-1(b)(9)(iii), and the provisions of this Agreement will be administered, interpreted and construed accordingly (or disregarded to the Codeextent such provision cannot be so administered, interpreted or construed).
(a) In the Company determines event that the Executive is a “specified employee” (within the meaning of Section 409A(a)(2)(B)(i) of 409A and with such classification to be determined in accordance with the Codemethodology established by the Company), then amounts and benefits payable or to the extent any payment or benefit that the Executive becomes entitled to be provided under this Agreement that are deferred compensation (within the meaning of Section 409A) that would otherwise be paid or provided on account of Executive’s “separation from service” (as defined in Section 409A) during the six-month period immediately following such separation from service (the “Delayed Severance”) shall instead be paid, with interest (other than in respect of any payments for the vesting of Stock Awards) accrued at a per annum rate equal to the prime rate for large banks, as published in the Wall Street Journal on Executive’s separation from service for the period beginning on (but excluding) the date such payment would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to have been made but for Section 409A(a) 409A of the Code as a result through (and including) the date of payment, on the application earlier of Section 409A(a)(2)(B)(i(i) of Executive’s death or (ii) the Code, such payment shall not be payable and such benefit shall not be provided until first business day after the date that is the earlier of (A) six months and one day after following such separation from service; provided, however, in the event of a CIC Qualifying Termination, the Delayed Severance shall, on or as soon as practicable following Executive’s separation from service, be contributed into a rabbi trust established by the Company or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedulesuccessor thereto.
(b) To the extent that any payment All reimbursements or benefit described in provisions of in-kind benefits pursuant to this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
§ 1.409A-3(i)(1)(iv) such that the reimbursement or provision will be deemed payable at a specified time or on a fixed schedule relative to a permissible payment event. Specifically, (ci) The parties intend that the amount reimbursed or in-kind benefits provided under this Agreement will during Executive’s taxable year may not affect the amounts reimbursed or provided in any other taxable year (except that total reimbursements may be administered limited by a lifetime maximum under a group health plan), (ii) the reimbursement of an eligible expense shall be made on or before the last day of Executive’s taxable year following the taxable year in accordance with Section 409A of which the Code. To expense was incurred, (iii) in the extent event that any the provision of this Agreement is ambiguous as in-kind benefits requires the Company to its compliance with Section 409A of the Codeimpute income to Executive, the provision Company shall be read in timely impute such a manner so that all payments hereunder comply with Section 409A of income to Executive under applicable tax rules for the Code. The parties agree that this Agreement may be amended, as reasonably requested by either partyappropriate taxable year, and as may be necessary (iv) the right to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation reimbursements or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation in-kind benefits is not subject to Section 409A of the Code but do not satisfy an exemption from, liquidation or the conditions of, such Sectionexchange for other benefit.
Appears in 3 contracts
Samples: Employment Agreement (JELD-WEN Holding, Inc.), Employment Agreement (JELD-WEN Holding, Inc.), Employment Agreement (JELD-WEN Holding, Inc.)
Section 409A. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent extent: (a) that any payment or benefit that to which the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed (including, without limitation, any payments made pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from servicethis Clause), or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basisagreement or plan referenced herein, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance connection with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance employment with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute constitutes deferred compensation subject to Section 409A of the Code; and (b) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Code but do not satisfy an exemption from, or the conditions ofSection 409A, such Sectionpayment shall not be made or commence until the earliest of: (i) the expiration of the six (6) month period measured from the date of the Executive’s “separation from service” (as such term is at the time defined in Treasury Regulations under Code Section 409A) with the Company; (ii) the date the Executive becomes “disabled” (as defined in Code Section 409A); or (iii) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected if and to the extent required to avoid adverse tax treatment to the Executive, including, without limitation, those imposed under Code Section 409A(a)(1)(B) in the absence of such deferral; provided, however, that if the Company reasonably and in good faith determines, based upon and in accordance with advice from its outside counsel or tax advisors, that a deferral pursuant to this sentence is necessary, the Executive agrees that the Company will not be liable to the Executive for any damages to the Executive arising from such deferral of such payment. Upon the expiration of the deferral period, any payments that would have otherwise been made during that period (whether in a single sum or in installments) shall be paid in a single cash lump sum payment to the Executive (or his beneficiary, as applicable). With regard to any provision that provides for reimbursement of costs and expenses or of in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement or in-kind benefits to be provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense occurred. Each amount to be paid or benefit to be provided to the Executive shall be construed as a “separate identified payment” for purposes of Code Section 409A to the fullest extent permitted therein.
