Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A. 5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4. 5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date. 5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 9 contracts
Sources: Change in Control and Severance Agreement (Nautilus Biotechnology, Inc.), Change in Control and Severance Agreement (Nautilus Biotechnology, Inc.), Change in Control and Severance Agreement (Nautilus Biotechnology, Inc.)
Section 409A. The Company intends It is intended that all of the payments and benefits provided payable under this Agreement or otherwise are exempt fromsatisfy, or comply withto the greatest extent possible, the requirements exemptions from the application of Section 409A so that none of the payments or benefits will be subject to Code and the additional tax imposed under 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 any ambiguities and ambiguous terms in this Agreement will be interpreted construed in accordance a manner that complies with this intent. No 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 or benefits to be provided to Executive, if any, under this Agreement (whether severance payments, reimbursements or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will shall be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made treated as a result right to receive a series of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunderseparate payments and, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provisions provision to the contrary in this Agreementletter, if Executive is a “specified employee” within deemed by the meaning of Section 409A Company at the time of Executive’s separation Separation from service (other than due Service to deathbe a “specified employee” for purposes of Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth under any agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments or benefits is required in order to avoid a prohibited distribution under this Agreement that constitute Deferred Payments payable within Section 409A(a)(2)(B)(i) and the first six (6) months after Executive’s separation from service instead will related adverse taxation under Section 409A, such payments shall not be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after prior to the earliest of (i) the expiration of the six-month period measured from the date of Executive’s death. To Separation from Service with the extent that Executive is not a specified employee but Company, (ii) the date of Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments death or benefits (iii) such earlier date as permitted under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and Section 409A without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of adverse taxation. Upon the additional tax imposed under first business day following the expiration of such applicable Section 409A or 409A(a)(2)(B)(i) period, all payments deferred pursuant to otherwise avoid income recognition under Section 409A prior this paragraph shall be paid in a lump sum to the actual payment of any benefits or imposition of any additional tax. Each payment, installmentExecutive, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2)any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. In no event will Executive have No interest shall be due on any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.amounts so deferred.
Appears in 9 contracts
Sources: Employment Agreement (CS Disco, Inc.), Employment Agreement (CS Disco, Inc.), Employment Agreement (CS Disco, Inc.)
Section 409A. (a) The Company intends parties intend that all this Agreement and the payments and benefits provided under this Agreement or otherwise are hereunder be exempt from, or comply with, from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A so is applicable to this Agreement, the parties intend that none this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the payments or benefits will be subject foregoing, and notwithstanding any other provision of this Agreement to the additional tax imposed contrary:
(i) if the Executive is deemed on the date of termination to be a "specified employee" within the meaning of that term under Section 409A, then with regard to any payment that is considered a "deferral of compensation" under Section 409A payable on account of a "separation from service," such payment shall be made on the date which is the earlier of (A) the date that is six months and any ambiguities one day after the date of such "separation from service" of the Executive and ambiguous terms (B) the date of the Executive's death (the "Delay Period"), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 13(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement will shall be interpreted paid or provided in accordance with this intent. No the normal payment dates specified for those payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within ;
(ii) to the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then extent that any payments or benefits under this Agreement that constitute Deferred Payments payable are conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the first six (6specified 60-day post-termination period, then, subject to Section 13(b)(i) months after Executive’s separation from service instead will and to the extent not exempt under Section 409A, such payments or benefits shall be payable made or commence on the first payroll date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Qualifying Termination occursExecutive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, then and the Executive's right to reimbursement shall not be subject to liquidation or exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive's right to receive a series of installment payments or benefits pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within 30 days"), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitute Deferred Payments that otherwise would constitutes a "deferral of compensation" for purposes of Section 409A be payable prior offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the Release Deadline Date instead will extent required for purposes of compliance with Section 409A, termination of employment shall not be paid on the Release Deadline Date.
5.4.3. The Company reserves the right deemed to amend have occurred for purposes of any provision of this Agreement as it considers necessary or advisable, in its sole discretion and without providing for the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any amounts or benefits upon or imposition following a termination of any additional tax. Each payment, installmentemployment unless such termination is also a "separation from service" within the meaning of Section 409A, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service."
(c) The Company and the Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that may be necessary, appropriate, or desirable to avoid imposition of additional tax or income recognition on the Executive under Section 409A, in each case to the maximum extent permitted by applicable law. In Notwithstanding any provision of this Agreement to the contrary, (i) in no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive be liable for any taxesadditional tax, penalties interest or interest penalty that may be imposedimposed on the Executive by Section 409A or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Company or any of its employees, officers, directors or other costs agents in the event it is determined that may be incurred, as a result of any payment or benefit provided hereunder does not comply with Section 409A.
Appears in 9 contracts
Sources: Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
Section 409A. The Company intends (a) It is intended that all each installment of the payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to ExecutiveAgreement, if any, is a separate “payment” for purposes of Section 409A and the payments satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(9)(iii) and 1.409A-1(b)(9)(v). Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered providing for the payment of “deferred compensation under compensation” (as such term is defined in Section 409A (together, and the “Deferred Payments”Treasury Regulations promulgated thereunder) will be paid upon or otherwise provided until Executive has following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Section 409A. To 409A and Section 1.409A-1(h) of the extent required to be exempt from or comply with Section 409ATreasury Regulations and, for purposes of any such provision of this Agreement, references to the a “separation,” “termination,” “termination of Executive’s employment employment” or similar phrases used in this Agreement will like terms shall mean Executive’s “separation from service” within the meaning of Section 409A..”
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii(b) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions anything to the contrary in this Agreement, if the Company determines (i) that on the date his employment with the Company terminates or at such other time that the Company determines to be relevant, Executive is a “specified employee” (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of the Company and (ii) that any payments to be provided to him pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) or any other taxes or penalties imposed under Section 409A 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 his “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) with the Company, or, if earlier, the date of his death. Any payments delayed pursuant to this Section shall be made in a lump sum on the first business day of the seventh month following Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)), or, if earlier, the date of his death.
(c) In addition, to the extent that any reimbursement, fringe benefit or other, similar plan or arrangement in which Executive participates during the term of his employment under this Agreement or thereafter provides for a “deferral of compensation” within the meaning of Section 409A at 409A, then such amount shall be reimbursed in accordance with Section 1.409A-3(i)(1)(iv) of the Treasury Regulations, including (i) the amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), (ii) subject to any shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (iii) the right to any reimbursement or in-kind benefit is not subject to liquidation or exchange for another benefit.
(d) For the avoidance of doubt, any payment due under this Agreement within a period following Executive’s separation from service termination of employment or other event, shall be made on a date during such period as determined by the Company in its sole discretion.
(e) Notwithstanding any other than due provision to death)the contrary, then in no event shall any payments or benefits payment under this Agreement that constitute Deferred Payments payable within constitutes “deferred compensation” for purposes of Section 409A and the first six (6) months after Executive’s separation from service instead will Treasury Regulations promulgated thereunder be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed subject to offset by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under amount unless otherwise permitted by Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this 409A.
(f) This Agreement is intended to constitute a separate payment for purposes of comply with the applicable requirements under Section 409A and the related Treasury Regulations Section 1.409A-2(b)(2and guidance issued by the Department of the Treasury, as modified from time to time, including exceptions and exemptions provided for therein (the “409A Requirements”). In no event will Executive have Accordingly, this Agreement shall be administered, construed and interpreted in a manner to comply with the 409A Requirements. Specifically, and without limiting the foregoing, if any discretion terms set forth in this Agreement are considered to choose Executive’s taxable year be ambiguous, such terms shall be administered, construed and interpreted in which any payments or benefits are provided under this Agreement. In no event will a manner to comply with the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.409A Requirements.
Appears in 9 contracts
Sources: Executive Employment Agreement (Delek US Holdings, Inc.), Executive Employment Agreement (Delek US Holdings, Inc.), Executive Employment Agreement (Delek US Holdings, Inc.)
Section 409A. The Company intends that (a) This Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full (to extent not paid in part at earlier date) at the earliest time thereafter when such sanctions will not be imposed. For purposes of section 409A of the Code, all payments and benefits provided to be made upon a termination of employment under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will may only be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean made upon Executive’s “separation from service” (within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided such term under section 409A of the Code), each payment made under this Agreement that satisfy shall be treated as a separate payment, and the requirements right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2Code. Notwithstanding any provisions provision of this Agreement to the contrary contrary, in this Agreementno event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(b) Notwithstanding anything herein to the contrary, if, at the time of Executive’s termination of employment with the Company, the Company has securities which are publicly traded on an established securities market and Executive is a “specified employee” (as such term is defined in section 409A of the Code) and it is necessary to postpone the commencement of any payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax under section 409A of the Code, then the Company will postpone 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 Executive) that are not otherwise paid within the meaning ‘short-term deferral exception’ under Treas. Reg. §1.409A-1(b)(4), and the ‘separation pay exception’ under Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Executive’s “separation from service” (as such term is defined under section 409A of Section 409A at the time of Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts shall be paid in a lump sum to Executive on the first payroll date that occurs after the date that is six months following Executive’s separation from service (other than due with the Company. If Executive dies during the postponement period prior to death)the payment of postponed amount, then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will amounts postponed on account of section 409A of the Code shall be payable on paid to the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event personal representative of Executive’s death estate within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable 60 days after the date of Executive’s death. To .
(c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the extent requirements of section 409A of the Code, including, where applicable, the requirement that Executive is not a specified employee but (A) any reimbursement shall be for expenses incurred during Executive’s Qualifying Termination occurs at lifetime (or during a shorter period of time specified in this Agreement), (B) 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, (C) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves expense is incurred and (D) the right to amend this Agreement as it considers necessary reimbursement or advisable, in its sole discretion and without the consent of Executive kind benefits is not subject to liquidation or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment exchange for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.another benefit.
Appears in 9 contracts
Sources: Employment Agreement (Auxilium Pharmaceuticals Inc), Employment Agreement (Auxilium Pharmaceuticals Inc), Employment Agreement (Auxilium Pharmaceuticals Inc)
Section 409A. The Company intends and the Executive intend that the payments and benefits provided for in this Agreement either be exempt from Section 409A of the Code, or be provided in a manner that complies with Section 409A of the Code, and any ambiguity herein shall be interpreted so as to be consistent with the intent of this Section 9.6. Notwithstanding anything contained herein to the contrary, all payments and benefits provided under Section 5.3 of this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will shall be paid or otherwise provided until Executive has only at the time of a termination of the Executive’s employment that constitutes a “separation from service” from the Company within the meaning of Section 409A. To 409A of the extent required to be exempt from or comply Code and the regulations and guidance promulgated thereunder (determined after applying the presumptions set forth in Treas. Reg. Section 1.409A-1(h)(1)). Further, if at the time of the Executive’s termination of employment with the Company, the Executive is a “specified employee” as defined in Section 409A of the Code as determined by the Company in accordance with Section 409A409A of the Code, references to and the termination deferral of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning commencement of Section 409A.
5.4.1. Any any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made otherwise payable hereunder as a result of an involuntary separation from service such termination of employment is necessary in order to prevent any accelerated or additional tax under Treasury Regulations Section 1.409A-1(b)(9)(iii409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in payments or benefits ultimately paid or provided to the Executive) until the date that is within at least six (6) months following the limit set forth thereunderExecutive’s termination of employment with the Company (or the earliest date permitted under Section 409A of the Code), whereupon the Company will not constitute Deferred Payments for purposes of pay the Executive a lump-sum amount equal to the cumulative amounts that would have otherwise been previously paid to the Executive under this Section 5.4.
5.4.2Agreement during the period in which such payments or benefits were deferred. Thereafter, payments will resume in accordance with this Agreement. Notwithstanding any provisions anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or in-kind benefits and reimbursements provided under this Agreement that constitute Deferred Payments payable within during any calendar year shall not affect in-kind benefits or reimbursements to be provided in any other calendar year, other than an arrangement providing for the first six (6reimbursement of medical expenses referred to in Section 105(b) months after Executive’s separation from service instead will of the Code, and are not subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary in this Agreement, reimbursement requests must be payable on timely submitted by the date six (6) months and one (1) day after Executive’s separation from service; provided that Executive and, if timely submitted, reimbursement payments shall be promptly made to the Executive following such submission, but in no event later than December 31st of the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the calendar year whereby the Release Deadline Date will occur in the year immediately following the calendar year in which the Qualifying Termination occursexpense was incurred. In no event shall the Executive be entitled to any reimbursement payments after December 31st of the calendar year following the calendar year in which the expense was incurred. This paragraph shall only apply to in-kind benefits and reimbursements that would result in taxable compensation income to the Executive. Additionally, then in the event that following the date hereof the Company or the Executive reasonably determines that any payments compensation or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is may be subject to Section 409A of the Code, the Company and the Executive shall work together to adopt such amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effect), or take any other commercially reasonable actions necessary or appropriate to (x) exempt the 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 constitute a separate payment for purposes this Agreement or (y) comply with the requirements of Section 409A of the Code and related Department of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.guidance.
Appears in 8 contracts
Sources: Employment Agreement (Safeway Stores 42, Inc.), Employment Agreement (Safeway Stores 42, Inc.), Employment Agreement (Safeway Stores 42, Inc.)
Section 409A. The Company intends that all payments (a) This Agreement is intended to comply with Section 409A of the Code, and benefits provided will be interpreted accordingly. References under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will Executive’s termination of employment shall be interpreted in accordance with this intent. No payments or benefits deemed to be provided refer to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until date upon which the Executive has experienced a “separation from service” within the meaning of Section 409A. To 409A of the extent required to be exempt from or comply with Section 409A, references Code.
(b) Notwithstanding anything herein to the termination contrary, (i) if at the time of the Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within with the limit set forth thereunderCompany, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” as defined in Section 409A of the Code (and any related regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder or payable under any other compensatory arrangement between the Executive and the Company, or any of its affiliates as a result of such separation from service is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six (6) months following the Executive’s separation from service (or the earliest date as is permitted under Section 409A of the Code), at which point all payments deferred pursuant to this Section shall be paid to the Executive in a lump sum and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner that does not cause such an accelerated or additional tax. Any payments deferred pursuant to the preceding sentence shall be paid together with interest thereon at a rate equal to the applicable Federal rate for short-term instruments.
(c) To the extent any reimbursements or in-kind benefits due to the Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to the Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that the Executive’s receipt of any in-kind benefits from the Company or its affiliates must be delayed pursuant to this Section due to the Executive’s status as a “specified employee”, the Executive may elect to instead purchase and receive such benefits during the period in which the provision of benefits would otherwise be delayed by paying the Company (or its affiliates) for the fair market value of such benefits (as determined by the Company in good faith) during such period. Any amounts paid by the Executive pursuant to the preceding sentence shall be reimbursed to the Executive (with interest thereon) as described above on the date that is six (6) months following the Executive’s separation from service.
(d) Each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Section 409A at of the time Code.
(e) The Company shall consult with the Executive in good faith regarding the implementation of Executive’s separation from service the provisions of this Section. Without limiting the generality of the foregoing, the Executive shall notify the Company if the Executive believes that any provision of this Agreement (other than due or of any award of compensation, including equity compensation, or benefits) would cause the Executive to death)incur any additional tax under Section 409A of the Code and, if the Company concurs with such belief after good faith review or the Company independently makes such determination, then the Company shall, after consulting with the Executive, use reasonable best efforts to reform such provision to comply with Section 409A of the Code through good faith modifications to the minimum extent reasonably appropriate to conform with Section 409A of the Code.
(f) Any amount that the Executive is entitled to be reimbursed for any payments or benefits business-related expenses borne by the Executive under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on reimbursed to the date six Executive as promptly as practicable and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. The amount of expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.
(6g) months and one Whenever a payment under this Agreement specifies a payment period with reference to a number of days (1e.g., “payment shall be made within thirty (30) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the Executive’s death. termination of employment in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made on a monthly basis.
(i) To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any severance payments or benefits under pursuant to this Agreement that constitute Deferred Payments that otherwise would be payable prior to are conditioned upon the Release Deadline Date instead will be paid on execution and delivery by the Release Deadline Date.
5.4.3. The Company reserves Executive of a separation agreement and general release (and the right to amend this Agreement as it considers necessary or advisable, expiration of any revocation rights provided therein) which could become effective in its sole discretion and without the consent one of Executive or any other individual, to comply with any provision required to avoid the imposition two (2) taxable years of the additional tax imposed under Executive depending on when the Executive executes and delivers such separation agreement and general release, any deferred compensation payment (which is subject to Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group Code) that is conditioned on execution of the separation agreement and general release shall be made within ten (10) days after the separation agreement and general release becomes effective and such revocation rights have any responsibilitylapsed, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result but not earlier than the first business day of Section 409A.the later of such taxable years.
Appears in 8 contracts
Sources: Employment Agreement (News Corp), Employment Agreement (News Corp), Employment Agreement (News Corp)
Section 409A. (a) The Company intends parties intend that all this Agreement and the payments and benefits provided under this Agreement or otherwise are hereunder be exempt from, or comply with, from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A so is applicable to this Agreement, the parties intend that none this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the payments or benefits will be subject foregoing, and notwithstanding any other provision of this Agreement to the additional tax imposed contrary:
(i) if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A, then with regard to any payment that is considered a “deferral of compensation” under Section 409A payable on account of a “separation from service,” such payment shall be made on the date which is the earlier of (A) the date that is six months and any ambiguities one day after the date of such “separation from service” of the Executive and ambiguous terms (B) the date of the Executive’s death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 13(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement will shall be interpreted paid or provided in accordance with the normal payment dates specified for those payments in this intent. No Agreement;
(ii) to the extent that any payments or benefits under this Agreement are conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 60-day post-termination period, then, subject to Section 13(b)(i) and to the extent not exempt under Section 409A, such payments or benefits shall be made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive (provided that if any such reimbursements constitute taxable income to the Executive, such reimbursements shall be paid no later than March 15 of the calendar year following the calendar year in which the expenses to be provided reimbursed were incurred). No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, and the Executive’s right to reimbursement shall not be subject to liquidation in exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., if any“payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, when considered together with termination of employment shall not be deemed to have occurred for purposes of any other severance payments provision of this Agreement providing for the payment of any amounts or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid upon or otherwise provided until Executive has following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, and for purposes of any such provision of this Agreement, references to the a “termination,” “termination of Executive’s employment employment” or similar phrases used in this Agreement will like terms shall mean Executive’s “separation from service” within .”
(c) The Company and the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)may be necessary, appropriate, or that qualify as payments made as a result desirable to avoid imposition of an involuntary separation from service additional tax or income recognition on the Executive under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within 409A, in each case to the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2maximum extent permitted. Notwithstanding any provisions provision of this Agreement to the contrary contrary, (i) in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive be liable for any taxesadditional tax, penalties interest or interest penalty that may be imposedimposed on the Executive by Section 409A or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Company or any of its employees, officers, directors or other costs agents in the event it is determined that may be incurred, as a result of any payment or benefit provided hereunder does not comply with Section 409A.
Appears in 8 contracts
Sources: Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with14.1 Notwithstanding any other provision to the contrary, the requirements of parties agree that amounts payable under the Agreement shall be interpreted to comply with or be exempt from Section 409A so that none of the Code (“Section 409A”) consistent with the intentions set forth in this Section 14.
14.2 Salary continuation payments that may become payable under either Section 6.1 or benefits will Section 6.2 are intended to be subject exempt from Section 409A to the additional tax imposed maximum extent permitted under (a) the "short-term deferral" rule set forth in Section 409A1.409A-1(b)(4) of the Treasury Regulations (to the extent of such payments made from the date of termination of employment or termination of the Agreement, as the case may be, through March 14th of the calendar year following such separation) and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, b) the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation pay due to involuntary separation from service” within the meaning of rule set forth in Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements l.409A--1(b)(9)(iii) of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions (to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any such payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3made after said March 14th). The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition For purposes of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each paymentAgreement, installment, each payable and benefit payable under this Agreement hereunder is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
14.3 Continued employer paid COBRA benefits described in Section 6.1 and 6.2 are intended to be exempt from Section 409A under either the welfare benefits exception set forth in Section 1.409A-1(a)(5) of the Treasury Regulations (if COBRA premium payments are not taxable to the Employee) or the limited payments exception set forth in Section 1.409A-2(b)(21.409A-1(b)(9)(v)(D) of the Treasury Regulations (if COBRA premium payments are taxable to the Employee). In no .
14.4 All expenses or other reimbursements as provided under the Agreement shall be payable in accordance with the Company’s policies in effect from time to time, but in any event will Executive have any discretion shall be made on or prior to choose Executive’s the last day of the taxable year following the taxable year in which such expenses were incurred by the Employee. No reimbursement or expenses eligible for reimbursement in any payments taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year and the right to reimbursement or in-kind benefits are provided under this Agreement. In no event will shall not be subject to liquidation or exchanged for another benefit.
14.5 If the Employee is considered by the Company Group to be a “specified employee” (within the meaning of Section 409A) upon separation from service and any payment or the provision of any affiliate benefit under the Agreement or otherwise that is payable upon separation from service is determined to be nonqualified deferred compensation subject to Section 409A after giving full effect to the intentions set forth in this Section 14, then any such payment or benefit shall not commence untilthe earlier of (i) the first payroll period commencing during the seventh month immediately following the date of such separation from service, and (ii) the date of Employee’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed hereunder (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to Employee in a lump sum, and any remaining payments and benefits due under the Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
14.6 All payments and benefits that are payable upon a termination of the Agreement (including Section 6.1) or a termination of the Employee’s employment hereunder shall be paid or provided only upon the Employee’s “separation from service” from the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result within the meaning of Section 409A.409A (determined after applying the presumptions set forth in Section 1.409A-1(h)(1) of the Treasury Regulations.
Appears in 7 contracts
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any parent, subsidiary or other affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 7 contracts
Sources: Change in Control and Severance Agreement (Nautilus Biotechnology, Inc.), Change in Control and Severance Agreement (ARYA Sciences Acquisition Corp III), Change in Control and Severance Agreement (ARYA Sciences Acquisition Corp III)
Section 409A. (i) To the extent required by Section 409A of the Code, all references to “termination of employment” and correlative phrases for purposes of this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein).
(ii) Notwithstanding any provision in this Agreement to the contrary, to the extent that (i) any payments or benefits to which Executive becomes entitled under this Agreement or any other agreement, policy, plan, program or arrangement with the Company, in connection with Executive’s termination of employment with the Company constitute “nonqualified deferred compensation” subject to Section 409A of the Code and (ii) Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (1) the expiration of the six (6) month and one day period measured from the date of Executive’s separation from service (as defined in Section 9(c)(i) above) from the Company or (2) the date of Executive’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 Executive, including (without limitation) the additional twenty-percent (20%) tax for which Executive would otherwise be liable under Section 409A(a)(1)(b) of the Code in 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 Section 9(b) shall be paid to Executive or Executive’s beneficiary in one lump sum. For purposes of this Section 9(b), the term “specified employee” means an individual determined by the Company to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Company.
