Common use of Code Section 409A Compliance Clause in Contracts

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.

Appears in 2 contracts

Samples: Employment Agreement (Lumos Pharma, Inc.), Employment Agreement (Newlink Genetics Corp)

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Code Section 409A Compliance. Notwithstanding anything set forth in this The Board intends that any Inducement Awards under the Inducement Award Agreement to the contraryshall be administered, any payments interpreted, and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies intended to comply with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A the Internal Revenue Code of 1986, as amended (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)“Code”), Executive’s right to receive the regulations issued thereunder or any installment payments under this Agreement exceptions thereto (whether severance payments, reimbursements or otherwise) 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 disregarded to the contrary in this extent such provisions cannot be so administered, interpreted, or construed). If the Committee determines that an Inducement Award, Inducement Award Agreement, payment, distribution, deferral election, transaction or any other action or arrangement contemplated by the provisions of the Inducement Award Agreement would, if undertaken, cause the Company (Grantee to become subject to additional taxes pursuant to Section 409A, unless the Committee expressly determines otherwise, such grant of Inducement Award, payment, distribution, deferral election, transaction or other action or arrangement shall not be undertaken and the related provisions of the Inducement Award Agreement and/or Inducement Award Agreement will be amended or deemed modified in as close a manner as possible to give effect to the original terms of the Inducement Award, or, only if applicable, necessary because a modification or deemed modification would not be reasonably effective in avoiding the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” additional income tax under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i409A(a)(1)(B) of the Code, then, solely, rescinded in order to comply with the requirements of Section 409A to the extent necessary determined by the Committee without the consent of or notice to avoid the incurrence Grantee. Notwithstanding the foregoing, with respect to any Inducement Award intended by the Committee to be exempt from the requirements of Section 409A which is to be paid out when vested, such payment shall be made as soon as administratively feasible after the Inducement Award becomes vested, but in no event shall such payment be made later than 2-1/2 months after the end of the adverse personal tax consequences under Section 409A, calendar year in which the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: Inducement Award became vested unless (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed deferred pursuant to this section and (B) commence paying Section 5.5 otherwise permitted under the balance exemption provisions of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Section 409A.

Appears in 2 contracts

Samples: Inducement Award Agreement (WPX Energy, Inc.), Inducement Award Agreement (WPX Energy, Inc.)

Code Section 409A Compliance. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (Section 409A) or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding anything set forth in any other provision of this Agreement, payments provided under this Agreement to the contrary, any payments may only be made upon an event and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment termsor an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A (including409A, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any each installment payments payment provided under this Agreement (whether severance payments, reimbursements or otherwise) 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 Any payments to be made under this Agreement upon a termination of employment shall only be made upon a "separation from service" under Section 409A. The parties intend that the provisions of this Agreement will operate in a manner that will avoid adverse federal income tax consequences under section 409A of the Code. If a payment under this Agreement to the contrary in this Agreement, if Executive is subject to the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section requirements of section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent Executive hereby acknowledges and agrees that the Company may take any actions deemed necessary in its sole discretion to avoid the incurrence of the adverse personal federal income tax consequences under Section 409A, the timing section 409A of the payments upon Code and that such action may be taken without the consent of the Executive, including, but not limited to, delaying the commencement of any payment under this Agreement for six (6) months from the Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date Termination Date if it is determined that is six months and one day after Executive’s Separation From Service or (b) the date as of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Termination Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until and such amounts are deemed to be “deferred compensation” subject to the effectiveness requirements of section 409A of the ReleaseCode. Notwithstanding the foregoing, the Company makes no representations or warranty that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the Company be liable for all amounts will or any portion of any taxes, penalties, interest or other expenses that may be paid as soon as practicable in accordance incurred by the Executive on account of non-compliance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Section 409A.

Appears in 2 contracts

Samples: Executive Severance Agreement (Atlantic Tele Network Inc /De), Executive Severance Agreement (Atlantic Tele Network Inc /De)

Code Section 409A Compliance. Notwithstanding anything set forth in To the extent amounts or benefits that become payable under this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which on account of Executive’s termination of employment (other than by reason of Executive’s death) constitute a distribution under a nonqualified deferred compensationcompensation plan” within the meaning of the Treasury Regulations issued pursuant to Code Section 409A (“Deferred Compensation”), Executive’s termination of employment shall not commence until be deemed to occur on the date that Executive has incurred incurs a “separation from serviceService(as such term is defined in with Company within the meaning of Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless . If at the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date time of Executive’s death (such applicable dateseparation from service, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employeeExecutive” (as described above) or until within the effectiveness meaning of Code Section 409A and Treasury Regulation Section 1.409A-1(i)), the payment of such Deferred Compensation shall commence on the first business day of the Releaseseventh month following Executive’s separation from Service and Company shall then pay Executive, without interest, all amounts will such Deferred Compensation that would have otherwise been paid under this Agreement during the first six months following Executive’s separation from service had Executive not been a specified Executive. Thereafter, Company shall pay Executive any remaining unpaid Deferred Compensation in accordance with this Agreement as if there had not been a six-month delay imposed by this paragraph. If any expense reimbursement by Executive under this Agreement is determined to be paid Deferred Compensation, then the reimbursement shall be made to Executive as soon as practicable after submission for the reimbursement, but no later than December 31 of the year following the year during which such expense was incurred. Any reimbursement amount provided in accordance with one year shall not affect the Company’s normal payroll practices amount eligible for reimbursement in another year and no the right to such reimbursement shall not be subject to liquidation or exchange for another benefit. In addition, if any provision of this Agreement would subject Executive to any additional tax or interest will be due on under Code Section 409A, then Company shall reform such provision; provided that Company shall (x) maintain, to the maximum extent practicable, the original intent of the applicable provision without subjecting Executive to such additional tax or interest and (y) not incur any amounts so deferredadditional compensation expense as a result of such reformation.

Appears in 2 contracts

Samples: Executive Employment Agreement (theMaven, Inc.), Executive Employment Agreement (theMaven, Inc.)