Appears in 3 contracts
Samples: Employment Agreement (Rite Aid Corp), Employment Agreement (Rite Aid Corp), Employment Agreement (Rite Aid Corp)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s “separation from service service” within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death; provided, however, that in the case of benefits, the Executive may elect to pay for the costs of such benefits during such delay period in exchange for reimbursement of such costs after the end of the delay period. If any Any such delayed cash payment is otherwise payable on shall earn interest at an installment basis, annual rate equal to the first payment shall include a catchapplicable federal short-up payment covering amounts that would otherwise have been paid during term rate published by the six-month period but Internal Revenue Service for the application month in which the date of this provisionseparation from service occurs, and from such date of separation from service until the balance of the installments shall be payable in accordance with their original schedulepayment.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A 1(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Incentive Agreement (Citrix Systems Inc), Incentive Agreement (Citrix Systems Inc), Retention Agreement (Citrix Systems Inc)
Section 409A. (a) Anything It is intended that any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with Section 409A of the Code (including the Treasury regulations and other published guidance relating thereto) (“Section 409A”) so as not to subject the Executive to payment of any interest or additional tax imposed under Section 409A. To the extent that any amount payable under this Agreement would trigger the additional tax imposed by Section 409A, the Agreement shall be construed and interpreted in a manner to avoid such additional tax yet preserve (to the nearest extent reasonably possible) the intended benefit payable to the Executive.
(b) Notwithstanding any provision of this Agreement to the contrary notwithstandingcontrary, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(i) as of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account date of the Executive’s separation Separation from service would be considered deferred compensation subject to Service, and if the 20 percent additional tax imposed pursuant to Section 409A(a) deferral of the Code as commencement of any payments or benefits otherwise payable hereunder for a result period of the application of Section 409A(a)(2)(B)(isix (6) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after following the Executive’s separation Separation from service, or (B) the Executive’s death. If any such delayed cash payment Service is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under necessary pursuant to Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination commencement of employment, then any such payments or benefits shall be delayed as required by Section 409A of the Code. Any amounts otherwise payable only to the Executive upon or in the six (6) month period following the Executive’s “separation Separation from service.” The determination Service that are not so paid by reason of whether and when a separation from service has occurred this Section 11(b) shall be made paid as soon as practicable (and in accordance all events within thirty (30) days) after the date that is six (6) months after the Executive’s Separation from Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the date of the Executive’s death), and any such payments shall be increased by an amount equal to interest on such payments for the period commencing with the presumptions set forth date such payment would have otherwise been made but for this Section 11(b) (the “Original Payment Date”) and ending on the date such payment is actually made, at an interest rate equal to the prime rate in Treasury Regulation effect as of the Original Payment Date plus one point (for this purpose, the prime rate will be based on the rate published from time to time in The Wall Street Journal). The provisions of this Section 1.409A-1(h)11(b) shall only apply if, and to the extent, required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A of the Code.
(c) The parties intend Except as otherwise explicitly provided herein, any reimbursements or in-kind benefits provided hereunder shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement (or, if no such period is specified, the Executive’s lifetime), (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 administered made no later than the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. In addition, any tax gross-up payments provided for herein shall be paid as soon as practicable, but in no event later than the end of the Executive’s taxable year following the Executive’s taxable year in which he remits the related taxes. Notwithstanding any other provision contained herein, any offset pursuant to the terms this Agreement of amounts payable to the Executive shall be in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Executive Employment Agreement, Executive Employment Agreement (Apria Healthcare Group Inc), Executive Employment Agreement (Ahny-Iv LLC)
Section 409A. (a) Anything in For the avoidance of doubt, the Restricted Share Units granted under this Agreement are intended to the contrary notwithstanding, if at the time of the Executive’s separation be exempt from service within the meaning of or otherwise comply with Section 409A of the CodeCode and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be either exempt from or in compliance therewith. In no event whatsoever shall the Company determines be liable for any additional tax, interest or penalty that may be imposed on the Executive Participant by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) Notwithstanding any other payment schedule provided herein to the contrary, if the Participant is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B)(i409A(a)(2)(B) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to due under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes considered “non-qualified deferred compensation” under Section 409A of the CodeCode payable on account of a Participant’s “separation from service” shall not be made until the date which is the earlier of (A) the expiration of the six (6) month period measured from the date of such “separation from service” of the Participant, and (B) the date of Participant’s death (the “Delay Period”) to the extent that required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 15(b) shall be paid to the Participant in a lump sum in accordance with the Agreement.