(iii) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). The Company intends and Executive intend that all the benefits and payments and benefits provided under this Agreement or otherwise are shall be exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will Code and the provisions of the Agreement shall be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted read in accordance with this that intent. No It is further intended that payments or benefits hereunder satisfy, to be provided to Executivethe greatest extent possible, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under the exemptions from the application of Section 409A of the Code (together, the and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “Deferred Paymentsshort-term deferral”) will be paid or otherwise provided until Executive has a and Section 1.409A-1(b)(9) (as “separation from service” within the meaning of Section 409A. pay due to involuntary separation”). To the extent required that any provision hereof is modified in order to be exempt from or comply with Section 409A, references such modification will be made in good faith and will, to the termination maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and the Company of Executive’s employment the applicable provision without violating the provisions of Section 409A. The Company makes no representation or similar phrases used warranty and shall have no liability to 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 comply with the conditions of, such Section.
(iv) Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
(v) Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period is within the sole discretion of the Company.
(vi) Notwithstanding any provision in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreementcontrary, if Executive is a “specified employee” within to the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then extent that any payments or benefits to which Executive becomes entitled under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individualagreement, policy, plan, program or arrangement with the Company, in connection with Executive’s termination of employment with the Company constitute “nonqualified deferred compensation” subject to comply with any provision required to avoid the imposition Section 409A of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual Code, then each such payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement which is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose conditioned upon Executive’s execution of a release and which is to be paid or provided during a designated period that begins in one taxable year and ends in which any payments a second taxable year shall be paid or benefits are provided under this Agreement. In no event will in the Company Group or any affiliate later of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.two taxable years.
Appears in 7 contracts
Sources: Employment Agreement (XCF Global, Inc.), Employment Agreement (XCF Global, Inc.), Employment Agreement (XCF Global, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement (a) This award is intended to comply with or otherwise are be exempt from, or comply with, from the requirements of Section 409A so that none and shall be construed consistently therewith. Subject to Sections 8(f) and 9(e) of the payments Plan, the Company reserves the right, to the extent the Company deems necessary or benefits will be advisable in its sole discretion, to unilaterally amend the Plan or this Agreement to prevent this award from becoming subject to the additional tax imposed requirements of Section 409A. However, the Company makes no representations or warranties and has no liability to the Participant or to any other person if any of the provisions of or payments under this award are determined to constitute nonqualified deferred compensation subject to Section 409A but do not satisfy the requirements of Section 409A.
(b) If the PSUs are considered to be “nonqualified deferred compensation” within the meaning of Section 409A, and any ambiguities and ambiguous terms the Participant is considered a “specified employee” within the meaning of Section 409A, then notwithstanding anything to the contrary in this Agreement will be interpreted in accordance with this intent. No payments or benefits Agreement, the Company shall not deliver to the Participant any Shares required to be provided delivered upon a Performance Dependent Issuance that occurs upon a termination of employment until the earlier of (i) the six-month and one-day anniversary of the Participant’s termination of employment and (ii) the Participant’s death. In addition, solely to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits the extent that the PSUs are considered to be “nonqualified deferred compensation under compensation” and solely to the extent that another agreement between the Participant and the Company provides for a Performance Dependent Issuance and delivery of the Shares upon a “change in control,” such event must constitute a “change in control event” within the meaning of Treasury Regulation Section 409A 1.409A-3(i)(5)(i) in order for the Shares to be delivered.
(togetherc) For purposes of Section 13(b) of this Agreement, the “Deferred Payments”) will be paid or otherwise provided until Executive has a termination of employment” and similar terms mean “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination The determination of Executivewhether and when Participant’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within from the limit Company has occurred shall be made in a manner consistent with, and based on the presumptions set forth thereunderin, will not constitute Deferred Payments Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death13(c), then any payments or benefits under this Agreement that constitute Deferred Payments payable within “Company” includes all persons with whom the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise Company would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion considered a single employer under Section 414(b) and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition 414(c) of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.Code.
Appears in 7 contracts
Sources: Performance Share Unit Agreement (CIMPRESS PLC), Performance Share Unit Agreement (CIMPRESS PLC), Performance Share Unit Agreement (CIMPRESS PLC)
Section 409A. The Company intends that all payments and benefits provided under If the period the Executive has to consider this Agreement or otherwise are exempt fromspans two calendar years, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions notwithstanding anything to the contrary in this Agreement, if no payment constituting a deferral of compensation subject to Section 409A will be made to the Executive prior to the second calendar year. The Company will pay all such delayed amounts with the first scheduled payment in such second calendar year following the effectiveness of this Agreement. If at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A at 409A(a)(2)(B)(i) of the time Code, then to the extent that any payment or benefit under this Agreement or otherwise would be considered “non-qualified deferred compensation” payable upon a separation from service, the Company will defer such payment until the earlier of (i) six months and one day after the Executive’s separation from service and (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within ii) the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment occurring after the mandatory deferral contemplated in the immediately preceding sentence will include a catch-up payment covering amounts that would have otherwise been paid during the deferral period but for the application of this provision, and the Company will pay the balance of the installments in accordance with their original schedule. To the extent that Executive 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 not a specified employee but payable upon the Executive’s Qualifying Termination occurs at termination of employment (and not due to any other permissible payment event, such as the lapsing of a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurssubstantial risk of forfeiture), then any the Company will pay or provide such payments or benefits under only upon the Executive’s “separation from service.” The Company will determine whether and when a separation from service has occurred in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). The Parties intend that this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on administered in accordance with Section 409A of the Release Deadline Date.
5.4.3Code. The Company reserves To the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with extent that any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended ambiguous as to constitute a separate payment for purposes of Treasury Regulations its compliance with Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate 409A of the Company Group have any responsibilityCode, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest the provision should be read in such a manner so that may be imposedall payments hereunder comply with, or other costs that may be incurred, as a result of Section 409A.are
Appears in 6 contracts
Sources: Employment Agreement (Aktis Oncology, Inc.), Employment Agreement (Aktis Oncology, Inc.), Employment Agreement (Aktis Oncology, Inc.)
Section 409A. The Company intends that all payments and benefits provided under (i) Notwithstanding anything to the contrary in this Agreement or otherwise are exempt fromAgreement, or comply with, the requirements of Section 409A so that none of the payments no severance pay or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided payable upon separation that is payable to Executive, if any, under pursuant to this Agreement or otherwiseAgreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) under Section 409A will be paid or otherwise provided payable until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii(ii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than termination of employment, then, if required, the Payments, which are otherwise due to death), then any payments Executive on or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after 6 month period following Executive’s separation from service instead termination will be accrue, to the extent required, during such 6 month period and will become payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after payment on the date 6 months and 1 day following the date of Executive’s termination of employment or the date of Executive’s death, if earlier. To All subsequent Payments, if any, will be payable in accordance with the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments payment schedule applicable to each payment or benefits benefit.
(iii) Any amounts paid under this Agreement that satisfy the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Datefor purposes of clause (i) above.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual (iv) Each payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this the Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided ) of the Treasury Regulations.
(v) Any amount paid under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest Agreement that may be imposed, or other costs that may be incurred, qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit (as defined below) will not constitute a Payment for purposes of clause (i) above.
(vi) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A.
Appears in 5 contracts
Sources: Employment Agreement (Impinj Inc), Colleran Employment Agreement (Impinj Inc), Employment Agreement (Impinj Inc)
Section 409A. The amounts payable pursuant to this Agreement are intended to be exempt from section 409A of the Code and related U.S. treasury regulations or official pronouncements (“Section 409A”) and will be construed in a manner that is compliant with such exemption; provided, however, if and to the extent that any compensation payable under this Agreement is determined to be subject to Section 409A, this Agreement will be construed in a manner that will comply with Section 409A, and provided further, however, that no person connected with this Agreement in any capacity, including but not limited to the Company intends and its affiliates, and their respective directors, officers, agents and employees, makes any representation, commitment or guarantee that all payments any tax treatment, including but not limited to, federal, state and local income, estate and gift tax treatment, will be applicable with respect to any amounts payable or benefits provided under this Agreement. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed on the Termination Date or expiration of the Term to be a “specified employee” within the meaning of Section 409A, then any payments and benefits under this Agreement that are subject to Section 409A and paid by reason of a termination of employment will be made or provided on the later of (a) the payment date set forth in this Agreement or otherwise are exempt from(b) the date that is the earliest of (i) the expiration of the six-month period measured from the Termination Date or expiration of the Term, or comply with, (ii) the requirements date of Section 409A so that none of Executive’s death (the payments or “Delay Period”). Payments and benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) Delay Period will be paid or otherwise provided until to Executive has without interest for such delay. The terms “termination of employment” and “separate from service” as used throughout this Agreement refer to a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations may be excluded from Section 1.409A-1(b)(4), or that qualify 409A either as payments made as a result of separation pay due to an involuntary separation from service under Treasury Regulations or as a short-term deferral shall be excluded from Section 1.409A-1(b)(9)(iii) that is within 409A to the limit set forth thereunder, will not constitute Deferred Payments for maximum extent possible. For purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement409A, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits each installment payment provided under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will shall be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum treated as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.payment.
Appears in 5 contracts
Sources: Executive Employment Agreement (Montage Resources Corp), Executive Employment Agreement (Montage Resources Corp), Executive Employment Agreement (Montage Resources Corp)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject Notwithstanding anything herein to the additional tax imposed under Section 409Acontrary, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to (i) if at the time of Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the 's termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)with Employer, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of as defined in Section 409A at of the time Internal Revenue Code, and the deferral of Executive’s separation from service (other than due to death), then the commencement of any payments or benefits under this Agreement that constitute Deferred Payments otherwise payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A.409A of the Code, then Employer 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 Executive) until the date which is six months following the termination of Executive's employment with Employer (or the earliest date which is permitted under Section 409A of the Code), and (ii) if any other payments of money or other benefits due to Executive under this Agreement could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner which is determined by the Board in consultation with Employer's professional advisers not to cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 17(b) in order to prevent any accelerated or additional tax under Section 409A of the Code, then such payments shall be paid at the time specified in this Section 17(b) without any interest. Employer shall consult with Executive in good faith regarding the implementation of this Section 17(b); PROVIDED, HOWEVER, that none of Employer, its directors, its employees or its advisors shall have any liability to Executive with respect to this Section 17(b).
Appears in 5 contracts
Sources: Change in Control Agreement (Two River Bancorp), Change in Control Agreement (Two River Bancorp), Change in Control Agreement (Two River Bancorp)
Section 409A. The Company intends intent of the Parties is that all payments and benefits provided under this Agreement comply with Section 409A of the Code (“Section 409A”) or otherwise are exempt fromtherefrom and, or comply withaccordingly, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409Amaximum extent permitted, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits and administered so as to be provided in compliance therewith. If Executive notifies the Company (with specificity as to Executive, if any, under the reason therefor) that Executive believes that any provision of this Agreement would cause Executive to incur any additional tax or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation interest under Section 409A and the Company concurs with such belief or the Company (togetherwithout any obligation whatsoever to do so) independently makes such determination, the “Deferred Payments”) will be paid or otherwise provided until Executive has Company will, after consulting with Executive, reform such provision in a “separation from service” within manner that is economically neutral to the meaning of Section 409A. To the extent required Company to be exempt from or attempt to comply with Section 409A, references 409A through good faith modifications to the termination minimum extent reasonably appropriate to conform with Section 409A. The Parties hereby acknowledge and agree that (i) the payments and benefits due to Executive under Section 3 above are payable or provided on account of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided 409A; and (ii) each installment of Severance Payment payable to Executive under this Agreement Section 3(a) is intended to be treated as a separate payment for purposes of Section 409A that satisfy is exempt from Section 409A, to the requirements of maximum extent possible, under the “short-term deferral” rule under exemption of Treasury Regulations Regulation Section 1.409A-1(b)(4), or that qualify as payments made as a result of an ) and/or the “involuntary separation from service under pay” exemption of Treasury Regulations Regulation Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2). Notwithstanding any provisions provision of this Agreement to the contrary in this Agreementcontrary, if Executive is determined by the Company to be a “specified employee” within the meaning of Section 409A, then any payment under this Agreement that is considered nonqualified deferred compensation subject to Section 409A at will be paid no earlier than (1) the time date that is six months after the date of Executive’s separation from service service, or (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (62) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have may Executive, directly or indirectly, designate the calendar year of any discretion to choose Executive’s taxable year in which any payments or benefits are provided payment under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 5 contracts
Sources: Separation Agreement (Global Power Equipment Group Inc.), Separation Agreement (Derma Sciences, Inc.), Separation Agreement (Derma Sciences, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject Notwithstanding anything herein to the additional tax imposed under Section 409Acontrary, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to (i) if at the time of Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the 's termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)with Employer, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of as defined in Section 409A at of the time Internal Revenue Code, and the deferral of Executive’s separation from service (other than due to death), then the commencement of any payments or benefits under this Agreement that constitute Deferred Payments otherwise payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A.409A of the Code, then Employer 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 Executive) until the date which is six months following the termination of Executive's employment with Employer (or the earliest date which is permitted under Section 409A of the Code), and (ii) if any other payments of money or other benefits due to Executive under this Agreement could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner which is determined by the Board in consultation with Employer's professional advisers not to cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 17(b) in order to prevent any accelerated or additional tax under Section 409A of the Code, then such payments shall be paid at the time specified in this Section 17(b) without any interest. Employer shall consult with Executive in good faith regarding the implementation of this Section 17(b), PROVIDED, HOWEVER, that none of Employer, its directors, its employees or its advisors shall have any liability to Executive with respect to this Section 17(b).
Appears in 5 contracts
Sources: Employment Agreement (Two River Bancorp), Employment Agreement (Two River Bancorp), Employment Agreement (Two River Bancorp)
Section 409A. The Company intends that all payments and benefits provided under 18.1 Notwithstanding any provision to the contrary in this Agreement or otherwise are exempt from, or comply withAgreement, the requirements Company shall delay the commencement of Section 409A so that none of the payments or benefits will be subject coverage to which the additional tax imposed Executive would otherwise become entitled under Section 409A, and any ambiguities and ambiguous terms the Agreement in this Agreement will be interpreted in accordance connection with this intent. No payments his or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the her termination of Executive’s employment or similar phrases used in this Agreement will mean until the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s “separation from service” within with the meaning of Company (as such term is defined in Treasury Regulations issued under Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements 409A of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), Code) or that qualify as payments made as a result (ii) the date of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this AgreementExecutive’s death, if and only if the Company in good faith determines that the Executive is a “specified employee” within the meaning of that term under Code Section 409A 409A(a)(2)(B) at the time of Executive’s such separation from service and that such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code. Upon the expiration of the applicable Code Section 409A(a)(2) deferral period, all payments and benefits deferred pursuant to this Section 18 (other than due to death), then any payments whether they would have otherwise been payable in a single sum or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in installments in the event absence of Executive’s death within such six (6deferral) month period, any payments delayed by this Section 5.4.2 will shall be paid or reimbursed to the Executive in a lump sum with interest at the prime rate as published in The Wall Street Journal on the first business day following the end of the deferral period, and any remaining payments and benefits due under the Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
18.2 The provisions of this Agreement which require commencement of payments or benefits coverage subject to Section 409A upon a termination of employment shall be interpreted to require that the Executive have a “separation from service” with the Company (as such term is defined in Treasury Regulations issued under Code Section 409A).
18.3 With regard to any provision herein that provides for the reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expense eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be paid or provided as soon as administratively practicable after practical following submission by the date Executive of Executive’s death. To a reimbursement request but no later than the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during end of the calendar year whereby the Release Deadline Date will occur in the year immediately following the calendar year in which such expense is incurred.
18.4 For purposes of Code Section 409A, Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event may Executive, directly or indirectly, designate the Qualifying Termination occurs, then calendar year of any payments or benefits payment to be made under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Dateis considered nonqualified deferred compensation.
5.4.3. 18.5 The Company reserves the right provisions of this Section 18 are intended to amend assure that any benefits provided to Executive hereunder shall comply with Code Section 409A and this Agreement as it considers necessary or advisable, shall be interpreted consistent with such section in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.all respects.
Appears in 5 contracts
Sources: Severance Protection Agreement (Medicinova Inc), Severance Protection Agreement (Medicinova Inc), Severance Protection Agreement (Medicinova Inc)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt fromNotwithstanding anything herein to the contrary, or comply withto the maximum extent permitted by applicable law, the requirements 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, including Section 1.409A-1(b)(9) of the Treasury Regulations and Section 1.409A-1(b)(4) of the Treasury Regulations. For this purpose, each installment of such payments shall be considered a separate and distinct payment for purposes of Section 409A so that none of the Code. However, to the extent any such payments or benefits will be are treated as non-qualified deferred compensation subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A of the Code, then (together, the “Deferred Payments”a) will no amount shall be paid payable pursuant to Sections 5 or otherwise provided until Executive has 6 hereof unless Executive’s termination of employment constitutes a “separation from service” within the meaning of Section 409A. To 1.409A-1(h) of the Treasury Regulations and (b) if Executive is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of any portion of the payments to which Executive is entitled under this Agreement is required in order to be exempt from or comply with avoid a prohibited distribution under Section 409A409A(a)(2)(B)(i) of the Code, references to the termination such portion of Executive’s employment or similar phrases used in this Agreement will mean payments shall not be provided to Executive prior to the earlier of (x) the expiration of the six-month period measured from the date of Executive’s “separation from service” within with the meaning of Company (as such term is defined in Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements 1.409A-1(h) of the “short-term deferral” rule Treasury Regulations) or (y) the date of Executive’s death. Upon the earlier of such dates, all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any remaining payments due under Treasury Regulations Section 1.409A-1(b)(4), or that qualify the Agreement shall be paid as payments made as a result otherwise provided herein. The determination of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if whether Executive is a “specified employee” within for purposes of Section 409A(a)(2)(B)(i) of the meaning Code as of the time of his separation from service shall be made by the Company in accordance with the terms of Section 409A at of the time Code and applicable guidance thereunder (including without limitation Section 1.409A-1(i) of Executive’s separation from service (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 Regulations promulgated under Section 409A of the Code. The parties acknowledge and agree that, to the extent applicable, this Agreement shall be 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 than due interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to death)the contrary, then in the event that the Company determines that any payments compensation or benefits payable or provided under this Agreement that constitute Deferred Payments payable within may be subject to Section 409A of the first six (6) months after Executive’s separation from service instead will be payable on Code, the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month periodCompany may, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without with the consent of Executive 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 any other individual, appropriate to comply with any provision required to avoid (i) exempt the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any compensation and benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is from Section 409A of the Code and/or preserve the intended tax treatment of the compensation and benefits provided with respect to constitute a separate payment for purposes this Agreement or (ii) comply with the requirements of Treasury Regulations Section 1.409A-2(b)(2)409A of the Code. In By accepting this agreement, Executive hereby agrees and acknowledges that the Company makes no event will Executive have representations with respect to the application of Section 409A of the Code to any discretion to choose Executive’s taxable year in which tax, economic, or legal consequences of any payments or benefits are provided under payable to Executive hereunder and, by the acceptance of this Agreement. In no event will , Executive agree to accept the Company Group or any affiliate potential application of Section 409A of the Company Group have any responsibility, liability or obligation Code to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result the tax and legal consequences of Section 409A.payments payable to Employee hereunder.
Appears in 5 contracts
Sources: Executive Employment Agreement (AmREIT, Inc.), Executive Employment Agreement (AmREIT, Inc.), Executive Employment Agreement (AmREIT, Inc.)
Section 409A. The Company intends It is intended that all (i) each payment or installment of payments and benefits provided under this Agreement or otherwise are exempt fromis a separate “payment” for purposes of Code Section 409A and (ii) the payments satisfy, or comply withto the greatest extent possible, the requirements exemptions from the application of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Code Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or including those provided under this Agreement that satisfy the requirements of the “Treasury Regulations 1.409A-1(b)(4) (regarding short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4deferrals), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within (regarding the limit set forth thereundertwo-times, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2two year exception), and 1.409A-1(b)(9)(v) (regarding reimbursements and other separation pay). Notwithstanding any provisions anything to the contrary in this Agreement, if the Company determines (i) that on the date of Executive’s Separation from Service or at such other time that the Company determines to be relevant, Executive is a “specified employee” within (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of the meaning of Company and (ii) that any payments to be provided to Executive pursuant to this Agreement are or may become subject to the additional tax under Code Section 409A(a)(1)(B) or any other taxes or penalties imposed under Code Section 409A (“Section 409A Taxes”) if provided at the time of Executive’s separation from service (other than due to death)otherwise required under this Agreement, then any (A) such payments or benefits under this Agreement shall be delayed until the date that constitute Deferred Payments payable within the first is six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To Separation from Service with the extent that Executive Company, or such shorter period that, as determined by the Company, is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required sufficient to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior Taxes (the “Payment Delay Period”) and (B) such payments shall be increased by an amount equal to the actual 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). Any payments delayed pursuant to this Section 9 shall be made in a lump sum on the first day of any benefits the seventh month following Executive’s Separation from Service, or such earlier date that, as determined by the Company, is sufficient to avoid the imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.409A Taxes.
Appears in 4 contracts
Sources: Executive Retention Agreement (Meade Instruments Corp), Executive Retention Agreement (Meade Instruments Corp), Executive Retention Agreement (Meade Instruments Corp)
Section 409A. The Company intends (i) It is intended that all (i) each payment of a series of installment payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements shall be a separate “payment” for purposes of Section 409A so that none of the United States Internal Revenue Code and the Treasury Regulations thereunder (collectively, “Section 409A”), and (ii) that the payments or benefits will be subject satisfy, to the additional tax imposed under greatest extent possible, the exemptions from the application of Section 409A, including those provided under Treasury Regulations 1.409A-1(b)(4)(regarding short-term deferrals), 1.409A-1(b)(9)(iii) (regarding the two-times, two (2) year exception) and any ambiguities 1.409A-1(b)(9)(v) (regarding reimbursements and ambiguous terms in this Agreement will be interpreted in accordance with this intentother separation pay). No payments or benefits Notwithstanding anything to be provided to Executivethe contrary herein, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, 1) on the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within date of the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)), the Executive is deemed 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 and are or may become subject to the additional tax under Section 409A(a)(1)(B) or any other taxes or penalties imposed under Section 409A if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six (6) months after the date of the Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) or, if sooner, the date of the Executive’s death. Any payments delayed pursuant to this Section 4(g) shall be made in a lump sum 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, if sooner, the date of the Executive’s death.
(ii) Notwithstanding any other provision herein to the contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in Section 409A and the Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Section 409A.409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this Agreement, references to a “separation,” “termination,” “termination of employment” or like terms shall mean “separation from service.”
5.4.1. Any payments or benefits paid or provided (iii) Notwithstanding any other provision herein to the contrary, in no event shall any payment under this Agreement that satisfy the requirements of the constitutes “short-term deferraldeferred compensation” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.409A and the Treasury Regulations promulgated thereunder be subject to offset by any other amount unless otherwise permitted by Section 409A.
5.4.2. (iv) Notwithstanding any provisions other provision herein to the contrary contrary, to the extent that any reimbursement (including expense reimbursements), fringe benefit or other, similar plan or arrangement in this Agreement, if which the Executive is participates during the Term or thereafter provides for a “specified employeedeferral of compensation” within the meaning of Section 409A at and the time of Executive’s separation from service Treasury Regulations promulgated thereunder, then such reimbursements shall be made in accordance with Treasury Regulations 1.409A-3(i)(1)(iv) including; (i) the amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other than due to deathcalendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), then (ii) subject to any payments shorter time periods provided herein or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month periodapplicable plans or arrangements, any payments delayed by this Section 5.4.2 will reimbursement or payment of an expense under such plan or arrangement must be paid to Executive in a lump sum as soon as administratively practicable after made on or before the date last day of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the calendar year whereby the Release Deadline Date will occur in the year immediately following the calendar year in which the Qualifying Termination occursexpense was incurred, then and (iii) the right to any payments reimbursement or benefits in-kind benefit may not be subject to liquidation or exchange for another benefit.