Code Section 409A Compliance. Notwithstanding anything set forth in The parties hereto recognize that certain provisions of this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning may be affected by Section 409A of the Treasury Regulations Internal Revenue Code and guidance issued pursuant thereunder, and agree to amend this Agreement, or take such other action as may be necessary or advisable, to comply with Section 409A. It is intended that all payments hereunder shall comply with Section 409A shall and the regulations promulgated thereunder so as to not commence until Executive has incurred a “separation from service” (as such term is defined in subject the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the payment of interest or any additional 20% tax under Section 409A. For the avoidance In furtherance thereof, if payment or provision of doubt, it any amount or benefit hereunder that is intended that the payments and benefits set forth in this Agreement satisfy, subject to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed at the time specified herein would subject such amount or benefit to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal additional tax consequences under Section 409A, the timing payment or provision of such amount or benefit shall be postponed to the earliest date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In addition, to the extent that any regulations or other guidance issued under Section 409A (after application of the payments upon previous provisions of this Section (12)(f)) would result in the Executive’s being subject to the payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this Agreement in order to avoid the imposition of any such interest or additional tax under Section 409A, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company and the Executive. Notwithstanding anything herein to the contrary, it is expressly understood that at any time the Company (or any related employer treated with the Company as the service recipient for purposes of Code Section 409A) is publicly traded on an established securities market (as defined for purposes of Code Section 409A), if a payment or provision of an amount or benefit constituting a deferral of compensation is to be made pursuant to the terms of this Agreement to the Executive on account of a Separation From from Service (as defined under the UIL CIC Plan II) at a time when the Executive is a Specified Employee (as defined for purposes of Code Section 409A(a)(2)(B)(i)), such deferred compensation shall not be delayed until paid to the earlier Executive prior to occur of: (a) the date that is six (6) months after the Separation from Service. In the event this restriction applies, the deferred compensation that the Executive would have otherwise been entitled to during the restriction period will be accumulated and one paid (without adjustment for the delay in payment) on the first business day after of the seventh month following the date of the Executive’s Separation From Service or (b) from Service. The parties hereto intend that the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity theretoAgreement, as applicable) amended, be consistent with IRS Notice 2007-78, IRS Notice 2007-86 and other Code Section 409A transition relief, and it shall (A) pay to Executive a lump sum amount equal to the sum be interpreted accordingly. All of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement other terms and conditions of the payment of the severance benefits had not been so delayed pursuant to this section Agreement shall remain in full force and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreementeffect. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time UIL HOLDINGS CORPORATION Attest: By /s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx Xxxxx Xxxxx X. Xxxxxxxxx UIL Holdings Corporation, President and Chief Financial Officer The United Illuminating Company Chief Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Officer /s/ Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx

Appears in 1 contract

Samples: Employment Agreement (Uil Holdings Corp)

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to The Company and you each hereby affirm that it is their mutual view that the contrary, any provision of payments and benefits provided pursuant described or referenced herein are either exempt from or intended to this Agreement which constitute “deferred compensation” within be in compliance with the meaning requirements of Section 409A of the Code and the Treasury Regulations issued pursuant to regulations relating thereto (“Section 409A shall not commence until Executive has incurred 409A”) and that each party’s tax reporting will be completed in a manner consistent with such view. The Company and you each agree that upon the Retirement Date, you will experience a “separation from service” (as such for purposes of Section 409A. Any payments that qualify for the “short-term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax deferral” exception or another exception under Section 409A. 409A will be paid under the applicable exception. For purposes of the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of limitations on nonqualified deferred compensation under Section 409A provided of the Code, each payment of compensation under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series separate payment of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct paymentcompensation. Notwithstanding any provision anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, consulting and noncompetition fee amounts in Section 4.1(d) that would otherwise be payable pursuant to this Agreement on account of separation from service during the six-month period immediately following the Retirement Date will instead be paid on the first business day after the date that is six months following the Retirement Date (or death, if earlier). Notwithstanding anything to the contrary in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or all reimbursements and in-kind benefits provided under any other agreement this Agreement will be made or provided in accordance with the Company constitute “deferred compensation” under requirements of Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, thenincluding, solelywhere applicable, the requirement that (x) 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; (y) the extent necessary to avoid reimbursement of an eligible expense will be made no later than the incurrence last day of the adverse personal tax consequences calendar year following the year in which the expense is incurred; and (z) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company nor its affiliates will be liable in any manner for any federal, state or local income or excise taxes (including but not limited to any taxes under Section 409A, the timing Sections 409A of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service Code), or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (penalties or the successor entity interest with respect thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement result of the payment of any compensation or benefits hereunder or the severance inclusion of any such compensation or benefits had or the value thereof in your income. You acknowledge and agree that the Company will not been so delayed pursuant to this section and (B) commence paying be responsible for any additional taxes or penalties resulting from the balance application of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Section 409A.

Appears in 1 contract

Samples: Separation and Release Agreement (Gulfport Energy Corp)

Code Section 409A Compliance. Notwithstanding anything set forth in Deferrals, whether elective or mandatory under the terms of this Agreement to (this generally includes terms providing for post-termination vesting), shall comply with requirements under Section 409A of the contrary, any payments and benefits provided pursuant to Internal Revenue Code (the ‘‘Code’’). Other provisions of this Agreement which constitute “deferred compensation” notwithstanding, under U.S. federal income tax laws and Treasury Regulations (including any other applicable guidance) as presently in effect or hereafter implemented, (i) a distribution in settlement of Units to Employee triggered by a Termination of Employment will occur only if the Termination constitutes a ‘‘separation from service’’ within the meaning of Code Section 409A(a)(2)(A)(i) and, if at the Treasury Regulations issued pursuant time of such separation from service Employee is a ‘‘specified employee’’ under Code Section 409A(a)(2)(B)(i) and a delay in distribution is required in order that Employee will not be subject to a tax penalty under Code Section 409A, such distribution in settlement of Units will be subject to the six-month delay rule as specified in the Company’s document titled ‘‘Compliance Rules Under Section 409A shall not commence until Executive has incurred of the Internal Revenue Code (Including Global Amendment to Certain Outstanding Restricted Stock Units)’’ (the ‘‘Compliance Rules’’); (ii) any Units deemed to constitute a “separation from service” (as such term is defined deferral of compensation under Code Section 409A will be subject to accelerated settlement under Section 9(a) of the Plan or otherwise upon a Change in Control only if the Change in Control constitutes a change in the Treasury Regulation ownership or effective control of the corporation or in the ownership of a substantial portion of the assets of the corporation within the meaning of Section 1.409A-1(h) (“Separation From Service”409A(a)(2)(A)(v), unless as specified in the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur ‘‘Change in Control Rule’’ in the additional 20% tax under Section 409A. For the avoidance Compliance Rules; and (iii) any rights of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements Employee or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” retained authority of the Company or with respect to Units hereunder shall be automatically modified and limited to the extent necessary so that Employee will not be deemed to be in constructive receipt of income relating to the Units prior to the distribution and so that Employee shall not be subject to any successor entity thereto, as such term is defined in penalty under Code Section 409A(a)(2)(B)(i) of the Code, then, solely409A, to the extent necessary to avoid the incurrence of the adverse personal tax consequences permitted under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date409A. In this regard, the Company (or shall have no retained discretion to accelerate the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum settlement of the payments upon Executive’s Separation From Service Units beyond that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement permitted under Code Section 409A without triggering any tax penalty. This Award shall be subject to applicable provisions of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits Compliance Rules in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferredother respects.