(c) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in Code Section 409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code Section 409A (and, more specifically, Treasury Regulation 1.409A-1(h)) and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(d) For the avoidance of doubt, any payment or benefit is payable upon due under this Agreement within a period following the ExecutiveParticipant’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred death, Disability other event, shall be made on a date during such period as determined by the Company in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)its sole discretion.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Performance Based Vesting Restricted Share Unit Award Agreement (United Natural Foods Inc), Performance Based Vesting Restricted Share Unit Award Agreement (United Natural Foods Inc), Performance Based Vesting Restricted Share Unit Award Agreement (United Natural Foods Inc)
Section 409A. (a) Anything It is intended that any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with Section 409A of the Code (including the Treasury regulations and other published guidance relating thereto) (“Section 409A”) so as not to subject the Executive to payment of any interest or additional tax imposed under Section 409A. To the extent that any amount payable under this Agreement would trigger the additional tax imposed by Section 409A, the Agreement shall be construed and interpreted in a manner to avoid such additional tax yet preserve (to the nearest extent reasonably possible) the intended benefit payable to the Executive.
(b) Notwithstanding any provision of this Agreement to the contrary notwithstandingcontrary, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(i) as of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account date of the Executive’s separation Separation from service would be considered deferred compensation subject to Service, and if the 20 percent additional tax imposed pursuant to Section 409A(a) deferral of the Code as commencement of any payments or benefits otherwise payable hereunder for a result period of the application of Section 409A(a)(2)(B)(isix (6) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after following the Executive’s separation Separation from service, or (B) the Executive’s death. If any such delayed cash payment Service is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under necessary pursuant to Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination commencement of employment, then any such payments or benefits shall be delayed as required by Section 409A of the Code. Any amounts otherwise payable only to the Executive upon or in the six (6) month period following the Executive’s “separation Separation from service.” The determination Service that are not so paid by reason of whether and when a separation from service has occurred this Section 11(b) shall be made paid as soon as practicable (and in accordance with all events within thirty (30) days) after the presumptions set forth date that is six (6) months after the Executive’s Separation from Service (or, if earlier, as soon as practicable, and in Treasury Regulation all events within thirty (30) days, after the date of the Executive’s death). The provisions of this Section 1.409A-1(h)11(b) shall only apply if, and to the extent, required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A of the Code.
(c) The parties intend Except as otherwise explicitly provided herein, any reimbursements or in-kind benefits provided hereunder shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement (or, if no such period is specified, the Executive’s lifetime), (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 administered made no later than the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. In addition, any tax gross-up payments provided for herein shall be paid as soon as practicable, but in no event later than the end of the Executive’s taxable year following the Executive’s taxable year in which he remits the related taxes. Notwithstanding any other provision contained herein, any offset pursuant to the terms this Agreement of amounts payable to the Executive shall be in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Executive Employment Agreement (Apria, Inc.), Executive Employment Agreement (Apria, Inc.), Executive Employment Agreement (Apria Healthcare Group Inc)
Section 409A. (a) Anything in To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the contrary notwithstanding, if at the time definition of the Executive’s separation from service within the meaning of “nonqualified deferred compensation” under Section 409A of the CodeCode including the rulings, notices and other guidance issued by the Company determines Internal Revenue Service interpreting the same (collectively, “Section 409A”) in accordance with one or more of the exemptions available under Section 409A. In this regard, each such payment hereunder that may be treated as payable in the form of “a series of installment payments,” as defined in Treas. Reg. §1.409A-2(b)(2)(iii) shall be deemed a separate payment for purposes of Section 409A.