(v) For the avoidance of doubt, any payment due under this Agreement that constitute Deferred Payments that otherwise would within a period following the Executive’s termination of employment, death, Disability or other event, shall be payable prior to made on a date during such period as determined by the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion (subject to compliance with Section 409A and the Treasury Regulations and other interpretive guidance promulgated thereunder, if applicable).
(vi) This Agreement shall be interpreted in accordance with, and the Company and the Executive will use their best efforts to achieve timely compliance with, Section 409A and the Treasury Regulations and other interpretive guidance promulgated thereunder, including without limitation any such regulations or other guidance that may be issued after the consent Effective Date of this Agreement. By accepting this Agreement, the Executive hereby agrees and acknowledges that the Company does not make any representations with respect to the application of Section 409A to any tax, economic or legal consequences of any other individualpayments payable to the Executive hereunder. Further, by the acceptance of this Agreement, the Executive acknowledges that (i) the Executive has obtained independent tax advice regarding the application of Section 409A to the payments due to the Executive hereunder, (ii) the Executive retains full responsibility for the potential application of Section 409A to the tax and legal consequences of payments payable to the Executive hereunder and (iii) the Company shall not indemnify or otherwise compensate the Executive for any violation of Section 409A that my occur in connection with this Agreement. The Parties agree to cooperate in good faith to amend such documents and to take such actions as may be necessary or appropriate to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 4 contracts
Sources: Employment Agreement (Aeries Technology, Inc.), Employment Agreement (Aeries Technology, Inc.), Employment Agreement (Aeries Technology, Inc.)
Section 409A. The Company intends It is the intent of the parties that all payments and benefits under this Agreement shall comply with Section 409A of the Internal Revenue Code ("Section 409A"), to the extent subject thereto, and to the 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 or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will shall be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has treated as a “separation from service” within the meaning "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 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 extent that payments made pursuant to Sections (b) and (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), the exemption will be first applied to any continued health and welfare benefits payable (to the extent such benefits are subject to Section 409A and are payable within six months from Executive's separation from service as defined for purposes of Section 409A (the "Delayed Payment Date") and thereafter to any cash payments until the exemption has been applied in full. Any payments under Sections 7(b) and (e) that are not exempted form Section 409A and that are payable prior to the Delayed Payment Date shall be withheld by Employer and paid to Executive on the Delayed Payment Date or as soon thereafter as administratively feasible. To the extent required to avoid an accelerated or additional tax under 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 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, references 409A. Employee acknowledges that Employer has advised Employee to seek his own counsel with respect to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)federal, state, or that qualify as payments made as a result local tax treatment of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within Agreement, including the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event treatment of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 4 contracts
Sources: Employment Agreement (Uqm Technologies Inc), Employment Agreement (Uqm Technologies Inc), Employment Agreement (Uqm Technologies Inc)
Section 409A. The Company intends that all payments and benefits provided under this This Agreement or otherwise are exempt from, or comply with, is intended to satisfy the requirements of Section 409A so that none of the payments Internal Revenue Code of 1986, as amended ("Section 409A") with respect to amounts, if any, subject thereto and shall be interpreted and construed and shall be performed by the parties consistent with such intent. To the extent Executive would otherwise be entitled to any payment under this Agreement, or benefits will any plan or arrangement of the Company or its affiliates, that constitutes a "deferral of compensation" subject to Section 409A and that if paid during the six (6) months beginning on the date of termination of Executive's employment would be subject to the Section 409A additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if because Executive is a “"specified employee” " (within the meaning of Section 409A at and as determined by the time Company), the payment will be paid to Executive on the earlier of Executive’s separation from service the six (6) month anniversary of his date of termination or death. To the extent Executive would otherwise be entitled to any benefit (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within a payment) during the first six (6) months after beginning on termination of Executive’s separation from service instead 's employment that would be subject to the Section 409A additional tax, the benefit will be payable delayed and will begin being provided on the date six (6) months and one (1) earlier of the first day after Executive’s separation from service; provided that in following the event of Executive’s death within such six (6) month period, any payments delayed by this anniversary of Executive's date of termination or death. Any payment or benefit due upon a termination of employment that represents a "deferral of compensation" within the meaning of Section 5.4.2 will 409A shall be paid to Executive or provided only upon a "separation from service" as defined in a lump sum as soon as administratively practicable after the date of Executive’s deathTreas. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits Reg. ss.
1. 409A-1(h). Each payment made under this Agreement that constitute Deferred Payments that otherwise would shall be payable prior deemed to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 409A. Amounts payable under this Agreement shall be deemed not to be a "deferral of compensation" subject to Section 409A to the extent provided in the exceptions in Treasury Regulations Regulation ss.ss. 1.409A-1(b)(4) ("short-term deferrals") and (b)(9) ("separati▇▇ ▇▇y plans," including the exception under subparagraph (iii)) and other applicable provisions of Treasury Regulation ss.
1.409A-1 through A-6. Notwithstanding anything to the contrary in this Agreement or elsewhere, any payment or benefit under this Agreement or otherwise that is exempt from Section 1.409A-2(b)(2)409A pursuant to Treasury Regulation ss. In no event will Executive have any discretion 1.409A-1(b)(9)(v)(A) or (C) (relating to choose Executive’s taxable certain reimbursements and in-kind benefits) shall be paid or provided only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the second calendar year following the calendar year in which Executive's "separation from 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 Executive's "separation from service" occurs. To the extent any payments expense reimbursement or benefits are provided under this Agreement. In the provision of any in-kind benefit is determined to be subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), 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 calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), in no event will shall any expenses be reimbursed after the Company Group or any affiliate last day of the Company Group have calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any responsibility, liability right to reimbursement or obligation the provision of any in-kind benefit be subject to reimburse, indemnify liquidation or hold harmless Executive exchange for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.another benefit.
Appears in 4 contracts
Sources: Employment Agreement (Six Flags, Inc.), Employment Agreement (Six Flags, Inc.), Employment Agreement (Six Flags, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(41.409A‑1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. Any subsequent Deferred Payment will be payable in accordance with the payment schedule applicable to such payment. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline DateDate and any subsequent Deferred Payment will be payable in accordance with the payment schedule applicable to such payment.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any parent, subsidiary or other affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 4 contracts
Sources: Change in Control and Severance Agreement (Paymentus Holdings, Inc.), Change in Control and Severance Agreement (Paymentus Holdings, Inc.), Change in Control and Severance Agreement (Paymentus Holdings, Inc.)
Section 409A. The Company intends Parties intend that all any amounts payable hereunder shall comply with or be exempt from Section 409A of the Code (“Section 409A”) (including under Treasury Regulation §§ 1.409A-1(b)(4) (“short-term deferrals”) and (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, each of the payments and benefits provided that may be made under this Agreement shall be deemed to be a separate payment. Executive and the Company Group agree to negotiate in good faith to make amendments to the Agreement, as the Parties mutually agree are necessary or otherwise are exempt fromdesirable to avoid the imposition of taxes, penalties or comply with, interest under Section 409A. Neither Executive nor the requirements Company Group shall have the right to accelerate or defer the delivery of Section 409A so that none of the any such payments or benefits except (i) where payment may be made within a certain period of time, the timing of payment within such period will be in the sole discretion of the Company Group, and (ii) to the extent specifically permitted or required by Section 409A. With respect to the time of payments of any amounts under the Agreement that are “deferred compensation” subject to the additional tax imposed under Section 409A, references in the Agreement to “termination of employment” (and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”substantially similar phrases) will be paid or otherwise provided until Executive has a shall mean “separation from service” within the meaning of Section 409A. To Notwithstanding anything in this Agreement to the extent contrary, if Executive is considered a “specified employee” under Section 409A upon Executive’s separation from service and if payment of any amounts on account of Executive’s separation from service under this Agreement is required to be delayed for a period of six months after separation from service in order to avoid taxation under Section 409A, payment of such amounts shall be delayed as required by Section 409A, and the accumulated amounts shall be paid in a lump sum payment within five business days after the end of the six-month delay period. If Executive dies during the six-month delay period prior to the payment of benefits, the amounts withheld on account of Section 409A shall be paid to the personal representative of Executive’s estate within 60 days after the date of Executive’s death. For the avoidance of doubt, it is intended that any expense reimbursement made to Executive hereunder shall be exempt from Section 409A. Notwithstanding the foregoing, if any expense reimbursement made hereunder shall be determined to be “deferred compensation” within the meaning of Section 409A, then (i) the amount of the expense reimbursement during one taxable year shall not affect the amount of the expense reimbursement during any other taxable year, (ii) the expense reimbursement shall be made on or before the last day of Executive’s taxable year following the year in which the expense was incurred and (iii) the right to expense reimbursement hereunder shall not be subject to liquidation or exchange for another benefit. While it is intended that all payments and benefits provided to Executive under this Agreement will be exempt from or comply with Section 409A, references the Company Group makes no representation or covenant to the termination of Executive’s employment ensure that such payments and benefits are exempt from or similar phrases used in this Agreement compliant with Section 409A. The Company Group will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments have no liability to Executive or benefits paid any other party if a payment or provided benefit under this Agreement or otherwise is challenged by any taxing authority or is ultimately determined not to be exempt or compliant. Executive further understands and agrees that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made Executive will be entirely responsible for any and all taxes imposed on Executive as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 4 contracts
Sources: Employment Agreement (LendingTree, Inc.), Employment Agreement (LendingTree, Inc.), Employment Agreement (LendingTree, Inc.)
Section 409A. (a) The Company intends parties intend that all this Agreement and the payments and benefits provided under this Agreement or otherwise are hereunder be exempt from, or comply with, from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A so is applicable to this Agreement, the parties intend that none this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the payments or benefits will be subject foregoing, and notwithstanding any other provision of this Agreement to the additional tax imposed contrary:
(i) if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A, then with regard to any payment that is considered a “deferral of compensation” under Section 409A payable on account of a “separation from service,” such payment shall be made on the date which is the earlier of (A) the date that is six months and any ambiguities one day after the date of such “separation from service” of the Executive and ambiguous terms (B) the date of the Executive’s death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 14(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement will shall be interpreted paid or provided in accordance with the normal payment dates specified for those payments in this intent. No Agreement;
(ii) to the extent that any payments or benefits under this Agreement are conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 60-day post-termination period, then, subject to Section 14(b)(i) and to the extent not exempt under Section 409A, such payments or benefits shall be made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, if anyand the Executive’s right to reimbursement shall not be subject to liquidation or exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive’s right to receive a series of installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, when considered together with termination of employment shall not be deemed to have occurred for purposes of any other severance payments provision of this Agreement providing for the payment of any amounts or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid upon or otherwise provided until Executive has following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, and for purposes of any such provision of this Agreement, references to the a “termination,” “termination of Executive’s employment employment” or similar phrases used in this Agreement will like terms shall mean Executive’s “separation from service” within .”
(c) The Company and the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)may be necessary, appropriate, or that qualify as payments made as a result desirable to avoid imposition of an involuntary separation from service additional tax or income recognition on the Executive under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within 409A, in each case to the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2maximum extent permitted by applicable law. Notwithstanding any provisions provision of this Agreement to the contrary contrary, (i) in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive be liable for any taxesadditional tax, penalties interest or interest penalty that may be imposedimposed on the Executive by Section 409A or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Company or any of its employees, officers, directors or other costs agents in the event it is determined that may be incurred, as a result of any payment or benefit provided hereunder does not comply with Section 409A.
Appears in 4 contracts
Sources: Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and Notwithstanding any ambiguities and ambiguous terms provision in this Agreement will to the contrary, no amounts shall be interpreted in accordance with this intent. No payments payable pursuant to Section 2.3(a) or benefits to be provided to Section 4.1(a) unless the Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has ’s termination of employment constitutes a “separation from service” within the meaning of Section 409A. To 1.409A-1(h) of the extent required Department of Treasury Regulations. If the Executive is determined to be exempt from 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 Sections 2.3(a)(i) or comply with Section 409A, references to 4.1(a) hereof (the termination “Severance Payment”) on account of Executive’s employment or similar phrases used in this Agreement will mean 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) if and to the extent that the 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 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 409A.
5.4.11.409A-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 (C) the payment is required under this Agreement to be paid no later than the last day of the second calendar year following the calendar year in which the Executive incurs a “separation from service.” For purposes of Section 409A of the Code, the Executive’s right to receive installment payments pursuant to Section 2.3(a) shall be treated as a right to receive a series of separate and distinct payments. Any payments To the extent that any reimbursement of any expense under Section 1.4(e) or in-kind benefits paid or provided under this Agreement that satisfy are deemed to constitute taxable compensation to the requirements Executive, such amounts will be reimbursed or provided no later than December 31 of the “shortyear following the year in which the expense was incurred. The amount of any such expenses reimbursed or in-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, and the Executive’s right to such reimbursement or that qualify as payments made as a result payment of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, any such expenses will not constitute Deferred Payments be subject to liquidation or exchange for purposes any other benefit. The determination of this Section 5.4.
5.4.2. Notwithstanding any provisions to whether the contrary in this Agreement, if Executive is a “specified employee” within the meaning for purposes of Section 409A at 409A(a)(2)(B)(i) of the Code as of the time of the Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within shall made by the first six (6) months after Executive’s separation from service instead will be payable on Corporation in accordance with the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event terms of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition 409A of the additional tax imposed under Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of 1.409A-1(i) and any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2successor provision thereto). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 4 contracts
Sources: Employment Agreement (Ralph Lauren Corp), Employment Agreement (Ralph Lauren Corp), Employment Agreement (Polo Ralph Lauren Corp)
Section 409A. The Company intends that all payments and benefits If any benefit provided under this Agreement or otherwise are exempt from, or comply with, the requirements of is subject to Section 409A so that none of the payments Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder or benefits will be subject to the additional tax imposed under any state law of similar effect (“Section 409A”), and any ambiguities and ambiguous terms such benefit otherwise is payable in this Agreement connection with Employee’s termination of employment with the Company, then such benefit will not be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has payable unless such termination constitutes a “separation from service” within the meaning (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 (i) each installment of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided any benefit payable under this Agreement that satisfy 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 requirements greatest extent possible, the exemptions from the application of the “short-term deferral” rule Section 409A provided under Treasury Regulations Section Sections 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii1.409A-1(b)(5) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2and 1.409A-1(b)(9). Notwithstanding any provisions to the contrary in this AgreementHowever, if Executive the Company determines that any benefit payable under this Agreement constitutes “deferred compensation” under Section 409A and Employee is a “specified employee” within (as such term is defined in Section 409A(a)(2)(B)(i) of the meaning Code) as of the date of Employee’s Separation from Service, then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A at 409A, (a) the time commencement of Executive’s separation from service (other than due to death), then any such benefit payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on delayed until the earlier of (1) the date that is six (6) months and one (1) day after Executive’s separation such Separation from service; provided that in Service and (2) the event date of ExecutiveEmployee’s death within (such six applicable date, the “Delayed Initial Payment Date”), and (6b) month period, any payments delayed by this Section 5.4.2 the Company will be paid to Executive in (1) pay Employee a lump sum as soon as administratively practicable after amount equal to the date sum of Executiveany 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 death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination Separation from Service occurs at a time during the calendar year whereby when the Release Deadline Date will occur could become effective in the calendar year immediately following the calendar year in which the Qualifying Termination such Separation from Service occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2such benefit, the Release will not be deemed effective any earlier than the latest permitted effective date set forth therein (which date, in all cases, will be in the subsequent calendar year). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 3 contracts
Sources: 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. (a) The Company intends parties intend that all this Agreement and the payments and benefits provided under this Agreement or otherwise are hereunder be exempt from, or comply with, from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A so is applicable to this Agreement, the parties intend that none this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the payments or benefits will be subject foregoing, and notwithstanding any other provision of this Agreement to the additional tax imposed contrary:
(i) if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A, then with regard to any payment that is considered a “deferral of compensation” under Section 409A payable on account of a “separation from service,” such payment shall be made on the date which is the earlier of (A) the date that is six months and any ambiguities one day after the date of such “separation from service” of the Executive and ambiguous terms (B) the date of the Executive’s death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 14(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement will shall be interpreted paid or provided in accordance with the normal payment dates specified for those payments in this intent. No Agreement;
(ii) to the extent that any payments or benefits under this Agreement are conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 30-day post-termination period, then, subject to Section 14(b)(i) and to the extent not exempt under Section 409A, such payments or benefits shall be made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 30th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, if anyand the Executive’s right to reimbursement shall not be subject to liquidation or exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive’s right to receive a series of installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, when considered together with termination of employment shall not be deemed to have occurred for purposes of any other severance payments provision of this Agreement providing for the payment of any amounts or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid upon or otherwise provided until Executive has following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, and for purposes of any such provision of this Agreement, references to the a “termination,” “termination of Executive’s employment employment” or similar phrases used in this Agreement will like terms shall mean Executive’s “separation from service” within .”
(c) The Company and the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)may be necessary, appropriate, or that qualify as payments made as a result desirable to avoid imposition of an involuntary separation from service additional tax or income recognition on the Executive under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within 409A, in each case to the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2maximum extent permitted by applicable law. Notwithstanding any provisions provision of this Agreement to the contrary contrary, (i) in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive be liable for any taxesadditional tax, penalties interest or interest penalty that may be imposedimposed on the Executive by Section 409A or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Company or any of its employees, officers, directors or other costs agents in the event it is determined that may be incurred, as a result of any payment or benefit provided hereunder does not comply with Section 409A.
Appears in 3 contracts
Sources: Employment Agreement (Avantax, Inc.), Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
Section 409A. The Company intends that all Notwithstanding the timing of any payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements pursuant to Section 5 of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive the Employee is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A at the time of Executive’s separation from service (other than due to death409A(a)(2)(B), then each of the following shall apply:
(A) With regard to any payment that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment shall be made on the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Employee, and (B) the date of the Employee’s death (the “Delay Period”) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement that constitute Deferred Payments payable within shall be paid or provided in accordance with the normal payment dates specified for them herein; and
(B) To the extent any benefits provided during the first six (6) months after Executive’s termination are considered deferred compensation under Code Section 409A provided on account of a “separation from service instead will service,” and such benefits are not otherwise exempt from Code Section 409A, Executive shall pay the costs of such benefits during the first six months following termination and shall be payable on reimbursed, to the date extent such costs would otherwise have been paid by the Company or to the extent such benefits would otherwise have been provided by the Company at no cost to the Executive, the cost of such coverage six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Datetermination.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 3 contracts
Sources: Employment Agreement (Protection One Inc), Employment Agreement (Protection One Inc), Employment Agreement (Protection One Inc)
Section 409A. The Company intends intent of the parties is that all payments and benefits provided under this Agreement either comply with or otherwise are exempt fromfrom Section 409A of the Code and, or comply withaccordingly, to the maximum extent permitted, all provisions of this Agreement shall be construed in a manner consistent with the requirements of Section 409A so that none of the payments for avoiding taxes or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation penalties under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2Code. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation hereby advised to seek independent advice from service (other than due his tax advisor(s) with respect to death), then any payments or benefits under this Agreement. Notwithstanding the foregoing, the Company does not guarantee the tax treatment of any payments or benefits provided under this Agreement that constitute Deferred Payments 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 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 either Parent’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 payable within the first upon a separation from service shall be deferred for six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event termination of Executive’s death within employment or, 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 six (6) month periodpayments are otherwise due to be made in installments or periodically during the 409A Deferral Period, any the payments delayed by this Section 5.4.2 will which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid to Executive in a lump sum as soon as administratively practicable after the date 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 deathexpense, with Executive having a right to reimbursement from the Company once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled. To the extent that Additionally, (a) any reimbursement of eligible expenses or other in-kind benefits payable to Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will shall be paid on within the Release Deadline Date.
5.4.3. The Company reserves time period required by Section 409A of the Code; (b) the amount of expenses eligible for reimbursement, or in-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 amend this Agreement reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; and (d) each payment shall be treated as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.payment.
Appears in 3 contracts
Sources: Employment Agreement (Repay Holdings Corp), Employment Agreement (Repay Holdings Corp), Employment Agreement (Repay Holdings Corp)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, Notwithstanding the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executiveforegoing severance provisions, if any, under this Agreement the Board (or otherwise, when considered together with any other severance payments its delegate) determines in its or separation benefits his or her discretion that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employeeSpecified Employee” within (as defined in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal Revenue Code of 1986, as amended, and applicable guidance issued thereunder (“Section 409A”)) as of the meaning of Section 409A at the time of Executive’s separation from service (other than due to deathas defined in Section 409A), then any payments or benefits the following rules will apply with respect to severance payable in installments:
(i) For purposes of applying the exception to Section 409A for short-term deferrals, each severance payment installment under this Agreement that constitute Deferred Payments payable within the first six (6Section 5(g) months after Executive’s separation from service instead above will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum treated as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have 409A. Accordingly, any discretion to choose severance payment paid (i) by the end of the 2-1/2 month period that follows the Company’s taxable year containing Executive’s termination date, or (ii) by the end of the 2-1/2 month period that follows Executive’s taxable year containing the termination date shall be exempt from Section 409A and shall be paid as described above;
(ii) To the extent severance payments otherwise payable in which any payments the first six months following Executive’s termination date (other than amounts described in subparagraph (i) above) are equal to or benefits are provided under this Agreement. In no event will less than the Company Group or any affiliate lesser of the Company Group have amounts described in Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and (2), such severance payments shall be exempt from Section 409A and shall be paid as described above; and
(iii) Only to the extent a portion of Executive’s severance payments are not exempt from Section 409A pursuant to subparagraphs (i) and (ii) above, then, any responsibilitysuch remaining severance payments will not be paid to Executive until the first payroll date of the 7th month following Executive’s termination date. Any deferred payments will be paid in a lump sum and shall be equal to the portion of the severance payment that exceeds the Section 409A limit. Thereafter, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result the remainder of Section 409A.Employee’s severance payments will continue in monthly installments through completion of the Non-Interference Period (with each monthly installment being paid in the gross sum of the Additional Severance Payment divided by 12).
Appears in 3 contracts
Sources: Executive Employment Agreement (Affirmative Insurance Holdings Inc), Executive Employment Agreement (Affirmative Insurance Holdings Inc), Executive Employment Agreement (Affirmative Insurance Holdings Inc)
Section 409A. The Company intends that all payments and benefits provided (a) For purposes of Section 409A, (i) each “payment” (as defined by Section 409A) made under this Agreement or otherwise are shall be considered a “separate payment,” and (ii) payments shall be deemed exempt from, or comply with, from the requirements definition of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided fullest extent possible under this Agreement that satisfy the requirements of (x) the “short-term deferral” rule under exemption of Treasury Regulations Section Regulation § 1.409A-1(b)(4), or that qualify as payments made as a result (y) the exemptions of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunderRegulation § 1.409A-1(b)(9)-(11), will not constitute Deferred Payments for purposes of this Section 5.4which exemptions are hereby incorporated by reference.