Appears in 1 contract

Samples: Restricted Stock Units Agreement (International Flavors & Fragrances Inc)

Code Section 409A Compliance. Notwithstanding anything set forth in The parties hereto recognize that certain provisions of this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning may be affected by Section 409A of the Treasury Regulations Code and guidance issued pursuant thereunder, and agree to amend this Agreement, or take such other action as may be necessary or advisable, to comply with Section 409A. It is intended that all payments hereunder shall comply with Section 409A shall and the regulations promulgated thereunder so as to not commence until Executive has incurred a “separation from service” (as such term is defined in subject the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the payment of interest or any additional 20% tax under Section 409A. For the avoidance In furtherance thereof, if payment or provision of doubt, it any amount or benefit hereunder that is intended that the payments and benefits set forth in this Agreement satisfy, subject to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed at the time specified herein would subject such amount or benefit to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal additional tax consequences under Section 409A, the timing payment or provision of such amount or benefit shall be postponed to the earliest date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In addition, to the extent that any regulations or other guidance issued under Section 409A (after application of the payments upon previous provisions of this Section (12)G)) would result in the Executive’s 's being subject to the payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this Agreement in order to avoid the imposition of any such interest or additional tax under Section 409A, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company and the Executive. Notwithstanding anything herein to the contrary, it is expressly understood that at any time the Company (or any related employer treated with the Company as the service recipient for purposes of Code Section 409A) is publicly traded on an established securities market (as defined for purposes of Code Section 409A), if a payment or provision of an amount or benefit constituting a deferral of compensation is to be made pursuant to the terms of this Agreement to the Executive on account of a Separation From from Service (as defined herein) at a time when the Executive is a Specified Employee (as defined for purposes of Code Section 409A(a)(2)(B)(i)), such deferred compensation shall not be delayed until paid to the earlier Executive prior to occur of: (a) the date that is six (6) months after the Separation from Service. In the event this restriction applies, the deferred compensation that the Executive would have otherwise been entitled to during the restriction period will be accumulated and one paid (without adjustment for the delay in payment) on the first business day after Executive’s Separation From Service or (b) of the seventh month following the date of the Executive’s death (such applicable date, 's Separation from Service. The parties hereto intend that the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity theretoAgreement, as applicable) amended, be consistent with IRS Notice 2007-78, IRS Notice2007-86 and other Code Section 409A transition relief, and it shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferredinterpreted accordingly.

Appears in 1 contract

Samples: Employment Agreement (Avangrid, Inc.)

Code Section 409A Compliance. Notwithstanding anything set forth in For purposes of this Agreement Agreement, a termination of employment will be determined consistent with the rules relating to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in Section 409A of the Treasury Regulation Section 1.409A-1(h) Code and the regulations thereunder (“Separation From ServiceSection 409A”), unless the Company reasonably determines . The Parties intend that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfyAgreement, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed administered in a manner that complies accordance with Section 409A and incorporates by reference all required definitions the Treasury Regulations and payment terms. For purposes of Section 409A (includingother applicable regulatory guidance issued thereunder, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right and will be interpreted in a manner so that no payments made to receive any installment payments Executive under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as constitute a right to receive a series deferral 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 this Agreement, if the Company (compensation or, if applicableso, will constitute a deferral for which the successor entity thereto) determines that payment and other terms are compliant with Section 409A so as to avoid imposition of any payments upon Executive’s Separation From Service set forth herein and/or additional tax to Executive under any other agreement Section 409A. Company makes no representation or warranty as to compliance with the Company constitute “deferred compensation” under Section 409A and shall have no liability to the Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in other person for any adverse consequences arising under Section 409A(a)(2)(B)(i) of the Code, then, solely409A. Notwithstanding anything else provided herein, to the extent necessary any payments provided under this Agreement in connection with Executive’s termination of employment constitute deferred compensation subject to avoid Section 409A, and Executive is deemed at the incurrence time of the adverse personal tax consequences such termination of employment to be a “specified Executive” under Section 409A, the timing of the payments upon Executive’s Separation From Service then such payment shall not be delayed made or commence until the earlier to occur of: of (ai) the date that is six months and one day after expiration of the 6-month period measured from Executive’s Separation From Service separation from service from Company or (bii) the date of Executive’s death (following such applicable datea separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive including, without limitation, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that 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 thereof will include a catch-up payment covering the amount that would have received through otherwise been paid during the Specified Employee Initial Payment Date if period between Executive’s termination of employment and the commencement first payment date but for the application of the payment of the severance benefits had not been so delayed pursuant to this section provision, and (B) commence paying the balance of the severance benefits installments (if any) will be payable in accordance with the applicable payment schedules set forth in this Agreementtheir original schedule. None of the severance benefits under this Agreement will commence or Except as otherwise be delivered prior expressly provided herein, to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.any

Appears in 1 contract

Samples: Employment Agreement (Riverview Bancorp Inc)