(b) To the extent that any amounts or benefits payable under this Agreement are or become subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation under Section 409A, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(c) Notwithstanding anything in this Agreement or elsewhere to the contrary, if the Executive is a “specified employeeSpecified Employee” (within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to as determined by the extent Company’s Compensation Committee) on the date of his termination of employment, and the Company reasonably determines that any payment amount or other benefit that the Executive becomes entitled to payable under this Agreement on account of the Executive’s “separation from service would be considered deferred compensation subject to service,” within the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application meaning of Section 409A(a)(2)(B)(i409A(a)(2)(A)(i) of the Code, constitutes nonqualified deferred compensation (after taking into account all exclusions applicable to such payments under Section 409A) that will violate the requirements of Section 409A(a)(2) of the Code if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day after the expiration of six months from the date of the Executive’s termination of employment or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”), and the remaining amounts or benefits shall be paid at the times otherwise provided under the Agreement. The Company and the Executive may agree to take other actions to avoid a violation of Section 409A at such time and in such manner as permitted under Section 409A. If this Section 15(c) requires a delay of any payment, such payment shall not be payable accumulated and paid in a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to and calculated at the prime rate as set forth in the Eastern edition of the Wall Street Journal on the date of termination. If a benefit subject to the delayed payment rules of this Section 15(c) is to be provided other than by the payment of money to the Executive, then the provision of such benefit prior to the Delayed Payment Date is conditioned on pre-payment by the Executive to the Company of the full taxable value of the benefit and on the first business day following the Delayed Payment Date, the Company shall repay the Executive for the payments made by the Executive pursuant to the terms of this sentence which would otherwise not be provided until the date that is the earlier have been required of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(bd) To Notwithstanding anything to the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under contrary herein, subject to Section 409A of the Code15(c), and to the extent that such required to comply with Section 409A, a portion of the amount provided for in Section 3.1(c)(ii) shall be paid at the same time and in the same form as required for the payment or benefit is payable upon of severance under the Executive’s employment agreement, rather than a single lump sum, to the extent such portion would have been payable in such alternative form under the Executive’s employment agreement in the absence of a Change in Control, and the Executive’s date of termination does not occur within two years following a Change in Control that satisfies the requirements for a change in the ownership or effective control of employmentthe Company, then or a change in the ownership of a substantial portion of the assets of the Company, under Section 409A, as determined pursuant to the applicable guidance thereunder. If payment cannot be made in a lump sum pursuant to this provision, each installment payment shall include interest for the period of delay, compounded monthly, equal to the prime rate as set forth in the Eastern edition of the Wall Street Journal on the date when the lump sum payment would otherwise have been made.
(e) Notwithstanding any provision of this Agreement to the contrary, the time of payment of any performance shares that are subject to Section 409A as “nonqualified deferred compensation” and that vest pursuant to this Agreement shall not be accelerated unless such payments or benefits acceleration complies with the requirements of Section 409A, as determined pursuant to applicable guidance issued thereunder. If the payment of vested performance shares cannot be accelerated pursuant to this provision, payment shall be payable only upon include interest for the period of delay, compounded monthly, equal to the prime rate as set forth in the Eastern edition of the Wall Street Journal on the date when payment of the vested performance shares would otherwise have been made.
(f) The date of the Executive’s “separation from service.,” The determination of whether as defined in Section 409A (and when a separation from service has occurred as determined by applying the default presumptions in Treas. Reg. §1.409A-1(h)(1)(ii)) shall be made in accordance with treated as the presumptions set forth in Treasury Regulation date of his termination of employment for purposes of determining the time of payment of any amount that becomes payable to the Executive hereunder upon his termination of employment and that is properly treated as a deferral of compensation subject to Section 1.409A-1(h)409A after taking into account all exclusions applicable to such payment under Section 409A and for purposes of determining whether the Executive is a “Specified Employee” on the date of his termination of employment.
(cg) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that the reimbursement of any expenses or the provision of any in-kind benefits under any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A (after taking into account all exclusions applicable to such payments or benefits under Section 409A), (i) the amount of such expenses eligible for reimbursement, or in-kind benefits to be provided, during any one calendar year shall not affect the amount of such expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (ii) reimbursement of any such expense shall be made by no later than December 31 of the Code but do year next following the calendar year in which such expense is incurred; and (iii) Executive’s right to receive such reimbursements or in-kind benefits shall not satisfy an exemption frombe subject to liquidation or exchange for another benefit. Any tax gross-up payment (if applicable) and to the extent subject to Section 409A, will be made by the end of the calendar year next following the calendar year in which the Executive remits the related taxes, and any required reimbursement of expenses incurred due to a tax audit or litigation addressing the existence or amount of a tax liability will be made by the end of the calendar year next following the calendar year in which the taxes that are the subject of the audit or litigation are remitted to the taxing authority, or where as a result of such audit or litigation no taxes are remitted, the conditions ofend of the calendar year next following the calendar year in which such audit is completed or there is a final and nonappealable settlement or other resolution of the litigation, in each case subject to any earlier required deadline for payment otherwise applicable under this Agreement, In addition, to the extent subject to Section 409A, the right to reimbursement or in-kind benefits under this Agreement shall not be subject to liquidation or exchange for another benefit, notwithstanding any contrary provision of this Agreement.