5.4.2. Notwithstanding any provisions to (b) If the contrary in this Agreement, if Executive is a “specified employee” as defined in Section 409A (and as applied according to procedures of the Company and its affiliates) as of the Executive’s separation from service, to the extent any payment under this Agreement constitutes deferred compensation (after taking into account any applicable exemptions from Section 409A) that is payable upon a separation from service, and to the extent required in order to avoid the imposition of an excise tax under Section 409A, no payments due under this Agreement may be made until the earlier of: (1) the date of the Executive’s death and (2) the first day of the seventh month following the Executive’s separation from service, provided, however, that any payments delayed during this six-month period shall be paid in the aggregate in a lump sum on the first day of the seventh month following the Executive’s separation from service (or upon the date of the Executive’s death, if earlier).
(c) Any expense reimbursements or in kind benefits under this Agreement that constitute deferred compensation within the meaning of Section 409A at shall be made or provided in accordance with the time requirements of Executive’s separation from service Section 409A, including, without limitation, that: (i) the 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; (ii) the reimbursement of an eligible expense shall be made no later than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event end of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following after the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves such expense was incurred; and (iii) the right to amend reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(d) If this Agreement as it considers necessary fails to meet the requirements of Section 409A, neither the Company nor any of its affiliates shall have any liability for any tax, penalty or advisableinterest imposed on the Executive by Section 409A, in its sole discretion and without the consent of Executive shall have no recourse against the Company or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual its affiliates for payment of any benefits or imposition of any additional such tax. Each payment, installmentpenalty, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of imposed by Section 409A.
Appears in 3 contracts
Sources: Employment Agreement (Four Corners Property Trust, Inc.), Employment Agreement (Four Corners Property Trust, Inc.), Employment Agreement (Four Corners Property Trust, Inc.)
Section 409A. The This Agreement, and any payment hereunder, is intended to be exempt from Section 409A of the Internal Revenue Code (“Section 409A”) under the short-term deferral and separation pay plan exemptions to the maximum extent permitted by Section 409A. However, to the extent that this Agreement or any payment hereunder is subject to Section 409A, the Agreement will be construed and interpreted in a manner that is consistent with the requirements of Section 409A. For these purposes, each “payment” (as defined by Section 409A) made under this Agreement shall be considered a “separate payment.” Notwithstanding the foregoing, the Company intends makes no representations that all the payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of with Section 409A so and in no event will the Company, its divisions and affiliates nor their respective directors, officers, employees or advisers be liable for all or any portion of any taxes, penalties, interest or other expenses that none may be incurred by you on account of the payments non-compliance with Section 409A. If this Agreement (or benefits will be any portion thereof) is subject to the additional tax imposed under Section 409A, 409A and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits amount subject to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has becomes payable as a result of your “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with (as defined under Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is and at such time you are a “specified employee” within the meaning of (as defined under Section 409A at the time of Executive’s separation from service (other than due to death409A), then any payments or benefits under this Agreement that constitute Deferred Payments payable within payment of such amount shall be delayed and shall be paid (without interest) on the first six (6) months after Executive’s separation from service instead will be payable on day of the seventh calendar month following the date six (6) months and one (1) day after Executive’s of your “separation from service; provided that .” Further, in the event that the period of Executive’s death within such six (6) month periodtime given to consider a release agreement spans two years, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive a payment is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior subject to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition execution of the additional tax imposed under release and to Section 409A or to otherwise avoid income recognition under Section 409A prior to 409A, the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate may not be made earlier than January 1 of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.second year.
Appears in 3 contracts
Sources: Resignation and Release Agreement (LifeMD, Inc.), Separation Agreement (Cantel Medical Corp), Executive Severance and Change in Control Plan (Cantel Medical Corp)
Section 409A. The Company intends (a) It is intended that all payments and benefits provided under this Agreement comply with or otherwise are be exempt from, or comply with, from the requirements provisions of Section 409A so that none of the payments or benefits will be subject to Code and the additional tax imposed under Treasury Regulations and guidance of general applicability issued thereunder (“Section 409A”), and any ambiguities and ambiguous terms in furtherance of this intent, this Agreement will shall be interpreted interpreted, operated and administered in accordance a manner consistent with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A these intentions.
(together, the “Deferred Payments”b) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required (i) any payments to be exempt from which Executive becomes entitled under this Agreement, or comply any agreement or plan referenced herein, in connection with Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A, references to ; (ii) Executive is deemed at the termination time of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary his separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is be a “specified employee” within the meaning of under Section 409A 409A; and (iii) at the time of Executive’s separation from service the Company is publicly traded (as defined in Section 409A), then such payments (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable permitted by Section 409A to be paid within the first six (6) months after of Executive’s separation from service) shall not be made until the earlier of (x) the first day of the seventh month following Executive’s separation from service instead will or (y) the date of Executive’s death following such separation from service. 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 Section 13 shall be paid to Executive or Executive’s beneficiary in one lump sum, plus interest thereon at the Delayed Payment Interest Rate (as defined below) computed from the date on which each such delayed payment otherwise would have been made to Executive until the date of payment. For purposes of the foregoing, the “Delayed Payment Interest Rate” shall mean the national average annual rate of interest payable on jumbo six-month bank certificates of deposit, as quoted in the date six (6) months and one (1) day after business section of the most recently published Sunday edition of The New York Times preceding Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 3 contracts
Sources: Employment Agreement (Kintara Therapeutics, Inc.), Executive Employment Agreement (Kintara Therapeutics, Inc.), Executive Employment Agreement (DelMar Pharmaceuticals, Inc.)
Section 409A. The Company intends that all payments and benefits provided under i. Notwithstanding anything to the contrary in this Agreement or otherwise are exempt fromAgreement, or comply with, the requirements of Section 409A so that none of the payments no severance pay or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided payable upon separation that is payable to Executive, if any, under pursuant to this Agreement or otherwiseAgreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) under Section 409A will be paid or otherwise provided payable until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2ii. Notwithstanding any provisions anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than termination of employment, then, if required, the Payments, which are otherwise due to death), then any payments Executive on or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after month period following Executive’s separation from service instead termination will be accrue, to the extent required, during such six (6) month period and will become payable in a lump sum payment on the date six (6) months and one (1) day after Executive’s separation from service; provided that in following the event date of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after termination of employment or the date of Executive’s death, if earlier. To All subsequent Payments, if any, will be payable in accordance with the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments payment schedule applicable to each payment or benefits benefit.
iii. Any amounts paid under this Agreement that satisfy the requirements of the “short- term deferral” rule set forth in Section 1.409A-l(b)(4) of the Treasury Regulations will not constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Datefor purposes of clause (i) above.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional taxiv. Each payment, installment, payment and benefit payable under this the Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided ) of the Treasury Regulations.
v. Any amount paid under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest Agreement that may be imposed, or other costs that may be incurred, qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-l(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit (as defined below) will not constitute a Payment for purposes of clause (i) above.
vi. The foregoing provisions are intended to be exempt from or comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A.
Appears in 3 contracts
Sources: Executive Employment Agreement (Impinj Inc), Executive Employment Agreement (Impinj Inc), Executive Employment Agreement (Impinj Inc)
Section 409A. The Company intends that all payments and benefits provided under Notwithstanding any provision to the contrary in this Agreement or otherwise are exempt fromAgreement, or comply with, the requirements of Section 409A so that none of the no cash payments or other benefits will be subject to the additional tax imposed under described in Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) 5.2 will be paid or otherwise provided until made available to the Executive has unless the Executive’s termination of employment constitutes a “separation from service” within the meaning of Section 409A. To 1.409A-1(h) of the extent required to be exempt from Department of Treasury Regulations, and unless, on or comply with Section 409A, references prior to the termination thirtieth (30th) day following the Date of Executive’s employment or similar phrases used Termination, (a) the Executive shall have executed a waiver and release of claims in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy form attached as Exhibit A hereto, and (b) such release shall not have been revoked by the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iiiExecutive prior to such thirtieth (30th) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2day. Notwithstanding any provisions provision to the contrary in this Agreement, if the Executive is deemed at the time of her separation from service to be a “specified employee” within the meaning for purposes of Section 409A at 409A(a)(2)(B)(i) of the time Code, to the extent delayed commencement of any portion of the termination benefits to which the Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, then such portion of the Executive’s termination benefits shall not be provided to the Executive prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service service” with the Company (other than as such term is defined in the Department of Treasury Regulations issued under Section 409A of the Code) or (ii) the date of the Executive’s death. Upon the expiration of the applicable deferral period under Section 409A(a)(2)(B)(i) of the Code, all payments deferred pursuant to Section 5.2 shall be paid in a lump sum to the Executive, and any remaining payments due to death)under this Agreement shall be paid as otherwise provided herein. For the avoidance of doubt, then any no payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will shall be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that under Section 5.2 in the event of the Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid termination of employment due to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition expiration of the additional tax imposed Term under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.2.2.
Appears in 3 contracts
Sources: Employment Agreement (Container Store Group, Inc.), Employment Agreement (Container Store Group, Inc.), Employment Agreement (Container Store Group, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, Notwithstanding the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executiveforegoing severance provisions, if any, under this Agreement the Board (or otherwise, when considered together with any other severance payments its delegate) determines in its or separation benefits his or her discretion that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employeeSpecified Employee” within (as defined in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal Revenue Code of 1986, as amended, and applicable guidance issued thereunder (“Section 409A”)) as of the meaning of Section 409A at the time of Executive’s separation from service (other than due to deathas defined in Section 409A), then any payments or benefits the following rules will apply with respect to severance payable in installments:
(i) For purposes of applying the exception to Section 409A for short-term deferrals, each severance payment installment under this Agreement that constitute Deferred Payments payable within the first six (6Section 5(g) months after Executive’s separation from service instead above will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum treated as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have 409A. Accordingly, any discretion to choose severance payment paid (i) within 2-1/2 months of the end of the Company’s taxable year containing Executive’s termination date, or (ii) within 2-1/2 months of Executive’s taxable year containing the termination date shall be exempt from Section 409A and shall be paid as described above;
(ii) To the extent severance payments are not exempt from Section 409A under subparagraph (i) above, if Executive’s severance payments otherwise payable in which any payments the first six months following Executive’s termination date are equal to or benefits are provided under this Agreement. In no event will less than the Company Group or any affiliate lesser of the Company Group have amounts described in Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and (2), such severance payments shall be exempt from Section 409A and shall be paid as described above; and
(iii) Only to the extent a portion of Executive’s severance payments are not exempt from Section 409A pursuant to subparagraphs (i) and (ii) above, then, any responsibilitysuch remaining severance payments will not be paid to Executive until the first payroll date of the 7th month following Executive’s termination date. Any deferred payments will be paid in a lump sum and shall be equal to the portion of the severance payment that exceeds the Section 409A limit. Thereafter, liability the remainder of Employee’s severance payments will continue in monthly installments through completion of the Non-Interference Period (with each monthly installment being paid in the gross sum of the Additional Severance Payment divided by 24). If the Board (or obligation its delegate) determines that Executive is a “Specified Employee” and Executive is entitled to reimbursea lump sum severance payment, indemnify or hold harmless Executive for any taxes, penalties or interest that may such payment shall be imposed, or other costs that may be incurred, as a result made on the first day of Section 409A.the 7th month following Executive’s termination date
Appears in 3 contracts
Sources: Executive Employment Agreement (Affirmative Insurance Holdings Inc), Executive Employment Agreement (Affirmative Insurance Holdings Inc), Executive Employment Agreement (Affirmative Insurance Holdings Inc)
Section 409A. The Company intends parties intend that all this Agreement and the payments and other benefits provided under this Agreement or otherwise are hereunder be exempt from, or comply with, from the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409Amaximum extent possible, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references whether pursuant to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under deferral exception described in Treasury Regulations Regulation Section 1.409A-1(b)(4), or that qualify as payments made as a result of an the involuntary separation from service under pay plan exception described in Treasury Regulations Regulation Section 1.409A-1(b)(9)(iii) ), or otherwise. To the extent Section 409A is applicable to this Agreement and any such payments and benefits, the parties intend that is within this Agreement and such payments and benefits comply with the limit set forth thereunderdeferral, will not constitute Deferred Payments for purposes payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Section 5.4.
5.4.2. Notwithstanding any provisions Agreement to the contrary contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this AgreementAgreement to the contrary:
(i) if at the time Executive’s employment hereunder terminates, if Executive is a “specified employee,” as defined in Treasury Regulation Section 1.409A-1(i) and determined using the identification methodology selected by the Company from time to time, or if none, the default methodology, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Section 409A, any and all amounts payable under this Agreement on account of such termination of employment that would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid in a lump sum on the first day of the seventh month following the date on which Executive’s employment terminates or, if earlier, upon Executive’s death;
(ii) a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service,” as defined in Treasury Regulation Section 1.409A-1(h) after giving effect to the presumptions contained therein, and, for purposes of any such provision of this Agreement, references to “terminate,” “termination,” “termination of employment” and like terms shall mean separation from service;
(iii) each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments; and
(iv) with regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Treasury Regulation Section 409A at the time of Executive’s separation from service (other than due to death1.409A-1(b), then (A) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (B) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (C) such payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) shall be made no later than two and a half months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in end of the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the calendar year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Dateexpenses were incurred.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 3 contracts
Sources: Executive Employment Agreement (Minn Shares Inc), Executive Employment Agreement (Minn Shares Inc), Executive Employment Agreement (Minn Shares Inc)
Section 409A. The Company intends (a) It is intended that all payments and benefits provided any amounts payable under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to shall either be exempt from or comply with Section 409A of the Code and all regulations, guidance and other interpretive authority issued thereunder, including without limitation any such regulations or other guidance that may be issued in the future (“Section 409A”) so as not to subject the Executive to payment of any additional tax, penalty or interest imposed under Section 409A. The provisions of this Agreement shall be construed and interpreted to avoid imputation of any such additional tax, penalty or interest under Section 409A yet preserve the intended benefit payable to the Executive.
(b) Notwithstanding anything herein to the contrary, if the Executive is a Specified Employee at the time of the Executive’s termination of employment with the Company and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary to prevent any accelerated or additional tax under Section 409A, references then the Company will defer the commencement of any such payments or benefits hereunder to the extent that such payments or benefits (after taking into account all exclusions applicable to such payment under Section 409A) constitute “deferred compensation” subject to Section 409A (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the earlier of (i) the first business day after the expiration of six (6) months following the Executive’s termination of employment (ii) or the Executive’s employment death or Disability (the “Delayed Payment Date”).
(c) For purposes of this Agreement, any references herein to the Executive’s “termination of employment” or words of similar phrases used in this Agreement will mean meaning shall refer to the Executive’s “separation from service” within with the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” Company within the meaning of Section 409A at the time of Executive’s separation from service and Treasury Regulation Section 1.409A-1(h) (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior giving effect to the Release Deadline Date instead will be paid on presumptions contained therein) and the Release Deadline Date.
5.4.3. The Company reserves term “Specified Employee” shall have the right to amend this Agreement as it considers necessary or advisable, meaning given such term in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under and Treasury Regulation Section 409A prior to 1.409A-1(i) as determined in accordance with the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment Company’s policy for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.determining Specified Employees.
Appears in 3 contracts
Sources: Employment Agreement (Strayer Education Inc), Employment Agreement (Strayer Education Inc), Employment Agreement (Strayer Education Inc)
Section 409A. The Company intends that all payments and benefits provided under (a) Subject to this Agreement or otherwise are exempt fromSection 10, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, 5 shall begin only upon the “Deferred Payments”) will be paid or otherwise provided until Executive has date of a “separation from service” of the Executive (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the Executive under Section 5, as applicable:
(i) It is intended that each installment of the payments and benefits provided under Section 5 shall be treated as a separate “payment” for purposes of Section 409A of the Code and the guidance issued thereunder (“Section 409A”). Neither the Company nor the 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.
(ii) If, as of the date of the “separation from service” of the Executive from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A. To 409A), then each installment of the extent required to payments and benefits shall be exempt from or comply with made on the dates and terms set forth in Section 409A5.
(iii) If, references to as of the termination date of Executive’s employment or similar phrases used in this Agreement will mean Executive’s the “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)Executive from the Company, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” (within the meaning of Section 409A at 409A), then:
(1) Each installment of the time payments and benefits due under Section 5 that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of Executive’s when the separation from service (other than due to death)occurs, then any payments or benefits under this Agreement that constitute Deferred Payments payable be paid within the first six Short-Term Deferral Period (6as hereinafter defined) months after shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A. For purposes of his Agreement, the “Short-Term Deferral Period” means the period ending on the later of the 15th day of the third month following the end of the Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the tax year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to separation from service occurs and the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition 15th day of the additional third month following the end of the Company’s tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.separation from service occurs; and
Appears in 2 contracts
Sources: Employment Agreement (Stream Global Services, Inc.), Employment Agreement (Stream Global Services, Inc.)
Section 409A. The Company intends that all payments (a) This Agreement is intended to comply with Section 409A of the Code, and benefits provided will be interpreted accordingly. References under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will Executive’s termination of employment shall be interpreted in accordance with this intent. No payments or benefits deemed to be provided refer to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until date upon which the Executive has experienced a “separation from service” within the meaning of Section 409A. To 409A of the extent required to be exempt from or comply with Section 409A, references Code.
(b) Notwithstanding anything herein to the termination contrary, (i) if at the time of the Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within with the limit set forth thereunderCompany, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” as defined in Section 409A of the Code (and any related regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder or payable under any other compensatory arrangement between the Executive and the Company, or any of its affiliates as a result of such separation from service is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six (6) months following the Executive’s separation from service (or the earliest date as is permitted under Section 409A of the Code), at which point all payments deferred pursuant to this Section shall be paid to the Executive in a lump sum and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner that does not cause such an accelerated or additional tax. Any payments deferred pursuant to the preceding sentence shall be paid together with interest thereon at a rate equal to the applicable Federal rate for short-term instruments.
(c) To the extent any reimbursements or in-kind benefits due to the Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to the Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that the Executive’s receipt of any in-kind benefits from the Company or its affiliates must be delayed pursuant to this Section due to the Executive’s status as a “specified employee”, the Executive may elect to instead purchase and receive such benefits during the period in which the provision of benefits would otherwise be delayed by paying the Company (or its affiliates) for the fair market value of such benefits (as determined by the Company in good faith) during such period. Any amounts paid by the Executive pursuant to the preceding sentence shall be reimbursed to the Executive (with interest thereon) as described above on the date that is six (6) months following the Executive’s separation from service.
(d) Each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Section 409A at of the time Code.
(e) The Company shall consult with the Executive in good faith regarding the implementation of Executive’s separation from service the provisions of this Section. Without limiting the generality of the foregoing, the Executive shall notify the Company if the Executive believes that any provision of this Agreement (other than due or of any award of compensation, including equity compensation, or benefits) would cause the Executive to death)incur any additional tax under Section 409A of the Code and, if the Company concurs with such belief after good faith review or the Company independently makes such determination, then the Company shall, after consulting with the Executive, use reasonable best efforts to reform such provision to comply with Section 409A of the Code through good faith modifications to the minimum extent reasonably appropriate to conform with Section 409A of the Code.
(f) Any amount that the Executive is entitled to be reimbursed for any payments or benefits business-related expenses borne by employee under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on reimbursed to the date six Executive as promptly as practicable and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.
(6g) months and one Whenever a payment under this Agreement specifies a payment period with reference to a number of days (1e.g., “payment shall be made within thirty (30) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the Executive’s death. termination of employment in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made on a monthly basis.
(i) To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any severance payments or benefits under pursuant to this Agreement that constitute Deferred Payments that otherwise would be payable prior to are conditioned upon the Release Deadline Date instead will be paid on execution and delivery by the Release Deadline Date.
5.4.3. The Company reserves Executive of a separation agreement and general release (and the right to amend this Agreement as it considers necessary or advisable, expiration of any revocation rights provided therein) which could become effective in its sole discretion and without the consent one of Executive or any other individual, to comply with any provision required to avoid the imposition two (2) taxable years of the additional tax imposed under Executive depending on when the Executive executes and delivers such separation agreement and general release, any deferred compensation payment (which is subject to Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group Code) that is conditioned on execution of the separation agreement and general release shall be made within ten (10) days after the separation agreement and general release becomes effective and such revocation rights have any responsibilitylapsed, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result but not earlier than the first business day of Section 409A.the later of such taxable years.
Appears in 2 contracts
Sources: Employment Agreement (News Corp), Employment Agreement (News Corp)
Section 409A. The Company intends parties hereto intend that all payments and benefits to be made or provided under to Executive will be paid or provided in compliance with all applicable requirements of Section 409A, and the provisions of this Agreement or otherwise are exempt fromshall be construed and administered in accordance with and to implement such intent. In furtherance of the foregoing, or comply withthe provisions set forth below shall apply notwithstanding any other provision in this Agreement.
(a) All payments to be made to Executive hereunder, to the extent they constitute a deferral of compensation subject to the requirements of Section 409A so that none of the (after taking into account all exclusions applicable to such payments or benefits will be subject to the additional tax imposed under Section 409A), shall be made no later, and shall not be made any ambiguities and ambiguous terms earlier, than at the time or times specified herein or in this Agreement will be interpreted in accordance with this intent. No any applicable plan for such payments or benefits to be provided to Executivemade, if any, under this Agreement except as otherwise permitted or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation required under Section 409A 409A.
(together, the “Deferred Payments”b) will be paid or otherwise provided until Executive has a “separation from service” within the meaning The date of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within ”, as defined in Section 409A (and as determined by applying the meaning default presumptions in Treas. Reg. §1.409A-1(h)(1)(ii)), shall be treated as the date of Executive’s termination of employment for purposes of determining the time of payment of any amount that becomes payable to Executive related to Executive’s termination of employment and that is properly treated as a deferral of compensation subject to Section 409A after taking into account all exclusions applicable to such payment under Section 409A.
5.4.1. Any payments (c) To the extent any payment or benefits paid or provided under this Agreement that satisfy the requirements delivery otherwise required to be made to Executive hereunder on account of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary Executive’s separation from service is properly treated as a deferral of compensation subject to Section 409A after taking into account all exclusions applicable to such payment and delivery under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder409A, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, and if Executive is a “specified employee” within the meaning of under Section 409A at the time of Executive’s separation from service (other than due to death)service, then any payments or benefits under this Agreement that constitute Deferred Payments payable within such payment and delivery shall not be made prior to the first business day after the earlier of (i) the expiration of six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after of Executive’s separation from service; provided that in the event of Executive’s death within such six , or (6ii) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s deathdeath (such first business day, the “Delayed Payment Date”). On the Delayed Payment Date, there shall be paid or delivered to Executive or, if Executive has died, to Executive’s estate, in a single payment or delivery (as applicable) all entitlements so delayed, and in the case of cash payments, in a single cash lump sum, an amount equal to aggregate amount of all payments delayed pursuant to the preceding sentence.
(d) In the case of any amounts payable to Executive under this Agreement that may be treated as payable in the form of “a series of installment payments”, as defined in Treas. Reg. §1.409A-2(b)(2)(iii), Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments for purposes of Treas. Reg. §1.409A-2(b)(2)(iii).