Code Section 409A Compliance. Notwithstanding anything set forth in Deferrals, whether elective or mandatory under the terms of this Agreement to (this generally includes terms providing for post-termination vesting), shall comply with requirements under Section 409A of the contrary, any payments and benefits provided pursuant to Internal Revenue Code (the “Code”). Other provisions of this Agreement which constitute “deferred compensation” within the meaning of the notwithstanding, under U.S. federal income tax laws and Treasury Regulations issued pursuant (including any other applicable guidance) as presently in effect or hereafter implemented, (i) a distribution in settlement of Units to Section 409A shall not commence until Executive has incurred Employee triggered by a Termination of Employment will occur only if the Termination constitutes a “separation from service” (as such term is defined in within the Treasury Regulation meaning of Code Section 1.409A-1(h409A(a)(2)(A)(i) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall if at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” time of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified separation from service Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” under Code Section 409A(a)(2)(B)(i) and a delay in distribution is required in order that Employee will not be subject to a tax penalty under Code Section 409A, such distribution in settlement of Units will occur at the date six months after Termination of Employment; (as described aboveii) or until the effectiveness any Units deemed to constitute a deferral of compensation under Code Section 409A will be subject to accelerated settlement under Section 9(a) of the ReleasePlan or otherwise upon a Change in Control only if the Change in Control constitutes a change in the ownership or effective control of the corporation or in the ownership of a substantial portion of the assets of the corporation within the meaning of Section 409A(a)(2)(A)(v);and (iii) any rights of Employee or retained authority of the Company with respect to Units hereunder shall be automatically modified and limited to the extent necessary so that Employee will not be deemed to be in constructive receipt of income relating to the Units prior to the distribution and so that Employee shall not be subject to any penalty under Code Section 409A. In this regard, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and Company shall have no interest will be due on retained discretion to accelerate the settlement of the Units beyond that permitted under Code Section 409A without triggering any amounts so deferredtax penalty.

Appears in 1 contract

Samples: Restricted Stock Units Agreement (International Flavors & Fragrances Inc)

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to The Company and you each hereby affirm that it is their mutual view that the contrary, any provision of payments and benefits provided pursuant described or referenced herein are either exempt from or intended to this Agreement which constitute “deferred compensation” within be in compliance with the meaning requirements of Section 409A of the Code and the Treasury Regulations issued pursuant to regulations relating thereto (“Section 409A shall not commence until Executive has incurred 409A”) and that each party’s tax reporting will be completed in a manner consistent with such view. The Company and you each agree that upon the Resignation Date, you will experience a “separation from service” (as such for purposes of Section 409A. Any payments that qualify for the “short-term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax deferral” exception or another exception under Section 409A. 409A will be paid under the applicable exception. For purposes of the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of limitations on nonqualified deferred compensation under Section 409A provided of the Code, each payment of compensation under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series separate payment of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct paymentcompensation. Notwithstanding any provision anything to the contrary in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or all reimbursements and in-kind benefits provided under any other agreement this Agreement will be made or provided in accordance with the Company constitute “deferred compensation” under requirements of Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, thenincluding, solelywhere applicable, the requirement that (x) 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; (y) the extent necessary to avoid reimbursement of an eligible expense will be made no later than the incurrence last day of the adverse personal tax consequences calendar year following the year in which the expense is incurred; and (z) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company nor its affiliates will be liable in any manner for any federal, state or local income or excise taxes (including but not limited to any taxes under Section 409A, the timing Sections 409A of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service Code), or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (penalties or the successor entity interest with respect thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement result of the payment of any compensation or benefits hereunder or the severance inclusion of any such compensation or benefits had or the value thereof in your income. You acknowledge and agree that the Company will not been so delayed pursuant to this section and (B) commence paying be responsible for any additional taxes or penalties resulting from the balance application of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Section 409A.

Appears in 1 contract

Samples: Separation and Release Agreement (Reading International Inc)

Code Section 409A Compliance. This Agreement is intended to be drafted in a manner such that no amount or other benefit provided under this Agreement becomes subject to (a) gross income inclusion under Section 409A of the Internal Revenue Code (“Section 409A”) or (b) interest and additional tax under Section 409A (collectively, “Section 409A Penalties”), including, where appropriate, the construction of defined terms to have meanings that would not cause the imposition of the Section 409A Penalties. Any provisions of the Agreement that are subject to Section 409A are intended to comply with all applicable requirements of Section 409A, or an exemption from the application of Section 409A, and shall be interpreted and administered accordingly. Notwithstanding anything set forth in any provision of this Agreement to the contrary, if any payments and benefits benefit provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant hereunder would be subject to Section 409A shall Penalties because the timing of such benefit is not commence until Executive has incurred delayed as required by Section 409A for a “specified employee” (as defined under Section 409A), then if Grantee is on the applicable date a specified employee, any such benefit that Grantee would otherwise be entitled to receive during the first six months following Grantee’s “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise409A) shall be treated as a right to receive a series of separate payments andaccumulated and paid, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if the Company within ten (or, if applicable, the successor entity thereto10) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) days after the date that is six months and one day after Executivefollowing Grantee’s Separation From Service or (b) the date of Executive“separation from service”, or such earlier date upon which such benefit can be provided under Section 409A without being subject to the Section 409A Penalties such as, for example, upon Grantee’s death (such applicable date, the “Specified Employee Initial Payment Date”)death. On the Specified Employee Initial Payment Date, In no event whatsoever shall the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal any of its affiliates be liable to the sum of the payments upon Executive’s Separation From Service Participant or any party for any additional tax, interest or penalties that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant may be imposed on Participant or any other person by Section 409A or any damages for failing to this section and (B) commence paying the balance of the severance benefits in accordance comply with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Section 409A.