(h) To the extent the Company is required pursuant to this Agreement to provide continued employee benefits following termination of employment, the provision of such Section.benefits shall be structured in a manner that complies with Section 409A. Any offset of the Company’s obligation to provide benefits under this Agreement as a result of the provision of benefits pursuant to a subsequent employer’s benefit plans, and any offset of the Company’s obligation to provide severance or termination pay under other agreements or arrangements as a result of the provision of pay and benefits under this Agreement, shall be structured in a manner that does not result in a change in the time or form of payment of non-qualified deferred compensation that violates Section 409A.
(i) The Executive consents to be bound by the terms of the Supplemental Retirement Income Benefit Plan as amended by the Company prior to the date hereof for purposes of Section 409A.
Appears in 3 contracts
Samples: Severance Protection Agreement (Century Aluminum Co), Severance Protection Agreement (Century Aluminum Co), Severance Protection Agreement (Century Aluminum Co)
Section 409A. (a) Anything in To the extent applicable, it is intended that this Agreement to comply with the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning provisions of Section 409A of the CodeCode (“Section 409A”), including any regulations, or any other formal guidance, promulgated with respect to such Section by the Company determines U.S. Department of the Treasury or the Internal Revenue Service. This Agreement shall be administered and interpreted in a manner consistent with this intent. Consistent with that intent, and to the Executive is extent required under Section 409A for payments that are to be made in connection with a termination of employment, “termination of employment” shall be limited to such a termination that constitutes a “separation from service” under Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Employee constitutes a “specified employee” within (as defined in Section 409A) on the meaning of Section 409A(a)(2)(B)(i) date of the CodeEmployee’s separation from service and if any portion of the payments to be received by the Employee upon a termination of employment would constitute a “deferral of compensation” subject to Section 409A, then to the extent any payment or benefit that the Executive becomes entitled necessary to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to comply with Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code409A, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid be payable pursuant to this Agreement during the six-month period but for immediately following Employee’s termination of employment will instead be paid or made available on the application earlier of this provision, and (i) the balance first business day of the installments shall be payable in accordance with their original schedule.
(b) To seventh month after the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A date of the Code, and to the extent that such payment or benefit is payable upon the ExecutiveEmployee’s termination of employment, then such payments or benefits and (ii) the Employee’s death. For purposes of application of Section 409A, to the extent applicable, each payment made under this Agreement shall be payable only upon treated as a separate payment. All reimbursements and in-kind benefits provided under this Agreement that constitute “nonqualified deferred compensation” within the Executive’s “separation from service.” The determination meaning of whether and when a separation from service has occurred Code Section 409A shall be made or provided in accordance with Code Section 409A, including, without limitation, that (i) in no event shall reimbursements by the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that Employer under this Agreement will be administered in accordance with Section 409A made later than the end of the Code. To calendar year next following the extent calendar year in which the applicable fees and expenses were incurred; (ii) the amount of reimbursements or in-kind benefits that the Employer is obligated to pay or provide in any provision of this Agreement given calendar year shall not affect the reimbursements or in-kind benefits that the Employer is ambiguous as obligated to its compliance with Section 409A of the Code, the provision shall be read pay or provide in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if calendar year; (iii) the Employee’s right to have the Employer pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of other benefit and (iv) the Code but do not satisfy an exemption fromreimbursements paid, or the conditions ofin-kind benefits to be provided, such Sectionshall be determined pursuant to the terms of the applicable benefit plan, policy or agreement and shall be limited to the Employee’s lifetime and the lifetime of the Employee’s eligible dependents.
Appears in 3 contracts
Samples: Executive Employment Agreement (Viasystems Group Inc), Executive Employment Agreement (Viasystems Group Inc), Executive Employment Agreement (Viasystems Group Inc)
Section 409A. (a) Anything in For the avoidance of doubt, the Restricted Share Units granted under this Agreement are intended to the contrary notwithstanding, if at the time of the Executive’s separation be exempt from service within the meaning of or otherwise comply with Section 409A of the CodeCode and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be either exempt from or in compliance therewith. In no event whatsoever shall the Company determines be liable for any additional tax, interest or penalty that may be imposed on the Executive Participant by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) Notwithstanding any other payment schedule provided herein to the contrary, if the Participant is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B)(i409A(a)(2)(B) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to due under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes considered “non-qualified deferred compensation” under Section 409A of the CodeCode payable on account of a Participant’s “separation from service” shall not be made until the date which is the earlier of (A) the expiration of the six (6) month period measured from the date of such “separation from service” of the Participant, and (B) the date of Participant’s death (the “Delay Period”) to the extent that required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 15(b) shall be paid to the Participant in a lump sum in accordance with the Agreement.
