Common use of Section 409A Clause in Contracts

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 13 contracts

Samples: Employment Agreement (CS Disco, Inc.), Employment Agreement (CS Disco, Inc.), Employment Agreement (CS Disco, Inc.)

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Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(41.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A-1(b)(91.409A 1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For all purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iiiRegulations Sections 1.409A 2(b)(2)(i) and (iii)), Executive’s your 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 letterAgreement, if Executive is you are deemed by the Company at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, ,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the first date following expiration of the six-month period measured from following the date of Executive’s your Separation from Service with the Company, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the severance benefits are not covered by one or more exemptions from the application of Section 409A and the Release Deadline occurs in the calendar year following the calendar year of your Separation from Service, the Separation Agreement will not be deemed effective any earlier than the Release Deadline for purposes of determining the timing of provision of any severance benefits.

Appears in 12 contracts

Samples: Confidential Information and Invention Assignment Agreement (Inmune Bio, Inc.), Confidential Information and Invention Assignment Agreement (Inmune Bio, Inc.), Longboard Pharmaceuticals, Inc.

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(41.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A-1(b)(91.409A 1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For all purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iiiRegulations Sections 1.409A 2(b)(2)(i) and (iii)), Executive’s your 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 letterAgreement, if Executive is you are deemed by the Company at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, ,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the first date following expiration of the six-month period measured from following the date of Executive’s your Separation from Service with the Company, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the severance benefits are not covered by one or more exemptions from the application of Section 409A and the Release Deadline occurs in the calendar year following the calendar year of your Separation from Service, the Release will not be deemed effective any earlier than the Release Deadline for purposes of determining the timing of provision of any severance benefits.

Appears in 11 contracts

Samples: Employment Agreement (Honest Company, Inc.), Employment Agreement (Honest Company, Inc.), Employment Agreement (Honest Company, Inc.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of will comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the any regulations and other guidance guidelines promulgated thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), to the extent the Agreement is subject thereto, and this the Agreement will shall be construed interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A or Section 457A of the Code (and not result in tax or penalties under such Sections), the Company may modify the Agreement in good faith in a manner that complies with Section 409A. For purposes preserves the original intent of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right the parties 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 paymentthe extent reasonably possible. Notwithstanding any provision to the contrary in this letterAgreement, if Executive Grantee is deemed by on the date of his or her “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i1.409A-1(i)), and if then with regard to any payment that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the payments upon Separation from Service set forth herein and/or under Code (after taking into account any other agreement with the Company are deemed applicable exceptions to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409Arequirement), such payments payment shall not be provided to Executive prior to made on the earliest date that is the earlier of (i) the expiration of the six-month six (6)-month period measured from the date of ExecutiveGrantee’s Separation “separation from Service with the Company, service,” or (ii) the date of ExecutiveGrantee’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation“Delay Period”). Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) periodthe Delay Period, all payments deferred delayed pursuant to this paragraph (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to Grantee in a lump sum to Executive, and any remaining payments due under this Agreement shall be paid as otherwise provided herein in accordance with the normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, for purposes of any provision of this Agreement providing for the payment of any amounts upon or in following a termination of employment that are considered deferred compensation under Section 409A, references to Grantee’s “termination of employment” (and corollary terms) with the applicable agreement. No interest Company shall be due on any amounts so deferred.construed to refer to Grantee’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A.

Appears in 11 contracts

Samples: 201x Restricted Stock Unit Agreement (Xl Group PLC), Restricted Cash Unit Agreement (Xl Group PLC), Restricted Stock Unit Agreement (Xl Group LTD)

Section 409A. It This Agreement is intended that all of to comply with the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application requirements of Section 409A of the Internal Revenue Code and of 1986, as amended (the regulations and other guidance thereunder and any state law of similar effect (collectively, Section 409ACode) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and shall be interpreted and construed consistently with such intent. The payments to Executive pursuant to this Agreement will are also intended to be construed in a manner that complies with Section 409A. For purposes of exempt from Section 409A (includingof the Code to the maximum extent possible, without limitationunder either the separation pay exemption pursuant to Treasury regulation §1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury regulation §1.409A-1(b)(4), and for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii))the separation pay exemption, Executive’s right each installment paid to receive any installment payments Executive 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 payment. In the event the terms of this Agreement would subject Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and distinct paymentExecutive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event shall the Company be responsible for any 409A Penalties that arise in connection with any amounts payable under this Agreement. To the extent any amounts under this Agreement are payable by reference to Executive’s “termination of employment” such term and similar terms shall be deemed to refer to Executive’s “separation from service,” within the meaning of Section 409A of the Code. Notwithstanding any other provision to the contrary in this letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee,for purposes of as defined in Section 409A(a)(2)(B)(i), and if any 409A of the payments upon Separation Code, as of the date of Executive’s separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”service, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution amount payable under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of this Agreement (i) constitutes the expiration payment of nonqualified deferred compensation, within the meaning of Section 409A of the Code, (ii) is payable upon Executive’s separation from service and (iii) under the terms of this Agreement would be payable prior to the six-month period measured from the date anniversary of Executive’s Separation separation from Service with service, such payment shall be delayed until the Company, earlier to occur of (iia) the six-month anniversary of the separation from service or (b) the date of Executive’s death or (iii) such earlier date as permitted under death. In addition, each payment of nonqualified deferred compensation, within the meaning of Section 409A without of the imposition Code, which is conditioned upon Executive’s execution of adverse taxation. Upon the a release and which is to be paid during a designated period that begins in a first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph taxable year and ends in a second taxable year shall be paid in a lump sum the second taxable year. Any reimbursement payable to ExecutiveExecutive pursuant to this Agreement shall be conditioned on the submission by Executive of all expense reports reasonably required by the Company under any applicable expense reimbursement policy, and any remaining payments due shall be paid as otherwise provided herein to Executive within 30 days following receipt of such expense reports, but in no event later than the last day of the calendar year following the calendar year in which Executive incurred the reimbursable expense. Any amount of expenses eligible for reimbursement during a calendar year shall not affect the amount of expenses eligible for reimbursement during any other calendar year. The right to any reimbursement pursuant to this Agreement shall not be subject to liquidation or in the applicable agreement. No interest shall be due on exchange for any amounts so deferredother benefit.

Appears in 11 contracts

Samples: Employment Agreement (Thermon Group Holdings, Inc.), Employment Agreement (Thermon Group Holdings, Inc.), Employment Agreement (Thermon Holding Corp.)

Section 409A. It is intended that all of To the extent (a) any payments payable or benefits to which Employee becomes entitled under this Agreement satisfyAgreement, or under any agreement or plan referenced herein, in connection with Employee’s termination of employment with the Company constitute deferred compensation subject to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”b) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 letter, if Executive Employee is deemed by the Company at the time of Executive’s Separation from Service such termination of employment to be a “specified employee” for purposes of under Section 409A(a)(2)(B)(i), and if any 409A of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to made or commence until the earliest of (i) the expiration of the six-month six (6)-month period measured from the date of ExecutiveEmployee’s Separation “separation from Service with service” (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) from the Company, ; or (ii) the date of ExecutiveEmployee’s death or following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Employee, including (iiiwithout limitation) such earlier date as permitted the additional twenty percent (20%) tax for which Employee would otherwise be liable under Section 409A without 409A(a)(1)(B) of the imposition Code in the absence of adverse taxationsuch deferral. Upon the first business day following the expiration of such the applicable Section 409A(a)(2)(B)(i) deferral period, all any payments deferred pursuant to which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Employee or Employee’s beneficiary in a one lump sum (without interest). Any termination of Employee’s employment is intended to Executiveconstitute a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemption from the application of Code Section 409A (and any remaining payments due shall be paid state law of similar effect) provided under Treasury Regulation Section 1.409A-1(b)(4) (as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferreda “short-term deferral”).

Appears in 9 contracts

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

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 the Agreement, in order to be eligible to receive any termination benefits under this letterAgreement that are deemed deferred compensation subject to Section 409A of the Code, if Executive the Employee’s termination of employment must constitute a “separation from service” within the meaning of Treas. Reg. Section 1.409A-1(h) (a “Separation from Service”). If the Employee is deemed by the Company at the time of Executive’s Separation from Service his termination of employment with the Company to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such payments the termination benefits to which the Employee is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments portion of the Employee’s termination benefits shall not be provided to Executive the Employee prior to the earliest earlier of (i) the expiration of the six-month period measured from the date of Executivethe Employee’s Separation from Service with the Company, Company or (ii) the date of Executivethe Employee’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i) perioddates, all payments deferred pursuant to this paragraph Section 10 shall be paid in a lump sum to Executivethe Employee, and any remaining payments due under the Agreement shall be paid as otherwise provided herein herein. The determination of whether the Employee is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treas. Reg. Section 1.409A-1(i) and any successor provision thereto). Notwithstanding the foregoing or in any other provisions of this Agreement, the applicable agreement. No interest Company and the Employee agree that, for purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement shall be due on any amounts so deferredtreated as a right to receive a series separate and distinct payments of compensation for purposes of applying the Section 409A of the Code.

Appears in 9 contracts

Samples: Employment Agreement (Galaxy Dream Corp), Employment Agreement (Galaxy Dream Corp), Employment Agreement (Galaxy Dream Corp)

Section 409A. It is intended that all For purposes of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section section 409A of the Code and Internal Revenue Code, the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”) ), each payment and benefit payable under this Agreement is hereby designated as a separate payment. The parties intend that all Bonus RSUs provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will and shares issuable hereunder comply with or be construed in a manner that complies with Section 409A. For purposes exempt from the requirements of Section 409A (includingso that none of the payments or benefits will be subject to the adverse tax penalties imposed under Section 409A, without limitationand any ambiguities herein will be interpreted to so comply. Notwithstanding anything in the Plan or this Agreement to the contrary, for purposes if the vesting of the balance, or some lesser portion of the balance, of the Bonus RSUs is to be accelerated in connection with the Grantee’s termination of service, such accelerated Bonus RSUs will not be settled by virtue of such acceleration until and unless the Grantee has a “separation from service” within the meaning of Section Treasury Regulation Section 1.409A-2(b)(2)(iii)1.409A-1(h), Executive’s right to receive any installment payments under as determined by the Corporation, in its sole discretion. Further, and notwithstanding anything in the Plan or 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 lettercontrary, if Executive is deemed by (x) any of the Company Bonus RSUs to be provided in connection with the Grantee’s separation from service do not qualify for any reason to be exempt from Section 409A, (y) the Grantee is, at the time of Executive’s Separation such separation from Service to be service, a “specified employee” for purposes (as defined in Treasury Regulation Section 1.409A-1(i)) and (z) the settlement of such Bonus RSUs would result in the imposition of additional tax under Section 409A(a)(2)(B)(i)409A if such settlement occurs on or within the six (6) month period following the Grantee’s separation from service, and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”then, then to the extent delayed commencement necessary to avoid the imposition of such additional taxation, the settlement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(iBonus RSUs during such six (6) month period will accrue and the related adverse taxation under Section 409A, such payments shall will not be provided to Executive prior to settled until the earliest of date six (i6) the expiration of the six-month period measured from months and one (1) day following the date of Executivethe Grantee’s Separation separation from Service with the Companyservice and on such date (or, (ii) if earlier, the date of Executivethe Grantee’s death or (iii) death), such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall Bonus RSUs will be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsettled.

Appears in 9 contracts

Samples: Incentive Plan Award (SLM Corp), 2014 Management Incentive Plan Award (SLM Corp), 2014 Management Incentive Plan Award (SLM Corp)

Section 409A. 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 twenty percent (20%) tax under Section 409A. It is intended that all of the Severance Benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. Nevertheless, the Company does not and cannot guarantee any particular tax effect or treatment of the amounts due under this Agreement. Except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive, the Company will not be responsible for the payment of any applicable taxes on compensation paid or provided pursuant to this Agreement. 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 paymentsSeverance 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 any provision to the contrary in this letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, ,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(icausing Executive to incur the additional twenty percent (20%) and the related adverse taxation tax under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration first business day of the six-seventh (7th) month period measured from the date of following Executive’s Separation from Service with the Company, (ii) the date of Executive’s death death, or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all All payments deferred pursuant to this paragraph Section shall be paid in a lump sum to Executive on the first business day of the seventh (7th) month following Executive’s Separation from Service, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreementSection 5(b), above. No interest shall be due on any amounts so deferred. Notwithstanding any other provision of this Agreement to the contrary, neither the time nor schedule of any payment under this Agreement may be accelerated or subject to further deferral except as permitted by Section 409A. Executive does not have any right to make any election regarding the time or form of any payment due under this Agreement. Any expenses that are to be reimbursed pursuant to this Agreement that are subject to Section 409A shall: (i) be paid no later than the last day of Executive’s tax year following the tax year in which the expense was incurred; (ii) not affect or be affected by any other expenses that are eligible for reimbursement in any other tax year of Executive; and (iii) not be subject to liquidation or exchange for any other benefit.

Appears in 8 contracts

Samples: Employment Agreement (Cryoport, Inc.), Employment Agreement (Cryoport, Inc.), Employment Agreement (Cryoport, Inc.)

Section 409A. It is intended that all of the benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions an exemption from the application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes 409A, and any ambiguities herein shall be interpreted accordingly. Specifically, the benefits under this Agreement are intended to satisfy the exemptions from application of Section 409A (includingprovided under Treasury Regulations Sections 1.409A-1(b)(4), without limitation, 1.409A-1(b)(5) and 1.409A-1(b)(9) and each installment of severance benefits is a separate “payment” for purposes of Treasury Regulation Regulations Section 1.409A-2(b)(2)(iii1.409A-2(b)(2)(i)), 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 letterHowever, if such exemptions are not available and Executive is deemed by the Company at the time of Executive’s is, upon Separation from Service to be Service, a “specified employee” for purposes of Section 409A(a)(2)(B)(i)409A, and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”then, then solely to the extent delayed commencement of any portion of such payments is required in order necessary to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation personal tax consequences under Section 409A, such the timing of the severance benefits payments shall not be provided to Executive prior to delayed until the earliest earlier of (i) six (6) months and one day after Executive’s Separation from Service, or (ii) Executive’s death. Severance benefits shall not commence until Executive has a Separation from Service. If the expiration of the six-month period measured severance benefits are not covered by one or more exemptions from the date application of Section 409A and the Release could become effective in the calendar year following the calendar year in which Executive’s Separation from Service occurs, the Release will not be deemed effective, for purposes of payment of severance, any earlier than the Release Deadline. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” or until the effectiveness of the Release, all severance amounts will be paid as soon as practicable in accordance with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferrednormal payroll practices.

Appears in 8 contracts

Samples: Executive Employment Agreement (Force Protection Video Equipment Corp.), Executive Employment Agreement (Metacrine, Inc.), Executive Employment Agreement (Metacrine, Inc.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application For purposes of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectivelyCode, each payment under Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in 5 is hereby designated as a manner that complies with Section 409A. For purposes of Section 409A (including, without limitation, separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A-2(b)(2)), 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 letter, if Executive is deemed by If the Company at the time of Executive’s Separation from Service to be determines that you are a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code at the time of your Separation, then (i) any payments under this Agreement, to the extent that they are not exempt from Section 409A of the Code (including by operation of the next following sentence) and otherwise subject to the related adverse taxation taxes imposed under Section 409A409A(a)(1) of the Code (a “Deferred Payment”), such payments shall not be provided to Executive prior to will commence on the earliest of first business day following (iA) the expiration of the six-month period measured from your Separation or (B) the date of Executive’s Separation from Service with the Company, your death and (ii) the installments that otherwise would have been paid prior to such date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall will be paid in a lump sum when such payments commence. Notwithstanding the foregoing, any amount paid under this Agreement that either (1) satisfies the requirements of the “short-term deferral” rule set forth in Treasury Regulation 1.409A-1(b)(4); or (2) (A) qualifies as a payment made as a result of an involuntary separation from service pursuant to ExecutiveTreasury Regulation 1.409A-1(b)(9)(iii), and (B) does not exceed the Section 409A Limit will not constitute a Deferred Payment. The provisions of this Agreement are intended to comply with, or be exempt from, the requirements of Section 409A of the Code so that none of the payments and benefits to be provided under this Agreement will be subject to the additional tax imposed under Section 409A of the Code, and any remaining payments due shall ambiguities herein will be paid interpreted to so comply or be exempt. You and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions as otherwise provided herein are necessary, appropriate or in desirable to avoid imposition of any additional tax or income recognition prior to actual payment to you under Section 409A of the applicable agreementCode. No interest shall In no event will the Company reimburse you for any taxes that may be due imposed on any amounts so deferredyou as result of Section 409A of the Code.

Appears in 8 contracts

Samples: Letter Agreement (Boingo Wireless Inc), Letter Agreement (Boingo Wireless Inc), Letter Agreement (Boingo Wireless Inc)

Section 409A. It This Agreement and the PSUs granted hereunder are intended to fit within the “short-term deferral” exemption from Section 409A of the Code as set forth in Treasury Regulation Section 1.409A-1(b)(4). In administering this Agreement, the Company shall interpret this Agreement in a manner consistent with such exemption. Notwithstanding the foregoing, if it is determined that the PSUs fail to satisfy the requirements of the short-term deferral rule and are otherwise deferred compensation subject to Section 409A, and if the Participant is a “Specified Employee” (within the meaning set forth Section 409A(a)(2)(B)(i) of the Code) as of the date of the Participant’s separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)), then the issuance of any Shares that would otherwise be made upon the date of the separation from service or within the first six (6) months thereafter will not be made on the originally scheduled date(s) and will instead be issued in a lump sum on the date that is six (6) months and one day after the date of the separation from service, but if and only if such delay in the issuance of the Shares is necessary to avoid the imposition of additional taxation on the Participant in respect of the Shares under Section 409A of the Code. Each installment of Shares that vests is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application constitute a “separate payment” for purposes of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A-2(b)(2)), 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 8 contracts

Samples: Performance Share Unit Agreement (Hain Celestial Group Inc), Performance Share Unit Agreement (Hain Celestial Group Inc), Performance Share Unit Agreement (Hain Celestial Group Inc)

Section 409A. It is intended that all of the payments payable under this This Agreement satisfy, to the greatest extent possible, the exemptions from the application of will be interpreted in accordance with Section 409A of the Code Code, to the extent applicable, including without limitation any Treasury Regulations or other Department of Treasury guidance that may be issued or amended after the date hereof, and will not be amended or modified in any manner that would cause this Agreement to violate the regulations and other guidance thereunder and any state law requirements of similar effect (collectivelySection 409A. If, following the date hereof, the Committee determines that the Award may be subject to Section 409A”) provided under , including such Department of Treasury Regulations Sections 1.409A-1(b)(4) guidance as may be issued after the date hereof, the Committee may, in its discretion, adopt such amendments to this Agreement or adopt such other policies and 1.409A-1(b)(9procedures (including amendments, policies, and procedures with retroactive effect), and or take any other actions, as the Committee determines are necessary or appropriate to (i) exempt the Award from Section 409A and/or preserve the intended tax treatment of the benefits provided with respect to the Award, or (ii) comply with the requirements of Section 409A. Notwithstanding anything to the contrary in the Plan or in this Agreement Agreement, the Holder agrees that the Holder (or the Holder’s estate or permitted beneficiary(ies)) will be construed solely responsible for the satisfaction of all taxes, interest, and penalties that may be imposed on the Holder or for the Holder’s account in a manner that complies connection with Section 409A. For purposes of Section 409A this Award (including, without limitation, for purposes of Treasury Regulation any taxes, interest, and penalties under 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i409A), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with neither the Company are deemed nor its Affiliates will have any obligation to be “deferred compensation”reimburse, then to indemnify, or otherwise hold the extent delayed commencement of Holder (or the Holder’s estate or permitted beneficiary(ies)) harmless from any portion or all of such payments is required in order to avoid taxes, interest, or penalties. TRI POINTE HOMES, INC., a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.Delaware corporation By: Name: Its: Accepted on: __________________________ _____________________________________ [NAME] Attachment A

Appears in 8 contracts

Samples: Restricted Stock Unit Award Agreement (Tri Pointe Homes, Inc.), Stock Unit Award Agreement (Tri Pointe Homes, Inc.), Restricted Stock Unit Award Agreement (Tri Pointe Homes, Inc.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application For purposes of Section 409A of the Code and Internal Revenue Code, the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”) ), each payment and benefit payable under this Agreement is hereby designated as a separate payment. The parties intend that all PSUs provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies and shares issuable hereunder comply with Section 409A. For purposes the requirements of Section 409A (includingso that none of the payments or benefits will be subject to the adverse tax penalties imposed under Section 409A, without limitationand any ambiguities herein will be interpreted to so comply. Notwithstanding anything in the Plan or this Agreement to the contrary, for purposes if the vesting of the balance, or some lesser portion of the balance, of the PSUs is to be accelerated in connection with the Grantee’s termination of service, such accelerated PSUs will not be settled by virtue of such acceleration until and unless the Grantee has a “separation from service” within the meaning of Section Treasury Regulation Section 1.409A-2(b)(2)(iii)1-409A-1(h), Executive’s right to receive any installment payments under as determined by the Corporation, in its sole discretion. Further, and notwithstanding anything in the Plan or 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 lettercontrary, if Executive is deemed by (x) any of the Company PSUs to be provided in connection with the Grantee’s separation from service do not qualify for any reason to be exempt from Section 409A, (y) the Grantee is, at the time of Executive’s Separation such separation from Service to be service, a “specified employee” for purposes (as defined in Treasury Regulation Section 1.409A-1(i)) and (z) the settlement of such PSUs would result in the imposition of additional tax under Section 409A(a)(2)(B)(i)409A if such settlement occurs on or within the six (6) month period following the Grantee’s separation from service, and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”then, then to the extent delayed commencement necessary to avoid the imposition of such additional taxation, the settlement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(iPSUs during such six (6) month period will accrue and the related adverse taxation under Section 409A, such payments shall will not be provided to Executive prior to settled until the earliest of date six (i6) the expiration of the six-month period measured from months and one (1) day following the date of Executivethe Grantee’s Separation separation from Service with the Companyservice and on such date (or, (ii) if earlier, the date of Executivethe Grantee’s death or (iii) death), such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall PSUs will be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsettled.