(e) To the extent that Executive is not a specified employee the reimbursement of any expenses eligible for reimbursement or the provision of any in-kind benefits under any provision of this Agreement would be considered deferred compensation under Section 409A (after taking into account all exclusions applicable to such reimbursements and benefits under Section 409A): (i) reimbursement of any such expense shall be made by the Company as soon as practicable after such expense has been incurred, but Executive’s Qualifying Termination occurs at a time during in any event no later than December 31st of the year whereby the Release Deadline Date will occur in the year immediately following the year in which Executive incurs such expense; (ii) the Qualifying Termination occursamount of such expenses eligible for reimbursement, then or in-kind benefits to be provided, during any payments calendar year shall not affect the amount of such expenses eligible for reimbursement, or in-kind benefits under this Agreement that constitute Deferred Payments that otherwise would to be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the provided, in any calendar year; and (iii) Executive’s right to amend this Agreement as it considers necessary receive such reimbursements or advisable, in its sole discretion and without the consent of Executive in-kind benefits shall not be subject to liquidation or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment exchange for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.another benefit.
Appears in 2 contracts
Sources: Management Agreement (Fair Isaac Corp), Management Agreement (Fair Isaac Corp)
Section 409A. The Company intends that all payments and benefits provided under i. Notwithstanding anything to the contrary in this Agreement or otherwise are exempt fromAgreement, or comply with, the requirements of Section 409A so that none of the payments no severance pay or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided payable upon separation that is payable to Executive, if any, under pursuant to this Agreement or otherwiseAgreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) under Section 409A will be paid or otherwise provided payable until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2ii. Notwithstanding any provisions anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than termination of employment, then, if required, the Payments, which are otherwise due to death), then any payments Executive on or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after month period following Executive’s separation from service instead termination will be accrue, to the extent required, during such six (6) month period and will become payable in a lump sum payment on the date six (6) months and one (1) day after Executive’s separation from service; provided that in following the event date of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after termination of employment or the date of Executive’s death, if earlier. To All subsequent Payments, if any, will be payable in accordance with the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments payment schedule applicable to each payment or benefits benefit.
iii. Any amounts paid under this Agreement that satisfy the requirements of the “short-term deferral” rule set forth in Section 1.409A-l(b)(4) of the Treasury Regulations will not constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Datefor purposes of clause (i) above.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional taxiv. Each payment, installment, payment and benefit payable under this the Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided ) of the Treasury Regulations.
v. Any amount paid under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest Agreement that may be imposed, or other costs that may be incurred, qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-l(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit (as defined below) will not constitute a Payment for purposes of clause (i) above.
vi. The foregoing provisions are intended to be exempt from or comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A.
Appears in 2 contracts
Sources: Executive Employment Agreement (Impinj Inc), Executive Employment Agreement (Impinj Inc)
Section 409A. The Company intends (a) If Executive is a “key employee,” as defined in Section 416(i) of the Code (without regard to paragraph 5 thereof), except to the extent permitted under Section 409A of the Code, no benefit or payment that is subject to Section 409A of the Code (after taking into account all payments applicable exceptions to Section 409A of the Code, including but not limited to the exceptions for short-term deferrals and benefits provided for “separation pay only upon an involuntary separation from service”) shall be made under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none on account of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within as defined in Section 409A of the meaning Code, with the Company until the later of Section 409A.
5.4.1. Any payments or benefits paid or provided under the date prescribed for payment in this Agreement that satisfy and the requirements first day of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or seventh calendar month that qualify as payments made as a result begins after the date of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to deathor, if earlier, the date of death of the Executive).
(b) For purposes of Section 409A of the Code (including, but not limited to, application of the exceptions for short-term deferrals and for “separation pay only upon involuntary separation from service”), then any payments or benefits each payment provided for under this Agreement is hereby designated as a separate payment, rather than a part of a larger single payment or one of a series of payments.
(c) Any amount that Executive is entitled to be reimbursed under this Agreement will be reimbursed to Executive as promptly as practicable and in any event not later than the last day of the calendar year after the calendar year in which the expenses to be reimbursed are incurred, and the amount of the expenses eligible for reimbursement during any calendar year. In addition, any such reimbursement payments described in this Section shall not be subject to liquidation or exchange for any other payment or benefit.
(d) In the event that Executive is required to execute a release to receive any payments from the Company that constitute Deferred Payments payable within nonqualified deferred compensation under Section 409A of the first six Code, payment of such amounts shall not commence until the sixtieth (660th) months after day following Executive’s separation from service instead will with the Company. Any installment payments suspended during such sixty (60) day period shall be payable paid as a single lump sum payment on the first payroll date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Dateend of such suspension period.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Newpark Resources Inc), Employment Agreement (Newpark Resources Inc)
Section 409A. The Company intends that This Agreement and all payments and benefits provided under compensation derived from this Agreement or otherwise are intended to either be exempt from, or comply with, the requirements of Section 409A so that none 409A. Accordingly, notwithstanding any other provision of this Agreement, the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in provisions of this Agreement will be interpreted in accordance consistent with the preceding sentence and if a consistent interpretation is not possible, this intent. No payments or benefits Agreement may be modified to be provided to the minimum extent necessary, as agreed upon by the Company and Executive, if any, under this Agreement or otherwise, when considered together to comply with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning requirements of Section 409A. To By way of illustration, to the extent required to be exempt from or comply with the requirements of Section 409A, references to the words “termination of Executive’s employment employment” or words or phrases to similar phrases used effect in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any 409A. Notwithstanding any provision of this Agreement to the contrary, any payments or benefits paid or provided under this Agreement that satisfy Sections 6.1(a)(2) and 6.1(a)(3) upon the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” (within the meaning of Section 409A at and the time of ExecutiveCompany’s separation from service (other than due to deathpolicy, if any, for identifying specified employees), then any payments or benefits under this Agreement that constitute Deferred Payments payable within will be paid no earlier than the first six (6) months business day of the seventh month after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executivespecified employee’s separation from service; , together with interest from the date of separation from service to the date of payment at the applicable federal rate under Section 7872(f)(2)(A) of the Code, as in effect on the date of separation from service. Further, to the extent that any in-kind benefit or reimbursement provided that under this Agreement constitutes nonqualified deferred compensation, (i) the amount of any such in-kind benefit or reimbursement to which Executive may be entitled during a calendar year will not affect the amount to be provided in the event of Executive’s death within any other calendar year, (ii) any such six benefit or reimbursement will not be subject to liquidation or exchange for another benefit, and (6iii) month period, any payments delayed by this Section 5.4.2 such reimbursement will be paid to Executive in a lump sum as soon as administratively practicable after no later than the date last day of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the calendar year whereby the Release Deadline Date will occur in the year immediately following the taxable year in which the Qualifying Termination occursreimbursable expense, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3if any, was incurred. The Company reserves the right and Executive, intending to amend be legally bound, have executed this Agreement as it considers necessary or advisableof the date shown above. EXECUTIVE NEWPAGE CORPORATION /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: President and Chief Executive Officer EXHIBIT A THIS GENERAL RELEASE (“Release”) is made by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (“Executive”), as of , 20 (“Effective Date”), in favor of NEWPAGE CORPORATION (“Company”) and the other RELEASED PARTIES described below. This Release is made in conjunction with the Employment Agreement, dated as of December 13, 2012, between the Company and Executive (“Employment Agreement”). Capitalized terms that are defined in the Employment Agreement have the same meaning when used in this Release unless otherwise indicated. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Executive covenants and agrees as follows:
1. Subject to Section 2 below, Executive, individually and on behalf of his heirs, executors, administrators, representatives, agents, attorneys and assigns of every kind, hereby irrevocably, fully, unconditionally and forever releases, discharges and holds harmless, to the fullest extent permitted by applicable law, the Company and its sole discretion affiliated companies, parents, subsidiaries, predecessors, successors, assigns, divisions, related entities and all of their respective past and present employees, officers, directors, trustees, shareholders, members, partners (as applicable), agents, investors, attorneys and representatives (collectively, the “Released Parties”), from and against any and all manner of claims, actions and causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, charges, demands and losses of any kind or nature whatsoever (based on any legal or equitable theory, whether contractual, common law, statutory, federal, state, local or otherwise, including without limitation any claims for attorneys’ fees or costs), whether known or unknown, that Executive has or may hereafter have against the consent Released Parties or any of them arising out of or by reason of any cause, matter or thing whatsoever from the beginning of the world until and through the effective date of this Release directly or indirectly related to or arising out of Executive’s past or present business relationships with the Released Parties, including without limitation any and all matters relating to Executive’s employment and termination of employment with the Company and other NewPage entities, and all matters arising under any federal, state or local statute, rule or regulation or principle of contract law or common law, the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. and applicable labor and employment laws of the state of Ohio (collectively “Claims”).
2. Notwithstanding Section 1 above, this Release will not apply to, and Executive will retain, any Claims arising from (i) Executive’s rights and the Company’s obligations under Sections 5.8, 6 and 7.1 of the Employment Agreement, (ii) Executive’s rights and the obligations of Holdings under [LIST ALL AWARD AGREEMENTS IN EXISTENCE UNDER THE HOLDINGS LTIP AND/OR ANY SUBSTITUTE, SUCCESSOR OR ADDITIONAL PLAN], and (iii) Executive’s right to indemnification and defense pursuant to the charter documents and bylaws of the Company or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior Released Party and pursuant to the actual payment Director and Officer Indemnification Agreement between the Company and Executive dated as of any benefits or imposition of any additional tax. Each payment, installment[•], and benefit payable (v) under this Agreement is intended any insurance coverage available to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have under any discretion to choose Executivedirector’s taxable year in which any payments and officer’s insurance policy or benefits are provided under this Agreement. In no event will similar policy maintained by the Company Group or any affiliate other Released Party.
3. Without limiting the foregoing, and for avoidance of doubt, Executive understands and agrees that by signing this Release:
(a) Executive is specifically and voluntarily waiving, releasing and forever giving up any and all claims that Executive may have against the Company Group have Released Parties for illegal discrimination or retaliation or any responsibilitykind or nature, liability including without limitation those based on my age, sex, race, color, religion, national origin, citizenship, veteran status, sexual orientation, disability and/or handicap, whether for tort, breach of express or obligation to reimburseimplied employment contract, indemnify or hold harmless Executive for any taxeswrongful discharge, penalties or interest that may be imposedintentional infliction of emotional distress, defamation, or other costs that may be incurred, injuries incurred on the job or as a result of my loss of employment or otherwise;
(b) Executive is specifically and voluntarily waiving, releasing and forever giving up any and all Claims that Executive may have against the Released Parties for breach of contract, severance pay or separation pay, vacation pay, holiday pay, breach of promise, wrongful discharge, unjust dismissal, whistle-blowing, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, defamation, wrongful denial of benefits, intentional or negligent infliction of emotional distress, negligence and any other intentional torts; and
(c) Executive is specifically and voluntarily waiving, releasing and forever giving up all Claims described in this Release through and including the Effective Date, including without limitation any alleged injuries or damages suffered at any time after the Effective Date by reason of the continued effects of alleged discriminatory acts or other conduct that occurred on or before the Effective Date.
4. Executive promises and agrees that, from and after the Effective Date, Executive will not, either individually or with any other Person, commence, maintain, prosecute, participate as a party, or permit to be filed by any other Person on my behalf, any action, charge, lawsuit, complaint or any administrative, arbitral, judicial or other proceeding with any governmental agency, or against Released Party with respect to any of the Claims released by Executive pursuant to Section 409A.1 above. Executive understands that this Section 4 bars Executive from initiating legal action only to the fullest extent such a prohibition is valid under law. In addition, Executive agrees that, from and after the Effective Date, and to the fullest extent permitted under applicable law, Executive will not voluntarily participate or assist in any judicial, administrative, arbitral or other proceedings of any nature or description against Released Parties brought by or on behalf of any administrative agency or any executives or former executives of the Company other than pursuant to a valid judicial subpoena or court order. If any Person brings a Claim released under this Release on Executive’s behalf, Executive will waive any right to recovery under that Claim and will use commercially reasonable efforts to cooperate with Released Parties to have the claim dismissed.
5. Executive acknowledges that he has been given the opportunity to review and consider this Release for 21 days from the date he received a copy. If Executive elects to sign before the expiration of the 21 days, Executive acknowledges that he will have chosen, of his own free will without any duress, to waive his right to the full 21 day period.
6. Executive may revoke this Release after signing it by delivering written notice to the Secretary of the Company within seven days after the signing date shown below. This Release, provided it is not revoked, will be effective on the day after the end of the seven-day revocation period. If Executive so revokes this Release, then the parties will automatically return to the status quo existing immediately prior to the revocation, there will be no obligation on the part of the Company or any other Released Party to pay or provide the compensation described in Section 6 of the Employment Agreement, and Executive will repay to the Company any monies and return any other consideration previously paid or provided to Executive under Section 6 of the Employment Agreement.
7. Executive acknowledges that he has been advised to consult with an attorney prior to signing this Release.
8. Executive is signing this Release knowingly, voluntarily and with full understanding of its terms and effects. Executive is signing this Release of his own free will without any duress, being fully informed and after due deliberation. Executive voluntarily accepts the consideration provided to him for the purpose of making full and final settlement of all claims referred to above. Executive acknowledges that he has not relied on any representations or statements not set forth in this Release.
Appears in 2 contracts
Sources: Employment Agreement (NewPage Holdings Inc.), Employment Agreement (NewPage Holdings Inc.)
Section 409A. The (i) Although the Company intends does not guarantee the tax treatment of any payments under the Agreement, the intent of the Parties is that all the payments and benefits provided under this Agreement or otherwise are be exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject Code, and all Treasury Regulations and guidance promulgated thereunder (“Code Section 409A”) and to the additional tax imposed under Section 409Amaximum extent permitted the Agreement shall be limited, construed and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this such intent. No In no event whatsoever shall the Company or its affiliates or their respective officers, directors, employees or agents be liable for any additional tax, interest or penalties that may be imposed on Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(ii) Notwithstanding any other provision of this Agreement to the contrary, to the extent that any reimbursement of expenses constitutes “deferred compensation” under Code Section 409A, such reimbursement shall be provided no later than December 31 of the year following the year in which the expense was incurred (or, where applicable, no later than such earlier time required by the Agreement). The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year.
(iii) For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), the right to receive payments in the form of installment payments shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment shall at all times be considered a separate and distinct payment. Whenever a payment under this Agreement may be paid within a specified period, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(iv) Notwithstanding any other provision of this Agreement to the contrary, if at the time of Executive’s separation from service (as defined in Code Section 409A), Executive is a “Specified Employee”, then the Company will defer the payment or commencement of any nonqualified deferred compensation subject to Code Section 409A payable upon separation from service (without any reduction in such payments or benefits to be ultimately paid or provided to Executive) until the date that is six (6) months following separation from service or, if anyearlier, the earliest other date as is permitted under Code Section 409A (and any amounts that otherwise would have been paid during this deferral period will be paid in a lump sum on the day after the expiration of the six (6) month period or such shorter period, if applicable). Executive will be a “Specified Employee” for purposes of this Agreement if, on the date of Executive’s separation from service, Executive is an individual who is, under the method of determination adopted by the Company designated as, or within the category of executives deemed to be, a “Specified Employee” within the meaning and in accordance with Treasury Regulation Section 1.409A-1(i). The Company shall determine in its sole discretion all matters relating to who is a “Specified Employee” and the application of and effects of the change in such determination.
(v) Notwithstanding anything in this Agreement or otherwiseelsewhere to the contrary, when considered together with a termination of employment shall not be deemed to have occurred for purposes of any other severance payments provision of this Agreement providing for the payment of any amounts or separation benefits that are considered constitute “non-qualified deferred compensation under compensation” within the meaning of Code Section 409A (together, upon or following a termination of the “Deferred Payments”) will be paid or otherwise provided until Executive has Employee’s employment unless such termination is also a “separation from service” within the meaning of Code Section 409A. To the extent required to be exempt from or comply with Section 409A409A and, for purposes of any such provision of this Agreement, references to the a “termination,” “termination of Executive’s employment employment” or similar phrases used in this Agreement will like terms shall mean Executive’s “separation from service” within and the meaning date of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary such separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within shall be the limit set forth thereunder, will not constitute Deferred Payments date of termination for purposes of this Section 5.4any such payment or benefits.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (ARC Properties Operating Partnership, L.P.), Employment Agreement (ARC Properties Operating Partnership, L.P.)
Section 409A. The Company intends Notwithstanding the timing of any payments pursuant to Section 5 of this Agreement, if the Employee is deemed on the date of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then each of the following shall apply:
(A) With regard to any payment that is considered deferred compensation under Code Section 409A payable on account of a "separation from service," such payment shall be made on the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such "separation from service" of the Employee, and (B) the date of the Employee's death (the "Delay Period") to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and any remaining payments and benefits provided due under this Agreement shall be paid or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted provided in accordance with this intent. No payments or the normal payment dates specified for them herein; and
(B) To the extent any benefits to be provided to during the first six months after Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that 's termination are considered deferred compensation under Code Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has on account of a “"separation from service” within the meaning of Section 409A. To the extent required to be ," and such benefits are not otherwise exempt from or comply with Code Section 409A, references to Executive shall pay the termination cost of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or such benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within during the first six (6) months following termination and shall be reimbursed, to the extent such costs would otherwise have been paid by the Company or to the extent such benefits would otherwise have been provided by the Company at no cost to the Executive, the cost of such coverage six months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date's termination.
5.4.3. The Company reserves the right (f) New Section 26 is hereby added to amend this Agreement read as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.follows:
Appears in 2 contracts
Sources: Employment Agreement (Protection One Inc), Employment Agreement (Protection One Inc)
Section 409A. The Company intends It is intended that all any payments and or benefits provided under pursuant to this Agreement or otherwise are exempt fromsatisfy, or comply withto the greatest extent possible, the requirements exemptions from the application of Section 409A so that none of the payments Code (“Section 409A”) provided under Treasury Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(5). Notwithstanding the foregoing, if the Company determines that any payment or benefits will be subject to the additional tax imposed benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No to the extent that such payment or benefit is payable upon Executive’s termination of employment, then such payments or benefits to shall be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean payable only upon Executive’s “separation from service.” within the meaning The determination of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as whether and when a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within has occurred shall be made in accordance with the limit presumptions set forth thereunder, will not constitute Deferred Payments for purposes of this in Treasury Regulation Section 5.4.
5.4.21.409A-1(h). Notwithstanding any provisions to the contrary in this AgreementIn addition, if at the time of Executive’s separation from service Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A at the time any payment or benefit that Executive becomes entitled to under this Agreement on account of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will shall not be payable on and such benefit shall not be provided until the date that is the earlier of (i) six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six service and (6ii) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To If any such delayed payment is otherwise payable on an installment basis, the extent first payment shall include a catch-up payment covering amounts that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time would otherwise have been paid during the year whereby six (6)-month period but for the Release Deadline Date will occur application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. In addition, interest at the Prime Rate as reported in the year immediately following Wall Street Journal shall be added to any payment that is delayed pursuant to this Paragraph 5, for the year in time period during which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Datesuch payment was delayed.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Equity Incentive Award Agreement, Equity Incentive Award Agreement (Astro Med Inc /New/)
Section 409A. The Company intends All payments to Executive that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms described in this Agreement will are subject to applicable withholding taxes. In addition, each payment shall be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has designated as a “separation from serviceseparate payment” within the meaning of Section 409A. To 409A of the extent required Internal Revenue Code of 1986, as amended (the “Code”), and will be made subject to be exempt from or comply compliance with Section 409A, references 409A. Notwithstanding anything herein to the termination contrary, (i) if at the time of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements 409A of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)Code (which, or that qualify as payments made as a result for the avoidance of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iiidoubt, may occur earlier than the Retirement Date) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive he is a “specified employee” within the meaning of as defined in Section 409A at of the time Code (and any related regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder or payable under any other compensatory arrangement between Executive and L-3 or any of its affiliates as a result of such separation from service is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then L-3 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 Executive) until the date that is six months following Executive’s separation from service (other than due to deathor the earliest date as is permitted under Section 409A of the Code), then any at which point all payments or benefits under deferred pursuant to this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will Paragraph 7 shall be paid to Executive in a lump sum as soon as administratively practicable after sum, and (ii) if any other payments of money or other benefits due to Executive hereunder could cause the date application of Executive’s deathan accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner that does not cause such an accelerated or additional tax. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments reimbursements or other in-kind benefits under this Agreement that constitute Deferred Payments that otherwise would “nonqualified deferred compensation” for purposes of Section 409A of the Code, (i) all expenses or other reimbursements hereunder shall be payable made on or prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition last day of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to taxable year following the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which such expenses were incurred by Executive; (ii) any payments right to reimbursement or in-kind benefits are shall not be subject to liquidation or exchange for another benefit; and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Additionally, nothing under this Agreement. In no event will Agreement shall be deemed to change the Company Group or scheduled payment date(s) of any affiliate deferred compensation subject to Section 409A of the Company Group have any responsibility, liability or obligation Code to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest the extent that may such a change in payment date would be imposed, or other costs that may be incurred, as a result impermissible under Section 409A of Section 409A.the Code.
Appears in 2 contracts
Sources: Retirement Agreement, Retirement Agreement (L 3 Communications Holdings Inc)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and Notwithstanding any ambiguities and ambiguous terms provision in this Agreement will to the contrary, no amounts shall be interpreted in accordance with this intent. No payments payable pursuant to Section 2.3(a) or benefits to be provided to Section 4.1(a) unless the Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has ’s termination of employment constitutes a “separation from service” within the meaning of Section 409A. To 1.409A-1(h) of the extent required Department of Treasury Regulations. If the Executive is determined to be exempt from 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 Sections 2.3(a)(i) or comply with Section 409A, references to 4.1(a) hereof (the termination “Severance Payment”) on account of Executive’s employment or similar phrases used in this Agreement will mean the Executive’s “separation from service” shall not be paid to the Executive 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 date of the 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 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 409A.
5.4.11.409A-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 (C) the payment is required under this Agreement to be paid no later than the last day of the second calendar year following the calendar year in which the Executive incurs a “separation from service”. Any For purposes of Section 409A of the Code, the Executive’s right to receive installment payments pursuant to Section 2.3(a) shall be treated as a right to receive a series of separate and distinct payments. To the extent that any reimbursement of any expense under Section 1.4(e) or in-kind benefits paid or provided under this Agreement that satisfy are deemed to constitute taxable compensation to the requirements Executive, such amounts will be reimbursed or provided no later than December 31 of the “shortyear following the year in which the expense was incurred. The amount of any such expenses reimbursed or in-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, and the Executive’s right to such reimbursement or that qualify as payments made as a result payment of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, any such expenses will not constitute Deferred Payments be subject to liquidation or exchange for purposes any other benefit. The determination of this Section 5.4.