Appears in 1 contract

Samples: Grant Agreement (KMG Chemicals Inc)

Code Section 409A Compliance. (i) The intent of the parties is that payments and benefit under this Agreement comply with or be exempt from Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively, “Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the Executive provides the Company with documentation from Executive’s tax counsel of a national reputation with expertise in Section 409A that any provision of this Agreement (or any award of compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Section 409A (with specificity as to the reason therefore) or the Company independently makes such determination, the Company and the Executive agree to work in good faith to reform such provision (to the extent permitted under Section 409A) to the minimum extent reasonably necessary to conform with Section 409A. To the extent that any provision hereof is modified in order to comply with or be exempt from 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 Executive and the Company of the applicable provision without violating the provisions of Section 409A. Notwithstanding anything set forth in this Agreement contained herein to the contrary, any payments and benefits provided pursuant the Company shall not (i) be obligated to modify or amend this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary that such modification or amendment would (a) increase the Company’s obligations hereunder, (b) increase any amounts owed by the Company hereunder or (c) otherwise accelerate the timing of payments owed by the Company hereunder or (ii) be responsible for the failure of this Agreement to avoid the incurrence of the adverse personal tax consequences under comply with, or be exempt from, Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable datefor any taxes, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (penalties or the successor entity thereto, as applicable) shall (A) pay to interest incurred by Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Section 409A.

Appears in 1 contract

Samples: Employment Agreement (Emtec Inc/Nj)

Code Section 409A Compliance. Notwithstanding anything set forth in The parties hereto recognize that certain provisions of this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning may be affected by Section 409A of the Treasury Regulations Internal Revenue Code and guidance issued pursuant thereunder, and agree to amend this Agreement, or take such other action as may be necessary or advisable, to comply with Section 409A. It is intended that all payments hereunder shall comply with Section 409A shall and the regulations promulgated thereunder so as to not commence until Executive has incurred a “separation from service” (as such term is defined in subject the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the payment of interest or any additional 20% tax under Section 409A. For the avoidance In furtherance thereof, if payment or provision of doubt, it any amount or benefit hereunder that is intended that the payments and benefits set forth in this Agreement satisfy, subject to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed at the time specified herein would subject such amount or benefit to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal additional tax consequences under Section 409A, the timing • payment or provision of such amount or benefit shall be postponed to the earliest date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In addition, to the extent that any regulations or other guidance issued under Section 409A (after application of the payments upon previous provisions of this Section (12)(j)) would result in the Executive’s 's being subject to the payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this Agreement in order to avoid the imposition of any such interest or additional tax under Section 409A, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company and the Executive. Notwithstanding anything herein to the contrary, it is expressly understood that at any time the Company (or any related employer treated with the Company as the service recipient for purposes of Code Section 409A) is publicly traded on an established securities market (as defined for purposes of Code Section 409A), if a payment or provision of an amount or benefit constituting a deferral of compensation is to be made pursuant to the terms of this Agreement to the Executive on account of a Separation From from Service (as defined under the UIL CIC Plan II) at a time when the Executive is a Specified Employee (as defined for purposes of Code Section 409A(a)(2)(B)(i)), such deferred compensation shall not be delayed until paid to the earlier Executive prior to occur of: (a) the date that is six (6) months after the Separation from Service. In the event this restriction applies, the deferred compensation that the Executive would have otherwise been entitled to during the restriction period will be accumulated and one paid (without adjustment for the delay in payment) on the first business day after Executive’s Separation From Service or (b) of the seventh month following the date of the Executive’s death (such applicable date, 's Separation from Service. The parties hereto intend that the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity theretoAgreement, as applicable) amended, be consistent with IRS Notice 2007-78, IRS Notice 2007-86 and other Code Section 409A transition relief, and it shall (A) pay to Executive a lump sum amount equal to the sum be interpreted accordingly. All of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement other terms and conditions of the payment of the severance benefits had not been so delayed pursuant to this section Agreement shall remain in full force and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreementeffect. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time THE UNITED ILLUMINATING COMPANY Attest: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxxx Xxxxx Xxxxx Xxxxx X. Xxxxxxxxx Vice President Total Rewards UIL Holdings Corporation, President and Chief Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Officer The United Illuminating Company Chief Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Officer By: /s/Xxxxxxx Xxxxxx III Xxxxxxx Xxxxxx III

Appears in 1 contract

Samples: Employment Agreement (Avangrid, Inc.)

Code Section 409A Compliance. Notwithstanding anything set forth in Deferrals, whether elective or mandatory under the terms of this Agreement to (this generally includes terms providing for post-termination vesting), shall comply with requirements under Section 409A of the contrary, any payments and benefits provided pursuant to Internal Revenue Code (the “Code”). Other provisions of this Agreement which constitute “deferred compensation” within the meaning of the notwithstanding, under U.S. federal income tax laws and Treasury Regulations issued pursuant (including any other applicable guidance) as presently in effect or hereafter implemented, (i) a distribution in settlement of Units to Section 409A shall not commence until Executive has incurred Employee triggered by a Termination of Employment will occur only if the Termination constitutes a “separation from service” (as such term is defined in within the Treasury Regulation meaning of Code Section 1.409A-1(h409A(a)(2)(A)(i) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall if at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” time of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified separation from service Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” under Code Section 409A(a)(2)(B)(i) and a delay in distribution is required in order that Employee will not be subject to a tax penalty under Code Section 409A, such distribution in settlement of Units will occur at the date six months after Termination of Employment; (as described aboveii) or until the effectiveness any Units deemed to constitute a deferral of compensation under Code Section 409A will be subject to accelerated settlement under Section 9(a) of the ReleasePlan or otherwise upon a Change in Control only if there occurs a transaction relating to the Change in Control that constitutes a change in the ownership or effective control of the corporation or in the ownership of a substantial portion of the assets of the corporation within the meaning of Section 409A(a)(2)(A)(v), all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices settlement in such case to be triggered by the occurrence of such transaction; and (iii) any rights of Employee or retained authority of the Company with respect to Units hereunder shall be automatically modified and limited to the extent necessary so that Employee will not be deemed to be in constructive receipt of income relating to the Units prior to the distribution and so that Employee shall not be subject to any penalty under Code Section 409A. In this regard, the Company shall have no interest will be due on retained discretion to accelerate the settlement of the Units beyond that permitted under Code Section 409A without triggering any amounts so deferredtax penalty.