Appears in 8 contracts

Samples: Performance Stock Unit Agreement (Navient Corp), Performance Stock Unit Agreement (Navient Corp), Stock Unit Agreement (Navient Corp)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement letter satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(41.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A-1(b)(91.409A 1(b)(9), and this Agreement letter will be construed in a manner that complies to the greatest extent possible as consistent with Section 409A. those provisions. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A 2(b)(2)(iii)), Executive’s your right to receive any installment payments under this Agreement letter (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 letter, if Executive is you are deemed by the Company at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s your Separation from Service with the Company, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 8 contracts

Samples: Offer Letter Agreement (Eiger BioPharmaceuticals, Inc.), Offer Letter Agreement (Eiger BioPharmaceuticals, Inc.), Offer Letter Agreement (Eiger BioPharmaceuticals, Inc.)

Section 409A. It is intended The Executive and the Company acknowledge that all each of the payments payable and benefits promised to the Executive under this Agreement satisfy, to must either comply with the greatest extent possible, the exemptions from the application requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance thereunder and any state law of similar effect (collectivelytogether, “Code Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this or qualify for an exception from compliance. This Agreement will shall be construed and administered in such manner as shall be necessary to effect compliance with, or an exemption from, Code Section 409A; provided, the preceding provisions shall not be construed as a manner that complies with Section 409A. For purposes guarantee by the Company of Section 409A (including, without limitationany particular tax effect to the Executive of the payments and other benefits under this Agreement. With respect to payments under this Agreement, for purposes of Treasury Regulation Code Section 1.409A-2(b)(2)(iii))409A, Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall each payment will be treated considered as a right to receive one of a series of separate payments andpayments. The Executive and the Company further agree that, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary extent not otherwise exempt, the termination benefits described in this letteragreement are intended to be exempt from Code Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(4) as short-term deferrals or as payments pursuant to a separation pay plan pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii). If a payment obligation under this Agreement arises on account of the Executive’s termination of employment and if such payment obligation is considered “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), if after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)), the payment shall be paid only in connection with the Executive’s “separation from service” (as defined in Treasury Regulation Section 1.409A-1(h)). If a payment obligation under this Agreement arises on account of the Executive’s “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h)) while the Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of (as defined under Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(h)), and if any payment of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), then after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid on the first day of the seventh (7th) month beginning after the date of the Executive’s separation from service or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of the Executive’s estate following the Executive’s death solely to the extent delayed commencement of any portion of such payments a delay is required in order to avoid a prohibited distribution the imposition of excise taxes under Code Section 409A(a)(2)(B)(i) and 409A. With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the related adverse taxation Executive, as specified under Section 409Athis Agreement, such payments reimbursement of expenses or provision of in-kind benefits shall not be provided to Executive prior subject to the earliest of following conditions: (i) the expiration expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the six-month period measured from the date of Executive’s Separation from Service with the CompanyCode, if any; (ii) the date reimbursement of Executive’s death or an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant right to this paragraph reimbursement or in-kind benefits shall not be paid in a lump sum subject to Executive, and any remaining payments due shall be paid as otherwise provided herein liquidation or in the applicable agreement. No interest shall be due on any amounts so deferredexchange for another benefit.

Appears in 7 contracts

Samples: Employment Agreement (Laird Superfood, Inc.), Employment Agreement (Laird Superfood, Inc.), Employment Agreement (Laird Superfood, Inc.)

Section 409A. It This Agreement is intended that all to comply with the requirements of Section 409A (including the payments payable under this Agreement satisfyexceptions thereto), to the greatest extent possibleapplicable, and SRA shall administer and interpret this Agreement in accordance with such requirements. To the exemptions extent permitted under Section 409A, each payment (including the provision of taxable benefits) provided under Section 3(b)(ii) and Section 3(c) shall be deemed to be a separate payment for purposes of Section 409A and Treas. Reg. Section 1.409A-2(b), and is intended to be (i) exempt from Section 409A, including, but not limited to, by compliance with the short-term deferral exception as specified in Treas. Reg. Section 1.409A-1(b)(4) and the involuntary separation pay exception within the meaning of Treas. Reg. Section 1.409A-1(b)(9)(iii), or (ii) in compliance with Section 409A, including, but not limited to, being paid pursuant to a fixed schedule or specified date pursuant to Treas. Reg. Section 1.409A-3(A), and the provisions of this Agreement shall be administered, interpreted and construed accordingly. If, nonetheless, this Agreement either fails to satisfy the requirements of Section 409A or is not exempt from the application of Section 409A of 409A, then the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and parties hereby agree to amend or to clarify this Agreement will be construed in a timely manner so that complies with Section 409A. For purposes this Agreement either satisfies the requirements of Section 409A (includingor is exempt from the application of Section 409A; provided, without limitationhowever, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right that no such amendment or clarification shall reduce the economic benefit that Employee was to receive any installment payments under derive from this Agreement (whether severance payments, reimbursements prior to such amendment 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 paymentclarification. Notwithstanding any provision to the contrary in this letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under preceding sentence or any other agreement with provision of this Agreement hereof, in no event whatsoever shall SRA be liable for any additional tax, interest or penalties that may be imposed on the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Employee by Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable or any damages for failing to comply with Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.409A.

Appears in 7 contracts

Samples: Enhanced Severance Eligibility Agreement (SRA Companies, Inc.), Enhanced Severance Eligibility Agreement (SRA Companies, Inc.), Enhanced Severance Eligibility Agreement (Sra International, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) time period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 7 contracts

Samples: Employment Agreement (Sientra, Inc.), Employment Agreement (Sientra, Inc.), Employment Agreement (Sientra, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code” and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. All payments and benefits that are payable upon a termination of employment hereunder shall be paid or provided only upon Executive’s “separation from service” from the Company (within the meaning of Section 409A). 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service termination to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service termination set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service termination with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Section 7 shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 7 contracts

Samples: Executive Employment Agreement (Prelude Therapeutics Inc), Executive Employment Agreement (Prelude Therapeutics Inc), Executive Employment Agreement (Prelude Therapeutics Inc)

Section 409A. It is intended that all Notwithstanding any provision in this Agreement to the contrary, no amounts shall be payable pursuant to Section 2.3(a) or Section 4.1(a) unless the Executive’s termination of employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the payments Department of Treasury Regulations. If the Executive is determined to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended, and the rules and regulations issued thereunder (the “Code”), then no payment that is payable under this Agreement satisfySections 2.3(a)(i) or 4.1(a) hereof (the “Severance Payment”) on account of Executive’s “separation from service” shall be made before the date that is at least six months after the Executive’s “separation from service” (or if earlier, the date of the Executive’s death), but rather all such payments shall be made on the date that is five business days after the expiration of that six month period, if and to the greatest extent possible, that the exemptions from the application of Severance Payment constitutes deferred compensation (or may be nonqualified deferred compensation) under Section 409A of the Code and such deferral is required to comply with the regulations requirements of Section 409A of the Code. For the avoidance of doubt, no portion of the Severance Payment shall be delayed for six months after the Executive’s “separation from service” if such portion (x) constitutes a “short term deferral” within the meaning of Section 1.409A-1(a)(4) of the Department of Treasury Regulations, or (y) (A) it is being paid due to the Corporation’s termination of the Executive’s employment without Cause or the Executive’s termination of employment for Good Reason; (B) it does not exceed two times the lesser of (1) the Executive’s annualized compensation from the Corporation for the calendar year prior to the calendar year in which the termination of the Executive’s employment occurs, or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the Executive’s employment terminates; and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”C) provided the payment is required under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will to be construed paid no later than the last day of the second calendar year following the calendar year in which the Executive incurs a manner that complies with Section 409A. “separation from service.” For purposes of Section 409A (includingof the Code, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), the Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwisepursuant to Section 2.3(a) 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 To the extent that any provision reimbursement of any expense under Section 1.4(e) or in-kind benefits provided under this Agreement are deemed to constitute taxable compensation to the contrary Executive, such amounts will be reimbursed or provided no later than December 31 of the year following the year in this letterwhich the expense was incurred. The amount of any such expenses reimbursed or in-kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, if and the Executive’s right to such reimbursement or payment of any such expenses will not be subject to liquidation or exchange for any other benefit. The determination of whether the Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation Code as of the time of the Executive’s separation from Service set forth herein and/or under any other agreement service shall be made by the Corporation in accordance with the Company are deemed to be “deferred compensation”, then to terms of Section 409A of the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsuccessor provision thereto).

Appears in 7 contracts

Samples: Employment Agreement (Ralph Lauren Corp), Employment Agreement (Ralph Lauren Corp), Employment Agreement (Ralph Lauren Corp)

Section 409A. It is intended that all of Notwithstanding anything herein to the payments payable under this Agreement satisfycontrary, to the greatest maximum extent possiblepermitted by applicable law, the exemptions compensation to be paid to the Grantee pursuant to this Agreement is intended to qualify as a “short-term deferral” pursuant to Section 1.409A-1(b)(4) of the Regulations or to otherwise be exempt from the application scope of “deferred compensation” under Section 409A of the Code and as restricted property governed by Section 83 of the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)Code, and this Agreement will shall be construed interpreted consistently therewith. However, to the extent the payment of any compensation hereunder in connection with the Grantee’s termination of employment does not qualify for an exception from treatment as “deferred compensation” subject to Section 409A of the Code, then (a) such amount shall not be payable unless the Grantee’s termination of employment constitutes a manner that complies with Section 409A. For purposes “separation from service” within the meaning of Section 409A 1.409A-1(h) of the Regulations and (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 otherwiseb) 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 if the contrary in this letter, if Executive Grantee is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” at such time for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement payment of any portion of such payments the Performance Units or shares of the Company’s Common Stock to which the Grantee is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments portion of the Performance Units or shares of the Company’s Common Stock shall not be provided paid to Executive Grantee prior to the earliest earlier of (ix) the expiration of the six-month period measured from the date of Executivethe Grantee’s Separation “separation from Service service” with the Company, Company or (iiy) the date of Executivethe Grantee’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i) perioddates, settlement of all payments deferred Performance Units shall occur as otherwise provided in this Agreement. In the event compensation payable pursuant to this paragraph Agreement is otherwise determined to constitute “deferred compensation” within the meaning of Section 409A of the Code, this Agreement shall be paid in a lump sum to Executive, interpreted and any remaining payments due shall be paid as otherwise provided herein or in administered consistently with the applicable agreement. No interest shall be due on any amounts so deferredterms thereof.

Appears in 7 contracts

Samples: 2023 Performance Unit Award Agreement (Pinnacle Financial Partners Inc), Performance Unit Award Agreement (Pinnacle Financial Partners Inc), 2022 Performance Unit Award Agreement (Pinnacle Financial Partners Inc)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 7 contracts

Samples: Employment Agreement (ImmunoCellular Therapeutics, Ltd.), Executive Employment Agreement (ImmunoCellular Therapeutics, Ltd.), Executive Employment Agreement (Lipocine Inc.)

Section 409A. It is intended that all For purposes of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section section 409A of the Code and Internal Revenue Code, the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”) ), each payment and benefit payable under this Agreement is hereby designated as a separate payment. The parties intend that all RSUs provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will and shares issuable hereunder comply with or be construed in a manner that complies with Section 409A. For purposes exempt from the requirements of Section 409A (includingso that none of the payments or benefits will be subject to the adverse tax penalties imposed under Section 409A, without limitationand any ambiguities herein will be interpreted to so comply. Notwithstanding anything in the Plan or this Agreement to the contrary, for purposes if the vesting of the balance, or some lesser portion of the balance, of the RSUs is to be accelerated in connection with the Grantee’s termination of service, such accelerated RSUs will not be settled by virtue of such acceleration until and unless the Grantee has a “separation from service” within the meaning of Section Treasury Regulation Section 1.409A-2(b)(2)(iii)1-409A-1(h), Executive’s right to receive any installment payments under as determined by the Corporation, in its sole discretion. Further, and notwithstanding anything in the Plan or 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 lettercontrary, if Executive is deemed by (x) any of the Company RSUs to be provided in connection with the Grantee’s separation from service do not qualify for any reason to be exempt from Section 409A, (y) the Grantee is, at the time of Executive’s Separation such separation from Service to be service, a “specified employee” for purposes (as defined in Treasury Regulation Section 1.409A-1(i)) and (z) the settlement of such RSUs would result in the imposition of additional tax under Section 409A(a)(2)(B)(i)409A if such settlement occurs on or within the six (6) month period following the Grantee’s separation from service, and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”then, then to the extent delayed commencement necessary to avoid the imposition of such additional taxation, the settlement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(iRSUs during such six (6) month period will accrue and the related adverse taxation under Section 409A, such payments shall will not be provided to Executive prior to settled until the earliest of date six (i6) the expiration of the six-month period measured from months and one (1) day following the date of Executivethe Grantee’s Separation separation from Service with the Companyservice and on such date (or, (ii) if earlier, the date of Executivethe Grantee’s death or (iii) death), such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall RSUs will be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsettled.

Appears in 7 contracts

Samples: 2020 Restricted Stock Unit Term (SLM Corp), Restricted Stock Unit Term (SLM Corp), 2020 Restricted Stock (SLM Corp)

Section 409A. It is intended This Agreement shall be interpreted in such a manner that all provisions relating to the settlement of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions RSUs are exempt from the application requirements of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, as Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed short-term deferrals” as described in a manner that complies with Section 409A. 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 paymentthe Code. Notwithstanding any provision anything to the contrary in this letterAgreement or an accompanying election form executed by the Participant, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from on the date of Executivethe Participant’s Separation from Service with the Company, Company the Participant is a “specified employee” (as such term is defined under Section 1.409A-1(i) of the Treasury Regulations promulgated under Section 409A of the Code) of the Company and (ii) any payments to be provided to the Participant pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code, or any other taxes or penalties imposed under Section 409A of the Code if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six months after the date of Executivethe Participant’s death separation from service from the Company, or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationif earlier, his or her death. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all Any payments deferred delayed pursuant to this paragraph shall be paid made in a lump sum on the first day of the seventh month following the Participant’s separation from service, or if earlier, the Participant’s death. Each payment upon settlement of RSUs (and any related dividend or related dividend equivalent rights) constitutes a “separate payment” for purposes of Section 409A of the Code. Notwithstanding any other provision of this Agreement, if and to Executivethe extent that any payment under this Agreement constitutes non-qualified deferred compensation under Section 409A of the Code, and any remaining payments due is payable upon (i) the Participant’s termination of employment, then such payment shall be paid made or provided to the Participant only upon a “separation from service” as otherwise defined for purposes of Section 409A of the Code, or (ii) a Change in Control, then such payment shall be made or provided herein or to the Participant only upon a “change in the ownership”, a “change in effective control” or a “change in the ownership of a substantial portion of the assets” of the applicable agreement. No interest shall be due on any amounts so deferredcorporation as defined for purposes of Section 409A of the Code.

Appears in 6 contracts

Samples: Restricted Stock Unit Agreement (Brookdale Senior Living Inc.), Performance Based Restricted Stock Unit Agreement (Brookdale Senior Living Inc.), Restricted Stock Unit Agreement (Brookdale Senior Living Inc.)

Section 409A. It is intended that all The Company makes no representations or warranties to Employee with respect to any tax, economic or legal consequences of the payments payable under this Agreement satisfyor any payments or other benefits provided hereunder, to the greatest extent possible, the exemptions from the application of including without limitation under Section 409A of the Code, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A or any other legal requirements from Employee or any other individual to the Company or any of its affiliates. Employee, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic and legal consequences. However, the parties intend that this Agreement and the regulations payments and other guidance thereunder and any state law benefits provided hereunder be exempt from the requirements of similar effect (collectivelyCode Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement will (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be construed interpreted, operated and administered in a manner that complies consistent with Section 409A. For purposes such intentions. Without limiting the generality of Section 409A (includingthe foregoing, without limitationand notwithstanding any other provision of this Agreement to the contrary, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right with respect to receive any installment payments and benefits under this Agreement (whether severance paymentsto which Code Section 409A applies, 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 references in this Agreement to the contrary in this lettertermination of Employee’s employment are intended to mean Employee’s “separation from service,” within the meaning of Code Section 409A(a)(2)(A)(i). In addition, if Executive Employee is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee,for purposes within the meaning of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement necessary to avoid subjecting Employee to the imposition of any portion of such payments is required in order to avoid a prohibited distribution additional tax under Section 409A(a)(2)(B)(i) and the related adverse taxation under Code Section 409A, such payments shall not amounts that would otherwise be provided to Executive prior to the earliest of (i) the expiration of payable under this Agreement during the six-month period measured immediately following Employee’s “separation from service,” within the date meaning of ExecutiveSection 409A(a)(2)(A)(i) of the Code, shall not be paid to Employee during such period, but shall instead be accumulated and paid to Employee (or, in the event of Employee’s Separation from Service with the Companydeath, (iiEmployee’s estate) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon in a lump sum on the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i(a) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein the date that is six months after Employee’s separation from service or in the applicable agreement. No interest shall be due on any amounts so deferred(b) Employee’s death.

Appears in 6 contracts

Samples: Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfyThe parties hereto acknowledge and agree that, to the greatest extent possibleapplicable, this Award Agreement shall be interpreted in accordance with, and incorporate the exemptions from terms and conditions required by, Section 409A. Notwithstanding anything herein to the application contrary, (a) to the extent that the Noncompete Option Payment is deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively409A, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. For for purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)) of the Department of Treasury regulations), Executivethe Employee’s right to receive any the Noncompete Option Payment in the form of installment payments under this Agreement (whether severance payments, reimbursements or otherwisethe “Installment Payments”) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder Installment Payment shall at all times be considered a separate and distinct payment. Notwithstanding any provision to ; (b) the contrary in this letter, Noncompete Option Payment shall not be payable unless the Employee’s termination of employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Department of Treasury regulations; (c) if Executive the Employee is deemed by the Company at the time of Executivethe Employee’s Separation separation from Service service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such payments the Noncompete Option Payment (after taking into account all applicable exclusions under Section 409A) is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments portion of the Noncompete Option Payment shall not be provided to Executive the Employee prior to the earliest earlier of (i) the expiration of the six-month six (6)-month period measured from the date of Executivethe Employee’s Separation “separation from Service with the Company, service” and (ii) the date of Executivethe Employee’s death or (iii) such death; provided that, upon the earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) perioddates, all payments any portion of the Noncompete Option Payment deferred pursuant to this paragraph Section 6 shall be paid in a lump sum to Executivethe Employee, and any remaining payments due portion shall be paid provided as otherwise provided herein or in specified herein; and (d) the applicable agreement. No interest determination of whether the Employee is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of the Employee’s separation from service shall be due on made by Calpine in accordance with the terms of Section 409A (including, without limitation, Section 1.409A-1(i) of the Department of Treasury regulations and any amounts so deferredsuccessor provision thereto).