5.4.2. Notwithstanding any provisions to whether the contrary in this Agreement, if Executive is a “specified employee” within the meaning for purposes of Section 409A at 409A(a)(2)(B)(i) of the Code as of the time of the Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within shall made by the first six (6) months after Executive’s separation from service instead will be payable on Corporation in accordance with the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event terms of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition 409A of the additional tax imposed under Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of 1.409A-1(i) and any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2successor provision thereto). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 2 contracts
Sources: Employment Agreement (Ralph Lauren Corp), Employment Agreement (Polo Ralph Lauren Corp)
Section 409A. (a) The Company intends parties intend that all this Agreement and the payments and benefits provided under this Agreement or otherwise are hereunder be exempt from, or comply with, from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A so is applicable to this Agreement, the parties intend that none this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the payments or benefits will be subject foregoing, and notwithstanding any other provision of this Agreement to the additional tax imposed contrary:
(i) if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A, then with regard to any payment that is considered a “deferral of compensation” under Section 409A payable on account of a “separation from service,” such payment shall be made on the date which is the earlier of (A) the date that is six months and any ambiguities one day after the date of such “separation from service” of the Executive and ambiguous terms (B) the date of the Executive’s death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 13(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement will shall be interpreted paid or provided in accordance with the normal payment dates specified for those payments in this intent. No Agreement;
(ii) to the extent that any payments or benefits under this Agreement are conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 60-day post-termination period, then, subject to Section 13(b)(i) and to the extent not exempt under Section 409A, such payments or benefits shall be made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, if anyand the Executive’s right to reimbursement shall not be subject to liquidation or exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive’s right to receive a series of installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, when considered together with termination of employment shall not be deemed to have occurred for purposes of any other severance payments provision of this Agreement providing for the payment of any amounts or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid upon or otherwise provided until Executive has following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, and for purposes of any such provision of this Agreement, references to the a “termination,” “termination of Executive’s employment employment” or similar phrases used in this Agreement will like terms shall mean Executive’s “separation from service” within .”
(c) The Company and the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)may be necessary, appropriate, or that qualify as payments made as a result desirable to avoid imposition of an involuntary separation from service additional tax or income recognition on the Executive under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within 409A, in each case to the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2maximum extent permitted by applicable law. Notwithstanding any provisions provision of this Agreement to the contrary contrary, (i) in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive be liable for any taxesadditional tax, penalties interest or interest penalty that may be imposedimposed on the Executive by Section 409A or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Company or any of its employees, officers, directors or other costs agents in the event it is determined that may be incurred, as a result of any payment or benefit provided hereunder does not comply with Section 409A.
Appears in 2 contracts
Sources: Employment Agreement, Employment Agreement (Blucora, Inc.)
Section 409A. (a) The Company intends amounts payable pursuant to Section 4 above are intended to be separate payments that are exempt from Section 409A of the Code by reason of the “short-term deferral” exception or the separation pay exceptions set forth in Section 1.409A-1(b)(9)(iii) or Section 1.409A-1(b)(9)(v) of the Treasury Regulations. To the extent that an amount payable under Section 4 does not comply with any of these exceptions, then they shall be subject to the following rules:
(i) Notwithstanding anything contained in this Agreement to the contrary, if the Executive is a “specified employee,” as determined under Employer’s policy for determining specified employees on the date of his termination of employment, then to the extent required in order to comply with Section 409A of the Code, all payments and payments, benefits or reimbursements paid or provided under this Agreement or otherwise are exempt from, or comply with, that constitute a “deferral of compensation” within the requirements meaning of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409ACode, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has as a result of a “separation from service” within the meaning of Section 409A. 409A and that would otherwise be paid or provided during the first six months following the date of such termination of employment shall be accumulated through and paid or provided (together with interest at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the date of termination of employment) within 30 days after the first business day following the six month anniversary of such termination of employment (or, if the Executive dies during such six-month period, within 30 days after the Executive’s death).
(ii) The benefits described in paragraphs (e), (f) and (h) of Section 4 that are taxable benefits (and that are not disability pay or death benefit plans within the meaning of Section 409A of the Code) are intended to comply, to the maximum extent possible, with the exception to Section 409A of the Code set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations. To the extent that any of those benefits either do not qualify for that exception, or are provided beyond the applicable time periods set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations, then they shall be subject to the following additional rules: (1) any reimbursement of eligible expenses shall be paid within 60 calendar days following Executive’s written request for reimbursement, or such later date set forth in Section 14(a); provided that the Executive provides written notice no later than 75 calendar days prior to the last day of the calendar year following the calendar year in which the expense was incurred so that Employer can make the reimbursement within the time periods required by Section 409A of the Code; (2) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be exempt from provided, during any other calendar year; and (3) the right to reimbursement or comply with Section 409Ain-kind benefits shall not be subject to liquidation or exchange for another benefit.
(b) For purposes of this Agreement, references to the phrase “termination of employment” or words or phrases of similar import shall mean a “separation from service” with the Employer within the meaning of Section 409A of the Code. In this regard, Employer and the Executive shall take all steps necessary (including with regard to any post-termination services by the Executive’s ) to ensure that (i) any termination of employment or similar phrases used in under this Agreement will mean Executive’s constitutes a “separation from service” within the meaning of Section 409A.409A of the Code, and (ii) the date on which such separation from service takes place shall be the date of the termination of employment for purposes of this Agreement.
5.4.1. Any (c) It is intended that the payments or and benefits paid or provided under this Agreement that satisfy shall either be exempt from the application of, or comply with, the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at of the time of Executive’s separation from service (other than due to death)Code. This Agreement shall be construed, then administered, and governed in a manner that effects such intent, and the Employer shall not take any action that would be inconsistent with such intent. Without limiting the foregoing, the payments or and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out or modified in a manner that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that would result in the event imposition of an additional tax under Section 409A of the Code upon Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after . Although the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in Employer shall use its sole discretion and without the consent of Executive or any other individual, to comply with any provision required best efforts to avoid the imposition of the additional tax imposed taxation, interest and penalties under Section 409A or to otherwise avoid income recognition under Section 409A prior to of the actual payment Code, the tax treatment of any the benefits or imposition of any additional tax. Each payment, installment, and benefit payable provided under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2)not warranted or guaranteed. In no event will Executive have any discretion to choose Executive’s taxable year in which any payments Neither the Employer, its Affiliates nor their respective directors, officers, employees or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive advisers shall be held liable for any taxes, interest, penalties or interest that may be imposed, other monetary amounts owed by the Executive or other costs that may be incurred, taxpayer as a result of Section 409A.the Agreement.
Appears in 2 contracts
Sources: Employment Security Agreement (Newell Rubbermaid Inc), Employment Security Agreement (Newell Rubbermaid Inc)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and Notwithstanding any ambiguities and ambiguous terms provision in this Agreement will to the contrary, no amounts shall be interpreted in accordance with this intent. No payments payable pursuant to Section 2.4 or benefits to be provided to Section 4.1(a) unless the Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has ’s termination of employment constitutes a “separation from service” within the meaning of Section 409A. To 1.409A-1(h) of the extent required Department of Treasury Regulations. If the Executive is determined to be exempt from 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 Sections 2.4 or comply with Section 409A, references to 4.1(a) hereof (the termination “Severance Payment”) on account of Executive’s employment or similar phrases used in this Agreement will mean 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 (5) business days after the expiration of that six month period, if and to the extent that the 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 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 409A.
5.4.11.409A-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 (C) the payment is required under this Agreement to be paid no later than the last day of the second calendar year following the calendar year in which the Executive incurs a “separation from service.” For purposes of Section 409A of the Code, the Executive’s right to receive installment payments pursuant to Section 2.4(a) shall be treated as a right to receive a series of separate and distinct payments. Any payments To the extent that any reimbursement of any expense under Section 1.4(e) or in-kind benefits paid or provided under this Agreement that satisfy are deemed to constitute taxable compensation to the requirements Executive, such amounts will be reimbursed or provided no later than December 31 of the “shortyear following the year in which the expense was incurred. The amount of any such expenses reimbursed or in-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, and the Executive’s right to such reimbursement or that qualify as payments made as a result payment of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, any such expenses will not constitute Deferred Payments be subject to liquidation or exchange for purposes any other benefit. The determination of this Section 5.4.
5.4.2. Notwithstanding any provisions to whether the contrary in this Agreement, if Executive is a “specified employee” within the meaning for purposes of Section 409A at 409A(a)(2)(B)(i) of the Code as of the time of the Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within shall be made by the first six (6) months after Executive’s separation from service instead will be payable on Corporation in accordance with the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event terms of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition 409A of the additional tax imposed under Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of 1.409A-1(i) and any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2successor provision thereto). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 2 contracts
Sources: Employment Agreement (Ralph Lauren Corp), Employment Agreement (Ralph Lauren Corp)
Section 409A. The Company intends that (a) This Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full (to extent not paid in part at earlier date) at the earliest time thereafter when such sanctions will not be imposed. For purposes of section 409A of the Code, all payments and benefits provided to be made upon a termination of employment under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will may only be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean made upon Executive’s “separation from service” (within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided such term under section 409A of the Code), each payment made under this Agreement that satisfy shall be treated as a separate payment, and the requirements right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2Code. Notwithstanding any provisions provision of this Agreement to the contrary contrary, in this Agreementno event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(b) Notwithstanding anything herein to the contrary, if, at the time of Executive’s termination of employment with the Company, the Company has securities which are publicly traded on an established securities market and Executive is a “specified employee” (as such term is defined in section 409A of the Code) and it is necessary to postpone the commencement of any payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax under section 409A of the Code, then the Company will postpone 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 Executive) that are not otherwise paid within the meaning ‘short-term deferral exception’ under Treas. Reg. §1.409A-1(b)(4), and the ‘separation pay exception’ under Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Executive’s “separation from service” (as such term is defined under section 409A of Section 409A at the time of Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts will be paid in a lump sum to Executive on the first payroll date that occurs after the date that is six months following Executive’s separation from service (other than due with the Company. If Executive dies during the postponement period prior to death)the payment of postponed amount, then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will amounts postponed on account of section 409A of the Code shall be payable on paid to the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event personal representative of Executive’s death estate within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable 60 days after the date of Executive’s death. To .
(c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the extent requirements of section 409A of the Code, including, where applicable, the requirement that Executive is not a specified employee but (A) any reimbursement shall be for expenses incurred during Executive’s Qualifying Termination occurs at lifetime (or during a shorter period of time specified in this Agreement), (B) 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, (C) the reimbursement of an eligible expense will be made on or before the last day of the calendar year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves expense is incurred and (D) the right to amend this Agreement as it considers necessary reimbursement or advisable, in its sole discretion and without the consent of Executive kind benefits is not subject to liquidation or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment exchange for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.another benefit.
Appears in 2 contracts
Sources: Employment Agreement (Auxilium Pharmaceuticals Inc), Employment Agreement (Auxilium Pharmaceuticals Inc)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, To the requirements of Section 409A so that none of extent the payments or benefits will Executive would be subject to the additional twenty (20) percent tax imposed under on certain deferred compensation arrangements pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), as a result of any provision of this Agreement, such provision shall be deemed amended to the minimum extent necessary to avoid application of such tax and preserve to the maximum extent possible the original intent and economic benefit to the Executive and the Company, and the parties shall promptly execute any amendment reasonably necessary to implement this Section 11.
(a) For purposes of Section 409A, and any ambiguities and ambiguous terms in the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and health insurance payment shall be treated as a right to receive a series of separate and distinct payments.
(b) The Executive will be interpreted in accordance with this intent. No deemed to have a date of termination for purposes of determining the timing of any payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits hereunder that are considered classified as deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has only upon a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references
(c) Notwithstanding any other provision of this Agreement to the termination contrary, if at the time of the Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within , (i) the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” employee (within the meaning of Section 409A at and using the identification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable on account of Executive’s such separation from service to the Executive constitutes deferred compensation (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first meaning of Section 409A) the payment of which is required to be delayed pursuant to the six (6) months after Executive’s separation from service instead month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A (the “Delay Period”), then the Company will be payable not pay such amount on the otherwise scheduled payment date six (6) months and one (1) but will instead pay it in a lump sum on the first business day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after period (or upon the date of Executive’s death, if earlier), together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of the dates the payments should otherwise have been provided. To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A, the Executive shall pay the cost of such benefit during the Delay Period, and the Company shall reimburse the Executive, to the extent that such costs would otherwise have been paid by the Company or to the extent that such benefits would otherwise have been provided by the Company at no cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.
(d) (A) Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not a specified employee but Executive’s Qualifying Termination occurs at a time during later than the last day of the calendar year whereby after the Release Deadline Date will occur in the year immediately following the calendar year in which the Qualifying Termination occursexpenses are incurred, then (B) any payments right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit, and (C) the amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year.
(e) Whenever a payment under this Agreement that constitute Deferred Payments that otherwise would specifies a payment period with reference to a number of days (e.g., “payment shall be payable prior to made within thirty (30) days following the Release Deadline Date instead will date of termination”), the actual date of payment within the specified period shall be paid on within the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.Company.
Appears in 2 contracts
Sources: Employment Agreement (Walker & Dunlop, Inc.), Employment Agreement (Walker & Dunlop, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject Notwithstanding anything herein to the additional tax imposed under Section 409Acontrary, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to (i) if at the time of Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the 's termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)with Employer, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of as defined in Section 409A at of the time Internal Revenue Code, and the deferral of Executive’s separation from service (other than due to death), then the commencement of any payments or benefits under this Agreement that constitute Deferred Payments otherwise payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A.409A of the Code, then Employer 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 Executive) until the date which is six months following the termination of Executive's employment with Employer (or the earliest date which is permitted under Section 409A of the Code), and (ii) if any other payments of money or other benefits due to Executive under this Agreement could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner which is determined by the Board in consultation with Employer's professional advisers not to cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 18(b) in order to prevent any accelerated or additional tax under Section 409A of the Code, then such payments shall be paid at the time specified in this Section 18(b) without any interest. Employer shall consult with Executive in good faith regarding the implementation of this Section 18(b), PROVIDED, HOWEVER, that none of Employer, its directors, its employees or its advisors shall have any liability to Executive with respect to this Section 18(b).
Appears in 2 contracts
Sources: Change in Control Agreement (Community Partners Bancorp), Employment Agreement (Community Partners Bancorp)
Section 409A. The Company intends (a) It is intended that all (i) each payment of a series of installment payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements shall be a separate “payment” for purposes of Section 409A so that none of the Code and the Treasury Regulations thereunder (collectively, “Section 409A”), and (ii) that the payments or benefits will be subject satisfy, to the additional tax imposed under greatest extent possible, the exemptions from the application of Section 409A, including those provided under Treasury Regulations 1.409A-1(b)(4) (regarding short-term deferrals), 1.409A-1(b)(9)(iii) (regarding the two-times, two (2) year exception) and any ambiguities 1.409A-1(b)(9)(v) (regarding reimbursements and ambiguous terms in this Agreement will be interpreted in accordance with this intentother separation pay). No payments or benefits Notwithstanding anything to be provided to Executivethe contrary herein, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, 1) on the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within date of the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)), the Executive is deemed 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 and are or may become subject to the additional tax under Section 409A(a)(1)(B) or any other taxes or penalties imposed under Section 409A if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six (6) months after the date of the Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) or, if sooner, the date of the Executive’s death. Any payments delayed pursuant to this Section 4.8(a) shall be made in a lump sum 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, if sooner, the date of the Executive’s death.
(b) Notwithstanding any other provision herein to the contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in Section 409A and the Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Section 409A.409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this Agreement, references to a “separation,” “termination,” “termination of employment” or like terms shall mean “separation from service.
5.4.1. Any payments or benefits paid or provided (c) Notwithstanding any other provision herein to the contrary, in no event shall any payment under this Agreement that satisfy the requirements of the constitutes “short-term deferraldeferred compensation” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.409A and the Treasury Regulations promulgated thereunder be subject to offset by any other amount unless otherwise permitted by Section 409A.
5.4.2. (d) Notwithstanding any provisions other provision herein to the contrary contrary, to the extent that any reimbursement (including expense reimbursements), fringe benefit or other, similar plan or arrangement in this Agreement, if which the Executive is participates during the Term or thereafter provides for a “specified employeedeferral of compensation” within the meaning of Section 409A at and the time of Executive’s separation from service Treasury Regulations promulgated thereunder, then such reimbursements shall be made in accordance with Treasury Regulations 1.409A-3(i)(1)(iv) including; (i) the amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other than due to deathcalendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), then (ii) subject to any payments shorter time periods provided herein or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month periodapplicable plans or arrangements, any payments delayed by this Section 5.4.2 will reimbursement or payment of an expense under such plan or arrangement must be paid to Executive in a lump sum as soon as administratively practicable after made on or before the date last day of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the calendar year whereby the Release Deadline Date will occur in the year immediately following the calendar year in which the Qualifying Termination occursexpense was incurred, then and (iii) the right to any payments reimbursement or benefits in-kind benefit may not be subject to liquidation or exchange for another benefit.
(e) For the avoidance of doubt, any payment due under this Agreement that constitute Deferred Payments that otherwise would within a period following the Executive’s termination of employment, death, disability or other event, shall be payable prior to made on a date during such period as determined by the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion discretion.
(f) This Agreement shall be interpreted in accordance with, and the Company and the Executive will use their best efforts to achieve timely compliance with, Section 409A and the Treasury Regulations and other interpretive guidance promulgated thereunder, including without limitation any such regulations or other guidance that may be issued after the consent effective date of this Agreement. By accepting this Agreement, the Executive hereby agrees and acknowledges that the Company does not make any representations with respect to the application of Section 409A to any tax, economic or legal consequences of any other individualpayments payable to the Executive hereunder. Further, by the acceptance of this Agreement, the Executive acknowledges that (i) the Executive has obtained independent tax advice regarding the application of Section 409A to the payments due to the Executive hereunder, (ii) the Executive retains full responsibility for the potential application of Section 409A to the tax and legal consequences of payments payable to the Executive hereunder and (iii) the Company shall not indemnify or otherwise compensate the Executive for any violation of Section 409A that my occur in connection with this Agreement. The parties agree to cooperate in good faith to amend such documents and to take such actions as may be necessary or appropriate to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Cracker Barrel Old Country Store, Inc), Employment Agreement (Cracker Barrel Old Country Store, Inc)
Section 409A. (a) The Company intends parties intend that all this Agreement and the payments and benefits provided under this Agreement or otherwise are hereunder be exempt from, or comply with, from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A so is applicable to this Agreement, the parties intend that none this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the payments or benefits will be subject foregoing, and notwithstanding any other provision of this Agreement to the additional tax imposed contrary:
(i) if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A, then with regard to any payment that is considered a “deferral of compensation” under Section 409A payable on account of a “separation from service,” to the extent necessary to avoid the imposition of taxes under Section 409A, such payment shall be made on the date which is the earlier of (A) the date that is six months and any ambiguities one day after the date of such “separation from service” of the Executive and ambiguous terms (B) the date of the Executive’s death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 14(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement will shall be interpreted paid or provided in accordance with the normal payment dates specified for those payments in this intent. No Agreement;
(ii) to the extent that any payments or benefits under this Agreement are conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 60-day post- termination period, then, subject to Section 14(b)(i) and to the extent not exempt under Section 409A, such payments or benefits shall be made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive;
(iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, if anyand the Executive’s right to reimbursement shall not be subject to liquidation or exchange for any other benefit;
(iv) for purposes of Section 409A, the Executive’s right to receive a series of installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company;
(v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and
(vi) to the extent required for purposes of compliance with Section 409A, when considered together with termination of employment shall not be deemed to have occurred for purposes of any other severance payments provision of this Agreement providing for the payment of any amounts or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid upon or otherwise provided until Executive has following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, and for purposes of any such provision of this Agreement, references to the a “termination,” “termination of Executive’s employment employment” or similar phrases used in this Agreement will like terms shall mean Executive’s “separation from service” within .”
(c) The Company and the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)may be necessary, appropriate, or that qualify as payments made as a result desirable to avoid imposition of an involuntary separation from service additional tax or income recognition on the Executive under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within 409A, in each case to the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2maximum extent permitted by applicable law. Notwithstanding any provisions provision of this Agreement to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisablecontrary, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive be liable for any taxesadditional tax, penalties interest or interest penalty that may be imposed, imposed on the Executive by Section 409A or other costs that may be incurred, as a result of damages for failing to comply with Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Blucora, Inc.), Employment Agreement (Blucora, Inc.)
Section 409A. The Company intends that all payments Restricted Equivalents and benefits provided under this Agreement or otherwise the dividend equivalents paid thereon are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject intended to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A409A of the Code, and the Plan and this Award Agreement shall be administered and interpreted consistent with such intent. Notwithstanding the foregoing, the Company makes no representations that the Restricted Equivalents and payments provided by this Award Agreement comply with Section 409A of the Code, and in no event shall the Company or any Affiliate be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by a Participant on account of non-compliance with Section 409A of the Code. Notwithstanding anything in this Award Agreement to the contrary, (i) references to the a Participant’s “termination of Executive’s employment or employment” and similar phrases terms used in this Agreement will mean Executive’s “separation from service” within mean, to the meaning of extent necessary to comply with Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements 409A of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)Code, or the date that qualify as payments made as the Participant first incurs a result Separation from Service, and (ii) if at the time of an involuntary separation a Participant’s Separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within Service, the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive Participant is a “specified employee” within the meaning for purposes of Section 409A at of the time Code, and the payment of Executive’s separation from service (other than due to death), then the Restricted Equivalents and any payments or benefits dividend equivalents under this Award Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of such Separation from Service is required to be delayed by six months pursuant to Section 409A.409A of the Code, then the Company will make such payment on the date that is the first day of the seventh month following the Participant’s Separation from Service. “Separation from Service” shall have the meaning given such term by Section 409A of the Code, which generally states that an employee has a “Separation from Service” with an employer if the employee dies, retires, or otherwise has a termination of his or her employment with such employer. Whether a Separation from Service has occurred is determined based on whether the facts and circumstances indicate that the employer and employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the employee would perform after such date would permanently decrease to no more than 20 percent of the average level of bona fide services performed over the immediately preceding 36-month period.
Appears in 2 contracts
Sources: Restricted Stock Equivalent Award Agreement, Restricted Stock Equivalent Award Agreement (EDGEWELL PERSONAL CARE Co)
Section 409A. The Company intends that all payments and benefits provided under (a) Subject to this Agreement or otherwise are exempt fromSection 10, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, 5 shall begin only upon the “Deferred Payments”) will be paid or otherwise provided until Executive has date of a “separation from service” of the Executive (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the Executive under Section 5, as applicable:
(i) It is intended that each installment of the payments and benefits provided under Section 5 shall be treated as a separate “payment” for purposes of Section 409A of the Code and the guidance issued thereunder (“Section 409A”). Neither the Company nor the 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.
(ii) If, as of the date of the “separation from service” of the Executive from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A. To 409A), then each installment of the extent required to payments and benefits shall be exempt from or comply with made on the dates and terms set forth in Section 409A5.
(iii) If, references to as of the termination date of Executive’s employment or similar phrases used in this Agreement will mean Executive’s the “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)Executive from the Company, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” (within the meaning of Section 409A at 409A), then:
(1) Each installment of the time payments and benefits due under Section 5 that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of Executive’s when the separation from service (other than due to death)occurs, then any payments or benefits under this Agreement that constitute Deferred Payments payable be paid within the first six Short-Term Deferral Period (6as hereinafter defined) months after shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A. For purposes of this Agreement, the “Short-Term Deferral Period” means the period ending on the later of the 15th day of the third month following the end of the Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the tax year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to separation from service occurs and the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition 15th day of the additional third month following the end of the Company’s tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.separation from service occurs; and
Appears in 2 contracts
Sources: Employment Agreement (Stream Global Services, Inc.), Employment Agreement (Global BPO Services Corp)
Section 409A. The Company intends parties intend that all payments any amounts payable hereunder shall either comply with or be exempt from section 409A of the Code ("Section 409A") (including under Treasury Regulation §§ 1.409A-l(b)(4) ("short-term deferrals") and benefits provided (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, each payment that may be made under this Agreement or otherwise shall be deemed to be a separate payment. With respect to amounts under the Agreement that are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be "deferred compensation" subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”i) will any provisions of this Agreement that provide for payment that is triggered by Executive's employment termination (or substantially similar phrase) shall be paid or otherwise provided until Executive has a “deemed to provide for payment that is triggered only by Executive's "separation from service” " within the meaning of Treasury Regulation Section 409A. To the extent required to be exempt from or comply with Section 409A§1.409A-1(h), references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” and (ii) if Executive is a "specified employee" within the meaning of Treasury Regulation Section 409A.