Appears in 1 contract

Samples: Restricted Stock Units Agreement (International Flavors & Fragrances Inc)

Code Section 409A Compliance. The intent of the parties to this Agreement is that payments and benefits paid or provided hereunder be exempt from or comply with Section 409A of the Code, as amended and the regulations and guidance promulgated thereunder (together, “Section 409A”) and that this Agreement shall be interpreted and administered in accordance with such intention. Notwithstanding anything set forth in this Agreement herein to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within if at the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date time of Executive’s death (such applicable date's termination of employment with Company, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) defined in Section 409A 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, then the commencement of such payments or benefits hereunder shall be delayed until the effectiveness date that is six (6) months and one day following Executive’s termination of employment with Company; provided that, to the extent necessary to comply with the requirements of IRS Notice 2016-6, in no event shall a payment described in this sentence be paid prior to the date which is eighteen (18) months and one day following [IN- SERT DATE OF AMENDMENT]. For purposes of any payments and benefits which are (i) subject to Section 409A and (ii) payable due to a termination of Executive's employment, Executive shall not be considered to have terminated employment with Company until Executive incurs a “separation from service” from Company within the meaning of Section 409A. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the ReleaseCode, all and any payments described in this Agreement 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. To the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts will reimbursable to Executive under this Agreement shall be paid as soon as practicable to Executive on or before the last day of the year following the year in accordance with which the Company’s normal payroll practices expense was incurred and no interest will be due on the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not effect amounts so deferredreimbursable or provided in any subsequent year.

Appears in 1 contract

Samples: Employment Agreement (Playboy Enterprises Inc)

Code Section 409A Compliance. Notwithstanding anything set forth in The parties hereto recognize that certain provisions of this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning may be affected by Section 409A of the Treasury Regulations Internal Revenue Code and guidance issued pursuant thereunder, and agree to amend this Agreement, or take such other action as may be necessary or advisable, to comply with Section 409A. It is intended that all payments hereunder shall comply with Section 409A shall and the regulations promulgated thereunder so as to not commence until Executive has incurred a “separation from service” (as such term is defined in subject the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the payment of interest or any additional 20% tax under Section 409A. For the avoidance In furtherance thereof, if payment or provision of doubt, it any amount or benefit hereunder that is intended that the payments and benefits set forth in this Agreement satisfy, subject to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed at the time specified herein would subject such amount or benefit to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal additional tax consequences under Section 409A, the timing payment or provision of such amount or benefit shall be postponed to the earliest date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In addition, to the extent that any regulations or other guidance issued under Section 409A (after application of the payments upon previous provisions of this Section (10)(k) would result in the Executive’s being subject to the payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this Agreement in order to avoid the imposition of any such interest or additional tax under Section 409A, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company and the Executive. Notwithstanding anything herein to the contrary, it is expressly understood that at any time the Company (or any related employer treated with the Company as the service recipient for purposes of Section 409A) is publicly traded on an established securities market (as defined for purposes of Section 409A), if a payment or provision of an amount or benefit constituting a deferral of compensation is to be made pursuant to the terms of this Agreement to the Executive on account of a Separation From from Service at a time when the Executive is a Specified Employee (as defined for purposes of Section 409A(a)(2)(B)(i)), such deferred compensation shall not be delayed until paid to the earlier Executive prior to occur of: (a) the date that is six (6) months after the Separation from Service. In the event this restriction applies, the deferred compensation that the Executive would have otherwise been entitled to during the restriction period will be accumulated and one paid (without adjustment for the delay in payment) on the first business day after of the seventh month following the date of the Executive’s Separation From from Service or (b) or, if earlier, the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”)estate or personal representative upon his death. On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive Each payment made in a lump sum amount equal to the sum series of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will shall be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness separate payment for purposes of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Section 409A.

Appears in 1 contract

Samples: Employment Agreement (Avangrid, Inc.)

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Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to The intent of the contrary, any parties is that payments and benefits provided pursuant under this Agreement comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) 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; provided, that the Corporation does not guarantee to Employee any particular tax treatment with respect to this Agreement which constitute “deferred compensation” within and any payments hereunder. In no event whatsoever shall the meaning of the Treasury Regulations issued pursuant to Corporation be liable for any additional tax, interest, or penalties that may be imposed on Employee by Code Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided or any damages for failing to Executive without causing Executive to incur the additional 20% tax under comply with Code Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Code Section 409A (including409A, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), ExecutiveEmployee’s right to receive any installment payments under pursuant to this Agreement (whether severance payments, reimbursements or otherwise) 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 paymentpayments. Notwithstanding Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within ten calendar days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Corporation. In no event may Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement that is considered nonqualified deferred compensation. With regard to any provision to the contrary in this Agreementherein that provides for reimbursement of costs and expenses or in-kind benefits, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, except as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under permitted by Code Section 409A, (i) the timing right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; provided, that this 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 upon Executive’s Separation From Service shall be delayed until made on or before the earlier to occur of: (a) last day of Employee’s taxable year following the date that is six months and one day after Executive’s Separation From Service or (b) taxable year in which the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferredexpense was incurred.

Appears in 1 contract

Samples: Employment Agreement (J C Penney Co Inc)

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a Exhibit 10.4 “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.

Appears in 1 contract

Samples: Employment Agreement (Newlink Genetics Corp)

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a Exhibit 10.3 “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.

Appears in 1 contract

Samples: Employment Agreement (Newlink Genetics Corp)