Appears in 6 contracts

Samples: Award Agreement (Calpine Corp), Executive Employment Agreement (Calpine Corp), Executive Employment Agreement (Calpine Corp)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application For purposes of Section 409A of the Code and Internal Revenue Code, the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”) ), each payment and benefit payable under this Agreement is hereby designated as a separate payment. The parties intend that all RSUs provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will and shares issuable hereunder comply with or be construed in a manner that complies with Section 409A. For purposes exempt from the requirements of Section 409A (includingso that none of the payments or benefits will be subject to the adverse tax penalties imposed under Section 409A, without limitationand any ambiguities herein will be interpreted to so comply. Notwithstanding anything in the Plan or this Agreement to the contrary, for purposes if the vesting of the balance, or some lesser portion of the balance, of the RSUs is to be accelerated in connection with the Grantee’s termination of service, such accelerated RSUs will not be settled by virtue of such acceleration until and unless the Grantee has a “separation from service” within the meaning of Section Treasury Regulation Section 1.409A-2(b)(2)(iii)1-409A-1(h), Executive’s right to receive any installment payments under as determined by the Corporation, in its sole discretion. Further, and notwithstanding anything in the Plan or 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 lettercontrary, if Executive is deemed by (x) any of the Company RSUs to be provided in connection with the Grantee’s separation from service do not qualify for any reason to be exempt from Section 409A, (y) the Grantee is, at the time of Executive’s Separation such separation from Service to be service, a “specified employee” for purposes (as defined in Treasury Regulation Section 1.409A-1(i)) and (z) the settlement of such RSUs would result in the imposition of additional tax under Section 409A(a)(2)(B)(i)409A if such settlement occurs on or within the six (6) month period following the Grantee’s separation from service, and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”then, then to the extent delayed commencement necessary to avoid the imposition of such additional taxation, the settlement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(iRSUs during such six (6) month period will accrue and the related adverse taxation under Section 409A, such payments shall will not be provided to Executive prior to settled until the earliest of date six (i6) the expiration of the six-month period measured from months and one (1) day following the date of Executivethe Grantee’s Separation separation from Service with the Companyservice and on such date (or, (ii) if earlier, the date of Executivethe Grantee’s death or (iii) death), such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall RSUs will be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsettled.

Appears in 6 contracts

Samples: Restricted Stock Unit Agreement (Navient Corp), Restricted Stock Unit Agreement (Navient Corp), Restricted Stock Unit Agreement (Navient Corp)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s your right to receive any installment payments under this Agreement (whether severance paymentsSeverance Benefits, CIC Severance Payments, Death or Disability 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 letterAgreement, if Executive is you are deemed by the Company at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the expiration of the six-month and one day period measured from the date of Executive’s your Separation from Service with the Company, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Section shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the Company determines that any Severance Benefits or CIC Severance Benefits provided under this Agreement constitutes “deferred compensation” under Section 409A, and if necessary to avoid taxation under Section 409A, for purposes of determining the schedule for payment of the severance benefits, the effective date of the Release will not be deemed to have occurred any earlier than the sixtieth (60th) date following the Separation From Service, regardless of when the Release actually becomes effective. In addition to the above, to the extent required to comply with Section 409A and the applicable regulations and guidance issued thereunder, if the applicable deadline for you to execute (and not revoke) the applicable Release spans two calendar years, payment of the applicable Severance Benefits, CIC Severance Benefits or Death or Disability Benefits shall not commence until the beginning of the second calendar year. To the extent required to avoid accelerated taxation and/or tax penalties under Code Section 409A, amounts reimbursable to you under this Agreement shall be paid to you on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to you) during any one year may not effect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payment.

Appears in 5 contracts

Samples: ShouTi Inc., ShouTi Inc., Structure Therapeutics Inc.

Section 409A. It is Amounts payable pursuant to this Award are intended that all to be exempt from Section 409A of the payments payable under this Agreement satisfyCode, to the greatest maximum extent possible, pursuant to the exemptions short-term deferral exemption described in Treasury Regulation § 1.409A-1(b)(5), and the Plan and this Agreement shall be interpreted and construed consistently with such intent. To the extent that any amount payable pursuant to this Award constitutes nonqualified deferred compensation within the meaning of, and subject to, Section 409A of the Code, then, with respect to such portion of this Award, (a) the Plan and this Agreement are intended to comply with the requirements of Section 409A of the Code, and shall be interpreted and construed consistently with such intent, (b) all references in the Plan and this Agreement to the Executive’s termination of employment shall mean the Executive’s separation from service within the application meaning of Section 409A of the Code and the Treasury regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)promulgated thereunder, and (c) notwithstanding anything in the Plan or this Agreement will be construed in a manner to the contrary, any amount that complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), is payable upon the Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall separation from service that would 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 payable prior to the contrary in this lettersix (6)-month anniversary of such separation from service shall, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent necessary to comply with Section 409A of the Code, be delayed commencement of any portion of such payments is required in order until the earlier to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest occur of (i) the expiration first business day following the six (6)-month anniversary of the six-month period measured from the date of Executive’s Separation from Service with the Company, such separation and (ii) the date of the Executive’s death death. In the event the terms of the Plan or (iii) such earlier date as permitted this Agreement would subject the Executive to taxes under Section 409A without of the imposition Code (“409A Penalties”), the Company and the Executive shall cooperate diligently to amend the terms of adverse taxation. Upon the first business day following Plan or this Agreement, as applicable, to avoid such 409A Penalties, to the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph extent possible; provided that in no event shall the Company be paid responsible for any 409A Penalties that arise in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on connection with any amounts so deferredpayable under the Plan or this Agreement.

Appears in 5 contracts

Samples: Performance Cash Award Agreement (UL Solutions Inc.), Performance Cash Award Agreement (UL Solutions Inc.), Performance Cash Award Agreement (UL Solutions Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code” and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. All payments and benefits that are payable upon a termination of employment hereunder shall be paid or provided only upon Executive’s “separation from service” from the Company (within the meaning of Section 409A). 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service termination to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service termination set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service termination with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 5 contracts

Samples: Executive Employment Agreement (Neoleukin Therapeutics, Inc.), Executive Employment Agreement (Neoleukin Therapeutics, Inc.), Executive Employment Agreement (Neoleukin Therapeutics, Inc.)

Section 409A. It is intended that all of Notwithstanding anything herein to the payments payable under this Agreement satisfycontrary, to the greatest maximum extent possiblepermitted by applicable law, the exemptions from the application of payments to be made to Executive pursuant to Sections 5 and 6 shall be made in reliance upon Treasury Regulations promulgated under Section 409A of the Code and Code, including Section 1.409A-1(b)(9) of the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections and Section 1.409A-1(b)(4) and 1.409A-1(b)(9), and of the Treasury Regulations. For this Agreement will be construed in a manner that complies with Section 409A. 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, accordinglypurpose, each installment payment hereunder of such payments shall at all times be considered a separate and distinct paymentpayment for purposes of Section 409A of the Code. Notwithstanding any provision However, to the contrary in this letterextent any such payments are treated as non-qualified deferred compensation subject to Section 409A of the Code, then (a) no amount shall be payable pursuant to Sections 5 or 6 hereof unless Executive’s termination of employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Treasury Regulations and (b) if Executive is deemed by the Company at the time of Executive’s Separation his separation from Service service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such the payments to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such portion of Executive’s payments shall not be provided to Executive prior to the earliest earlier of (ix) the expiration of the six-month period measured from the date of Executive’s Separation “separation from Service service” with the Company, Company (iias such term is defined in Section 1.409A-1(h) of the Treasury Regulations) or (y) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i) perioddates, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein or herein. The determination of whether Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Section 1.409A-1(i) of the Treasury Regulations and any successor provision thereto). Any reimbursements of health insurance premiums contemplated by this Agreement shall be made in accordance with the timing rules set forth in the applicable agreementRegulations promulgated under Section 409A of the Code. No interest The parties acknowledge and agree that, to the extent applicable, this Agreement shall be due on interpreted in accordance with, and the parties agree to use their best efforts to achieve timely compliance with, Section 409A of the Code and the Treasury Regulations and other interpretive guidance issued thereunder. Notwithstanding any amounts so deferredprovision of this Agreement to the contrary, in the event that the Company determines that any compensation or benefits payable or provided under this Agreement may be subject to Section 409A of the Code, the Company may, with the consent of Executive, adopt such limited amendments to this Agreement and appropriate policies and procedures, including those with retroactive effect, that the Company reasonably determines are necessary or appropriate to (i) exempt the compensation and benefits payable under this Agreement from Section 409A of the Code and/or preserve the intended tax treatment of the compensation and benefits provided with respect to this Agreement or (ii) comply with the requirements of Section 409A of the Code. By accepting this agreement, Executive hereby agrees and acknowledges that the Company makes no representations with respect to the application of Section 409A of the Code to any tax, economic, or legal consequences of any payments payable to Executive hereunder and, by the acceptance of this Agreement, Executive agree to accept the potential application of Section 409A of the Code to the tax and legal consequences of payments payable to Employee hereunder.

Appears in 5 contracts

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

Section 409A. It is intended that all of the payments payable under Notwithstanding anything contained in this Agreement satisfyto the contrary, to the greatest maximum extent possiblepermitted by applicable law, the exemptions from the application of amounts payable to Executive pursuant to Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect 2 shall be made in reliance upon Treas. Reg. Section 1.409A-1(b)(9) (collectively, “Separation Pay Plans) or Treas. Reg. Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9(Short-Term Deferrals), and . For this Agreement will be construed in a manner that complies with Section 409A. 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, purpose each installment or monthly payment hereunder to which Executive is entitled under Section 2 shall at all times be considered a separate and distinct payment. Notwithstanding any provision In addition, (i) no amount deemed deferred compensation subject to Section 409A shall be payable pursuant to Section 2 unless the contrary in this letter, Executive’s termination of employment constitutes a “separation from service” within the meaning of Treas. Reg. Section 1.409A-1(h) and (ii) if the Executive is deemed by the Company at the time of Executive’s Separation his separation from Service service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such payments the termination benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments portion of Executive’s termination benefits shall not be provided to Executive prior to the earliest earlier of (iA) the expiration of the six-month period measured from the date of the Executive’s Separation “separation from Service service” with the Company, Company (iias such term is defined in the Treasury Regulations issued under Section 409A of the Code) or (B) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i) perioddates, all payments deferred pursuant to this paragraph Section 3(b) shall be paid in a lump sum to Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein or in herein. The determination of whether Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the applicable agreement. No interest Code as of the time of his separation from service shall be due on made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treas. Reg. Section 1.409A-1(i) and any amounts so deferredsuccessor provision thereto). The reimbursement of any expense under this Agreement shall be made no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year.

Appears in 5 contracts

Samples: Severance and Change in Control Agreement (Corcept Therapeutics Inc), Severance and Change in Control Agreement (Corcept Therapeutics Inc), Severance and Change in Control Agreement (Corcept Therapeutics Inc)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement letter satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(41.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A-1(b)(91.409A 1(b)(9), and this Agreement letter will be construed in a manner that complies to the greatest extent possible as consistent with Section 409A. those provisions. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A 2(b)(2)(iii)), Executive’s your right to receive any installment payments under this Agreement letter (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 letter, if Executive is you are deemed by the Company Freshworks at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company Freshworks are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s your Separation from Service with the CompanyFreshworks, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 5 contracts

Samples: Freshworks Inc., Freshworks Inc., Freshworks Inc.

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 5 contracts

Samples: Employment Agreement (Lexeo Therapeutics, Inc.), Employment Agreement (Lexeo Therapeutics, Inc.), Employment Agreement (DigitalOcean Holdings, Inc.)

Section 409A. It is intended that all All payments of “nonqualified deferred compensation” (within the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application meaning of Section 409A of the Code) are intended to comply with the requirements of Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will shall be construed interpreted in a manner that complies accordance therewith. Neither party individually or in combination may accelerate any such deferred payment, except in compliance with Code Section 409A, and no amount shall be paid prior to the earliest date on which it is permitted to be paid under Code Section 409A. 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 In the contrary in this letter, if Executive event that Employee is deemed by the Company at the time of Executive’s Separation from Service determined to be a “specified employee” for purposes of (as defined in Code Section 409A(a)(2)(B)(i409A(a)(2)(B) (and regulations and guidance thereunder), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are at a time when its stock is deemed to be publicly traded on an established securities market, payments determined to be nonqualified deferred compensation”, then to ” payable following termination of employment shall be made no earlier than the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest earlier of (i) the expiration last day of the six-sixth (6th) complete calendar month period measured from the date following such termination of Executive’s Separation from Service with the Companyemployment, or (ii) Employee’s death, consistent with the date provisions of Executive’s death or (iii) such earlier date as permitted under Code Section 409A without 409A. Any payment delayed by reason of the imposition of adverse taxation. Upon prior sentence shall be paid out in a single lump sum at the first business day following the expiration end of such applicable Section 409A(a)(2)(B)(i) periodrequired delay period in order to catch up to the original payment schedule. Unless otherwise expressly provided, all payments deferred any payment of compensation by the Company to Employee, whether pursuant to this paragraph Agreement or otherwise, shall be paid made within two and one-half months (2½ months) after the end of the Company’s fiscal year in which Employee’s right to such payment vests (i.e., is not subject to a lump sum substantial risk of forfeiture for purposes of Code Section 409A). Notwithstanding anything herein to Executivethe contrary, and no amendment may be made to this Agreement if it would cause the Agreement or any remaining payments due shall payment hereunder not to be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.compliance with Code Section 409A.

Appears in 5 contracts

Samples: Employment Agreement (Digital Domain Media Group, Inc.), Employment Agreement (Digital Domain), Employment Agreement (Digital Domain Media Group, Inc.)

Section 409A. It If it is intended determined that all any amount due the Executive under the terms of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of has been structured in a manner that would result in adverse tax treatment under Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”), the parties agree to cooperate in taking all reasonable measures to restructure the arrangement to minimize or avoid such adverse tax treatment without materially impairing Executive’s economic rights and without materially increasing the cost to the Company. Each payment made under this Agreement (including each separate installment payment in the case of a series of installment payments) shall be deemed to be a separate payment for purposes of Section 409A. Amounts payable under this Agreement shall be deemed not to be a “deferral of compensation” subject to Section 409A to the extent provided under in the exceptions in Treasury Regulations Sections Regulation §§ 1.409A-1(b)(4) (“short-term deferrals”) and 1.409A-1(b)(9(b)(9) (“separation pay plans,” including the exception under subparagraph (iii), ) and this Agreement will be construed in a manner that complies with other applicable provisions of Section 409A. For purposes of this Agreement, with respect to payments of any amounts that are considered to be “deferred compensation” subject to Section 409A (including409A, without limitationreferences to “termination of employment”, for purposes “termination”, or words and phrases of Treasury Regulation Section 1.409A-2(b)(2)(iii))similar import, shall be deemed to refer to the Executive’s right to receive any installment payments under this Agreement (whether severance payments“separation from service” as defined in Section 409A, reimbursements or otherwise) and shall be treated as interpreted and applied in a right to receive a series manner that is consistent with the requirements of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Section 409A. Notwithstanding any provision anything to the contrary in this letterAgreement, if any payment or benefit under this Agreement or otherwise that is exempt from Section 409A pursuant to Treasury Regulation § 1.409A-1(b)(9)(v)(A) or (C) (relating to certain reimbursements and in-kind benefits) shall be paid or provided to the Executive is deemed by only to the Company at extent that the time expenses are not incurred, or the benefits are not provided, beyond the last day of the second calendar year following the calendar year in which the Executive’s Separation “separation from Service service” occurs; and provided further that such expenses are reimbursed no later than the last day of the third calendar year following the calendar year in which the Executive’s “separation from service” occurs. To the extent any expense reimbursement, or the provision of any in-kind benefit is determined to be a “specified employee” subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), the amount of any such expenses eligible for purposes reimbursement, or the provision of Section 409A(a)(2)(B)(iany in-kind benefit, in one calendar year shall not affect the payment or provision of in-kind benefits or expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), and if in no event shall any expenses be reimbursed after the last day of the payments upon Separation from Service set forth herein and/or under calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any other agreement with right reimbursement or the Company are deemed to be “deferred compensation”, then to the extent delayed commencement provision of any portion of such payments is required in order in-kind benefit be subject to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death liquidation or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredexchange for another benefit.

Appears in 5 contracts

Samples: Employment Agreement (Eagle Bulk Shipping Inc.), Employment Agreement (Eagle Bulk Shipping Inc.), Employment Agreement (Eagle Bulk Shipping Inc.)

Section 409A. It is intended that all The intent of the parties is that payments payable and benefits under this Agreement satisfyeither comply with or are exempt from Section 409A of the Code and, accordingly, to the greatest maximum extent possiblepermitted, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. Executive is hereby advised to seek independent advice from his tax advisor(s) with respect to any payments or benefits under this Agreement. Notwithstanding the foregoing, the exemptions Company does not guarantee the tax treatment of any payments or benefits provided under this Agreement under Section 409A of the Code or under any other federal, state, local or foreign tax laws and regulations. For purposes of this Agreement, termination of employment will be construed consistent with the meaning of “separation from service” under Section 409A of the application Code. All payments under this Agreement shall be treated as a series of separate payments to the maximum extent permitted under Section 409A of the Code. If Executive is a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) and any of the Parent’s, Hawk’s or the Company’s stock is publicly traded on an established securities market or otherwise, then payment of any amount or provision of any benefit under this Agreement which is considered nonqualified deferred compensation subject to Section 409A of the Code and the regulations and other guidance thereunder and any state law payable upon a separation from service shall be deferred for six (6) months after termination of similar effect (collectivelyExecutive’s employment or, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii))if earlier, Executive’s death, as and to the extent required by Section 409A(a)(2)(B)(i) of the Code (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefit may be provided during the 409A Deferral Period at Executive’s expense, with Executive having a right to receive reimbursement from the Company once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled. Additionally, (a) any installment payments reimbursement of eligible expenses or other in-kind benefits payable to Executive under this Agreement shall be paid within the time period required by Section 409A of the Code; (whether severance paymentsb) the amount of expenses eligible for reimbursement, reimbursements or otherwisein-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; (c) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; and (d) each payment 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 5 contracts

Samples: Employment Agreement (Thunder Bridge Acquisition LTD), Employment Agreement (Thunder Bridge Acquisition LTD), Employment Agreement (Thunder Bridge Acquisition LTD)

Section 409A. It is intended that all of the any right to receive installment payments payable under this Agreement satisfy, pursuant to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 paymentpayments for purposes of Section 409A of the Code. Notwithstanding any provision It is further intended that all payments and benefits hereunder satisfy, to the contrary greatest extent possible, the exemption from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulation Section 1.409A-1(b)(4) (as a “short-term deferral”) and are otherwise exempt from or comply with Section 409A of the Code. Accordingly, to the maximum extent permitted, this Agreement will be interpreted in this letteraccordance with such intent. To the extent necessary to comply with Section 409A of the Code, if the designated payment period for any payment under this Agreement begins in one taxable year and ends in the next taxable year, the payment will commence or otherwise be made in the later taxable year. For purposes of Section 409A of the Code, if the Company determines that Executive is deemed by a “specified employee” under Section 409A(a)(2)(B)(i) of the Company Code at the time of Executive’s Separation separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”service, then to the extent delayed commencement of any portion of such the payments or benefits to which Executive is entitled pursuant to this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments shall portion will not be provided to Executive prior to until the earliest of earlier (i) the expiration of the six-month period measured from the date of Executive’s Separation separation from Service with the Company, service or (ii) the date of Executive’s death or (iii) such earlier date death. As soon as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day administratively practicable following the expiration of such the applicable Section 409A(a)(2)(B)(i409A(2)(B)(i) period, all payments deferred pursuant to this paragraph shall the preceding sentence will be paid in a lump lump-sum to Executive, Executive and any remaining payments due shall pursuant to this Agreement will be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredherein.

Appears in 5 contracts

Samples: Executive Employment Agreement (Accel Entertainment, Inc.), Executive Employment Agreement (Accel Entertainment, Inc.), Executive Employment Agreement (Accel Entertainment, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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. Any reference to termination or similar words shall mean a separation from service under the meaning of Code Section 409A. Notwithstanding any provision to the contrary in this letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month and one day period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Section 10 shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.. If any severance benefits provided under this Agreement constitutes “deferred compensation” under Section 409A, for purposes of determining the schedule for payment of the severance benefits, the effective date of the Release will be the sixtieth (60th) date following the Separation From Service, regardless of when the Release actually becomes effective. To the extent required to avoid accelerated taxation and/or tax penalties under Code Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred, amounts shall not be subject to liquidation or exchange for another benefit, and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Code Section 409A.

Appears in 4 contracts

Samples: Employment Agreement (ChromaDex Corp.), Executive Employment Agreement (ChromaDex Corp.), Executive Employment Agreement (ChromaDex Corp.)

Section 409A. It is intended that all of the Severance Benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, ,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the Severance Benefits are not covered by one or more exemptions from the application of Section 409A and the Release Deadline occurs in the calendar year following the calendar year of Executive’s Separation from Service, the Separation Agreement will not be deemed effective any earlier than the Release Deadline for purposes of determining the timing of provision of any Severance Benefits.