5.4.1. Any payments §1.409A-l (i) on the date of his or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s her separation from service (other than due with such status determined by the Company in accordance with rules established by the Company in writing in advance of the "specified employee identification date" that relates to deaththe date of such separation from service or in the absence of such rules established by the Company, under the default rules for identifying specified employees under Treasury Regulation Section 1.409A-l(i)), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s payment triggered by such separation from service instead will shall not be payable on made until the date six which is the earlier of (6A) months and one the expiration of the twelve (1) day after Executive’s 12)-month period measured from the date of such separation from service; provided that in service and (B) the event date of Executive’s death within such six (6) month 's death, to the extent required under Code Section 409A; upon the expiration of the foregoing delay period, any all payments delayed by pursuant to this Section 5.4.2 will clause (ii) shall be paid to Executive in a lump sum as soon as administratively practicable after and any remaining payments due under this Agreement shall be paid in accordance with the date normal payment dates specified for them in this Agreement. For the avoidance of doubt, it is intended that any expense reimbursement made to Executive hereunder shall be exempt from Section 409A. Notwithstanding the foregoing, if any expense reimbursement made hereunder shall be determined to be "deferred compensation" within the meaning of Section 409A, then the amount of expenses eligible for reimbursement during one taxable year shall not affect the amount of the expenses eligible for reimbursement during any other taxable year, (ii) the expense reimbursement shall be made on or before the last day of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the 's taxable year whereby the Release Deadline Date will occur in the year immediately following the taxable year in which the Qualifying Termination occurs, then any payments expense was incurred and (iii) the right to expense reimbursement hereunder shall not be subject to liquidation or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3exchange for another benefit. The Company reserves makes no representation to Executive regarding the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment treatment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or , and Executive is solely responsible for all taxes due with respect to any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.payment under this Agreement.
Appears in 2 contracts
Sources: Severance Agreement (DecisionPoint Systems, Inc.), Severance Agreement (DecisionPoint Systems, Inc.)
Section 409A. (1) The Company intends that all payments and benefits provided under this Agreement or otherwise Termination Benefits described herein are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required intended to be exempt from or comply with the provisions of Section 409A of the IRC, as well as any regulations or other guidance issued by the Secretary of Treasury and the Internal Revenue Service (collectively, “Section 409A”), so as to avoid the imposition of any tax, penalty or interest under Section 409A. To the extent such section or regulations apply, the provisions hereof will be construed and interpreted accordingly.
(2) It is intended that (a) each payment or installment of payments provided hereunder is a separate “payment” for purposes of Section 409A and (b) the payments satisfy, to the maximum extent possible, the exemptions from the application of Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or including those exceptions provided under this Agreement that satisfy the requirements of the “Treasury Regulations 1.409A-1(b)(4) (regarding short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4deferrals), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within (regarding the limit set forth thereundertwo-times, will not constitute Deferred Payments two year exception for purposes of this Section 5.4separation pay), and 1.409A-1(b)(9)(v) (regarding reimbursements and other separation pay).
5.4.2. (3) Notwithstanding any provisions anything to the contrary in this Agreementherein, if Executive Verso determines that (a) on the date of Employee’s Separation from Service or at such other time that Verso determines to be relevant, Employee is a “specified employee” within (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of Verso and (b) any payments to be provided to Employee pursuant to this Agreement are or may become subject to the meaning additional tax under Section 409A(a)(1)(B) of the IRC or any other taxes or penalties imposed under Section 409A (“Section 409A Taxes”) if provided at the time of Executive’s separation from service (other than due to death)otherwise required hereunder, then any such payments or benefits under this Agreement will be delayed until the date that constitute Deferred Payments payable within the first is six (6) months after Executivethe date of Employee’s separation Separation from service instead Service with Verso (or if earlier, Employee’s death) if and to the extent such delay is required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A. Any payments delayed pursuant to this section will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive made in a lump sum as soon as administratively practicable (without interest) on the first day of the seventh month following Employee’s Separation from Service (or, if earlier, within 30 days after the date of ExecutiveEmployee’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then ).
(4) Notwithstanding any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior other provision hereof to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisablecontrary, in its sole discretion and without the consent of Executive or no event will any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment hereunder that constitutes “deferred compensation” for purposes of Section 409A and the Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have promulgated thereunder be subject to offset (excluding any discretion to choose Executive’s taxable year in which forfeiture of benefits hereunder) by any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of amount unless otherwise permitted by Section 409A.
Appears in 2 contracts
Sources: Severance Agreement (Verso Corp), Severance Agreement (Verso Corp)
Section 409A. The Company intends that This Agreement shall be construed insofar as possible for all payments to be exempt from Section 409A and benefits provided under if any amounts are not so exempt, then this Agreement or otherwise shall be construed and administered so as to avoid the imposition of additional tax and/or penalties under Section 409A. To the extent that any payments are exempt fromsubject to Section 409A, or comply with, the requirements of Section 409A so that none of the such payments or benefits will shall be subject to the additional tax imposed under Section 409Afollowing: (i) amounts conditioned upon execution of a release shall not be paid before the year in which the last possible date for revocation of the release occurs (measured from the date of termination of employment), even if the release is actually signed and any ambiguities and ambiguous terms the revocation period actually expires in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, an earlier year; (ii) each payment made under this Agreement or otherwiseshall be treated as a separate payment and Executive’s right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A and (togetheriii) to the extent payment of an amount is triggered by termination of employment, the “Deferred Payments”) will be paid or otherwise provided until Executive has a termination of employment” and correlative phrases shall mean “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2409A and applicable regulations. Notwithstanding any provisions anything to the contrary in this Agreement, if Executive at the time Executive’s employment terminates, he is a “specified employee,” within the meaning as defined below, any and all amounts payable under this Agreement on account of Section 409A at the time of Executive’s such separation from service that would (other than due to death), then any payments or benefits under but for this Agreement that constitute Deferred Payments provision) be payable within the first six (6) months after Executive’s separation from service following the date of termination, shall instead will be payable paid on the date six (6) months and one (1) next business day after Executive’s separation from service; provided that in following the event expiration of Executive’s death within such six (6) month periodperiod or, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of if earlier, upon Executive’s death. To ; except (A) to the extent of amounts that Executive is do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Companies in its reasonable good faith discretion); (B) benefits which qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A. For purposes of this Agreement, the term “specified employee” means an individual determined by the Companies to be a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline DateTreasury regulation Section 1.409A-1(i).
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Ensemble Health Partners, Inc.), Employment Agreement (Ensemble Health Partners, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. (i) Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.46(c).
5.4.2. (ii) Notwithstanding any provisions anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 clause (ii) will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. (iii) The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Regulation Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify indemnify, or hold harmless Executive for any taxes, penalties or and interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Change in Control and Severance Agreement (Fabrinet), Change in Control and Severance Agreement (Fabrinet)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and Notwithstanding any ambiguities and ambiguous terms provision in this Agreement will to the contrary, no amounts shall be interpreted in accordance with this intent. No payments payable pursuant to Section 2.3(a) or benefits to be provided to Section 4.1(a) unless the Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has ’s termination of employment constitutes a “separation from service” within the meaning of Section 409A. To 1.409A-1(h) of the extent required Department of Treasury Regulations. If the Executive is determined to be exempt from 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 Sections 2.3(a)(i) or comply with Section 409A, references to 4.1(a) hereof (the termination “Severance Payment”) on account of Executive’s employment or similar phrases used in this Agreement will mean 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) if and to the extent that the 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 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 409A.
5.4.11.409A-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 (C) the payment is required under this Agreement to be paid no later than the last day of the second calendar year following the calendar year in which the Executive incurs a “separation from service”. Any For purposes of Section 409A of the Code, the Executive’s right to receive installment payments pursuant to Section 2.3(a) shall be treated as a right to receive a series of separate and distinct payments. To the extent that any reimbursement of any expense under Section 1.4(e) or in-kind benefits paid or provided under this Agreement that satisfy are deemed to constitute taxable compensation to the requirements Executive, such amounts will be reimbursed or provided no later than December 31 of the “shortyear following the year in which the expense was incurred. The amount of any such expenses reimbursed or in-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, and the Executive’s right to such reimbursement or that qualify as payments made as a result payment of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, any such expenses will not constitute Deferred Payments be subject to liquidation or exchange for purposes any other benefit. The determination of this Section 5.4.
5.4.2. Notwithstanding any provisions to whether the contrary in this Agreement, if Executive is a “specified employee” within the meaning for purposes of Section 409A at 409A(a)(2)(B)(i) of the Code as of the time of the Executive’s separation from service shall made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (other than due to deathincluding without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto), then any payments or benefits under this Agreement that constitute Deferred Payments payable within .”
5. The second paragraph of Section 4.1(c) is hereby amended by adding the following provision after the first six (6) months after Executive’s separation from service instead will sentence of that paragraph: “Notwithstanding the forgoing, all Gross-up Payments shall be payable on made to the date six (6) months and one (1) day after Executive’s separation from service; provided that in Executive no later than the event end of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the calendar year whereby the Release Deadline Date will occur in the year immediately following the calendar year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement Executive remits the Excise Tax.”
6. A new Section 5.10 is hereby added that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement reads as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.follows:
Appears in 2 contracts
Sources: Employment Agreement (Polo Ralph Lauren Corp), Employment Agreement (Polo Ralph Lauren Corp)
Section 409A. The Company intends (a) It is intended that all payments and benefits provided under the provisions of this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under with Section 409A, and any ambiguities and ambiguous terms in all provisions of this Agreement will shall be construed and interpreted in accordance a manner consistent with this intent. No payments the requirements for avoiding taxes or benefits penalties under Section 409A.
(b) Neither the Executive nor any of the Executive’s creditors or beneficiaries shall have the right to be provided to Executive, if any, under this Agreement or otherwise, when considered together with subject any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To 409A) payable under this Agreement or under any other plan, policy, arrangement or agreement of or with Arch Chemicals or any of its affiliates (this Agreement and such other plans, policies, arrangements and agreements, the extent required “Arch Plans”) to be exempt from any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or comply with garnishment. Except as permitted under Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” any deferred compensation (within the meaning of Section 409A.409A) payable to the Executive or for the Executive’s benefit under any Arch Plan may not be reduced by, or offset against, any amount owing by the Executive to Arch Chemicals or any of its affiliates.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy (c) If, at the requirements time of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary Executive’s separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is (within the limit set forth thereundermeaning of Section 409A), will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to (i) the contrary in this Agreement, if Executive is shall be a “specified employee” (within the meaning of Section 409A at and using the identification methodology selected by Arch Chemicals from time to time) and (ii) Arch Chemicals shall make a good faith determination that an amount payable under an Arch Plan constitutes deferred compensation (within the meaning of Executive’s separation from service (other than due Section 409A) the payment of which is required to death)be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then Arch Chemicals (or its affiliate, as applicable) shall not pay such amount on the otherwise scheduled payment date but shall instead accumulate such amount and pay it, without interest, on the first business day after such six-month period.
(d) Notwithstanding any payments or benefits under provision of this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, or any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior Arch Plan to the Release Deadline Date instead will be paid on contrary, in light of the Release Deadline Date.
5.4.3. The Company uncertainty with respect to the proper application of Section 409A, Arch Chemicals reserves the right to amend make amendments to this Agreement and any Arch Plan as it considers Arch Chemicals deems necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required desirable to avoid the imposition of the additional tax imposed taxes or penalties under Section 409A or to otherwise avoid income recognition under 409A. In any case, except as specifically provided in Section 409A prior to 6(b), the actual payment Executive is solely responsible and liable for the satisfaction of any benefits or imposition of any additional tax. Each payment, installment, all taxes and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposedimposed on the Executive or for the Executive’s account in connection with any Arch Plan (including any taxes and penalties under Section 409A), and neither Arch Chemicals nor any affiliate shall have any obligation to indemnify or other costs that may be incurred, as a result otherwise hold the Executive harmless from any or all of Section 409A.such taxes or penalties.
Appears in 2 contracts
Sources: Executive Agreement (Arch Chemicals Inc), Executive Agreement (Arch Chemicals Inc)
Section 409A. The Company intends (a) If Executive is a “key employee,” as defined in Section 416(i) of the Code (without regard to paragraph 5 thereof), except to the extent permitted under Section 409A of the Code, no benefit or payment that is subject to Section 409A of the Code (after taking into account all payments applicable exceptions to Section 409A of the Code, including but not limited to the exceptions for short-term deferrals and benefits provided for “separation pay only upon an involuntary separation from service”) shall be made under this Agreement or otherwise are exempt from, or comply with, the requirements on account of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within as defined in Section 409A of the meaning Code, with the Company until the later of Section 409A.
5.4.1. Any payments or benefits paid or provided under the date prescribed for payment in this Agreement that satisfy and the requirements first day of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or seventh calendar month that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within begins after the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time date of Executive’s separation from service (other than due to deathor, if earlier, the date of death of Executive).
(b) For purposes of Section 409A of the Code (including, but not limited to, application of the exceptions for short-term deferrals and for “separation pay only upon involuntary separation from service”), then any payments or benefits each payment provided for under this Agreement is hereby designated as a separate payment, rather than a part of a larger single payment or one of a series of payments.
(c) Any amount that Executive is entitled to be reimbursed under this Agreement will be reimbursed to Executive as promptly as practicable and in any event not later than the last day of the calendar year after the calendar year in which the expenses to be reimbursed are incurred, and the amount of the expenses eligible for reimbursement during any calendar year. In addition, any such reimbursement payments described in this Section shall not be subject to liquidation or exchange for any other payment or benefit.
(d) In the event that Executive is required to execute a release to receive any payments from the Company that constitute Deferred Payments payable within nonqualified deferred compensation under Section 409A of the first six Code, payment of such amounts shall not commence until the sixtieth (660th) months after day following Executive’s separation from service instead will with the Company. Any installment payments suspended during such sixty (60) day period shall be payable paid as a single lump sum payment on the first payroll date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Dateend of such suspension period.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Newpark Resources Inc), Confidentiality and Non Competition Agreement (Newpark Resources Inc)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms Notwithstanding anything in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided the contrary, the severance payment pursuant to ExecutiveSection 9, if any, under this Agreement or otherwiseto the extent such payments are made following the Executive’s termination date through March 15 of the calendar year following such termination, when considered together with any other severance are intended to constitute separate payments or separation benefits that are considered deferred compensation under for purposes of Section 409A 1.409A-2(b)(2) of the Department of Treasury Regulations (together, the “Deferred PaymentsTreasury Regulations”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required and thus are payable pursuant to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under set forth in Section 1.409A-1(b)(4) of the Treasury Regulations. To the extent such payments are made following said March 15, such severance payments are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of upon an involuntary separation termination from service under Treasury Regulations services and payable pursuant to Section 1.409A-1(b)(9)(iii) that is within of the limit set forth thereunderTreasury Regulations, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreementmaximum extent permitted by said provisions, if Executive is with any excess amount being regarded as subject to the distribution requirements of Section 409A(a)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”). In addition, any payment or benefit due upon a termination of Executive’s employment that represents a “specified employeedeferral of compensation” within the meaning of Section 409A at of the time Code shall only be paid or provided to Executive once her termination of Executive’s employment qualifies as a “separation from service.” Executive agrees that the Company shall have the right to delay the payment of any severance amount payable hereunder to the extent necessary or appropriate to comply with Section 409A(a)(2)(B)(i) of the Code (relating to payments made to certain “key employees” of certain publicly-traded companies) and in such event, any such amounts to which Executive would otherwise be entitled during the six (6)-month period immediately following his separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3first business day following the expiration of such six (6)-month period, or such other period as provided for under final guidance promulgated under Section 409A of the Code. The Neither the Company reserves nor Executive shall have the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or accelerate any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any severance payments hereunder. Finally, amounts or benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended shall be deemed not to constitute be a separate payment for purposes “deferral of compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Sections 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under subparagraph (iii)) and other applicable provisions of Treasury Regulations Regulation Section 1.409A-2(b)(2)1.409A-1 through A-6. In no event will The payment or reimbursement of expenses in Section 9 in one taxable year shall not affect the amount of the payment of such expenses provided to or on behalf of Executive have in any discretion to choose other taxable year. Any payment or reimbursement of expenses provided for in such sections shall be paid on or before the last day of Executive’s taxable year following the taxable year in which any payments the expense was incurred. The right to payment of such expenses under such sections may not be liquidated or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive exchanged for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.benefit.
Appears in 2 contracts
Sources: Employment Agreement (Cracker Barrel Old Country Store, Inc), Employment Agreement (Cracker Barrel Old Country Store, Inc)
Section 409A. The (a) Although the Company intends does not guarantee the tax treatment of any payments under the Agreement, the intent of the Company is that all the payments and benefits provided under this Agreement or otherwise are be exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject Internal Revenue Code of 1986, as amended, and all Treasury Regulations and guidance promulgated thereunder (“Section 409A”) and to the additional tax imposed under Section 409Amaximum extent permitted the Agreement shall be limited, construed and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this such intent. No In no event whatsoever shall the Company or its affiliates or their respective officers, directors, employees or agents be liable for any additional tax, interest or penalties that may be imposed on Employee by Section 409A or damages for failing to comply with Section 409A.
(b) It is intended that each installment of the payments and benefits provided under Section 2 above shall be treated as a separate “payment” for purposes of Section 409A.
(c) Notwithstanding anything in this Agreement to the contrary, any payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits Section 2 that are considered constitute non-qualified deferred compensation under subject to Section 409A (together, shall begin only upon the “Deferred Payments”) will be paid or otherwise provided until Executive has date of a “separation from service” (within the meaning of Section 409A. To 409A) which occurs on or after the extent required to be exempt from or comply with Section 409Adate of termination. If, references to as of the termination date of Executive’s employment or similar phrases used in this Agreement will mean Executive’s the “separation from service” of the Employee from the Company within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy 409A, the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive Employee is a “specified employee” (within the meaning of Section 409A), then:
(i) Each installment of the payments and benefits due under Section 2 above that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid at the time and in the manner set forth in the Agreement; and
(ii) Each installment of Executivethe payments and benefits due under Section 2 above that is not described in Section 10(c)(i) and that would, absent this subsection, be paid within the six-month period following the “separation from service” of the Employee from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Employee’s death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Employee’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments and benefits if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A‑1(b)(9)(iii) (other relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executivelast day of the Employee’s second taxable year following the Employee’s taxable year in which the separation from service instead will occurs. The determination of whether and when a separation from service has occurred shall be payable made and in a manner consistent with, and based on the date six presumptions set forth in, Treasury Regulation Section 1.409A-1(h).
(6d) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during any reimbursements under this Agreement are subject to Section 409A, any such reimbursements payable to Employee shall be paid to Employee no later than December 31 of the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occursexpense was incurred, then the amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any payments or benefits subsequent year and Employee’s right to reimbursement under this Agreement that constitute Deferred Payments that otherwise would will not be payable prior subject to the Release Deadline Date instead will be paid on the Release Deadline Dateliquidation or exchange for another benefit.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Agreement and General Release (Momenta Pharmaceuticals Inc), Agreement and General Release (Momenta Pharmaceuticals Inc)
Section 409A. The Company intends It is intended that all payments and benefits provided under this Agreement will comply with, or otherwise are be exempt from, Section 409A of the Code and any regulations and guidelines promulgated thereunder, to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision in this Agreement to the contrary:
(a) the payment (or comply with, commencement of a series of payments) hereunder of any nonqualified deferred compensation (within the requirements meaning of Section 409A so that none of the payments or benefits will Code) upon a termination of employment shall be subject to delayed until such time as the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has also undergone a “separation from service” within as defined in Treas. Reg. 1.409A-1(h), at which time such nonqualified deferred compensation (calculated as of the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination date of Executive’s termination of employment hereunder) shall be paid (or similar phrases used commence to be paid) to the Executive on the schedule set forth in this Agreement will mean Executive’s as if the Executive had undergone such termination of employment (under the same circumstances) on the date of his ultimate “separation from service” within .”
(b) if the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within of the meaning of Company under Section 409A of the Code at the time of Executive’s his separation from service (other than due to death), then and if payment of any payments or benefits amount under this Agreement that constitute Deferred Payments payable within the first is required to be delayed for a period of six (6) months after Executive’s separation from service instead will to meet the requirements of Section 409A(a)(2)(B)(i) of the Code, payment of such amount shall be payable on delayed as required by Section 409A, and the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will accumulated postponed amount shall be paid to Executive in a lump sum as soon as administratively practicable payment within 10 days after the end of the six-month period. If the Executive dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of section 409A shall be paid to the personal representative of the Executive’s estate within 60 days after the date of the Executive’s death. To the extent that The determination of whether Executive is not a specified employee but employee, including the number and identity of persons considered key employees and the identification date, shall be made by the Board in accordance with the provisions of Sections 416(i) and 409A of the Code and the regulations issued thereunder.
(c) For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments, and each payment made under the Agreement shall be treated as a separate payment for purposes of 409A of the Code. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may the Executive, directly or indirectly, designate the calendar year of payment.
(d) All reimbursements and in kind benefits, if any, provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Executive’s Qualifying Termination occurs at lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a fiscal year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other fiscal year; provided, that the foregoing clause shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, (iii) the reimbursement of an eligible expense will be made on or before the last day of the fiscal year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occursexpense is incurred, then any payments and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. Any tax gross-up payment provided for under this Agreement that constitute Deferred Payments that otherwise would shall in no event be payable prior paid to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition later than December 31 of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to calendar year following the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable calendar year in which any payments or benefits such taxes are provided under this Agreement. In no event will remitted by the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.Executive.
Appears in 2 contracts
Sources: Employment Agreement (Gadsden Properties, Inc.), Employment Agreement (Gadsden Properties, Inc.)