Code Section 409A Compliance. This Separation Agreement is intended to comply with, or be exempt from, to the extent applicable, Section 409A of the U.S. Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (“Code Section 409A”), and the parties hereto agree to interpret this Separation Agreement in the least restrictive manner necessary to comply therewith or be exempt therefrom and without resulting in any increase in the amounts owed hereunder by the Company. To the maximum extent possible, any severance owed under this Separation Agreement shall be construed to fit within the “short-term deferral rule” under Code Section 409A and/or the “two times two year” involuntary separation pay exception under Code Section 409A. Notwithstanding anything set forth in any other provision of this Separation Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” within the meaning of Code Section 409A and the regulations issued thereunder, and a payment or benefit provided for in this Separation Agreement would be subject to additional tax under Code Section 409A if such payment or benefit is paid within six (6) months after the Executive’s “separation from service” (within the meaning of Code Section 409A), then such payment or benefit required under this Separation Agreement (i) shall not be paid (or commence) during the six-month period immediately following the Executive’s separation from service (except as described aboveprovided in clause (ii)(B) of this Section 6.14) and (ii) shall instead be paid to the Executive in a lump-sum payment on the earlier of (A) the first regular payroll date of the seventh month following the Executive’s separation from service or (B) the 10th business day following the Executive’s death (but not earlier than such payment would have been made absent such death). If the Executive’s termination of employment hereunder does not constitute a “separation from service” within the meaning of Code Section 409A, then any amounts payable hereunder and which are subject to Code Section 409A shall not be paid or commence until the effectiveness Executive has experienced a “separation from service” within the meaning of Code Section 409A. In addition, no reimbursement or in-kind benefit shall be subject to liquidation or exchange for another benefit and the amount available for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount available for reimbursement, or in-kind benefits to be provided, in a subsequent calendar year. Any reimbursement to which the Executive is entitled hereunder shall be made no later than the last day of the Releasecalendar year immediately following the calendar year in which such expenses were incurred. Notwithstanding anything herein to the contrary, no member of the Company Group or any of their respective affiliates shall have any liability to the Executive or to any other Person if this Separation Agreement is not exempt from or compliant with Code Section 409A, or if the payments and/or benefits provided in this Separation Agreement that are intended to be exempt from or compliant with Code Section 409A are not so exempt or compliant. Each payment payable under this Separation Agreement shall be treated as a separate payment in a series of payments within the meaning of, and for purposes of, Code Section 409A. Notwithstanding the foregoing or anything contained in this Separation Agreement to the contrary, if payment of any amounts set forth in this Separation Agreement (other than the Accrued Benefits) are treated as “non-qualified deferred compensation” under Code Section 409A, then if such payments or benefits could commence in more than one taxable year depending on when the Release is executed (regardless of when the Release is actually executed), then such payments and benefits that otherwise would have been payable in the calendar year in which the Separation Date occurs shall be withheld and instead shall be payable on the first payroll date in the calendar year immediately following the calendar year in which the Separation Date occurs (with all amounts will remaining payments to be paid made as soon as practicable in accordance if no such delay had occurred). For purposes of Section 3 of this Separation Agreement, the Separation Date shall be interpreted to mean the date on which Executive incurs a “separation from service” with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Company (within the meaning of Code Section 409A). Exhibit 10.1

Appears in 1 contract

Samples: Employment Transition and Separation Agreement (Global Business Travel Group, Inc.)

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to The Company and you each hereby affirm that it is their mutual view that the contrary, any provision of payments and benefits provided pursuant described or referenced herein are either exempt from or intended to this Agreement which constitute “deferred compensation” within be in compliance with the meaning requirements of Section 409A of the Code and the Treasury Regulations issued pursuant to regulations relating thereto (“Section 409A shall not commence until Executive has incurred 409A”) and that each party’s tax reporting will be completed in a manner consistent with such view. The Company and you each agree that upon the Retirement Date, you will experience a “separation from service” (as such for purposes of Section 409A. Any payments that qualify for the “short-term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax deferral” exception or another exception under Section 409A. 409A will be paid under the applicable exception. For purposes of the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of limitations on nonqualified deferred compensation under Section 409A provided of the Code, each payment of compensation under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series separate payment of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct paymentcompensation. Notwithstanding any provision anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, fee amounts in Section 4.1 that constitute nonqualified deferred compensation and would otherwise be payable pursuant to this Agreement on account of separation from service during the six-month period immediately following the Retirement Date will instead be paid on the first business day after the date that is six months following the Retirement Date (or death, if earlier). Notwithstanding anything to the contrary in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or all reimbursements and in- 8 kind benefits provided under any other agreement this Agreement will be made or provided in accordance with the Company constitute “deferred compensation” under requirements of Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, thenincluding, solelywhere applicable, the requirement that (x) 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; (y) the extent necessary to avoid reimbursement of an eligible expense will be made no later than the incurrence last day of the adverse personal tax consequences calendar year following the year in which the expense is incurred; and (z) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company nor its affiliates will be liable in any manner for any federal, state or local income or excise taxes (including but not limited to any taxes under Section 409A, the timing Sections 409A of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service Code), or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (penalties or the successor entity interest with respect thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement result of the payment of any compensation or benefits hereunder or the severance inclusion of any such compensation or benefits had or the value thereof in your income. You acknowledge and agree that the Company will not been so delayed pursuant to this section and (B) commence paying be responsible for any additional taxes or penalties resulting from the balance application of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.Section 409A.

Appears in 1 contract

Samples: Separation and Release Agreement (Reading International Inc)

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of Exhibit 10.4 the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.

Appears in 1 contract

Samples: Employment Agreement (Newlink Genetics Corp)

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Exhibit 10.5 Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.

Appears in 1 contract

Samples: Employment Agreement (Newlink Genetics Corp)

Code Section 409A Compliance. Notwithstanding anything set forth The intent of the parties is that payments and benefits under this Agreement comply with IRC Section 409A and the regulations and guidance promulgated thereunder and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any payment or benefit described in this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute constitutes non-qualified deferred compensation” within the meaning of the Treasury Regulations issued pursuant to under IRC Section 409A shall not commence until Executive has incurred (or is intended to qualify for an exemption under IRC Section 409A) and such payment or benefit is payable upon Executive’s termination of employment or termination of this Agreement, then the phrase “termination of employment,” “termination of this Agreement” and other similar phrases in this Agreement will be deemed to mean a “separation from service,(as such term is defined in the accordance with IRC Section 409A and corresponding Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfyregulations. Additionally, to the greatest extent possiblethat any reimbursements under this Agreement are subject to the provisions of IRC Section 409A , any such reimbursements payable to Executive will be paid to Executive no later than December 31 of the year following the year in which the expense was incurred, the exemptions from amount of the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4)expenses reimbursed in one year will not affect the amount eligible for reimbursement in any subsequent year, 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits reimbursement under this Agreement will commence not be subject to liquidation or otherwise exchange for another benefit. The Company makes no representation or warranty and will have no liability to Executive or any other person with respect to whether any provision of this Agreement fails to comply with IRC Section 409A or fails to satisfy an intended exemption from IRC Section 409A. In no event whatsoever shall the Company be delivered prior to the effective date of the Release. If the period of time liable for any additional tax, interest or penalty that may be imposed on Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.by IRC Section 409A.