Appears in 4 contracts

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

Section 409A. It (a) If and only to the extent that any payment or benefit under this Agreement, is determined to constitute “non-qualified deferred compensation” subject to Code Section 409A, then it is intended that such non-qualified deferred compensation be administered and paid in order to comply with all of the payments payable under rules of Code Section 409A, and notwithstanding anything in this Agreement satisfy, to the greatest extent possiblecontrary: (i) if such payment or benefit is described in Section 3, such payment or benefit shall be made or provided to the exemptions Executive only upon or with reference to a “separation from the application service” as defined for purposes of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9Regulation 1.409A-1(h), and this Agreement will be construed in a manner that complies with Section 409A. 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 otherwiseii) 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 if the contrary in this letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes (within the meaning of Code Section 409A(a)(2)(B)(i)) of the Code, and if as reasonably determined by the Company) on the Date of Termination and, to the extent the Company reasonably determines that an amount or other benefit that is payable under this Agreement on account of the Executive’s separation from service (other than as a result of the Executive’s death) fails to qualify for any of the payments upon Separation exemptions from Service set forth herein and/or the definition of nonqualified deferred compensation available under any other agreement Section 1.409A-1(b) of the Treasury Regulations and constitutes nonqualified deferred compensation that will subject the Executive to “additional tax” under Code Section 409A(a)(1)(B) with respect to the Company are deemed to be “deferred compensation”payment of such amount or the provision of such benefit if paid or provided at the time specified in this Agreement, then the payment or provision thereof shall be postponed to the extent delayed commencement first business day after the six-month anniversary of the date of the Executive’s separation from service or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). In the event that this Section 6(a)(ii) requires a delay of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409Apayments, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be accumulated and paid in a single lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in on the applicable agreement. No interest shall be due on any amounts so deferredDelayed Payment Date.

Appears in 4 contracts

Samples: Retention and Severance Agreement (Blyth Inc), Retention and Severance Agreement (Blyth Inc), Retention and Severance Agreement (Blyth Inc)

Section 409A. It is intended The parties intend that all of the payments any amounts payable under this Agreement satisfy, to the greatest extent possible, the exemptions hereunder comply with or are exempt from the application of Section 409A of the Internal Revenue Code and the regulations and other guidance thereunder and any state law of similar effect 1986, as amended (collectively, “Section 409A”) provided (including under Treasury Regulations Sections 1.409A-1(b)(4Regulation §§ l.409A-l(b)(4) (“short-term deferrals”) and 1.409A-1(b)(9(b)(9) (“separation pay plans,” including the exceptions under subparagraph (iii) and subparagraph (v)(D)) and other applicable provisions of Treasury Regulation§§ 1.409A-1 through A-6). For purposes of Section 409A, and each of the payments that may be made under this Agreement will shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that complies does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. Notwithstanding the foregoing, the Company does not guarantee any particular tax effect, and Executive shall be solely responsible and liable for the satisfaction of all taxes, penalties and interest that may be imposed on or for the account of Executive in connection with the Agreement (including any taxes, penalties and interest under Section 409A), and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold Executive (or any beneficiary) harmless from any or all of such taxes, penalties or interest. With respect to the time of payments of any amounts under the Agreement that are “deferred compensation” subject to Section 409A, references in the Agreement to “termination of employment” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A. For purposes the avoidance of Section 409A (includingdoubt, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right it is intended that any expense reimbursement made to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) Executive hereunder shall be treated as a right to receive a series of separate payments andexempt from Section 409A. Notwithstanding the foregoing, accordingly, each installment payment if any expense reimbursement made hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed determined to be “deferred compensation”, then to ” within the extent delayed commencement meaning of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of then (i) the expiration amount of the six-month period measured from indemnification payment or expense reimbursement during one taxable year shall not affect the date amount of Executive’s Separation from Service with the Companyexpense reimbursement during any other taxable year, (ii) the date expense reimbursement shall be made on or before the last day of Executive’s death or taxable year following the year in which the expense was incurred and (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant right to this paragraph expense reimbursement hereunder shall not be paid in a lump sum subject to Executive, and any remaining payments due shall be paid as otherwise provided herein liquidation or in the applicable agreement. No interest shall be due on any amounts so deferredexchange for another benefit.

Appears in 4 contracts

Samples: Employment Agreement (Xponential Fitness, Inc.), Employment Agreement (Xponential Fitness, Inc.), Employment Agreement (Xponential Fitness, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(41.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A-1(b)(91.409A 1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 4 contracts

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

Section 409A. Notwithstanding anything to the contrary in this Agreement, if the Company determines (a) that on the date the Executive's employment with the Company terminates or at such other time that the Company determines to be relevant, the Executive is a "specified employee" (as such term is defined under Section 409A of the Internal Revenue Code) of the Company and (b) that any payments to be provided to the Executive pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code ("Section 409A Taxes") if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date (the " Deferred Payment Date") that is six months after the date of the Executive's "separation from service" (as such term is defined under Section 409A of the Code) with the Company, or such shorter period that, as determined by the Company, is sufficient to avoid the imposition of Section 409A Taxes; it being understood that any payments so delayed shall become payable in the aggregate on the Deferred Payment Date. It is intended that all the intent of the payments payable under parties that the provisions of this Agreement satisfy, to the greatest extent possible, the exemptions from the application of comply with Section 409A of the Code and the related regulations and other guidance thereunder and Department of the Treasury pronouncements. Accordingly, notwithstanding any state law of similar effect (collectivelyprovision in this Agreement to the contrary, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed interpreted, applied and to the minimum extent necessary, unilaterally amended by the Company in a manner that complies with Section 409A. For purposes its sole discretion, without the consent of Executive, as the Company deems appropriate for the Agreement to satisfy the requirements of Section 409A (including, without limitation, for purposes and to avoid the imposition 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 payment409A Taxes. Notwithstanding any provision to the contrary in this letterforegoing, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Companyliable for any taxes, (ii) the date of Executive’s death penalties, interest or (iii) such earlier date as permitted other costs that may arise under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredotherwise.

Appears in 4 contracts

Samples: Executive Agreement (Sono Tek Corp), Executive Agreement (Sono Tek Corp), Executive Agreement (Sono Tek Corp)

Section 409A. It is intended that all of the payments any amounts payable under pursuant to this Agreement satisfy, to will either be exempt from or comply with the greatest extent possible, the exemptions from the application requirements of Section 409A of the Code (and any regulations and guidelines issued thereunder) and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 interpreted on 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 paymentbasis consistent with such intent. Notwithstanding any provision to the contrary in this letterAgreement, if Executive Employee is deemed by on the Company at date of Employee’s “separation from service” (within the time meaning of Executive’s Separation from Service Treas. Reg. Section 1.409A-1(h)) to be a “specified employee” for purposes (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i1.409A-1(i)), and if then with regard to any payment that is required to be delayed pursuant to Section 409A(a)(2)(B) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409ACode, such payments payment shall not be provided to Executive made prior to the earliest earlier of (ia) the expiration of the six-month six (6)-month period measured from the date of ExecutiveEmployee’s Separation “separation from Service with the Company, service,” or (iib) the date of ExecutiveEmployee’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation“Delay Period”). Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) periodthe Delay Period, all payments deferred delayed pursuant to this paragraph Section 22 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to Employee in a lump sum to Executive, and any remaining payments due under this Agreement shall be paid as otherwise provided herein in accordance with the normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, to the extent required to comply with Section 409A of the Code or an exemption thereto, for purposes of determining Employee’s entitlement to any compensation payable upon Employee’s termination of employment, Employee’s employment will be deemed to have terminated on the date of Employee’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company Group. Whenever payments under this Agreement are to be made (i) pursuant to different provisions hereof or (ii) in installments, each such payment or installment shall be deemed to be a separate payment for purposes of Section 409A of the applicable agreementCode. No interest action or failure to act, pursuant to this Section 22 shall subject the Company Group to any claim, liability, or expense, and the Company Group shall not have any obligation to indemnify or otherwise protect Employee from the obligation to pay any taxes pursuant to Section 409A of the Code. With respect to any reimbursement or in-kind benefit arrangements of the Company Group that constitute deferred compensation for purposes of Section 409A of the Code, the following conditions shall be due applicable: (A) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a limit on the amount that may be reimbursed or paid if such limit is imposed on all participants), (B) any amounts so deferredreimbursement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (C) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

Appears in 4 contracts

Samples: Change in Control Agreement (Superior Group of Companies, Inc.), Change in Control Agreement (Superior Group of Companies, Inc.), Change in Control Agreement (Superior Group of Companies, Inc.)

Section 409A. It Notwithstanding any other provision of this Agreement, it is intended that all any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A of the payments payable under this Agreement satisfyCode shall be provided and paid in a manner, to and at such time, including without limitation payment and provision of benefits only in connection with the greatest extent possibleoccurrence of a permissible payment event contained in Section 409A (e.g., the exemptions separation from service from the application Company and its affiliates as defined for purposes of Section 409A of the Code), and in such form, as complies with the applicable requirements of Section 409A of the Code and to avoid the regulations and other guidance thereunder unfavorable tax consequences provided therein for non-compliance. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by the Company at the time of his Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order a failure to comply with section 409A of the Code, such portion of Executive’s benefits shall not be provided to Executive prior to the earlier of (a) the expiration of the six-month period measured from the date of Executive’s Separation from Service or (b) the date of Executive’s death. Upon the first business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 12 shall be paid in a lump sum to Executive, and any state law of similar effect (collectively, “Section 409A”) remaining payments due under the Agreement shall be paid as otherwise provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. herein. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) payable hereunder shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision anything herein to the contrary in this lettercontrary, if Executive is deemed all taxable reimbursements and in-kind benefits provided by the Company at under this Agreement shall be made or provided in accordance with the time of Executive’s Separation from Service to be a “specified employee” for purposes requirements of Section 409A(a)(2)(B)(i), and if any 409A of the payments upon Separation from Service set forth herein and/or under any other agreement with Code, including, where applicable, the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of requirement that (i) any reimbursement shall be for expenses incurred by Executive during the expiration period of time specified in the six-month period measured from the date of Executive’s Separation from Service with the Company, Agreement; (ii) any in-kind benefits must be provided by the date Company during the period of Executive’s death or time specified in the Agreement; (iii) such earlier date as permitted under 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; and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding the foregoing, in no event will the Company or any of its officers, directors or employees be liable to Executive or any other person if any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be deferred compensation subject to Section 409A without of the imposition Code fails to be exempt from or comply with Section 409A of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredCode.

Appears in 4 contracts

Samples: Executive Employment Agreement (ConversionPoint Holdings, Inc.), Executive Employment Agreement (ConversionPoint Holdings, Inc.), Executive Employment Agreement (ConversionPoint Holdings, Inc.)

Section 409A. It This Agreement is intended that all to comply with the requirements of section 409A of Code, and will be interpreted and construed consistently with such intent. All references in this Agreement to the Employee’s termination of employment refer to the Employee’s separation from service within the meaning of section 409A of the payments payable under Code. Payments provided pursuant to Section 2 of this Agreement satisfy, are intended to the greatest extent possible, the exemptions be exempt from the application of Section section 409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury regulation §1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury regulation §1.409A-1(b)(4). Each payment and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) benefit provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will constitute a “separately identified” amount within the meaning of Treasury regulation §1.409A-2(b)(2). Any payment that is deferred compensation subject to section 409A of the Code, conditioned upon the Employee’s execution of a release, and to be construed paid during a designated period that begins in one taxable year and ends in a manner that complies with Section 409A. For purposes second taxable year will be paid in the second taxable year. In the event the terms of Section this Agreement would subject the Employee to taxes or penalties under section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)“409A Penalties”), Executive’s right the Company and the Employee will cooperate diligently to receive amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event will the Company be responsible for any installment payments 409A Penalties that arise in connection with any amounts payable 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 paymentAgreement. Notwithstanding any other provision to the contrary in this letterAgreement, if Executive the Employee is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee,for purposes of Section 409A(a)(2)(B)(i), and if any as defined in section 409A of the payments upon Separation from Service set forth herein and/or under any other agreement with Code, as of the Company are deemed to be “deferred compensation”date of termination, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution amount payable under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of this Agreement (i) constitutes the expiration payment of nonqualified deferred compensation, within the meaning of section 409A of the Code, (ii) is payable upon the Employee’s separation from service, within the meaning of section 409A of the Code, and (iii) would be payable prior to the six-month period measured anniversary of the Employee’s separation from service, payment of such amount will be delayed until the earlier to occur of (a) the six-month anniversary of the date of Executive’s Separation such separation from Service with the Company, service or (iib) the date of Executivethe Employee’s death death. Any amount of expenses eligible for reimbursement, or (iii) such earlier date as permitted under Section 409A without in-kind benefit provided, during a calendar year will not affect the imposition amount of adverse taxationexpenses eligible for reimbursement, or in-kind benefit to be provided, during any other calendar year. Upon Any reimbursement will be made no later than the first business last day of the calendar year following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred calendar year in which the expenses to be reimbursed were incurred. The right to any reimbursement or in-kind benefit pursuant to this paragraph shall Agreement will not be paid in a lump sum subject to Executive, and liquidation or exchange for any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredother benefit.

Appears in 4 contracts

Samples: Release Agreement (Kapstone Paper & Packaging Corp), Release Agreement (Kapstone Paper & Packaging Corp), Release Agreement (Kapstone Paper & Packaging Corp)

Section 409A. It is intended The parties hereto intend that all of the benefits and payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application be made to Employee hereunder will be provided or paid in compliance with all applicable provisions of Section 409A of the Internal Revenue Code and of 1986, as amended, the regulations issued thereunder, and all notices, rulings and other guidance thereunder and any state law of similar effect issued by the IRS interpreting same (collectively, the Section 409A409A Rules) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will shall be construed and administered in accordance with such intent. The parties also agree that this Agreement may be modified, as reasonably requested by either party, to the extent necessary to comply with all applicable requirements of, and to avoid the imposition of any additional tax, interest and penalties under, the Section 409A Rules in connection with, the benefits and payments to be provided or paid to Employee hereunder. Any such modification shall maintain the original intent and economic benefit to Employee of the applicable provision of this Agreement, to the maximum extent possible without violating the Section 409A Rules. Notwithstanding the foregoing or anything to the contrary contained in any other provision of this Agreement, if Employee is a “specified employee” within the meaning of the Section 409A Rules at the time of his “separation from service” within the meaning of the Section 409A Rules, then any payment otherwise required to be made to him under this Agreement on account of his separation from service, to the extent such payment (after taking in to account all exclusions applicable to such payment under the Section 409A Rules) is properly treated as deferred compensation subject to the Section 409A Rules, shall not be made until the first business day after (i) the expiration of six (6) months from the date of the Employee’s separation from service, or (ii) if earlier, the date of the Employee’s death (the “Delayed Payment Date”). On the Delayed Payment Date, there shall be paid to the Employee or, if he has died, to his estate, in a manner that complies with Section 409A. single cash lump sum, an amount equal to aggregate amount of the payments delayed pursuant to the preceding sentence. For purposes of Section the 409A (includingRules, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), ExecutiveEmployee’s right to receive any the installment payments under this Agreement (whether severance paymentsprovided in Sections 5(b)(i), reimbursements or otherwise6(a)(i) and 6(a)(ii) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment under Treas. Reg. §1.409A-2(f)(2)(iii). The expenses incurred by Employee in any calendar year that are eligible for reimbursement pursuant to Section 4(d) and Section 5(b)(ii) hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to not affect the contrary expenses incurred by Employee (or by his family in this letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes case of Section 409A(a)(2)(B)(i5(b)(ii), ) in any other calendar year that are eligible for reimbursement pursuant to Section 4(d) or Section 5(b)(ii) hereunder. All expenses eligible for reimbursement pursuant to Section 4(d) and if Section 5(b)(ii) hereunder shall be paid to Employee promptly in accordance with the Company’s customary business expense reimbursement practices but in any event by no later than December 31 of the payments upon Separation from Service set forth herein and/or under any other agreement with calendar year following the Company are deemed calendar year in which such expenses were incurred. Employee’s right to be “deferred compensation”, then reimbursement pursuant to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i4(d) and the related adverse taxation under Section 409A, such payments 5(b)(ii) hereunder shall not be provided subject to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death liquidation or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationexchange for any other benefit. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.* * * * *

Appears in 4 contracts

Samples: Employment Agreement (Infospace Inc), Employment Agreement (Infospace Inc), Employment Agreement (Infospace Inc)

Section 409A. It is intended The parties intend that all of the payments any amounts payable under this Agreement satisfy, to the greatest extent possible, the exemptions hereunder comply with or are exempt from the application of Section 409A of the Internal Revenue Code and the regulations and other guidance thereunder and any state law of similar effect 1986, as amended (collectively, “Section 409A”) provided (including under Treasury Regulations Sections Regulation §§ 1.409A-1(b)(4) (“short-term deferrals”) and 1.409A-1(b)(9(b)(9) (“separation pay plans,” including the exceptions under subparagraph (iii) and subparagraph (v)(D)) and other applicable provisions of Treasury Regulation §§ 1.409A-1 through A-6). For purposes of Section 409A, and each of the payments that may be made under this Agreement will shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that complies does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. Notwithstanding the foregoing, the Company does not guarantee any particular tax effect, and Executive shall be solely responsible and liable for the satisfaction of all taxes, penalties and interest that may be imposed on or for the account of Executive in connection with the Agreement (including any taxes, penalties and interest under Section 409A), and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold Executive (or any beneficiary) harmless from any or all of such taxes, penalties or interest. With respect to the time of payments of any amounts under the Agreement that are “deferred compensation” subject to Section 409A, references in the Agreement to “termination of employment” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A. For purposes the avoidance of Section 409A (includingdoubt, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right it is intended that any expense reimbursement made to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) Executive hereunder shall be treated as a right to receive a series of separate payments andexempt from Section 409A. Notwithstanding the foregoing, accordingly, each installment payment if any expense reimbursement made hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed determined to be “deferred compensation”, then to ” within the extent delayed commencement meaning of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of then (i) the expiration amount of the six-month period measured from indemnification payment or expense reimbursement during one taxable year shall not affect the date amount of Executive’s Separation from Service with the Companyexpense reimbursement during any other taxable year, (ii) the date expense reimbursement shall be made on or before the last day of Executive’s death or taxable year following the year in which the expense was incurred and (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant right to this paragraph expense reimbursement hereunder shall not be paid in a lump sum subject to Executive, and any remaining payments due shall be paid as otherwise provided herein liquidation or in the applicable agreement. No interest shall be due on any amounts so deferredexchange for another benefit.

Appears in 4 contracts

Samples: Assignment Agreement (Xponential Fitness, Inc.), Employment Agreement (Xponential Fitness, Inc.), Employment Agreement (Xponential Fitness, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and the regulations and other guidance thereunder and any state law of similar effect 1986, as amended (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A -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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month six (6)-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 4 contracts

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

Section 409A. It is intended the intent of the parties that all of the payments payable and benefits under this Agreement satisfyshall comply with Section 409A of the Internal Revenue Code ("Section 409A"), to the greatest extent possiblesubject thereto, and to the exemptions maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance with Section 409A. Notwithstanding anything in this Agreement to the contrary, Executive shall not be considered to have terminated employment with the Employer for purposes of any payments under this Agreement that are subject to Section 409A until Executive has had a "separation from service" from Employer within the meaning of Section 409A. Each amount to be paid or benefit to be provided under this Agreement shall be treated as a "separate payment" for purposes of Section 409A. To the extent required in order to avoid accelerated taxation and penalties, amounts that would otherwise be payable and benefits that would otherwise be provided during the six month period immediately following Executive's separation from service shall instead be paid on the first business day after the date that is six months after Executive's separation from service (or, if earlier, Executive's death). Payments under Sections 7(b) and (e) are intended to qualify to the maximum extent possible as "short-term deferrals" exempt from the application of Section 409A. Any payments and benefits that do not so qualify are intended to qualify for the Section 409A of exemption set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) (which exempts from Section 409A certain payments made upon an "involuntary separation from service"). To the Code and the regulations and other guidance thereunder and any state law of similar effect extent that payments made pursuant to Sections (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4b) and 1.409A-1(b)(9(e) (including benefits under Section 7(i)) are made upon an "involuntary separation from service" but exceed the exemption threshold set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii), and this Agreement the exemption will be construed in a manner that complies with first applied to any continued health and welfare benefits payable (to the extent such benefits are subject to Section 409A. For 409A and are payable within six months from Executive's separation from service as defined for purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right the "Delayed Payment Date") and thereafter to receive any installment cash payments until the exemption has been applied in full. Any payments under this Agreement Sections 7(b) and (whether severance payments, reimbursements or otherwisee) that are not exempted form Section 409A and that are payable prior to the Delayed Payment Date shall be treated withheld by Employer and paid to Executive on the Delayed Payment Date or 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 paymentsoon thereafter as administratively feasible. Notwithstanding any provision to the contrary in this letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to To the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation an accelerated or additional tax under Section 409A, such payments shall not be provided amounts reimbursable to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Agreement shall be paid to Executive on or before the last day of the year following the year in a lump sum which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits to Executive) during one year shall not affect amounts reimbursable or provided in any subsequent year. Nothing in this Section shall prohibit Employer or Executive from making use of any Section 409A exemption that may be applicable to a payment or benefit under this Agreement. Employer makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A. Employee acknowledges that Employer has advised Employee to seek his own counsel with respect to the federal, and state, or local tax treatment of any remaining payments due shall be paid as otherwise provided herein or in benefits under this Agreement, including the applicable agreement. No interest shall be due on any amounts so deferred.treatment of payments under Section 409A.