(c) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in Code Section 409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code Section 409A (and, more specifically, Treasury Regulation 1.409A-1(h)) and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(d) For the avoidance of doubt, any payment or benefit is payable upon due under this Agreement within a period following the ExecutiveParticipant’s termination of employment, then such payments death, Disability, Retirement or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred other event, shall be made on a date during such period as determined by the Company in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h)its sole discretion.
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Restricted Share Unit Award Agreement (United Natural Foods Inc), Restricted Share Unit Award Agreement (United Natural Foods Inc), Restricted Share Unit Award Agreement (United Natural Foods Inc)
Section 409A. (a) Anything in It is intended that any amounts payable under this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation shall either be exempt from service within the meaning of or comply with Section 409A of the CodeCode (including the Treasury regulations and other published guidance relating thereto) (“Code Section 409A”) so as not to subject the Executive to payment of any additional tax, penalty or interest imposed under Code Section 409A. The provisions of this Agreement shall be construed and interpreted to avoid the Company determines that imputation of any such additional tax, penalty or interest under Code Section 409A yet preserve (to the nearest extent reasonably possible) the intended benefit payable to the Executive. Any installment payments provided for in this Agreement shall be treated as a series of separate payments for purposes of Code Section 409A.
(b) If the Executive is a “specified employee” within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(i) as of the Codedate of the Executive’s Separation from Service, then the Executive shall not be entitled to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a5.3(b) of the Code as a result of the application of Section 409A(a)(2)(B)(ior (c) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (Ai) the date which is six (6) months and one day after the Executive’s separation his or her Separation from serviceService for any reason other than death, or (Bii) the date of the Executive’s death. If The provisions of this Section 21(b) shall only apply if, and to the extent, required to avoid the imputation of any such delayed cash payment is tax, penalty or interest pursuant to Code Section 409A. Any amounts otherwise payable on an installment basis, to the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during Executive upon or in the six-six (6) month period but for following the application Executive’s Separation from Service that are not so paid by reason of this provisionSection 21(b) shall be paid (without interest) as soon as practicable (and in all events within thirty (30) days) after the date that is six (6) months after the Executive’s Separation from Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the balance date of the installments shall be payable in accordance with their original scheduleExecutive’s death).
(bc) To the extent that any payment benefits pursuant to Section 5.3(b)(ii) or benefit described in this Agreement constitutes “non-qualified deferred compensation” under reimbursements pursuant to Section 409A of the Code, and 4.2 are taxable to the extent that Executive, any reimbursement payment due to the Executive pursuant to any such payment provision shall be paid to the Executive on or benefit is payable upon before the last day of the Executive’s termination taxable year following the taxable year in which the related expense was incurred. The benefits and reimbursements pursuant to such provisions are not subject to liquidation or exchange for another benefit and the amount of employment, then such payments benefits and reimbursements that the Executive receives in one taxable year shall not affect the amount of such benefits or benefits shall be payable only upon reimbursements that the Executive’s “separation from service.” Executive receives in any other taxable year. [The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision remainder of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either partypage has intentionally been left blank.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.]
Appears in 3 contracts
Samples: Employment Agreement (TILT Holdings Inc.), Employment Agreement (TILT Holdings Inc.), Employment Agreement (TILT Holdings Inc.)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Company Employer determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at a simple annual rate equal to 5% per annum, from the date such payment would have been made if not for the operation of this Section until the payment is actually made.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The Company Employer makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Employment Agreement (Gramercy Capital Corp), Employment Agreement (Gramercy Capital Corp), Employment Agreement (Gramercy Capital Corp)
Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-l(h).
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person or entity if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Employment Agreement, Employment Agreement (Mevion Medical Systems, Inc.), Employment Agreement (Mevion Medical Systems, Inc.)
Section 409A. (a) Anything in The Company makes no representations or warranties to Employee with respect to any tax, economic or legal consequences of this Agreement to the contrary notwithstandingor any payments or other benefits provided hereunder, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” including without limitation under Section 409A of the Code, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A or any other legal requirements from Employee or any other individual to the extent that such payment Company or benefit is payable upon any of its affiliates. However, the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will and the payments and other benefits provided hereunder be administered in accordance with exempt from the requirements of Code Section 409A of to the Codemaximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary, with respect to any payments and benefits under this Agreement to which Code Section 409A applies, all references in this Agreement to the termination of Employee's employment are intended to mean Employee's "separation from service," within the meaning of Code Section 409A(a)(2)(A)(i). In addition, if Employee is a "specified employee," within the meaning of Code Section 409A(a)(2)(B)(i), then to the extent necessary to avoid subjecting Employee to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six-month period immediately following Employee's "separation from service," within the meaning of Section 409A(a)(2)(A)(i) of the Code, shall not be paid to Employee during such period, but shall instead be accumulated and paid to Employee (or, in the provision shall be read event of Employee's death, Employee's estate) in such a manner so lump sum on the first business day following the earlier of (a) the date that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either partyis six months after Employee's separation from service or (b) Employee's death.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.)