Appears in 1 contract

Samples: Executive Compensation Agreement (McorpCX, Inc.)

Code Section 409A Compliance. Notwithstanding anything set forth in this Agreement to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “deferred compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For the avoidance of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) 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 in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months and one day after Executive’s Separation From Service or (b) the date of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferred.. EXHIBIT 10.63

Appears in 1 contract

Samples: Employment Agreement (Newlink Genetics Corp)

Code Section 409A Compliance. Notwithstanding anything set forth It is Company’s intent that amounts paid under this Agreement shall comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (“Code Section 409A”) or qualify for an exception to Code Section 409A because the amounts paid under this Plan are structured to comply with exceptions to Code Section 409A. This Agreement shall be interpreted, operated and administered in a manner consistent with these intentions, and payment shall be made in a manner consistent with Code Section 409A and its applicable exceptions. No payments to be made under this Agreement may be accelerated or deferred except as specifically permitted under Code Section 409A. To the extent that any regulations or other guidance issued under Code Section 409A would result in Employee being subject to payment of additional income taxes or interest under Code Section 409A, the parties agree to amend this Agreement to maintain to the contrary, any payments and benefits provided pursuant to maximum extent practicable the original intent of this Agreement which constitute “deferred compensation” within while avoiding the meaning application of the Treasury Regulations issued pursuant such taxes or interest. All payments to Section 409A shall not commence until Executive has incurred be made upon a termination of employment under this Plan may only be made upon a “separation from service” (as such term is defined in the Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Code Section 409A. For the avoidance Each payment of doubt, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments compensation under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series separate payment of separate _/s/BWS/DS_ Initials compensation under Code Section 409A. Accordingly, those payments and, accordingly, each installment payment hereunder shall at all under this Agreement that when aggregated together exceed the lesser of two times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “deferred compensation” under Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) Employee’s annual compensation in the date that is six months and one day after Executive’s Separation From Service year preceding the year of the Termination Date or (b) the annual compensation limit prescribed by Code Section 401(a)(17) shall not commence until the first payroll date that occurs after the date that is 6 months after the Termination Date. In no event may Employee, directly or indirectly, designate the calendar year of Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (a payment and where payment may occur in one year or the successor entity theretonext, as applicable) it shall (A) pay to Executive a lump sum amount equal to be made in the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferredsecond year.

Appears in 1 contract

Samples: Separation Agreement (Scotts Miracle-Gro Co)

Code Section 409A Compliance. Notwithstanding anything set forth in The arrangements under this Agreement are not intended to the contrary, any payments and benefits provided pursuant to this Agreement which constitute “create "deferred compensation" within the meaning of Section 409A of the Treasury Regulations issued Internal Revenue Code of 1986, as amended (the "Code") and any rulings or regulations thereunder, including IRS Notice 2005-1, and all provisions of this Agreement shall be interpreted consistently with such intent. In the event that any amounts payable under this Agreement that would otherwise be considered deferred compensation pursuant to Section 409A shall not commence until Executive has incurred a “separation from service” of the Code (as such term is defined in or any applicable regulations or guidance promulgated by the Secretary of the Treasury Regulation Section 1.409A-1(hin connection therewith) are paid within six (“Separation From Service”)6) months following the date of termination of employment, unless the Company reasonably determines that such amounts may shall be paid at the earlier of the time otherwise provided to Executive without causing Executive to incur under this Agreement or the additional 20% tax time that will prevent such amounts from being considered deferred compensation under Section 409A. For 409A of the avoidance Code. Solely to the extent, if any, that this Agreement constitutes the grant of doubtan additional benefit under the Agreement that consists solely of a deferral of additional compensation not otherwise provided under the Agreement as of October 3, 2004, it is intended that the payments and benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9) and this Agreement will be construed to the greatest extent possible as consistent with those provisions. To the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A 2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall such additional benefit be treated as a right material modification of the Agreement only as to receive a series such additional deferral of separate payments andcompensation as provided in Q&A-18 of IRS Notice 2005-1. Further, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding in the event that (a) the Company determines that there is an ambiguity with respect to any provision of this Agreement that could cause such provision to the contrary result in this Agreement, if the Company (or, if applicable, the successor entity thereto) determines that any payments upon Executive’s Separation From Service set forth herein and/or under any other agreement with the Company constitute “an obligation to pay deferred compensation” under compensation subject to Section 409A and Executive is, on Executive’s Separation From Service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely, to such ambiguity shall be interpreted and resolved in the extent manner that the Company deems necessary to either avoid the incurrence obligation to pay deferred compensation within the meaning of Section 409A of the adverse personal tax consequences under Code or to comply with timing and payment provisions of Section 409A, the timing 409A of the payments upon Executive’s Separation From Service shall be delayed until the earlier to occur of: (a) the date that is six months Code, and one day after Executive’s Separation From Service or (b) the date Company determines, in good faith, that any amendment to this Agreement is necessary or appropriate in order to comply with timing and payment provisions of Executive’s death (such applicable date, Section 409A of the “Specified Employee Initial Payment Date”). On Code or to avoid the Specified Employee Initial Payment Dateobligation to pay deferred compensation within the meaning of Section 409A of the Code, the Company (shall have the right to make such amendment, on a prospective or the successor entity theretoretroactive basis, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the payments upon Executive’s Separation From Service that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the severance benefits had not been so delayed pursuant to this section and (B) commence paying the balance of the severance benefits in accordance with the applicable payment schedules set forth in this Agreement. None of the severance benefits under this Agreement will commence or otherwise be delivered prior to the effective date of the Release. If the period of time Executive has to execute the Release “crosses over” two (2) calendar years, the Release will be deemed to have been executed on the twenty-first (21st) day after the Separation Date. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” (as described above) or until the effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices and no interest will be due on any amounts so deferredits sole discretion.

Appears in 1 contract

Samples: Employment Agreement (Solutia Inc)

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