Appears in 4 contracts

Samples: Employment Agreement (Uqm Technologies Inc), Employment Agreement (Uqm Technologies Inc), Employment Agreement (Uqm Technologies Inc)

Section 409A. It is intended that all of the Severance Benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A- 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, ,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the Severance Benefits are not covered by one or more exemptions from the application of Section 409A and the Release Deadline occurs in the calendar year following the calendar year of Executive’s Separation from Service, the Separation Agreement will not be deemed effective any earlier than the Release Deadline for purposes of determining the timing of provision of any Severance Benefits.

Appears in 4 contracts

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

Section 409A. (i) It is intended that all (i) each payment of the a series of installment payments payable provided under this Agreement shall be a separate “payment” for purposes of Section 409A of the United States Internal Revenue Code and the Treasury Regulations thereunder (collectively, “Section 409A”), and (ii) that the payments satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively409A, “Section 409A”) including those provided under Treasury Regulations Sections 1.409A-1(b)(41.409A-1(b)(4)(regarding short-term deferrals), 1.409A-1(b)(9)(iii) (regarding the two-times, two (2) year exception) and 1.409A-1(b)(91.409A-1(b)(9)(v) (regarding reimbursements and other separation pay). Notwithstanding anything to the contrary herein, and this Agreement will be construed in a manner that complies with Section 409A. For purposes if (1) on the date of Section 409A the Executive’s “separation from service” (including, without limitation, for purposes of as such term is defined under Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A-1(h)), 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of the Company, as determined in accordance with the Company’s “specified employee” determination procedures, and (2) any payments to be provided to the Executive pursuant to this Agreement which constitute “deferred compensation” for purposes of Section 409A(a)(2)(B)(i), 409A and if any of are or may become subject to the payments upon Separation from Service set forth herein and/or additional tax under Section 409A(a)(1)(B) or any other agreement with taxes or penalties imposed under Section 409A if provided at the Company are deemed to be “deferred compensation”time otherwise required under this Agreement, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to delayed until the earliest of date that is six (i6) the expiration of the six-month period measured from months after the date of the Executive’s Separation “separation from Service with the Companyservice” (as such term is defined under Treasury Regulation 1.409A-1(h)) or, (ii) if sooner, the date of the Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all Any payments deferred delayed pursuant to this paragraph Section 4(g) shall be paid made in a lump sum to on the first day of the seventh month following the Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) or, and any remaining payments due shall be paid as otherwise provided herein or in if sooner, the applicable agreement. No interest shall be due on any amounts so deferreddate of the Executive’s death.

Appears in 4 contracts

Samples: Employment Agreement (Aeries Technology, Inc.), Employment Agreement (Aeries Technology, Inc.), Employment Agreement (Aeries Technology, Inc.)

Section 409A. It is intended that all of the payments any amounts payable under pursuant to this Agreement satisfy, to will either be exempt from or comply with the greatest extent possible, the exemptions from the application requirements of Section 409A of the Code (and any regulations and guidelines issued thereunder) and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 interpreted on 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 paymentbasis consistent with such intent. Notwithstanding any provision to the contrary in this letterAgreement, if Executive Employee is deemed by on the Company at date of Employee’s “separation from service” (within the time meaning of Executive’s Separation from Service Treas. Reg. Section 1.409A-1(h)) to be a “specified employee” for purposes (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i1.409A-1(i)), and if then with regard to any payment that is required to be delayed pursuant to Section 409A(a)(2)(B) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409ACode, such payments payment shall not be provided to Executive made prior to the earliest earlier of (ia) the expiration of the six-month six (6)-month period measured from the date of ExecutiveEmployee’s Separation “separation from Service with the Company, service,” or (iib) the date of ExecutiveEmployee’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation“Delay Period”). Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) periodthe Delay Period, all payments deferred delayed pursuant to this paragraph Section 26 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to Employee in a lump sum to Executive, and any remaining payments due under this Agreement shall be paid as otherwise provided herein in accordance with the normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, to the extent required to comply with Section 409A of the Code or an exemption thereto, for purposes of determining Employee’s entitlement to any compensation payable upon Employee’s termination of employment, Employee’s employment will be deemed to have terminated on the date of Employee’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company Group. Whenever payments under this Agreement are to be made (i) pursuant to different provisions hereof or (ii) in installments, each such payment or installment shall be deemed to be a separate payment for purposes of Section 409A of the applicable agreementCode. No interest action or failure to act, pursuant to this Section 26 shall subject the Company Group to any claim, liability, or expense, and the Company Group shall not have any obligation to indemnify or otherwise protect Employee from the obligation to pay any taxes pursuant to Section 409A of the Code. With respect to any reimbursement or in-kind benefit arrangements of the Company Group that constitute deferred compensation for purposes of Section 409A of the Code, the following conditions shall be due applicable: (A) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a limit on the amount that may be reimbursed or paid if such limit is imposed on all participants), (B) any amounts so deferredreimbursement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (C) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

Appears in 4 contracts

Samples: Retention Agreement (Superior Group of Companies, Inc.), Retention Agreement (Superior Group of Companies, Inc.), Retention Agreement (Superior Group of Companies, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement letter satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this Agreement letter will be construed in a manner that complies to the greatest extent possible as consistent with Section 409A. those provisions. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s your right to receive any installment payments under this Agreement letter (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 letter, if Executive is you are deemed by the Company at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s your Separation from Service with the Company, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 4 contracts

Samples: Stock Agreement (Dynamics Special Purpose Corp.), Stock Agreement (Dynamics Special Purpose Corp.), Dynamics Special Purpose Corp.

Section 409A. It is intended that all of (a) Notwithstanding anything to the contrary set forth herein, any payments payable and benefits provided under this Agreement satisfy, to that constitute “deferred compensation” within the greatest extent possible, the exemptions from the application meaning of Section 409A of the Internal Revenue Code of 1986, as amended and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) shall not commence in connection with Executive’s termination of employment until Executive has also incurred a Separation from Service , unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional twenty percent (20%) tax under Section 409A. It is intended that each installment of severance pay provided for in this Agreement is a separate “payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, it is intended that severance payments set forth in this Agreement satisfy, to the greatest extent possible, the exceptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(9). If the Company (or, and this Agreement will be construed in a manner if applicable, the successor entity thereto) determines that complies with Section 409A. For purposes of any payments or benefits constitute “deferred compensation” under Section 409A (includingand Executive is, without limitationon the termination of service, 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then then, solely to the extent delayed commencement of any portion of such payments is required in order necessary to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related incurrence of the adverse taxation personal tax consequences under Section 409A, such the timing of the payments and benefits shall not be provided delayed until the earlier to Executive prior to the earliest of occur of: (ia) the expiration of the six-month period measured from the date of that is six months and one day after Executive’s Separation from Service with the CompanyService, or (iib) 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 (iiii) such earlier date as permitted under Section 409A without pay to Executive a lump sum amount equal to the imposition sum of adverse taxation. Upon the first business day following payments and benefits that Executive would otherwise have received through the expiration Specified Employee Initial Payment Date if the commencement of the payment of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred amounts had not been so delayed pursuant to this paragraph shall be paid in a lump sum to ExecutiveSection, and any remaining (ii) commence paying the balance of the payments due shall be paid as otherwise provided herein or and benefits in accordance with the applicable agreement. No interest shall be due on any amounts so deferredpayment schedules set forth in this Agreement.

Appears in 4 contracts

Samples: Executive Employment Agreement (CinCor Pharma, Inc.), Executive Employment Agreement (CinCor Pharma, Inc.), Executive Employment Agreement (CinCor Pharma, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), ExecutiveEmployee’s right to receive any installment payments under this Agreement (whether severance paymentsSeverance Payments, CIC Severance Payments, Death or Disability 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 letterAgreement, if Executive Employee is deemed by the Company at the time of ExecutiveEmployee’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive Employee prior to the earliest of (i) the expiration of the six-month and one day period measured from the date of ExecutiveEmployee’s Separation from Service with the Company, (ii) the date of ExecutiveEmployee’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Section shall be paid in a lump sum to ExecutiveEmployee, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the Company determines that any Severance Benefits or CIC Severance Benefits provided under this Agreement constitutes “deferred compensation” under Section 409A, and if necessary to avoid taxation under Section 409A, for purposes of determining the schedule for payment of the severance benefits, the effective date of the Release will not be deemed to have occurred any earlier than the sixtieth (60th) date following the Separation From Service, regardless of when the Release actually becomes effective. In addition to the above, to the extent required to comply with Section 409A and the applicable regulations and guidance issued thereunder, if the applicable deadline for Employee to execute (and not revoke) the applicable Release spans two calendar years, payment of the applicable Severance Benefit, CIC Severance Benefits, or Death or Disability Benefits shall not commence until the beginning of the second calendar year. To the extent required to avoid accelerated taxation and/or tax penalties under Code Section 409A, amounts reimbursable to Employee under this Agreement shall be paid to Employee on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Employee) during any one year may not effect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payment.

Appears in 4 contracts

Samples: Executive Employment Agreement (ShouTi Inc.), Executive Employment Agreement (Structure Therapeutics Inc.), Executive Employment Agreement (ShouTi Inc.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, (a) Notwithstanding anything to the greatest extent possiblecontrary herein, the exemptions from following provisions apply to the application of extent severance benefits provided herein are subject to Section 409A of the Internal Revenue Code (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”) ). Severance benefits will not commence until Executive has a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a “separation from service”). Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation separation from Service service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i)) of the Code, and if any of the payments due upon Separation separation from Service service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, ,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code and the related adverse taxation under Section 409A, such payments shall will not be provided to Executive prior to the earliest of (i) the expiration of the six-month six (6)-month period measured from the date of Executive’s Separation separation from Service service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall will be paid in a lump sum to Executive, and any remaining payments due shall will be paid as otherwise provided herein in this Agreement or in the applicable agreement. No interest shall will be due on any amounts so deferred. To the extent that any severance payments are deferred compensation under Section 409A, and are not otherwise exempt from the application of Section 409A, then, if the period during which Executive may consider and sign the Release spans two calendar years, the payment of severance will not be made or begin until the later calendar year. The parties acknowledge that the exemptions from application of Section 409A to severance benefits are fact specific, and any later amendment of this Agreement to alter the timing, amount or conditions that will trigger payment of severance benefits may preclude the ability of severance benefits provided under this Agreement to qualify for an exemption.

Appears in 4 contracts

Samples: Employment Agreement (Entasis Therapeutics Holdings Inc.), Employment Agreement (Entasis Therapeutics Holdings Inc.), Employment Agreement (Entasis Therapeutics Holdings Inc.)

Section 409A. It This RSU Agreement is not intended that all to provide for any deferral of compensation subject to Section 409A of the payments Code, and, accordingly, the amounts payable under hereunder shall be paid no later than the later of: (i) the fifteenth (15th) day of the third month following Participant’s first taxable year in which such severance benefit is no longer subject to a substantial risk of forfeiture, and (ii) the fifteenth (15th) day of the third month following first taxable year of the Company in which such severance benefit is no longer subject to substantial risk of forfeiture, as determined in accordance with Code Section 409A and any Treasury Regulations and other guidance issued thereunder. To the extent applicable, this RSU Agreement satisfyshall be interpreted in accordance with Code Section 409A and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any other provision of the Plan, this RSU Agreement and the Grant Notice, if at any time the Administrator determines that this Award (or any portion thereof) may be subject to Section 409A, the Administrator shall have the right in its sole discretion (without any obligation to do so or to indemnify Participant or any other person for failure to do so) to adopt such amendments to the greatest extent possiblePlan, this RSU Agreement or the exemptions Grant Notice, or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Administrator determines are necessary or appropriate for this Award either to be exempt from the application of Section 409A or to comply with the requirements of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right each payment that Participant may be eligible to receive any installment payments under this RSU 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 4 contracts

Samples: Restricted Stock Unit Award Agreement (Xperi Inc.), Restricted Stock Unit Award Agreement (Xperi Inc.), Restricted Stock Unit Award Agreement (Xperi Holding Corp)

Section 409A. It is intended that all (i) each payment or installment of the payments payable provided under this Agreement is a separate “payment” for purposes of Code Section 409A and (ii) the payments satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) , including those provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9(regarding short-term deferrals), 1.409A-1(b)(9)(iii) (regarding the two-times, two year exception), and this Agreement will be construed in a manner that complies with Section 409A. For purposes of Section 409A 1.409A-1(b)(9)(v) (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iiiregarding reimbursements and other separation pay)), 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 anything to the contrary in this letterAgreement, if Executive is deemed by the Company at determines (i) that on the time date of Executive’s Separation from Service or at such other time that the Company determines to be relevant, Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i(as such term is defined under Treasury Regulation 1.409A-1(i)(1), and if any ) of the Company and (ii) that any payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior pursuant to this Agreement are or may become subject to the earliest of additional tax under Code Section 409A(a)(1)(B) or any other taxes or penalties imposed under Code Section 409A (i“Section 409A Taxes”) if provided at the expiration of time otherwise required under this Agreement, then (A) such payments shall be delayed until the six-month period measured from date that is six (6) months after the date of Executive’s Separation from Service with the Company, (ii) or such shorter period that, as determined by the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without Company, is sufficient to avoid the imposition of adverse taxationSection 409A Taxes (the “Payment Delay Period”) and (B) such payments shall be increased by an amount equal to the interest on such payments for the Payment Delay Period at a rate equal to the prime rate in effect as of the date the payment was first due (for this purpose, the prime rate will be based on the rate published from time to time in The Wall Street Journal). Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all Any payments deferred delayed pursuant to this paragraph Section 9 shall be paid made in a lump sum on the first day of the seventh month following Executive’s Separation from Service, or such earlier date that, as determined by the Company, is sufficient to Executive, and avoid the imposition of any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredSection 409A Taxes.

Appears in 4 contracts

Samples: Executive Retention Agreement (Meade Instruments Corp), Executive Retention Agreement (Meade Instruments Corp), Executive Retention Agreement (Meade Instruments Corp)

Section 409A. It is intended that all Notwithstanding anything in this Agreement to the contrary, if at the time of Employee’s separation from service (a “Separation from Service”) within the meaning of Section 409A of the payments payable Internal Revenue Code of 1986, as amended (the “Code”), the Company determines that Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that Employee becomes entitled to under this Agreement satisfy, would be considered deferred compensation subject to the greatest extent possible, 20 percent additional tax imposed pursuant to Section 409A(a) of the exemptions from Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit shall be provided prior to the date that is the earlier of (A) six months and one day after Employee’s Separation from Service, or (B) Employee’s death, and the initial payment thereof following such period shall include a lump sum “catch-up” payment equal to those payments that would otherwise have been paid during the six-month period, but for the application of this provision, plus interest at an annual rate equal to the applicable federal short term rate published by the Internal Revenue Service for the month in which the Separation from Service occurs, from such date of Separation from Service until payment. Any subsequent installment payments shall be made in accordance with Section 6 above. The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and the all related rules and regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under preserve the payments and benefits provided hereunder without additional cost to either party. The Company makes no representation or warranty and shall have no liability to Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A(a)(2)(B)(i) and 409A but do not satisfy an exemption from, or the related adverse taxation under Section 409Aconditions of, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsection.

Appears in 4 contracts

Samples: Employment Agreement (Eagle Test Systems, Inc.), Employment Agreement (Eagle Test Systems, Inc.), Employment Agreement (Eagle Test Systems, Inc.)

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Section 409A. To the extent (i) any payments or benefits to which Employee becomes entitled under this Agreement, or under any agreement or plan referenced herein, in connection with Employee’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) Employee is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments shall not be made or commence until the earliest of (a) the expiration of the six (6)-month period measured from the date of Employee’s “separation from service” (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) from the Company; or (b) the date of Employee’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Employee, including (without limitation) the additional twenty percent (20%) tax for which Employee would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Employee or Employee’s beneficiary in one lump sum (without interest). Any termination of Employee’s employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that all each installment of the payments payable under this Agreement provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions exemption from the application of Section 409A of the Code and the regulations and other guidance thereunder (and any state law of similar effect (collectively, “Section 409A”effect) provided under Treasury Regulations Sections Regulation Section 1.409A-1(b)(4) and 1.409A-1(b)(9(as a “short-term deferral”), and . To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be construed read in such a manner so that complies all payments hereunder comply with Section 409A. For purposes 409A of Section 409A (includingthe Code. Except as otherwise expressly provided herein, without limitation, for purposes to the extent any expense reimbursement or the provision of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (whether severance paymentsexcept for any lifetime or other aggregate limitation applicable to medical expenses), reimbursements or otherwise) in no event shall any expenses be treated as a reimbursed after the last day of the calendar year following the calendar year in which Employee incurred such expenses, and in no event shall any 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 reimbursement or the provision to the contrary in this letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order in-kind benefit be subject to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death liquidation or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredexchange for another benefit.

Appears in 3 contracts

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

Section 409A. It is intended This Agreement shall be interpreted in such a manner that all of the payments payable under this Agreement satisfy, provisions relating to the greatest extent possible, the exemptions settlement of this Award are exempt from the application requirements of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, as Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed short-term deferrals” as described in a manner that complies with Section 409A. 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 paymentthe Code. Notwithstanding any provision anything to the contrary in this letterAgreement or an accompanying election form executed by the Participant, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from on the date of Executivethe Participant’s Separation from Service with the Company, Company the Participant is a “specified employee” (as such term is defined under Section 1.409A-1(i) of the Treasury Regulations promulgated under Section 409A of the Code) of the Company and (ii) any payments to be provided to the Participant pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code, or any other taxes or penalties imposed under Section 409A of the Code if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six months after the date of Executivethe Participant’s death separation from service from the Company, or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationif earlier, his or her death. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all Any payments deferred delayed pursuant to this paragraph shall be paid made in a lump sum on the first day of the seventh month following the Participant’s separation from service, or if earlier, the Participant’s death. Each payment upon settlement of this Award constitutes a “separate payment” for purposes of Section 409A of the Code. Notwithstanding any other provision of this Agreement, if and to Executivethe extent that any payment under this Agreement constitutes non-qualified deferred compensation under Section 409A of the Code, and any remaining payments due is payable upon (i) the Participant’s termination of employment, then such payment shall be paid made or provided to the Participant only upon a “separation from service” as otherwise defined for purposes of Section 409A of the Code, or (ii) a Change in Control, then such payment shall be made or provided herein or to the Participant only upon a “change in the ownership”, a “change in effective control” or a “change in the ownership of a substantial portion of the assets” of the applicable agreement. No interest shall be due on any amounts so deferredcorporation as defined for purposes of Section 409A of the Code.

Appears in 3 contracts

Samples: Performance Based Cash Award Agreement Brookdale Senior Living (Brookdale Senior Living Inc.), Performance Based Cash Award Agreement (Brookdale Senior Living Inc.), Performance Based Cash Award Agreement (Brookdale Senior Living Inc.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application For purposes of Section 409A of the Code and Internal Revenue Code, the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”) ), each payment and benefit payable under this Agreement is hereby designated as a separate payment. The parties intend that all RSUs provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will and shares issuable hereunder comply with or be construed in a manner that complies with Section 409A. For purposes exempt from the requirements of Section 409A (includingso that none of the payments or benefits will be subject to the adverse tax penalties imposed under Section 409A, without limitationand any ambiguities herein will be interpreted to so comply. Notwithstanding anything in the Plan or this Agreement to the contrary, for purposes if the vesting of the balance, or some lesser portion of the balance, of the RSUs is to be accelerated in connection with the Grantee’s termination of service, such accelerated RSUs will not be settled by virtue of such acceleration until and unless the Grantee has a “separation from service” within the meaning of Treasury Regulation Section 1.409A-2(b)(2)(iii)1.409A-1(h), Executive’s right to receive any installment payments under as determined by the Corporation, in its sole discretion. Further, and notwithstanding anything in the Plan or 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 lettercontrary, if Executive is deemed by (x) any of the Company RSUs to be provided in connection with the Grantee’s separation from service do not qualify for any reason to be exempt from Section 409A, (y) the Grantee is, at the time of Executive’s Separation such separation from Service to be service, a “specified employee” for purposes (as defined in Treasury Regulation Section 1.409A-1(i)) and (z) the settlement of such RSUs would result in the imposition of additional tax under Section 409A(a)(2)(B)(i)409A if such settlement occurs on or within the six (6) month period following the Grantee’s separation from service, and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”then, then to the extent delayed commencement necessary to avoid the imposition of such additional taxation, the settlement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(iRSUs during such six (6) month period will accrue and the related adverse taxation under Section 409A, such payments shall will not be provided to Executive prior to settled until the earliest of date six (i6) the expiration of the six-month period measured from months and one (1) day following the date of Executivethe Grantee’s Separation separation from Service with the Companyservice and on such date (or, (ii) if earlier, the date of Executivethe Grantee’s death or (iii) death), such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall RSUs will be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsettled.