Section 409A. (a) Anything in It is the Parties’ intent that all payments pursuant to this Agreement be exempt from, or compliant with, Section 409A of the Code (“Section 409A”) and that this Agreement be interpreted accordingly.
(b) The following rules shall apply with respect to distribution of the payments, if any, to be provided to the contrary notwithstandingExecutive under the Agreement, if at as applicable:
(i) It is intended that each installment of the time payments under the Agreement shall be treated as a separate “payment” for purposes of Section 409A. Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.
(ii) If, as of the date of the Executive’s “separation from service service” from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A 409A), then each installment of the Codepayments shall be made on the dates and terms otherwise set forth in this Agreement with respect to such payments.
(iii) If, as of the Company determines that date of the Executive’s “separation from service” from the Company, the Executive is a “specified employee” (within the meaning of Section 409A(a)(2)(B)(i) of the Code409A), then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of then:
(A) six months Each payment due under the Agreement that, in accordance with the dates and one day after terms set forth herein, will in all circumstances, be paid within the Executive’s separation from service, or short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms otherwise set forth in the Agreement with respect to such payments; and
(B) Each payment due under the Executive’s death. If any such delayed cash payment Agreement that is otherwise payable on an installment basisnot described in Section 18(b)(iii)(A) and that would, the first payment shall include a catch-up payment covering amounts that would otherwise have been absent this subsection, be paid during within the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon following the Executive’s “separation from service” from the Company and on account of the Executive’s “separation from service” shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with any such payments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent payments, if any, being paid in accordance with the dates and terms otherwise set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any payment if and to the maximum extent that that such payment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any payment that qualifies for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs.
(c) Subject to this Section 18, any payments that may be due under the Agreement on account of termination of employment shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The determination of whether and when a the Executive’s separation from service from the Company has occurred shall be made and in accordance with a manner consistent with, and based on the presumptions set forth in in, Treasury Regulation Section 1.409A-1(h).
(c. Solely for purposes of this Section 18(c), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) The parties intend that this Agreement will be administered in accordance with Section 409A and 414(c) of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.
(e) The Company makes no representation or warranty and shall have no liability to the Executive or to any other person Person if any of the provisions of this the Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but that do not satisfy an exemption from, or the conditions of, such Sectionthat section.
Appears in 3 contracts
Samples: Employment Agreement (Endurance International Group Holdings, Inc.), Employment Agreement (Endurance International Group Holdings, Inc.), Employment Agreement (Endurance International Group Holdings, Inc.)
Section 409A. (a) Anything The parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to this Agreement and any such payments and benefits, the parties intend that this Agreement and such payments and benefits comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary notwithstandingcontrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary:
(i) if at the time of the Executive’s separation from service within the meaning of Section 409A of the Codeemployment hereunder terminates, the Company determines that the Executive is a “specified employee,” within as defined in Treasury Regulation Section 1.409A-1(i) and determined using the meaning of Section 409A(a)(2)(B)(i) of identification methodology selected by the CodeCompany from time to time, or if none, the default methodology, then to the extent necessary to avoid subjecting Executive to the imposition of any payment or benefit that the Executive becomes entitled to additional tax under Section 409A, any and all amounts payable under this Agreement on account of such termination of employment that would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid in a lump sum on the first day of the seventh month following the date on which Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(aemployment terminates or, if earlier, upon Executive’s death;
(ii) a termination of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment employment shall not be payable and such benefit shall not be provided until the date that is the earlier deemed to have occurred for purposes of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but provision of this Agreement providing for the application payment of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment amounts or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment benefits upon or benefit is payable upon the Executive’s following a termination of employment, then employment unless such payments or benefits shall be payable only upon the Executive’s termination is also a “separation from service.,” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth as defined in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A after giving effect to the presumptions contained therein, and, for purposes of the Code. To the extent that any such provision of this Agreement, references to “terminate,” “termination,” “termination of employment” and like terms shall mean separation from service;
(iii) each payment made under this Agreement is ambiguous shall be treated as a separate payment and the right to its compliance a series of installment payments under this Agreement shall be treated as a right to a series of separate payments; and
