FORM OF SECTION 409A AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.24
FORM
OF
SECTION
409A AMENDMENT
TO
THIS AMENDMENT TO EMPLOYMENT
AGREEMENT (the “Amendment”) is made December 31, 2008, by and between
ARIAD Pharmaceuticals, Inc., a Delaware corporation (the “Company”) and
________________ (the “Employee”).
WHEREAS, the Company and the
Employee entered into that certain Employment Agreement dated as of
____________, as last amended on _____________ (the “Employment
Agreement”);
WHEREAS, the Company has
determined with the assistance of outside legal counsel that an amendment to the
Employment Agreement is necessary by December 31, 2008 in order to comply with,
or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”);
WHEREAS, the Company has
proposed amendments to avoid violating final regulations issued under Section
409A of the Code as practicable without impacting the Employee’s substantive
rights under the Employment Agreement;
WHEREAS, the Employee agrees
to amend the Employment Agreement in the form set forth below in order to avoid
violating Section 409A of the Code.
NOW, THEREFORE, for good and
valuable consideration, the sufficiency of which is acknowledged, the parties
hereto agree as follows effective as of December 31, 2008:
1. The
following sentence is hereby added at the end of Section 5.1 of the Employment
Agreement:
“In no
event shall the Employee be entitled to terminate employment with the Company on
account of an event described in this Section 5.1 unless the Employee provides
notice of the existence of a purported condition described above within a period
not to exceed ninety days of its initial existence, and the Company fails to
cure such condition (if curable) within thirty days after the receipt of such
notice.”
2. The
following sentence shall be added at the end of Section 6 of the Employment
Agreement:
“It is
intended that salary continuation payments under this Section 6 that are paid no
later than December 31st of the second full calendar year following the calendar
year in which the Employee separates from service shall be exempt from Section
409A as payments resulting from an involuntary separation from service under to
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations.”
3. The
following sentences shall also be added at the end of Section 6 of the
Employment Agreement:
“Notwithstanding
the foregoing, the notice of termination must be provided no later than the
March 15th immediately following the calendar year in which the Change in
Control occurs (the ‘Short-Term Deferral Payment Due Date’), and all continued
salary payments must be completed not later than Short-Term Deferral Payment Due
Date. Any amount paid under clause (ii) of the second paragraph of
this Section 6 is intended to satisfy the "short-term deferral" rule set forth
in Section 1.409A-1(b)(4) of the Treasury Regulations, and shall not be deferred
compensation subject to Section 409A.”
4. Section
7(b) of the Employment Agreement shall be amended in its entirety to read as
follows:
“After six
(6) years of full-time employment, one three-month period of fully paid leave of
absence in accordance with the Company’s Officer Sabbatical Policy in place at
that time.”
5. Section
14 is renumbered Section 15 and a new Section 14 is added to the Employment
Agreement as follows:
“14. Section
409A
14.1 The
parties agree that this Agreement shall be interpreted to comply with or be
exempt from Section 409A and all provisions of this Agreement shall be construed
in a manner consistent with the requirements for avoiding taxes or penalties
under Section 409A.
14.2 If
the Employee is considered by the Company to be a ‘specified employee’ (within
the meaning of Section 409A) upon separation from service, then with regard to
any payment or the provision of any benefit that is otherwise considered
deferred compensation under Section 409A payable on account of separation from
service, such payment or benefit shall be made or provided at the date which is
the earlier of (i) the first payroll period commencing during the seventh month
immediately following the date of such separation from service, and (ii) the
date of Employee’s death (the ‘Delay Period’). Upon the expiration of
the Delay Period, all payments and benefits delayed hereunder (whether they
would have otherwise been payable in a single sum or in installments in the
absence of such delay) shall be paid or reimbursed to Employee in a lump sum,
and any remaining payments and benefits due under this Agreement shall be paid
or provided in accordance with the normal payment dates specified for them
herein.
14.3 Each
payment and benefit payable under this Agreement is intended to constitute a
separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury
Regulations. For avoidance of doubt, salary continuation benefits and
continued employer paid COBRA benefits described in Section 6 are intended to be
exempt from the delayed payment restriction in Section 14.2.
14.4 All
expenses or other reimbursements as provided under the Agreement shall be
payable in accordance with the Company’s policies in effect from time to time,
but in any event 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
Employee. No 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 right to reimbursement or in-kind benefits
shall not be subject to liquidation or exchanged for another
benefit.
14.5 All
payments and benefits that are payable upon a termination of the Agreement
(including the first paragraph of Section 6 but excluding the second paragraph
of Section 6) or a termination of the Employee’ employment hereunder
shall be paid or provided only upon the Employee’s ‘separation from
service’ from the Company within the meaning of Section 409A (determined after
applying the presumptions set forth in Section 1.409A-1(h)(1) of the Treasury
Regulations.”
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6.
Section 15 of the Employment Agreement shall be amended by adding a new Section
15(f) as follows:
“(f) ‘Section
409A’ means Section 409A of the Internal Revenue Code of 1986, as amended, and
the final regulations and any guidance promulgated thereunder.”
7.
All other terms of the Employment Agreement shall remain in full force and
effect.
This
instrument, together with the Employment Agreement, contains the entire
agreement of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the
Employee and the Company have caused this Agreement to be executed as of the day
and year first written above.
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ARIAD
PHARMACEUTICALS , INC.
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By:
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Name:
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Title:
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Name:
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Schedule
The Executive Officers listed in the
table below have all executed this Section 409A Amendment to Employment
Agreement as of December 31, 2008.
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Name
and Title
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Xxxxxx
X. Xxxxxx, M.D.
Chairman and Chief Executive
Officer
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Xxxx
X. Xxxxxxxx, Ph.D.
Senior Vice President,
Development
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Xxxxx
X. Xxxxxxxx, Esq.
Senior Vice President, Chief
Intellectual Property Officer
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Xxxxxxx
X. Xxxxxxxx, Ph.D.
Senior Vice President, Chief
Scientific Officer
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Xxxxxx
X. Xxxxxxxxxx
Senior Vice President,
Chief
Financial Officer and Treasurer
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Xxxxxx
X. Xxxxxx, M.D.
Senior Vice President, Chief
Medical Officer
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Xxxxxx
X. Xxxxxx, Ph.D.
Senior Vice President of
Regulatory Affairs and Quality
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Xxxxxxx
X. Xxxxx, Esq.
Vice
President, General Counsel, Secretary
and
Chief Compliance Officer
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Xxxxxxx
X. Xxx
Vice
President, Commercial Operations
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