Appears in 3 contracts

Samples: Incentive Plan 2022 Restricted Stock (SLM Corp), Incentive Plan 2023 Restricted Stock (SLM Corp), Restricted Stock Unit Term (SLM Corp)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Internal Revenue Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 3 contracts

Samples: Executive Employment Agreement (Everspin Technologies Inc), Executive Employment Agreement (Everspin Technologies Inc), Executive Employment Agreement (Everspin Technologies Inc)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), ExecutiveEmployee’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 letterAgreement, if Executive Employee is deemed by the Company at the time of ExecutiveEmployee’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive Employee prior to the earliest of (i) the expiration of the six-month and one day period measured from the date of ExecutiveEmployee’s Separation from Service with the Company, (ii) the date of ExecutiveEmployee’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Section shall be paid in a lump sum to ExecutiveEmployee, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the Company determines that any severance benefits provided under this Agreement constitutes “deferred compensation” under Section 409A, for purposes of determining the schedule for payment of the severance benefits, the effective date of the Release will not be deemed to have occurred any earlier than the sixtieth (60th) date following the Separation From Service, regardless of when the Release actually becomes effective. In addition to the above, to the extent required to comply with Section 409A and the applicable regulations and guidance issued thereunder, if the applicable deadline for Employee to execute (and not revoke) the applicable Release spans two calendar years, payment of the applicable severance benefits shall not commence until the beginning of the second calendar year. To the extent required to avoid accelerated taxation and/or tax penalties under Code Section 409A, amounts reimbursable to Employee under this Agreement shall be paid to Employee on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Employee) during any one year may not effect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payment.

Appears in 3 contracts

Samples: Executive Employment Agreement (Aethlon Medical Inc), Employment Agreement (Aethlon Medical Inc), Employment Agreement (Aethlon Medical Inc)

Section 409A. It is intended that all of the severance payments and benefits, and all other payments payable under this Agreement Agreement, satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and the regulations and other guidance thereunder and any state law of similar effect 1.409A-1(b)(9) (collectively, “collectively “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s your right to receive any installment payments under this Agreement letter 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 letterAgreement, if Executive is you are deemed by the Company at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s your Separation from Service with the Company, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.. The parties agree that this Agreement may be amended as may be necessary to fully comply with Section 409A in order to preserve the payments and benefits provided hereunder. Notwithstanding the foregoing, the Company makes no representation or warranty and will have no liability to you or to any other person if any of the provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A, but does not satisfy an exemption from, or the conditions of, Section 409A.

Appears in 3 contracts

Samples: Letter Agreement (Progyny, Inc.), Letter Agreement (Progyny, Inc.), Letter Agreement (Progyny, Inc.)

Section 409A. It is intended that all of (a) Notwithstanding anything herein to the payments payable under this Agreement satisfycontrary, to the greatest maximum extent possiblepermitted by applicable law, the exemptions Severance Payments and Change in Control Severance Payments to be made to the Executive pursuant to Article IV shall be made in reliance upon Treasury Regulations promulgated under Section 409A of the Code, including Section 1.409A-1(b)(9) of the Treasury Regulations (including any exceptions from the application of Section 409A thereunder) or Section 1.409A-1(b)(4) of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and Regulations. For this Agreement will be construed in a manner that complies with Section 409A. 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, accordinglypurpose, each installment payment hereunder Severance Payment and Change in Control Severance Payment shall at all times be considered a separate and distinct paymentpayment for purposes of Section 409A of the Code. Notwithstanding any provision However, to the contrary in extent any such payments are treated as non-qualified deferred compensation subject to Section 409A of the Code, then (a) no amount shall be payable pursuant to this letter, Article IV unless Executive’s termination of employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Treasury Regulations and (b) if Executive is deemed by the Company at the time of Executive’s Separation his separation from Service service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such payments the Severance Payments or Change in Control Severance Payments to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments portion of Executive’s Severance Payments or Change in Control Severance Payments shall not be provided to Executive prior to the earliest earlier of (ix) the expiration of the six-month period measured from the date of the Executive’s Separation “separation from Service service” with the Company, Company (iias such term is defined in Section 1.409A-1(h) of the Treasury Regulations) or (y) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i) perioddates, all payments deferred pursuant to this paragraph shall be paid in a lump sum to the Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein or in herein. The determination of whether the applicable agreement. No interest Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be due on made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Section 1.409A-1(i) of the Treasury Regulations and any amounts so deferredsuccessor provision thereto).

Appears in 3 contracts

Samples: Employment Agreement (Tractor Supply Co /De/), Employment Agreement (Tractor Supply Co /De/), Employment Agreement (Tractor Supply Co /De/)

Section 409A. It is intended that all The Company makes no representations or warranties to Employee with respect to any tax, economic or legal consequences of the payments payable under this Agreement satisfyor any payments or other benefits provided hereunder, to the greatest extent possible, the exemptions from the application of including without limitation under Section 409A of the Code, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A or any other legal requirements from Employee or any other individual to the Company or any of its affiliates. However, the parties intend that this Agreement and the regulations payments and other guidance thereunder and any state law benefits provided hereunder be exempt from the requirements of similar effect (collectivelyCode Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement will (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be construed interpreted, operated and administered in a manner that complies consistent with Section 409A. For purposes such intentions. Without limiting the generality of Section 409A (includingthe foregoing, without limitationand notwithstanding any other provision of this Agreement to the contrary, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right with respect to receive any installment payments and benefits under this Agreement (whether severance paymentsto which Code Section 409A applies, 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 references in this Agreement to the contrary in this lettertermination of Employee's employment are intended to mean Employee's "separation from service," within the meaning of Code Section 409A(a)(2)(A)(i). In addition, if Executive Employee is deemed by the Company at the time of Executive’s Separation from Service to be a "specified employee” for purposes ," within the meaning of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement necessary to avoid subjecting Employee to the imposition of any portion of such payments is required in order to avoid a prohibited distribution additional tax under Section 409A(a)(2)(B)(i) and the related adverse taxation under Code Section 409A, such payments shall not amounts that would otherwise be provided to Executive prior to the earliest of (i) the expiration of payable under this Agreement during the six-month period measured immediately following Employee's "separation from service," within the date meaning of Executive’s Separation from Service with Section 409A(a)(2)(A)(i) of the CompanyCode, shall not be paid to Employee during such period, but shall instead be accumulated and paid to Employee (iior, in the event of Employee's death, Employee's estate) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon in a lump sum on the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i(a) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein the date that is six months after Employee's separation from service or in the applicable agreement. No interest shall be due on any amounts so deferred(b) Employee's death.

Appears in 3 contracts

Samples: Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month and one day period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Section 9 shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the Company determines that any severance benefits provided under this Agreement constitutes “deferred compensation” under Section 409A, for purposes of determining the schedule for payment of the severance benefits, the effective date of the Release will not be deemed to have occurred any earlier than the sixtieth (60th) date following the Separation From Service, regardless of when the Release actually becomes effective. In addition to the above, to the extent required to comply with Section 409A and the applicable regulations and guidance issued thereunder, if the applicable deadline for Executive to execute (and not revoke) the applicable Release spans two calendar years, payment of the applicable severance benefits shall not commence until the beginning of the second calendar year. To the extent required to avoid accelerated taxation and/or tax penalties under Code Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payment.

Appears in 3 contracts

Samples: Employment Agreement (Silverback Therapeutics, Inc.), Executive Employment Agreement (Silverback Therapeutics, Inc.), Employment Agreement (ARS Pharmaceuticals, Inc.)

Section 409A. It is intended that all of Notwithstanding anything herein to the payments payable under this Agreement satisfycontrary, to the greatest maximum extent possiblepermitted by applicable law, the exemptions from settlement of the application RSUs to be made to the Grantee pursuant to this Agreement is intended to qualify as a “short-term deferral” pursuant to Section 1.409A-1(b)(4) of the Regulations and this Agreement shall be interpreted consistently therewith. However, in any circumstances where the settlement of the RSUs may not so qualify, the Committee shall administer the grant and settlement of such RSUs in strict compliance with Section 409A of the Code. Further, notwithstanding anything herein to the contrary, to the extent that this Award constitutes deferred compensation for purposes of Section 409A of the Code and (i) no RSU payable upon the regulations and other guidance thereunder and any state law Grantee’s termination of similar effect (collectivelyservice shall be issued, unless Grantee’s termination of service constitutes a separation from service” within the meaning of Section 409A”1.409A-1(h) provided under of the Treasury Regulations Sections 1.409A-1(b)(4and (ii) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 letter, if Executive is deemed by the Company at the time of Executivea Grantee’s Separation from Service to be termination of employment with the Company and all “service recipients” (as defined in the applicable provision of the Treasury Regulations), the Grantee is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of service is necessary in order to prevent the imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Grantee) to the minimum extent necessary to satisfy Section 409A of the Code until the date that is six months and one day following the Participant’s termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code), if such payment or benefit is payable upon a termination of employment. Each payment of RSUs constitutes a “separate payment” for purposes of Section 409A(a)(2)(B)(i), and if any 409A of the payments upon Separation from Service set forth herein and/or under Code. Notwithstanding any other agreement with provision of this Agreement or the Company are deemed Plan to be “deferred compensation”the contrary, then to the extent delayed commencement that this Agreement constitutes deferred compensation for purposes of any Section 409A of the Code, a “Change in Control” for purposes of this Agreement shall mean “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the Company’s assets,” as such payments is required terms are defined in order to avoid a prohibited distribution Section 1.409A-3(i)(5) of the Treasury Regulations. Notwithstanding the foregoing, Company does not warrant that this RSU will qualify for favorable tax treatment under Section 409A(a)(2)(B)(i) and 409A of the related adverse taxation under Section 409ACode or any other provision of federal, such payments state, local or foreign law. The Company shall not be provided liable to Executive prior to Grantee for any tax, interest, or penalties that the earliest of (i) the expiration Grantee might owe as a result of the six-month period measured from grant, holding, vesting, exercise, or payment of the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredRSUs.

Appears in 3 contracts

Samples: Restricted Share Unit Agreement (Healthstream Inc), Restricted Share Unit Agreement (Healthstream Inc), Restricted Share Unit Agreement (Healthstream Inc)

Section 409A. It (a) The Award is intended that all to comply with the “short-term deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4) and, to the maximum extent permitted, this Agreement shall be construed and administered consistent with such intent. Notwithstanding anything contained herein to the contrary, if the Award fails to satisfy the requirements of the payments payable short-term deferral rule and is otherwise not exempt from, and therefore deemed to be deferred compensation subject to, Section 409A, references in this Agreement (including in Section 4.1), to payment or settlement of amounts under this Agreement satisfywithin the “short-term deferral” period determined under Treasury Regulation Section 1.409A-1(b)(4), shall not apply, and instead payments will be made on the applicable payment date or a later date within the same taxable year of the Grantee, or if such timing is administratively impracticable, by the 15th day of the third calendar month following the date specified herein. For clarity, the Grantee is not permitted to designate the taxable year of payment. Notwithstanding anything contained herein to the greatest extent possiblecontrary, if the exemptions Grantee is a “specified employee” (within the meaning set forth Section 409A(a)(2)(B)(i) of the Code) as of the date of the Grantee’s “separation from service” (within the application meaning of Treasury Regulation Section 1.409A-1(h)), then the issuance of any Shares that would otherwise be made on the date of the separation from service or within the first six months thereafter will not be made on the originally scheduled dates and will instead be issued in a lump sum on the date that is six months and one day after the date of the separation from service (or upon death, if earlier), with the balance of the Shares issued thereafter in accordance with the original vesting and issuance schedule set forth above, but if and only if such delay in the issuance of the Shares is necessary to avoid the imposition of taxation in respect of the Shares under Section 409A. A termination of employment or service shall not be deemed to have occurred for purposes of this Agreement providing for the payment of any amounts that are considered deferred compensation under Section 409A upon or following a termination of employment or service, unless such termination is also a “separation from service” (within the Code meaning of Treasury Regulation Section 1.409A-1(h)) and the regulations and other guidance thereunder and any state law of similar effect (collectively, payment thereof prior to a Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with separation from service” would violate Section 409A. For purposes Each installment of Section 409A (including, without limitation, Shares that becomes payable in respect of vested Restricted Stock Units subject to the Award is a “separate payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A-2(b)(2)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) . In no event 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” liable for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of all or any portion of such payments is required in order to avoid a prohibited distribution under any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.409A.

Appears in 3 contracts

Samples: Restricted Stock Unit Agreement (Peabody Energy Corp), Restricted Stock Unit Agreement (Peabody Energy Corp), Restricted Stock Unit Agreement (Peabody Energy Corp)

Section 409A. It is intended that all of Notwithstanding anything herein to the payments payable under this Agreement satisfycontrary, to the greatest maximum extent possiblepermitted by applicable law, the exemptions from settlement of the application RSUs to be made to the Grantee pursuant to this Agreement is intended to qualify as a “short-term deferral” pursuant to Section 1.409A-1(b)(4) of the Regulations and this Agreement shall be interpreted consistently therewith. However, in any circumstances where the settlement of the RSUs may not so qualify, the Committee shall administer the grant and settlement of such RSUs in strict compliance with Section 409A of the Code. Further, notwithstanding anything herein to the contrary, to the extent that this Award constitutes deferred compensation for purposes of Section 409A of the Code and (i) no RSU payable upon the regulations and other guidance thereunder and any state law Grantee’s termination of similar effect (collectivelyservice shall be issued, unless Grantee’s termination of service constitutes a separation from service” within the meaning of Section 409A”1.409A-1(h) provided under of the Treasury Regulations Sections 1.409A-1(b)(4and (ii) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 letter, if Executive is deemed by the Company at the time of Executivea Grantee’s Separation from Service to be termination of employment with the Company and all “service recipients” (as defined in the applicable provision of the Treasury Regulations), the Grantee is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of service is necessary in order to prevent the imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Grantee) to the minimum extent necessary to satisfy Section 409A of the Code until the date that is six months and one day following the Participant’s termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code), if such payment or benefit is payable upon a termination of employment. Each payment of RSUs constitutes a “separate payment” for purposes of Section 409A(a)(2)(B)(i), and if any 409A of the payments upon Separation from Service set forth herein and/or under Code. Notwithstanding any other agreement with provision of this Agreement or the Company are deemed Plan to be “deferred compensation”the contrary, then to the extent delayed commencement that this RSU Agreement constitutes deferred compensation for purposes of any Section 409A of the Code, a “Change in Control” for purposes of this Agreement shall mean “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the Company’s assets,” as such payments is required terms are defined in order to avoid a prohibited distribution Section 1.409A-3(i)(5) of the Treasury Regulations. Notwithstanding the foregoing, Company does not warrant that this RSU will qualify for favorable tax treatment under Section 409A(a)(2)(B)(i) and 409A of the related adverse taxation under Section 409ACode or any other provision of federal, such payments state, local or foreign law. The Company shall not be provided liable to Executive prior to Grantee for any tax, interest, or penalties that the earliest of (i) the expiration Grantee might owe as a result of the six-month period measured from grant, holding, vesting, exercise, or payment of the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredRSUs.

Appears in 3 contracts

Samples: Restricted Share Unit Agreement (Healthstream Inc), Restricted Share Unit Agreement (Healthstream Inc), Restricted Share Unit Agreement (Healthstream Inc)

Section 409A. It is intended that all of To the extent (i) any payments payable to which Executive becomes entitled under this Agreement satisfyAgreement, to the greatest extent possibleor any agreement or plan referenced herein, the exemptions in connection with Executive’s separation from service from the application of Company constitute deferred compensation subject to Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”ii) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation such separation from Service service to be a “specified employeespecifiedfor purposes of Executive under Section 409A(a)(2)(B)(i), and if any 409A of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments payment or payment shall not be provided to Executive prior to made or commence until the earliest of (i) the expiration of the six-month six (6)-month period measured from the date of Executive’s Separation “separation from Service service” (as such term is at the time defined in Treasury Regulations under Section 409A of the Code with the Company, Company or (ii) the date of Executive’s death or following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive, including (iiiwithout limitation) such earlier date as permitted the additional twenty percent (20%) tax for which Executive would otherwise be liable under Section 409A without 409A(a)(1)(B) of the imposition Code in the absence of adverse taxationsuch deferral. Upon the first business day following the expiration of such the applicable Section 409A(a)(2)(B)(i) deferral period, all any payments deferred pursuant to which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Executive or Executive’s beneficiary in a one lump sum sum. To the extent any payments to which Executive becomes entitled under this Agreement, or any agreement or plan referenced herein, in connection with Executive’s separation from service from the Company constitute deferred compensation subject to Section 409A of the Code, the Executive and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.Company may make changes to this Agreement to avoid adverse tax consequences under Section 409A.

Appears in 3 contracts

Samples: Executive Employment Agreement (Limeade, Inc), Executive Employment Agreement (Limeade, Inc), Executive Employment Agreement (Limeade, Inc)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(41.409A1(b)(4), 1.409A1(b)(5) and 1.409A-1(b)(91.409A1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For all purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iiiRegulations Sections 1.409A2(b)(2)(i) and (iii)), Executive’s your 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 letterAgreement, if Executive is you are deemed by the Company at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, ,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the first date following expiration of the six-month period measured from following the date of Executive’s your Separation from Service with the Company, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the severance benefits are not covered by one or more exemptions from the application of Section 409A and the Release Deadline occurs in the calendar year following the calendar year of your Separation from Service, the Release will not be deemed effective any earlier than the Release Deadline for purposes of determining the timing of provision of any severance benefits.

Appears in 3 contracts

Samples: Letter Agreement (Mirati Therapeutics, Inc.), Mirati Therapeutics, Inc., Mirati Therapeutics, Inc.

Section 409A. Notwithstanding anything to the contrary in this Agreement, if the Company determines (a) that on the date the Executive’s employment with the Company terminates or at such other time that the Company determines to be relevant, the Executive is a “specified employee” (as such term is defined under Section 409A of the Internal Revenue Code) of the Company and (b) that any payments to be provided to the Executive pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code (“Section 409A Taxes”) if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date (the “ Deferred Payment Date”) that is six months after the date of the Executive’s “separation from service” (as such term is defined under Section 409A of the Code) with the Company, or such shorter period that, as determined by the Company, is sufficient to avoid the imposition of Section 409A Taxes; it being understood that any payments so delayed shall become payable in the aggregate on the Deferred Payment Date. It is intended that all the intent of the payments payable under parties that the provisions of this Agreement satisfy, to the greatest extent possible, the exemptions from the application of comply with Section 409A of the Code and the related regulations and other guidance thereunder and Department of the Treasury pronouncements. Accordingly, notwithstanding any state law of similar effect (collectivelyprovision in this Agreement to the contrary, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed interpreted, applied and to the minimum extent necessary, unilaterally amended by the Company in a manner that complies with Section 409A. For purposes its sole discretion, without the consent of Executive, as the Company deems appropriate for the Agreement to satisfy the requirements of Section 409A (including, without limitation, for purposes and to avoid the imposition 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 payment409A Taxes. Notwithstanding any provision to the contrary in this letterforegoing, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Companyliable for any taxes, (ii) the date of Executive’s death penalties, interest or (iii) such earlier date as permitted other costs that may arise under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredotherwise.

Appears in 3 contracts

Samples: Change of Control Agreement (SyntheMed, Inc.), Change of Control Agreement (SyntheMed, Inc.), Change of Control Agreement (SyntheMed, Inc.)

Section 409A. It The award of RSUs is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions be (i) exempt from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections including, but not limited to, by reason of compliance with the short-term deferral exemption as specified in Treas. Reg. § 1.409A-1(b)(4); or (ii) and 1.409A-1(b)(9)in compliance with Section 409A, and the provisions of this Agreement will be construed in a manner that complies with Section 409A. 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 andadministered, interpreted and construed accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to If the contrary in this letter, if Executive Employee is deemed identified by the Company at the time of Executive’s Separation from Service to be as a “specified employee” for purposes within the meaning of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation Code on the date on which the Employee has a “separation from Service set forth herein and/or under service” (other than due to death) within the meaning of Section 1.409A-1(h) of the Treasury Regulations, notwithstanding the provisions of Sections 2 or 3 hereof, any other agreement with transfer of shares payable on account of a separation from service that are deferred compensation shall take place on the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest earlier of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of six months from the Employee’s separation from service or (ii) such applicable earlier date as complies with the requirements of Section 409A(a)(2)(B)(i409A. To the extent required to comply with Section 409A, (i) period, all payments deferred pursuant to this paragraph the Employee shall be paid in considered to have terminated employment with the Company Group when the Employee incurs a lump sum to Executive“separation from service” with a member of the Company Group within the meaning of Section 409A(a)(2)(A)(i) of the Code, and (ii) to the extent the settlement of the RSUs constitutes non-exempt “deferred compensation” for purposes of Section 409A by reason of the occurrence of a Change in Control, such amount would not be payable or distributable to the Employee unless the circumstances giving rise to such Change in Control meets any remaining payments due description or definition of “change in control event” in Section 409A and applicable regulations. The Company makes no commitment or guarantee to the Employee that any federal or state tax treatment shall apply or be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on available to any amounts so deferredperson eligible for benefits under this Agreement.