(iv) with regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Treasury Regulation Section 409A 1.409A-1(b), (A) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (B) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (C) such payments shall be made no later than two and a half months after the end of the Code, calendar year in which the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either partyexpenses were incurred.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
Appears in 3 contracts
Samples: Executive Employment Agreement (Minn Shares Inc), Executive Employment Agreement (Minn Shares Inc), Executive Employment Agreement (Minn Shares Inc)
Section 409A. (a) Anything in The parties intend for the payments and benefits under this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation be exempt from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), or, if not so exempt, to be paid or provided in a manner which complies with the requirements of such section, and intend that this Agreement shall be construed and administered in accordance with such intention. In the event the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall may not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision Company shall be read reasonably confer with Employee in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that order to modify or amend this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations to do so in order a manner to best preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability economic benefit of this Agreement. Notwithstanding anything contained herein to the Executive or contrary, (i) in the event (A) any other person if any provisions of this Agreement are determined to constitute payments described in Section 4 would be “deferred compensation compensation” subject to Section 409A of the Code; and (B) Employee is a “specified employee” (as defined in Code but do not satisfy an exemption from, or the conditions ofSection 409A(2)(B)(i)), such Sectionpayments shall, to the extent required by Code Section 409A, be delayed for the minimum period and in the minimum manner necessary to avoid the imposition of the tax required by Section 409A of the Code; (ii) each amount to be paid or benefit to be provided under this Agreement shall be construed as a separately identified payment for purposes of Section 409A of the Code; (iii) any payments that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise; and (iv) amounts reimbursable to Employee under this Agreement shall be paid to Employee on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Employee) during any one (1) year may not affect amounts reimbursable or provided in any subsequent year. Notwithstanding anything in this Agreement to the contrary, in the event any payments hereunder could occur in one of two calendar years as a result of being dependent upon the Release becoming nonrevocable, then, to the extent required to avoid the imposition of taxes or penalties under Section 409A of the Code, such payments shall commence on the first regularly scheduled payroll date of the Company, following the date the Release becomes nonrevocable, that occurs in the second of such two calendar years.
Appears in 3 contracts
Samples: Employment Agreement (Biocryst Pharmaceuticals Inc), Employment Agreement (Biocryst Pharmaceuticals Inc), Employment Agreement (Biocryst Pharmaceuticals Inc)
Section 409A. (a) Anything The parties intend that this Agreement and the payments and benefits provided hereunder be exempt from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to this Agreement, the parties intend that this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary notwithstanding, contrary:
(i) if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B)(i) of the Code409A, then with regard to the extent any payment or benefit that the Executive becomes entitled to is considered a “deferral of compensation” under this Agreement Section 409A payable on account of the Executive’s a “separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service,” such payment shall not be payable and such benefit shall not be provided until made on the date that which is the earlier of (A) the date that is six months and one day after the Executive’s date of such “separation from service, or ” of the Executive and (B) the date of the Executive’s death. If any death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 14(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delayed cash payment is otherwise payable on an installment basis, delay) shall be paid to the first payment shall include Executive in a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provisionlump sum, and the balance of the installments all remaining payments due under this Agreement shall be payable paid or provided in accordance with their original schedule.the normal payment dates specified for those payments in this Agreement;
(bii) To to the extent that any payment payments or benefit described in benefits under this Agreement constitutes “nonare conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 30-qualified deferred compensation” under day post-termination period, then, subject to Section 409A of the Code, 14(b)(i) and to the extent that such payment or benefit is payable upon the Executive’s termination of employmentnot exempt under Section 409A, then such payments or benefits shall be payable only upon made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 30th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, and the Executive’s right to reimbursement shall not be subject to liquidation or exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive’s right to receive a series of installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).”
(c) The parties intend that Company and the Executive agree to work together in good faith to consider amendments to this Agreement will and to take such reasonable actions that may be administered necessary, appropriate, or desirable to avoid imposition of additional tax or income recognition on the Executive under Section 409A, in accordance with Section 409A of each case to the Codemaximum extent permitted by applicable law. To the extent that Notwithstanding any provision of this Agreement is ambiguous as to its compliance with the contrary, (i) in no event will the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Code. The parties agree Company or any of its employees, officers, directors or agents in the event it is determined that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully any payment or benefit provided hereunder does not comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.409A.
Appears in 3 contracts
Samples: Employment Agreement (Avantax, Inc.), Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