Appears in 3 contracts

Samples: Restricted Stock Unit Agreement (Forum Energy Technologies, Inc.), Restricted Stock Unit Agreement (Forum Energy Technologies, Inc.), Restricted Stock Unit Agreement (Forum Energy Technologies, Inc.)

Section 409A. All payments and benefits under this offer letter will be subject to applicable withholding for federal, state, foreign, provincial and local taxes. All benefits provided hereunder are intended to satisfy the requirements for an exemption from application of Section 409A of the Internal Revenue Code of 1986, as amended, and the treasury regulations and other guidance thereunder and any state law of similar effect (“Section 409A”) to the maximum extent that an exemption is available and any ambiguities herein shall be interpreted accordingly; provided, however, that to the extent such an exemption is not available, the benefits provided under this offer letter are intended to comply with the requirements of Section 409A to the extent necessary to avoid adverse personal tax consequences and any ambiguities herein shall be interpreted accordingly. It is intended that all (i) each installment of the payments any benefits payable under this Agreement offer letter be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i), (ii) all payments of any such benefits satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9). However, and if the Company determines that any severance benefits payable under this Agreement will be construed in a manner that complies with Section 409A. For purposes of offer letter constitute “deferred compensation” under 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be you are a “specified employee” for purposes of the Company, as such term is defined in Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”then, then solely to the extent delayed commencement of any portion of such payments is required in order necessary to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related imposition of the adverse taxation personal tax consequences under Section 409A, (A) the timing of such severance benefit payments shall not be provided to Executive prior to delayed until the earliest earlier of (i1) the expiration date that is six months and one day after your “separation from service” within the meaning of the six-month period measured from the date of Executive’s Treasury Regulations Section 1.409A-1(h), without regard to any alternative definition thereunder (“Separation from Service with the Company, Service”) and (ii2) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(idate, the “Delayed Initial Payment Date”), and (B) period, all the Company shall (1) pay you a lump sum amount equal to the sum of the severance benefit payments deferred that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the severance benefits had not been delayed pursuant to this paragraph and (2) commence paying the balance, if any, of the severance benefits in accordance with the applicable payment schedule. In no event shall payment of any severance benefits under this offer letter be paid made prior to your Separation from Service or prior to the effective date of the Release. If the Company determines that any severance payments or benefits provided under this offer letter constitute “deferred compensation” under Section 409A, and your Separation from Service occurs at a time during the calendar year when the Release could become effective in the calendar year following the calendar year in which your Separation from Service occurs, then regardless of when the Release is returned to the Company and becomes effective, the Release will not be deemed effective, solely for purposes of the timing of payment of severance benefits under this offer letter, any earlier than the latest permitted effective date (the “Release Deadline”). If the Company determines that any severance payments or benefits provided under this offer letter constitute “deferred compensation” under Section 409A, then except to the extent that severance payments may be delayed until the Delayed Initial Payment Date pursuant to the preceding paragraph, on the first regular payroll date following the effective date of an your Release, the Company shall (1) pay you a lump sum amount equal to Executivethe sum of the severance benefit payments that you would otherwise have received through such payroll date but for the delay in payment related to the effectiveness of the Release and (2) commence paying the balance, if any, of the severance benefits in accordance with the applicable payment schedule. For the avoidance of doubt, to the extent that any reimbursements payable to you by the Company are subject to the provisions of Section 409A: (a) to be eligible to obtain reimbursement for such expenses you must submit expense reports within 45 days after the expense is incurred, (b) any such reimbursements will be paid no later than December 31 of the year following the year in which the expense was incurred, (c) the amount of expenses reimbursed in one year will not affect the amount eligible for reimbursement in any subsequent year, and any remaining payments due shall (d) the right to reimbursement under this offer letter will not be paid as otherwise provided herein subject to liquidation or in the applicable agreement. No interest shall be due on any amounts so deferredexchange for another benefit.

Appears in 3 contracts

Samples: Release Agreement (Maplebear Inc.), Release Agreement (Maplebear Inc.), Release Agreement (Maplebear Inc.)

Section 409A. If any benefit provided under this Agreement is subject to Section 409A of the Code and the regulations and other guidance thereunder or any state law of similar effect (“Section 409A”), and such benefit otherwise is payable in connection with the Employee’s termination of employment with the Company, then such benefit will not be payable unless such termination constitutes a “separation from service” (as such term is defined in Treasury Regulations Section 1.409A-1(h) without regard to any alternative definition thereunder) (“Separation from Service”). It is intended that all (i) each installment of the payments any benefit payable under this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i), and (ii) all payments of any such benefits satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, and this Agreement will be construed in a manner if the Company determines that complies with Section 409A. 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 benefit payable 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 constitutes “deferred compensation” under Section 409A and distinct payment. Notwithstanding any provision to the contrary in this letter, if Executive Employee is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of (as such term is defined in Section 409A(a)(2)(B)(i), and if any ) of the payments upon Code) as of the date of the Employee’s Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Service, then then, solely to the extent delayed commencement of any portion of such payments is required in order necessary to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related imposition of the adverse taxation personal tax consequences under Section 409A, (a) the commencement of such benefit payments shall not will be provided to Executive prior to delayed until the earliest earlier of (i1) the expiration of the six-month period measured date that is six (6) months and one (1) day after such Separation from Service and (2) the date of Executivethe Employee’s death (such applicable date, the “Delayed Initial Payment Date”), and (b) the Company will (1) pay the Employee a lump sum amount equal to the sum of any benefit payments that the Employee otherwise would have received through the Delayed Initial Payment Date if the commencement of such benefit payments had not been delayed pursuant to this paragraph and (2) commence paying the balance, if any, of such benefit in accordance with the applicable payment schedule set forth in this Agreement. In addition, if the Company determines that any benefit payable under this Agreement constitutes “deferred compensation” under Section 409A and the Employee’s Separation from Service with occurs at a time during the Company, (ii) calendar year when the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without Release could become effective in the imposition of adverse taxation. Upon the first business day calendar year following the expiration calendar year in which such Separation from Service occurs, then for purposes of such applicable Section 409A(a)(2)(B)(i) periodbenefit, the Release will not be deemed effective any earlier than the latest permitted effective date set forth therein (which date, in all payments deferred pursuant to this paragraph shall cases, will be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsubsequent calendar year).

Appears in 3 contracts

Samples: Severance Agreement (Vical Inc), Severance Agreement (Vical Inc), Severance Agreement (Vical Inc)

Section 409A. It (a) The Award is intended that all to comply with the “short-term deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4) and, to the maximum extent permitted, this Agreement shall be construed and administered consistent with such intent. Notwithstanding anything contained herein to the contrary, if the Award fails to satisfy the requirements of the payments payable short-term deferral rule and is otherwise not exempt from, and therefore deemed to be deferred compensation subject to, Section 409A, references in this Agreement (including in Section 4.1), to payment or settlement of amounts under this Agreement satisfywithin the “short-term deferral” period determined under Treasury Regulation Section 1.409A-1(b)(4), shall not apply, and instead payments will be made on the applicable payment date or a later date within the same taxable year of the Grantee, or if such timing is administratively impracticable, by the 15th day of the third calendar month following the date specified herein. For clarity, the Grantee is not permitted to designate the taxable year of payment. Notwithstanding anything contained herein to the greatest extent possiblecontrary, if the exemptions Grantee is a “specified employee” (within the meaning set forth Section 409A(a)(2)(B)(i) of the Code) as of the date of the Grantee’s “separation from service” (within the application meaning of Treasury Regulation Section 1.409A-1(h)), then the issuance of any Shares that would otherwise be made on the date of the separation from service or within the first six months thereafter will not be made on the originally scheduled dates and will instead be issued in a lump sum on the date that is six months and one day after the date of the separation from service (or upon death, if earlier), with the balance of the Shares issued thereafter in accordance with the original vesting and issuance schedule set forth above, but if and only if such delay in the issuance of the Shares is necessary to avoid the imposition of taxation in respect of the shares under Section 409A. A termination of employment or service shall not be deemed to have occurred for purposes of this Agreement providing for the payment of any amounts that are considered deferred compensation under Section 409A upon or following a termination of employment or service, unless such termination is also a “separation from service” (within the Code meaning of Treasury Regulation Section 1.409A-1(h)) and the regulations and other guidance thereunder and any state law of similar effect (collectively, payment thereof prior to a Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with separation from service” would violate Section 409A. For purposes Each installment of Section 409A (including, without limitation, Shares that becomes payable in respect of vested Restricted Stock Units subject to the Award is a “separate payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii1.409A-2(b)(2)), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) . In no event 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” liable for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of all or any portion of such payments is required in order to avoid a prohibited distribution under any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.409A.

Appears in 3 contracts

Samples: Restricted Stock Unit Agreement (Peabody Energy Corp), Restricted Stock Unit Agreement (Peabody Energy Corp), 2017 Incentive Plan (Peabody Energy Corp)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Code Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s your 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 letterAgreement, if Executive is you are deemed by the Company at the time of Executive’s your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive you prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s your Separation from Service with the Company, (ii) the date of Executive’s your death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executiveyou, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. All reimbursements and in-kind benefits provided under the Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (A) any reimbursement is for expenses incurred during your lifetime (or during a shorter period of time specified in this Agreement), (B) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (C) the reimbursement of any eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (D) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. Notwithstanding any provision to the contrary in this Agreement, to the extent any payments to you pursuant to this Agreement constitute “nonqualified deferred compensation” subject to Section 409A of the Code or are intended to be exempt from Section 409A of the Code pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii), then, to the extent required by Section 409A of the Code or to satisfy such exception, no amount shall be payable pursuant to such sections unless your termination of employment constitutes a Separation from Service.

Appears in 3 contracts

Samples: Employment Agreement (Avidity Biosciences, Inc.), Avidity Biosciences, Inc., Avidity Biosciences, Inc.

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code and of 1896, as amended (the regulations and other guidance thereunder and any state law of similar effect (collectively, Section 409ACode”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments 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. To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service” (Executive’s “Separation from Service”). The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). Notwithstanding any provision to the contrary in this letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i)) of the Code, and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) of the Code period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.

Appears in 3 contracts

Samples: Employment Agreement (Olo Inc.), Employment Agreement (Olo Inc.), Employment Agreement (Olo Inc.)

Section 409A. It This Agreement is intended that all of to comply with the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance promulgated thereunder and any state law of similar effect (collectivelytogether, "Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9"), and this Agreement will shall, to the extent practicable, be construed in accordance therewith. If any amount payable pursuant to Section 6(f) of this Agreement constitutes a manner that complies with "deferral of compensation" subject to Section 409A. For purposes 409A and if, at the date of the Employee's "separation from service," as such term is defined in Section 409A, from the Employer (his "Separation from Service"), the Employee is a "specified employee", within the meaning of Section 409A 409A, of the Employer as determined by the Employer from time to time, then each such payment that would otherwise be payable to the Employee within the six (including, 6) month period following the Employee's Separation from Service shall be delayed and paid to the Employee without limitationinterest on the first business day of the seventh month following the Employee's Separation from Service. For the avoidance of doubt, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)6(f) and this Section 10(b), Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements amount which would not be considered a "deferral of compensation" within the meaning of Section 409A by reason of Treas. Reg. Sections 1.409A-1(b)(4) or otherwise1.409A-1(b)(9) shall not be treated as considered a right to receive a series deferral of separate payments and, accordinglycompensation for which payment shall be delayed in accordance with the preceding sentence. For purposes of this Agreement, each installment payment hereunder to which the Employee may be entitled pursuant to Section 6(f), including each of the payments of Severance upon each payroll period, shall at all times be considered a separate and distinct paymentpayment within the meaning of Treas. Reg. Section 1.409A-2(b)(2). Notwithstanding any provision to the contrary in this letterforegoing, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of that this Agreement or any portion of such payments is required in order payment or benefit hereunder shall be deemed not to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under comply with Section 409A, such payments then neither the Employer, nor any of its principals, employees, designees or agents, shall not be provided to Executive prior liable to the earliest of (i) Employee or to any other person to the expiration of the six-month period measured extent such failure to comply results from the date of Executive’s Separation from Service with the Companyany actions, (ii) the date of Executive’s death decisions or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid determinations made in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredgood faith.

Appears in 3 contracts

Samples: Employment and Non Competition Agreement (CSAV Holding Corp.), Employment and Non Competition Agreement (CSAV Holding Corp.), Employment and Non Competition Agreement (CSAV Holding Corp.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(41.409A 1(b)(4), 1.409A 1(b)(5) and 1.409A-1(b)(91.409A 1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For all purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iiiRegulations Sections 1.409A 2(b)(2)(i) and (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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to (for purposes of this Agreement, “Separation from Service” means a “separation from service”, as defined under Treasury Regulation Section 1.409A-1(h))to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, ,” then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the first date following expiration of the six-month period measured from following the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.

Appears in 3 contracts

Samples: Employment Agreement (Neonc Technologies Holdings, Inc.), Employment Agreement (Neonc Technologies Holdings, Inc.), Employment Agreement (Neonc Technologies Holdings, Inc.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, Notwithstanding anything to the greatest extent possiblecontrary set forth herein, any payments and benefits provided under Section 7 above that constitute “deferred compensation” within the exemptions from the application meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”) provided under shall not commence in connection with Executive’s termination of employment unless and until Executive has also incurred a “separation from service” (as such term is defined in Treasury Regulations Sections 1.409A-1(b)(4Regulation Section 1.409A-1(h) and 1.409A-1(b)(9(“Separation From Service”), and this Agreement will unless the Company reasonably determines that such amounts may be construed in a manner that complies with provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. For Pay pursuant to Section 7 above, to the extent of payments made from the date of termination of Executive’s employment through March 15 of the calendar year following such termination, are intended to constitute separate payments for purposes of Section 409A (1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations; to the extent such payments are made following said March 15, they are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations made upon an involuntary termination of service and payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted by said provision, with any excess amount being regarded as subject to the distribution requirements of Section 409A(a)(2)(A) of the Internal Revenue Code, including, without limitation, for purposes the requirement 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(a)(2)(B)(i) 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 letterCode that, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes within the meaning of the aforesaid Section 409A(a)(2)(B)(iof the Code at the time of such termination from employment, payments be delayed until the earlier of six months after termination of employment or Executive’s death (such applicable date, the “Specified Employee Initial Payment Date”). Notwithstanding any other payment schedule set forth in herein, and if any none of the payments upon Separation from Service set forth herein and/or under any other agreement with Section 7 will be paid or otherwise delivered prior to the Company are deemed to be “deferred compensation”, then effective date of the Release and Waiver. Except to the extent that payments may be delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and until the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior Specified Employee Initial Payment Date pursuant to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Companypreceding sentence, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon on the first business regular payroll pay day following the expiration effective date of the Release and Waiver, the Company will pay Executive the payments Executive would otherwise have received under Section 7 on or prior to such applicable Section 409A(a)(2)(B)(i) perioddate but for the delay in payment related to the effectiveness of the Release and Waiver, all with the balance of the payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be being paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredoriginally scheduled.

Appears in 3 contracts

Samples: Executive Employment Agreement (Trevena Inc), Executive Employment Agreement (Trevena Inc), Executive Employment Agreement (Trevena Inc)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month and one day period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the Company determines that any severance benefits provided under this Agreement constitutes “deferred compensation” under Section 409A, for purposes of determining the schedule for payment of the severance benefits, the effective date of the Release will not be deemed to have occurred any earlier than the sixtieth (60th) date following the Separation From Service, regardless of when the Release actually becomes effective, so that if the applicable deadline for Executive to execute (and not revoke) the applicable Release spans two calendar years, payment of the applicable severance benefits shall not commence until the beginning of the second calendar year. To the extent required to avoid accelerated taxation and/or tax penalties under Code Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Code Section 409A and make no undertaking to preclude Code Section 409A from applying to any such payment.

Appears in 3 contracts

Samples: Employment Agreement (Arcturus Therapeutics Holdings Inc.), Employment Agreement (Arcturus Therapeutics Holdings Inc.), Employment Agreement (Arcturus Therapeutics Holdings Inc.)

Section 409A. It is intended The Company intends that all income realized by the Optionee pursuant to this Agreement will not be subject to taxation under Section 409A of the payments payable under Code. The provisions of this Agreement satisfyshall be interpreted and construed in favor of satisfying any applicable requirements of Section 409A of the Code. In the event that it is reasonably determined by the Committee that, as a result of Section 409A of the Code, any payment or delivery of Shares in respect of the Option may not be made at the time contemplated by the terms of this Agreement, as the case may be, without causing Optionee to be subject to taxation under Section 409A of the Code, the Company shall use reasonably commercial efforts to make such payment or delivery of Shares on the first day that would not result in the Optionee incurring any tax liability under Section 409A of the Code. If Optionee is a “specified employee” (within the meaning of Section 409A(a)(2)(B)(i) of the Code), any payment and/or delivery of Shares in respect of the Option that are linked to the greatest extent possible, date of the exemptions Optionee’s separation from service shall not be made prior to the date which is six (6) months after the date of such Optionee’s separation from service from the application of Company, determined in accordance with Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect promulgated thereunder. The Company, in its reasonable discretion, may amend (collectively, “Section 409A”including retroactively) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. For purposes order to conform to the applicable requirements of Section 409A (includingof the Code, without limitationincluding amendments to facilitate the Optionee’s ability to avoid taxation under Section 409A of the Code. However, 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) the preceding provisions shall not be treated construed 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 letter, if Executive is deemed guarantee by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and particular tax result for income realized by the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred Optionee pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredAgreement.

Appears in 3 contracts

Samples: Inducement Option Award Agreement (ProPhase Labs, Inc.), Inducement Option Award Agreement (ProPhase Labs, Inc.), Inducement Option Award Agreement (ProPhase Labs, Inc.)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and the regulations and other guidance thereunder and any state law of similar effect (collectively, “collectively "Section 409A”) "), provided under Treasury Regulations Sections 1.409A-1(b)(4l.409A-1(b)(4), 1.409A- l (b)(5) and 1.409A-1(b)(91.409A-l (b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s '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 anything herein to the contrary, to the extent any payments to Executive pursuant to this Agreement (including the Severance Benefits or Change in Control Severance Benefits) constitute “non-qualified deferred compensation” subject to Section 409A of the Code, then, to the extent required by Section 409A of the Code (including, without limitation, to secure an exemption from or to comply with Section 409A), no amount shall be payable pursuant to such sections unless Executive's termination of employment constitutes a “separation from service” with the Company (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a "Separation from Service"). Notwithstanding any provision to the contrary in this letterAgreement, if Executive is deemed by the Company at the time of Executive’s 's Separation from Service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (ia) the expiration of the six-month and one day period measured from the date of Executive’s 's Separation from Service with the Company, (iib) the date of Executive’s 's death or (iiic) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If any severance benefits provided under this Agreement constitute "non-qualified deferred compensation" under Section 409A, any such severance benefits shall not be paid, or in the case of installments shall not commence payment, until the sixtieth (60th) day following the Executive's Separation from Service (the "Initial Payment Date"), regardless of when the Release actually becomes effective (and any payments scheduled to be made prior to such Initial Payment Date shall instead accrue and be paid in a single lump sum on such Initial Payment Date) and the remaining payments shall be made as provided in this Agreement.

Appears in 3 contracts

Samples: Executive Employment Agreement (Aptose Biosciences Inc.), Executive Employment Agreement (Aptose Biosciences Inc.), Executive Employment Agreement (Aptose Biosciences Inc.)

Section 409A. Notwithstanding anything to the contrary in this Agreement, if the Company determines (a) that on the date the Executive’s employment with the Company terminates or at such other time that the Company determines to be relevant, the Executive is a “specified employee” (as such term is defined under Section 409A of the Internal Revenue Code ) of the Company and (b) that any payments to be provided to the Executive pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code (“Section 409A Taxes”) if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date (the “ Deferred Payment Date”) that is six months after the date of the Executive’s “separation from service” (as such term is defined under Section 409A of the Code) with the Company, or such shorter period that, as determined by the Company, is sufficient to avoid the imposition of Section 409A Taxes; it being understood that any payments so delayed shall become payable in the aggregate on the Deferred Payment Date. It is intended that all the intent of the payments payable under parties that the provisions of this Agreement satisfy, to the greatest extent possible, the exemptions from the application of comply with Section 409A of the Code and the related regulations and other guidance thereunder and Department of the Treasury pronouncements. Accordingly, notwithstanding any state law of similar effect (collectivelyprovision in this Agreement to the contrary, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed interpreted, applied and to the minimum extent necessary, unilaterally amended by the Company in a manner that complies with Section 409A. For purposes its sole discretion, without the consent of Executive, as the Company deems appropriate for the Agreement to satisfy the requirements 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred409A Taxes.

Appears in 3 contracts

Samples: Employment Agreement (SyntheMed, Inc.), Employment Agreement (SyntheMed, Inc.), Employment Agreement (SyntheMed, Inc.)

Section 409A. It This Agreement is intended to be written, administered, interpreted and construed in a manner such that all of no payment provided under the payments payable under this Agreement satisfy, become subject to (a) the greatest extent possible, the exemptions from the application of gross income inclusion set forth within Section 409A 409A(a)(1)(A) of the Code or (b) the interest and additional tax set forth within Section 409A(a)(1)(B) of the regulations and other guidance thereunder and any state law of similar effect Code (collectively, “Section 409A409A Penalties) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner including, where appropriate, the construction of defined terms to have meanings that complies with Section 409A. For purposes would not cause the imposition of Section 409A (includingPenalties. Notwithstanding the foregoing, without limitation, no particular tax result for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right Employee with respect to receive any installment payments under income recognized by Employee in connection with 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 paymentis guaranteed. Notwithstanding any provision anything to the contrary in this letterAgreement, with respect to any amounts payable to Employee under this Agreement in connection with a termination of Employee’s service with the Company that would be considered “non-qualified deferred compensation” under Section 409A of the Code, in no event shall a termination of service be considered to have occurred under this Agreement unless such termination constitutes Employee’s “Separation from Service” with the Company. Notwithstanding anything to the contrary in this Agreement, to the maximum extent permitted by applicable law, amounts payable to Employee pursuant to this Agreement shall be made in reliance upon Treasury Regulation Section 1.409A-1(b)(4) (relating to short-term deferrals). However, to the extent any such payments are treated as “non-qualified deferred compensation” subject to Section 409A of the Code, and if Executive Employee is deemed by the Company at the time of Executive’s his Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such payments payment to which Employee is entitled under this Agreement is required in order to avoid a prohibited distribution payment under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments payment shall not be provided made to Executive Employee prior to the earliest earlier of (iA) the expiration of the six-month period measured from the date of ExecutiveEmployee’s Separation from Service with the Company, or (iiB) the date of ExecutiveEmployee’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i) perioddates, all payments such payment deferred pursuant to this paragraph Section 3 shall be paid in a lump sum to ExecutiveEmployee (or to Employee’s estate). The determination of whether Employee is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his Separation from Service shall be made by the Company in accordance with the terms of Section 409A of the Code, and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsuccessor provision thereto).

Appears in 3 contracts

Samples: Severance Agreement (Southcross Energy Partners, L.P.), Severance Agreement (Southcross Energy Partners, L.P.), Severance Agreement (Southcross Energy Partners, L.P.)

Section 409A. It is intended Notwithstanding anything in this Agreement to the contrary, to the extent: (a) that all of any payment to which the payments payable Executive becomes entitled under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)any payments made pursuant to this Clause), or any agreement or plan referenced herein, in connection with the Executive’s right termination of employment with the Company constitutes deferred compensation subject to receive any installment payments under this Agreement Section 409A of the Code; and (whether severance payments, reimbursements or otherwiseb) 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service such termination of employment to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Code Section 409A, such payments payment shall not be provided to Executive prior to made or commence until the earliest of of: (i) the expiration of the six-six (6) month period measured from the date of the Executive’s Separation “separation from Service service” (as such term is at the time defined in Treasury Regulations under Code Section 409A) with the Company; (ii) the date the Executive becomes “disabled” (as defined in Code Section 409A); or (iii) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected if and to the extent required to avoid adverse tax treatment to the Executive, including, without limitation, those imposed under Code Section 409A(a)(1)(B) in the absence of such deferral; provided, however, that if the Company reasonably and in good faith determines, based upon and in accordance with advice from its outside counsel or tax advisors, that a deferral pursuant to this sentence is necessary, the Executive agrees that the Company will not be liable to the Executive for any damages to the Executive arising from such deferral of such payment. Upon the expiration of the deferral period, any payments that would have otherwise been made during that period (whether in a single sum or in installments) shall be paid in a single cash lump sum payment to the Executive (or his beneficiary, as applicable). With regard to any provision that provides for reimbursement of costs and expenses or of in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the date amount of Executive’s death expenses eligible for reimbursement or in-kind benefits to be provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such earlier date payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense occurred. Each amount to be paid or benefit to be provided to the Executive shall be construed as permitted under a “separate identified payment” for purposes of Code Section 409A without to the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredfullest extent permitted therein.

Appears in 3 contracts

Samples: Employment Agreement (Rite Aid Corp), Employment Agreement (Rite Aid Corp), Employment Agreement (Rite Aid Corp)

Section 409A. If any benefit provided under this Agreement is subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder or any state law of similar effect (“Section 409A”), and such benefit otherwise is payable in connection with Employee’s termination of employment with the Company, then such benefit will not be payable unless such termination constitutes a “separation from service” (as such term is defined in Treasury Regulations Section 1.409A-1(h) without regard to any alternative definition thereunder) (“Separation from Service”). It is intended that all (i) each installment of the payments any benefit payable under this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i), and (ii) all payments of any such benefits satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, and this Agreement will be construed in a manner if the Company determines that complies with Section 409A. 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 benefit payable 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 constitutes “deferred compensation” under Section 409A and distinct payment. Notwithstanding any provision to the contrary in this letter, if Executive Employee is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of (as such term is defined in Section 409A(a)(2)(B)(i), and if any ) of the payments upon Code) as of the date of Employee’s Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Service, then then, solely to the extent delayed commencement of any portion of such payments is required in order necessary to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related imposition of the adverse taxation personal tax consequences under Section 409A, (a) the commencement of such benefit payments shall not will be provided to Executive prior to delayed until the earliest earlier of (i1) the expiration of the six-month period measured date that is six (6) months and one (1) day after such Separation from Service and (2) the date of ExecutiveEmployee’s death (such applicable date, the “Delayed Initial Payment Date”), and (b) the Company will (1) pay Employee a lump sum amount equal to the sum of any benefit payments that Employee otherwise would have received through the Delayed Initial Payment Date if the commencement of such benefit payments had not been delayed pursuant to this paragraph and (2) commence paying the balance, if any, of such benefit in accordance with the applicable payment schedule set forth in this Agreement. In addition, if the Company determines that any benefit payable under this Agreement constitutes “deferred compensation” under Section 409A and Employee’s Separation from Service with occurs at a time during the Company, (ii) calendar year when the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without Release could become effective in the imposition of adverse taxation. Upon the first business day calendar year following the expiration calendar year in which such Separation from Service occurs, then for purposes of such applicable Section 409A(a)(2)(B)(i) periodbenefit, the Release will not be deemed effective any earlier than the latest permitted effective date set forth therein (which date, in all payments deferred pursuant to this paragraph shall cases, will be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsubsequent calendar year).

Appears in 3 contracts

Samples: Management Continuity and Severance Agreement (Dynavax Technologies Corp), Management Continuity and Severance Agreement (Dynavax Technologies Corp), Management Continuity and Severance Agreement (Dynavax Technologies Corp)

Section 409A. It is intended that all The intent of the Parties is that payments and benefits under this Agreement comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), to the extent subject thereto, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. For purposes of this Agreement, all references to ''termination of employment” and correlative phrases shall be construed to require a “separation from service” (as defined in Treas. Reg. §1.409A-l(h) after giving effect to the presumptions contained therein), and the term “specified employee” means an individual determined by the Company to be a specified employee under Treas. Reg. § 1.409A-l(i). If the termination giving rise to the payments described in Section 8.1 is not a “separation from service”, then the amounts otherwise payable pursuant to that section will instead be deferred without interest and will not be paid until Executive experiences a “separation from service”. If at the time of the Executive's termination of employment, the Executive is a “specified employee,” as defined below, any and all amounts payable under Section 8 on account of such separation from service that constitute deferred compensation and would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6) month period or, if earlier, upon the Executive's death; except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treas. Reg.§ l.409A-l(b) (including without limitation by reason of the safe harbor set forth in Treas. Reg. § 1.409A- l(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (B) benefits that qualify as excepted welfare benefits pursuant to Treas. Reg.§ 1.409A-l(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A. To the maximum extent permitted under Section 409A of the Code and its corresponding regulations, the cash severance benefits payable under this Agreement satisfy, are intended to meet the greatest extent possible, requirements of the exemptions from the application of short-term deferral exemption under Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, Section 409A”) provided separation pay exception” under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9Treas. Reg.§ l.409A-l(b)(9)(iii), and this Agreement will be construed in a manner that complies with Section 409A. . For purposes of the application of Treas. Reg. § l .409A-l(b)(4) (or any successor provision), each payment in a series of payments will be deemed a separate payment. To the extent required to avoid an accelerated or additional tax under Section 409A (includingof the Code, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right amounts reimbursable to receive any installment payments the Executive 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 letter, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid to the Executive on or before the last day of the year following the year in a lump sum which the expense was incurred and the amount of expenses eligible for reimbursement (and in kind benefits provided to the Executive, and ) during one year may not affect amounts reimbursable or provided in any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsubsequent year.

Appears in 2 contracts

Samples: Employment Agreement (Teligent, Inc.), Employment Agreement (Teligent, Inc.)

Section 409A. It is intended that all of the payments payable under this Agreement satisfy, 30.1 Notwithstanding anything herein to the greatest extent possible, the exemptions from the application of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A. 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 lettercontrary, if the Executive is deemed by the Company at the time of Executive’s Separation from Service his termination of employment with the Company to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement of any portion of such payments the termination benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments portion of Executive’s termination benefits shall not be provided to Executive prior to the earliest of earlier of: (i) the expiration of the six-month period measured from the date of the Executive’s Separation from Service with the Company, ; or (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i) perioddates, all payments deferred pursuant to this paragraph Section 30.1 shall be paid in a lump sum to the Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein herein. The determination of whether the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treas. Reg. Section 1.409A-1(i) and any successor provision thereto). Notwithstanding the foregoing or in any other provisions of this Agreement, the applicable agreement. No interest Company and Executive agree that, for purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement shall be due on any amounts so deferredtreated as a right to receive a series separate and distinct payments of compensation for purposes of applying the Section 409A of the Code.

Appears in 2 contracts

Samples: Employment Agreement (Entercom Communications Corp), Employment Agreement (Audacy, Inc.)

Section 409A. It is intended that all of Notwithstanding anything herein to the payments payable under this Agreement satisfycontrary, to the greatest maximum extent possiblepermitted by applicable law, the exemptions compensation to be paid to the Grantee pursuant to this Agreement is intended to qualify as a “short-term deferral” pursuant to Section 1.409A-1(b)(4) of the Regulations or to otherwise be exempt from the application scope of “deferred compensation” under Section 409A of the Code and as restricted property governed by Section 83 of the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)Code, and this Agreement will shall be construed interpreted consistently therewith. However, to the extent the payment of any compensation hereunder in connection with the Grantee’s termination of employment does not qualify for an exception from treatment as “deferred compensation” subject to Section 409A of the Code, then (a) such amount shall not be payable unless Grantee’s termination of employment constitutes a manner that complies with Section 409A. For purposes “separation from service” within the meaning of Section 409A 1.409A-1(h) of the Regulations and (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 otherwiseb) 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 letter, if Executive Grantee is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” at such time for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”Code, then to the extent delayed commencement payment of any portion of such payments the Restricted Units or shares of Common Stock to which Grantee is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and of the related adverse taxation under Section 409ACode, such payments portion of the Restricted Units or shares of Common Stock shall not be provided paid to Executive Grantee prior to the earliest earlier of (ix) the expiration of the six-month six (6)-month period measured from the date of Executivethe Grantee’s Separation “separation from Service service” with the Company, Company or (iiy) the date of ExecutiveXxxxxxx’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxationdeath. Upon the first business day following the expiration earlier of such applicable Section 409A(a)(2)(B)(i) perioddates, settlement of all payments deferred Restricted Units shall occur as otherwise provided in this Agreement. In the event compensation payable pursuant to this paragraph Agreement is otherwise determined to constitute “deferred compensation” within the meaning of Section 409A of the Code, this Agreement shall be paid in a lump sum to Executive, interpreted and any remaining payments due shall be paid as otherwise provided herein or in administered consistently with the applicable agreement. No interest shall be due on any amounts so deferredterms thereof.

Appears in 2 contracts

Samples: Restricted Share Unit Award Agreement (Pinnacle Financial Partners Inc), Restricted Share Unit Award Agreement (Pinnacle Financial Partners Inc)

Section 409A. It is intended that all Any Severance Benefits under Section 6 of the payments payable under this Agreement satisfy, are intended to the greatest extent possible, the exemptions qualify as an involuntary separation pay arrangement that is exempt from the application of Section 409A of the Code and because all Severance Benefits are treated as paid on account of an involuntary separation (including a voluntary separation for Good Reason). If any portion of the regulations and other guidance thereunder and any state law Severance Benefits in this Section 6 is subject to Section 409A of similar effect (collectivelythe Code, “Section 409A”) notwithstanding anything to the contrary in this Agreement, the payment of such severance shall be delayed until the first day of the seventh month following Executive’s termination, but only to the extent that such payment exceeds the applicable dollar limits provided under 409A of the Code or the Treasury Regulations Sections 1.409A-1(b)(4promulgated thereunder. To the extent any payments or benefits pursuant to this Section 7 (a) and 1.409A-1(b)(9)are paid from the date of termination of Executive’s employment through March 15 of the calendar year following such termination, and this Agreement will be construed in a manner that complies with Section 409A. For such Severance Benefits are intended to constitute separate payments for purposes of Section 409A 1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations; (b) are paid following said March 15, such Severance Benefits are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations made upon an involuntary separation from service and payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted by said provision, and (c) are in excess of the amounts specified in clauses (a) and (b) of this paragraph, shall (unless otherwise exempt under Treasury Regulations) be considered separate payments subject to the distribution requirements of Section 409A(a)(2)(A) of the Code, including, without limitation, for purposes the requirement of Treasury Regulation Section 1.409A-2(b)(2)(iii)), 409A(a)(2)(B)(i) of the Code that payments or benefits be delayed until the first day of the seventh month after 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 letter, separation from service if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any within the meaning of the payments upon Separation aforesaid section of the Code at the time of such separation from Service set forth herein and/or under any other agreement with service. In the Company are deemed to be “deferred compensation”, then to the extent delayed commencement event that a six month delay of any portion of such payments Severance Benefits is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and required, on the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to first regularly scheduled pay date following the earliest of (i) the expiration conclusion of the six-month delay period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph Executive shall be paid in receive a lump sum payment or benefit in an amount equal to Executivethe Severance Benefits that were so delayed, and any remaining payments due Severance Benefits shall be paid on the same basis and at the same time as otherwise provided herein or in the specified pursuant to this Agreement (subject to applicable agreement. No interest shall be due on any amounts so deferredtax withholdings and deductions).

Appears in 2 contracts

Samples: Employment Agreement (Irvine Sensors Corp/De/), Employment Agreement (Irvine Sensors Corp/De/)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.)

Appears in 2 contracts

Samples: Employment Agreement (DigitalOcean Holdings, Inc.), Employment Agreement (DigitalOcean Holdings, Inc.)

Section 409A. It is intended that all Digimarc makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to Digimarc or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against Digimarc and its affiliates with respect to any such tax, economic or legal consequences. However, the parties intend that this Agreement and the payments payable and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any provision of this Agreement to the contrary, with respect to any payments and benefits under this Agreement satisfyto which Code Section 409A applies, all references in this Agreement to the greatest extent possible, termination of Executive's employment are intended to mean Executive's "separation from service," within the exemptions from the application meaning of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9409A(a)(2)(A)(i), and this Agreement will be construed in a manner that complies with Section 409A. 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 letterIn addition, if Executive is deemed by a "specified employee," within the Company meaning of Code Section 409A(a)(2)(B)(i), at the time of Executive’s Separation his "separation from Service to be a “specified employee” for purposes service," within the meaning of Code Section 409A(a)(2)(B)(i409A(a)(2)(A)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement necessary to avoid subjecting Executive to the imposition of any portion of such payments is required in order to avoid a prohibited distribution additional tax under Section 409A(a)(2)(B)(i) and the related adverse taxation under Code Section 409A, such payments shall not amounts that would otherwise be provided to Executive prior to the earliest of (i) the expiration of payable under this Agreement during the six-month period measured immediately following Executive's "separation from service," shall not be paid to Executive during such period, but shall instead be accumulated and paid to Executive (or, in the date event of Executive’s Separation from Service with the Company's death, (iiExecutive's estate) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon in a lump sum on the first business day following the expiration date that is six months after Executive's separation from service. Moreover, the parties intend that this Agreement be deemed to be amended to the extent necessary to comply with the requirements of such applicable Code Section 409A(a)(2)(B)(i) period409A and to avoid or mitigate the imposition of additional taxes under Code Section 409A, all payments deferred pursuant while preserving to this paragraph shall be paid in a lump sum to the maximum extent possible the essential economics of Executive, and any remaining payments due shall be paid as otherwise provided herein or in 's rights under the applicable agreement. No interest shall be due on any amounts so deferredAgreement.

Appears in 2 contracts

Samples: Employment Agreement (Digimarc CORP), Employment Agreement (Digimarc CORP)

Section 409A. It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”) provided under Treasury Regulations 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, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code 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 letterAgreement, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month and one day period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.the

Appears in 2 contracts

Samples: Amir Dan Rubin (1Life Healthcare Inc), Amir Dan Rubin (1Life Healthcare Inc)

Section 409A. It is intended that all Notwithstanding any provision in this Agreement to the contrary, no amounts shall be payable pursuant to Section 2.3(a) or Section 4.1(a) unless the Executive’s termination of employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the payments Department of Treasury Regulations. If the Executive is determined to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended, and the rules and regulations issued thereunder (the “Code”), then any amount that becomes payable under this Agreement satisfy, Sections 2.3(a)(i) or 4.1(a) hereof (the “Severance Payment”) on account of the Executive’s “separation from service” shall not be paid to the greatest extent possibleExecutive until the first business day following the expiration of the six (6) month period immediately following the Executive’s “separation from service” (or if earlier, the exemptions from date of the application of Executive’s death) if and to the extent that the Severance Payment constitutes deferred compensation (or may be nonqualified deferred compensation, as mutually agreed by the Corporation and the Executive, such agreement not to be unreasonably withheld or delayed by the Executive) under Section 409A of the Code and such deferral is required to comply with the regulations requirements of Section 409A of the Code. For the avoidance of doubt, no portion of the Severance Payment shall be delayed for six (6) months after the Executive’s “separation from service” if such portion (x) constitutes a “short term deferral” within the meaning of Section 1.409A-1(a)(4) of the Department of Treasury Regulations, or (y) (A) it is being paid due to the Corporation’s termination of the Executive’s employment without Cause or the Executive’s termination of employment for Good Reason; (B) it does not exceed two times the lesser of (1) the Executive’s annualized compensation from the Corporation for the calendar year prior to the calendar year in which the termination of the Executive’s employment occurs, or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the Executive’s employment terminates; and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”C) provided the payment is required under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will to be construed paid no later than the last day of the second calendar year following the calendar year in which the Executive incurs a manner that complies with Section 409A. “separation from service”. For purposes of Section 409A (includingof the Code, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), the Executive’s right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwisepursuant to Section 2.3(a) 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 To the extent that any provision reimbursement of any expense under Section 1.4(e) or in-kind benefits provided under this Agreement are deemed to constitute taxable compensation to the contrary Executive, such amounts will be reimbursed or provided no later than December 31 of the year following the year in this letterwhich the expense was incurred. The amount of any such expenses reimbursed or in-kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, if and the Executive’s right to such reimbursement or payment of any such expenses will not be subject to liquidation or exchange for any other benefit. The determination of whether the Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any ) of the payments upon Separation Code as of the time of the Executive’s separation from Service set forth herein and/or under any other agreement service shall made by the Corporation in accordance with the Company are deemed to be “deferred compensation”, then to terms of Section 409A of the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 409A(a)(2)(B)(i1.409A-1(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferredsuccessor provision thereto).

Appears in 2 contracts

Samples: Employment Agreement (Polo Ralph Lauren Corp), Employment Agreement (Ralph Lauren Corp)

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