Section 409A. The Company intends that all payments and benefits provided If a payment under this Agreement or otherwise are exempt fromdoes not qualify as a short-term deferral under Code Section 409A and Treas. Reg. §1.409A-1(b)(4), or comply withand the Employee is a Specified Employee as of the date of termination, distributions to the Employee may not be made before the date that is six months after the date of termination or, if earlier, the requirements of Section 409A so that none date of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A Employee’s death (together, the “Deferred PaymentsSix-Month Delay Rule”). Payments to which the Employee otherwise would be entitled during the first six months following the date of term (the “Six-Month Delay”) will be accumulated and paid or otherwise provided until Executive has a “separation from service” within on the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements first day of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) seventh month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after following the date of Executive’s deathtermination. Notwithstanding the Six-Month Delay Rule set forth in this Section 11:
(a) To the maximum extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time permitted under Code Section 409A and Treas. Reg. §1.409A-1(b)(9)(iii), during the year whereby first month of the Release Deadline Date Six-Month Delay, the Company will occur in pay the year immediately following Employee an amount equal to the lesser of (i) the total lump sum severance provided under Section 6(c)(i) and (ii) above, or (ii) two times the lesser of (A) the maximum amount that may be taken into account under a qualified plan pursuant to Code Section 401(a)(17) for the year in which the Qualifying Termination date of termination occurs, then and (B) the sum of the Employee’s annualized compensation based upon the annual rate of pay for services provided to the Company for the taxable year of the Employee preceding the taxable year of the Employee in which his date of termination occurs (adjusted for any payments or benefits increase during that year that was expected to continue indefinitely if the Employee had not had a termination of employment); provided that amounts paid under this Agreement that constitute Deferred Payments that otherwise would sentence will count toward, and will not be payable prior in addition to, the total payment amount required to be made to the Release Deadline Date instead will be paid on Employee by the Release Deadline DateCompany under Section 6(c) above.
5.4.3(b) To the maximum extent permitted under Code Section 409A and Treas. The Reg. §1.409A-1(b)(9)(v)(D), within ten (10) days of the date of termination, the Company reserves will pay the right Employee an amount equal to amend the applicable dollar amount under Code Section 402(g)(1)(B) for the year of the Employee’s date of termination; provided that the amount paid under this Agreement as it considers necessary or advisablesentence will count toward, and will not be in its sole discretion and without addition to, the consent of Executive or any other individual, to comply with any provision total payment amount required to avoid be made to the imposition of Employee by the additional tax imposed Company under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual 6(c) above.
(c) Each payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement Agreements is intended to constitute be treated as one of a series of separate payment for purposes of Treasury Regulations Code Section 1.409A-2(b)(2409A and Treas. Reg. §1.409A-2(b)(2)(iii).
(d) For purposes of this Agreement, “Specified Employee” has the meaning given that term in Code Section 409A and Treas. Reg. 1.409-1(c)(i). In no event The Company’s “specified employee identification date” and “specified employee effective date” (as described in Treas. Reg. 1.409-1(c)(i)(3)) will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will be the dates designated as such by the Company Group or any affiliate in a written resolution for all plans and agreements subject to Code Section 409A or, in the absence of such resolutions, then the Company Group have any responsibility“specified employee identification date” and the “specified employee effective date” for this Agreement shall be December 31 and [January 1], liability or obligation to reimburserespectively, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.each succeeding year.
Appears in 2 contracts
Sources: Employment Agreement (Coleman Cable, Inc.), Employment Agreement (Coleman Cable, Inc.)
Section 409A. The Company intends (a) It is intended that all payments and benefits provided any amounts payable under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to shall either be exempt from or comply with Section 409A of the Code and all regulations, guidance and other interpretive authority issued thereunder, including without limitation any such regulations or other guidance that may be issued in the future (“Section 409A”) so as not to subject the Executive to payment of any additional tax, penalty or interest imposed under Section 409A. The provisions of this Agreement shall be construed and interpreted to avoid imputation of any such additional tax, penalty or interest under Section 409A yet preserve the intended benefit payable to the Executive.
(b) Notwithstanding anything herein to the contrary, if the Executive is a Specified Employee at the time of the Executive’s termination of employment with the Company and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary to prevent any accelerated or additional tax under Section 409A, references then the Company will defer the commencement of any such payments or benefits hereunder to the extent that such payments or benefits (after taking into account all exclusions applicable to such payment under Section 409A) constitute “deferred compensation” subject to Section 409A (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the earlier of (i) the first business day after the expiration of six (6) months following the Executive’s termination of employment or (ii) the Executive’s employment death or Disability (the “Delayed Payment Date”).
(c) For purposes of this Agreement, any references herein to the Executive’s “termination of employment” or words of similar phrases used in this Agreement will mean meaning shall refer to the Executive’s “separation from service” within with the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” Company within the meaning of Section 409A at the time of Executive’s separation from service and Treasury Regulation Section 1.409A-1(h) (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior giving effect to the Release Deadline Date instead will be paid on presumptions contained therein) and the Release Deadline Date.
5.4.3. The Company reserves term “Specified Employee” shall have the right to amend this Agreement as it considers necessary or advisable, meaning given such term in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under and Treasury Regulation Section 409A prior to 1.409A-1(i) as determined in accordance with the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment Company’s policy for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.determining Specified Employees.
Appears in 2 contracts
Sources: Employment Agreement (Strategic Education, Inc.), Employment Agreement (Strategic Education, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, (a) Notwithstanding the requirements due date of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executivepost-employment payments, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, at the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning time of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment Section 409A is triggered and if Executive or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments Company would be subject to liability or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)other penalty for failure to comply with 409A, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, and if Executive is a “specified employee” within the meaning (as defined in Section 409A), Executive will not be entitled to any payments upon termination of employment that are subject to Section 409A at until the time later of Executive’s separation from service (i) the date that payments are scheduled to be made under this Agreement, or (ii) the earlier of (A) the first day of the seventh month following the date of termination of his employment with the Company for any reason other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6B) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To The provisions of this paragraph will only apply if 409A is triggered, and will only apply if and to the extent required to avoid any “additional tax” under Section 409A either to Executive or Company. If 409A is triggered, the parties to this Agreement intend that the determination of Executive’s termination of employment shall be made in accordance with Treasury Reg. Section 1.409A-1(h) and that Executive will be paid as set forth in Section 3.6, to the extent consistent with law.
(b) If Section 409A is triggered and if Executive or Company would be subject to liability or other penalty for failure to comply with 409A, the Parties to this Agreement intend that this Agreement and Company’s and Executive’s exercise of authority or discretion hereunder shall comply with the provisions of Section 409A and the Treasury regulations relating thereto so as not to subject Executive to the payment of interest and tax penalty which may be imposed under Section 409A. In furtherance of this objective, to the extent that any regulations or other guidance issued under Section 409A would result in Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during being subject to payment of “additional tax” under Section 409A, the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior parties agree to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right use their best efforts to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required order to avoid the imposition of the any such “additional tax imposed tax” under Section 409A or 409A, which such amendment shall be designed to otherwise avoid income recognition under Section 409A prior minimize the adverse economic effect on Executive without increasing the cost to the actual payment Company (other than transactions costs), all as reasonably determined in good faith by the Company and Executive to maintain to the maximum extent practicable the original intent of any benefits or imposition of any additional taxthe applicable provisions. Each payment, installment, and benefit payable This Section 7.10 does not guarantee that payments under this Agreement is intended will not be subject to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided “additional tax” under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (Dynaresource Inc), Employment Agreement (Dynaresource Inc)
Section 409A. (a) The Company intends intent of the parties is that all payments and benefits provided under this Agreement either comply with or otherwise are exempt fromfrom Section 409A and, or comply withaccordingly, to the maximum extent permitted, all provisions of this Agreement shall be construed in a manner consistent with the requirements of Section 409A so that none of the payments for avoiding taxes or benefits will be subject to the additional tax imposed penalties under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if The Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation hereby advised to seek independent advice from service (other than due his tax advisor(s) with respect to death), then any payments or benefits under this Agreement. Notwithstanding the foregoing, the Company does not guarantee the tax treatment of any payments or benefits provided under this Agreement that constitute Deferred Payments payable within under Section 409A or under any other federal, state, local or foreign tax laws and regulations.
(b) If the first six (6) months after Executive’s separation from service instead will be payable Executive is deemed on the date six of his “separation from service” with the Company to be a “specified employee”, each within the meaning of Section 409A(a)(2)(B) of the Code, then with regard to any payment or the providing of any benefit under this Agreement, and any other payment or the provision of any other benefit that is required to be delayed in compliance with Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (6i) months and one (1) day after the expiration of the six-month period measured from the date of the Executive’s separation from service; provided that , or (ii) the date of the Executive’s death, if and to the extent such six-month delay is required to comply with Section 409A(a)(2)(B). In such event, on or promptly after the first business day following the six-month delay period, all payments delayed pursuant to this Section17 (whether they would have otherwise been payable in a single sum or in installments in the event absence of Executive’s death within such six (6delay) month period, any payments delayed by this Section 5.4.2 will shall be paid or reimbursed to the Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurssum, then and any remaining payments or and benefits due under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will shall be paid on or provided in accordance with the Release Deadline Datenormal payment dates specified for them herein.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable (c) If under this Agreement Agreement, an amount is intended to constitute be paid in installments, each installment shall be treated as a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(21.409A2(b)(2)(iii). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 2 contracts
Sources: Employment Agreement (Martha Stewart Living Omnimedia Inc), Employment Agreement (Martha Stewart Living Omnimedia Inc)
Section 409A. The Company intends that all payments and benefits provided under To the extent applicable, this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will shall be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, “Section 409A”) of the Internal Revenue Code (the “Deferred PaymentsCode”) will be paid or otherwise provided until Executive has a “separation from service” within ). Notwithstanding any provision of the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references Agreement to the termination contrary, (i) if, at the time of Executive’s termination of employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within with the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)Company, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of as defined in Section 409A at and the time deferral of Executive’s separation from service (other than due to death), then the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under this Agreement Section 409A, 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 Executive) until the date that constitute Deferred Payments payable within the first is six (6) months after following Executive’s separation from service instead will be payable on termination of employment with the Company (or the earliest date six as is permitted under Section 409A) and (6ii) months and one if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A, the Company may (1a) day after Executive’s separation from service; adopt such amendments to the Agreement, including amendments with retroactive effect, that the Company determines necessary or appropriate to preserve the intended tax treatment of the benefits provided that in by the event Agreement and/or (b) take such other actions as the Company determines necessary or appropriate to comply with the requirements of Executive’s death within such Section 409A. Any amounts which would have been paid or provided but for the application of the six (6) month period, any payments delayed by deferral under this Section 5.4.2 will 10, shall be accumulated and paid to Executive in a lump sum as soon as administratively practicable promptly after the date end of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3six (6) month deferral period. The Company reserves shall consult with Executive in good faith regarding the right to amend implementation of this Agreement as it considers necessary or advisableSection 10; provided that none of the Company, in any of its sole discretion and without the consent of Executive Affiliates, or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A their employees or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive representatives shall have any discretion liability to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.with respect thereto.
Appears in 2 contracts
Sources: Employment Agreement (Omega Flex, Inc.), Employment Agreement (Omega Flex, Inc.)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is the delay described in the immediately preceding sentence does not a specified employee apply but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any parent, subsidiary or other affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 2 contracts
Sources: Change in Control and Severance Agreement (HashiCorp, Inc.), Change in Control and Severance Agreement (NavSight Holdings, Inc.)
Section 409A. The Company intends 10.2.1. It is the intention of the parties hereto that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of and the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to for hereunder shall be exempt from or comply with Section 409A, references and thus avoid the imposition of any tax and interest on Executive pursuant to Section 409A, and this Agreement shall be interpreted and construed consistent with this intent. Executive acknowledges and agrees that Executive shall be solely responsible for the payment of any tax or penalty which may be imposed or to which Executive may become subject as a result of the payment of any amounts under this Agreement.
10.2.2. Any payments hereunder to be made upon a termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s shall only be made upon a “separation from service” within the meaning of under Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.210.2.3. Notwithstanding any provisions provision of this Agreement to the contrary in this Agreementcontrary, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s “separation from service,” any payment of “nonqualified deferred compensation” (with each term defined in accordance with Section 409A) that is otherwise to be paid to Executive within six (6) months following Executive’s separation from service (whether pursuant to this Agreement or any other than due to deatharrangement between Executive and the Bank Entities), then shall, to the extent that such payment would otherwise be subject to interest and additional tax under Section 409A, be delayed and shall be paid on the first business day of the seventh calendar month following Executive’s separation from service, or, if earlier, upon Executive’s death. Any deferral of payments pursuant to the foregoing sentence shall have no effect on any payments or benefits under this Agreement that constitute Deferred Payments payable within the first are scheduled to be paid more than six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s of separation from service; provided that .
10.2.4. If any of the payments hereunder are subject to the Release Requirement, and the period in which Executive may consider executing the release begins in one calendar year and ends in the event following calendar year, the date on which such payments will be made shall be no earlier than the first day of Executive’s death the second calendar year within such six (6) month period, any payments delayed by .
10.2.5. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 5.4.2 will be paid 409A to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is not a specified employee but for expenses incurred during Executive’s Qualifying Termination occurs at lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar -15- 21183047_1 {Clients/1913/4878-6761-7240-v14} year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves expense is incurred and (iv) the right to amend this Agreement as it considers necessary reimbursement is not subject to set off or advisable, in its sole discretion and without the consent of Executive liquidation or exchange for any other individual, to comply with any provision required to avoid the imposition benefit.
10.2.6. For purposes of the additional tax imposed under application of Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual 409A, each payment in a series of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute payments will be deemed a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.payment.
Appears in 1 contract
Section 409A. (a) The Company intends amounts payable pursuant to Section 4 above are intended to be separate payments that are exempt from Section 409A of the Code by reason of the “short-term deferral” exception or the separation pay exceptions set forth in Section 1.409A-1(b)(9)(iii) or Section 1.409A-1(b)(9)(v) of the Treasury Regulations. To the extent that an amount payable under Section 4 does not comply with any of these exceptions, then they shall be subject to the following rules:
(i) Notwithstanding anything contained in this Agreement to the contrary, if the Executive is a “specified employee,” as determined under Employer’s policy for determining specified employees on the date of his termination of employment, then to the extent required in order to comply with Section 409A of the Code, all payments and payments, benefits or reimbursements paid or provided under this Agreement or otherwise are exempt from, or comply with, that constitute a “deferral of compensation” within the requirements meaning of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409ACode, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has as a result of a “separation from service” within the meaning of Section 409A. 409A and that would otherwise be paid or provided during the first six months following the date of such termination of employment shall be accumulated through and paid or provided (together with interest at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the date of termination of employment) within 30 days after the first business day following the six month anniversary of such termination of employment (or, if the Executive dies during such six-month period, within 30 days after the Executive’s death).
(ii) The benefits described in paragraphs (e), (f) and (h) of this Section 4 that are taxable benefits (and that are not disability pay or death benefit plans within the meaning of Section 409A of the Code) are intended to comply, to the maximum extent possible, with the exception to Section 409A of the Code set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations. To the extent that any of those benefits either do not qualify for that exception, or are provided beyond the applicable time periods set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations, then they shall be subject to the following additional rules: (1) any reimbursement of eligible expenses shall be paid within 60 calendar days following Executive’s written request for reimbursement, or such later date set forth in Section 14(a)(i); provided that the Executive provides written notice no later than 75 calendar days prior to the last day of the calendar year following the calendar year in which the expense was incurred so that Employer can make the reimbursement within the time periods required by Section 409A of the Code; (2) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be exempt from provided, during any other calendar year; and (3) the right to reimbursement or comply with Section 409Ain-kind benefits shall not be subject to liquidation or exchange for another benefit.
(b) For purposes of this Agreement, references to the phrase “termination of employment” or words or phrases of similar import shall mean a “separation from service” with the Employer within the meaning of Section 409A of the Code. In this regard, Employer and the Executive shall take all steps necessary (including with regard to any post-termination services by the Executive’s ) to ensure that (i) any termination of employment or similar phrases used in under this Agreement will mean Executive’s constitutes a “separation from service” within the meaning of Section 409A.409A of the Code, and (ii) the date on which such separation from service takes place shall be the date of the termination of employment for purposes of this Agreement.
5.4.1. Any (c) It is intended that the payments or and benefits paid or provided under this Agreement that satisfy shall either be exempt from the application of, or comply with, the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at of the time of Executive’s separation from service (other than due to death)Code. This Agreement shall be construed, then administered, and governed in a manner that effects such intent, and the Employer shall not take any action that would be inconsistent with such intent. Without limiting the foregoing, the payments or and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out or modified in a manner that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that would result in the event imposition of an additional tax under Section 409A of the Code upon Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after . Although the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in Employer shall use its sole discretion and without the consent of Executive or any other individual, to comply with any provision required best efforts to avoid the imposition of the additional tax imposed taxation, interest and penalties under Section 409A or to otherwise avoid income recognition under Section 409A prior to of the actual payment Code, the tax treatment of any the benefits or imposition of any additional tax. Each payment, installment, and benefit payable provided under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2)not warranted or guaranteed. In no event will Executive have any discretion to choose Executive’s taxable year in which any payments Neither the Employer, its Affiliates nor their respective directors, officers, employees or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive advisers shall be held liable for any taxes, interest, penalties or interest that may be imposed, other monetary amounts owed by the Executive or other costs that may be incurred, taxpayer as a result of Section 409A.the Agreement.
Appears in 1 contract
Sources: Employment Security Agreement (Newell Rubbermaid Inc)
Section 409A. The Company intends that all payments This Agreement and the benefits provided under this Agreement or otherwise hereunder are intended be exempt from, or comply compliant with, the requirements of Section 409A so that none of the payments or benefits will be subject to Internal Revenue Code of 1986, as amended, and the additional tax imposed under regulations promulgated thereunder (collectively, “Section 409A, ”) and any ambiguities shall be construed and ambiguous terms in this Agreement will be interpreted administered in accordance with this such intent. No payments or benefits to be provided to Executive, if any, Each installment payment under this Agreement shall be deemed and treated as a separate payment for purposes of Section 409A. Any obligations under this Agreement that arise in connection with Employee’s “termination of employment,” “termination” or otherwise, when considered together with any other severance payments similar references shall only be triggered if the termination of employment or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has termination qualifies as a “separation from service” within the meaning of Section 409A. To Treasury Regulation §1.409A-1(h). For the extent required to be exempt from or comply avoidance of doubt, despite Employee’s continued service as a non-employee director of ▇▇▇▇▇▇▇▇▇-UTI following the Termination Date, the Parties acknowledge and agree that in accordance with Section 409A409A services provided as a director are not taken into account in determining whether a service provider who provides services as both an employee and a non-employee director experiences a separation from service and therefore Employee experienced a separation from service for purposes of Section 409A as of the Termination Date. Notwithstanding any other provision of this Agreement, references to if, at the time of the termination of ExecutiveEmployee’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)employment, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive Employee is a “specified employee,” within as defined in Section 409A, and any payments upon such termination under this Agreement will result in additional tax or interest to Employee under Section 409A, he will not be entitled to receive such payments until the meaning date which is the earlier of Section 409A at the time of Executive’s (i) six months and one day after such separation from service and (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6ii) months after Executive’s separation from service instead will be payable on the date six of Employee’s death (6) months the “Delay Period”). Upon the expiration of the Delay Period, all payments and one benefits delayed pursuant to this Paragraph 19 (1) day after Executive’s separation from service; provided that whether they would have otherwise been payable in a single sum or in installments in the event absence of Executive’s death within such six (6delay) month period, any payments delayed by this Section 5.4.2 will be paid or provided to Executive Employee in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then and any remaining payments or and benefits due under this Agreement that constitute Deferred Payments that otherwise would shall be payable prior paid or provided in accordance with the normal payment dates specified for them herein (or in the Employment Agreement to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3extent provided for thereunder). The Company reserves the right to amend In addition, if any provision of this Agreement as it considers necessary would subject Employee to any additional tax or advisableinterest under Section 409A, then Employer shall, after consulting with and receiving the approval of Employee, reform such provision in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required a manner intended to avoid the imposition incurrence by Employee of any such additional tax or interest; provided that Employer shall maintain, to the maximum extent practicable, the original intent of the applicable provision without subjecting Employee to such additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.interest.
Appears in 1 contract
Section 409A. (a) The Company intends amounts payable pursuant to Section 4 above are intended to be separate payments that are exempt from Section 409A of the Code by reason of the “short-term deferral” exception or the involuntary separation pay exception (also known as the two- (2-) times rule) set forth in Section 1.409A-1(b)(9)(iii) or certain other separation pay exceptions set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations. Notwithstanding the foregoing, no payment shall be made until the end of the thirty- (30-) day determination period under Section 7(b); provided that such determination shall not preclude application of the Code Section 409A short-term deferral exception. To the extent that an amount payable under Section 4 does not comply with any of the foregoing exceptions or other exceptions or exemptions from Code Section 409A, including but not limited to the de minimis exception, the exception for certain indemnification and liability insurance plans, and the like under the Treasury Regulations, then the amount shall be subject to the following rules:
(i) Notwithstanding anything contained in this Agreement to the contrary, if on the date of his termination of employment Executive is a “specified employee,” within the meaning of Section 409A of the Code and Employer's policy for determining specified employees, then to the extent required in order to comply with Section 409A of the Code, all payments and benefits payments, benefits, or reimbursements paid or provided under this Agreement or otherwise are exempt from, or comply with, that 1311513.3 constitute a “deferral of compensation” within the requirements meaning of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409ACode, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has as a result of a “separation from service” within the meaning of Section 409A. 409A and that would otherwise be paid or provided during the first six (6) months following the date of such termination of employment shall be accumulated through and paid or provided (together with interest at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the date of termination of employment) within thirty (30) days after the first business day following the six- (6-) month anniversary of such termination of employment (or, if Executive dies during such six- (6-) month period, within thirty (30) days after Executive's death).
(ii) The benefits described in paragraphs (e), (f), and (g) of Section 4 that are taxable benefits (and that are not disability pay or death benefit plans within the meaning of Section 409A of the Code) are intended to comply, to the maximum extent possible, with the exception to Section 409A of the Code set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations. To the extent that any of those benefits either do not qualify for that exception or are provided beyond the applicable COBRA time periods set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations, then they shall be subject to the following additional rules: (1) any reimbursement of eligible expenses shall be paid within sixty (60) calendar days following Executive's written request for reimbursement or such later date set forth in Section 14(a)(i); provided that Executive provides written notice no later than seventy-five (75) calendar days prior to the last day of the calendar year following the calendar year in which the expense was incurred so that Employer can make the reimbursement within the time periods required by Section 409A of the Code; (2) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be exempt from provided, during any other calendar year; (3) the right to reimbursement or comply with Section 409Ain-kind benefits shall not be subject to liquidation or exchange for another benefit; and (4) each payment shall be treated as a separate payment.
(b) For purposes of this Agreement, references to the phrase “termination of employment” or words or phrases of similar import shall mean a “separation from service” with the Employer within the meaning of Section 409A of the Code. In this regard, Employer and Executive shall take all steps necessary (including with regard to any post-termination services by Executive’s ) to ensure that (i) any termination of employment or similar phrases used in under this Agreement will mean Executive’s constitutes a “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements 409A of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)Code, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iiiand (ii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in on which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.such
Appears in 1 contract
Sources: Employment Security Agreement (Newell Rubbermaid Inc)
Section 409A. The Company intends that all Notwithstanding anything to the contrary set forth herein, any payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, Section 7 above that constitute “deferred compensation” within the requirements meaning of Section 409A so that none of the payments or benefits will be subject to Internal Revenue Code of 1986, as amended (the additional tax imposed under “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided shall not commence in connection with Executive’s termination of employment unless and until Executive has also incurred a “separation from service” within (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the meaning of Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. To Pay pursuant to Section 7 above, to the extent required to be exempt of payments made from or comply with Section 409A, references to the date of termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within through March 15 of the meaning calendar year following such termination, are intended to constitute separate payments for purposes of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy 1.409A-2(b)(2) of the requirements of Treasury Regulations and thus payable pursuant to the “short-term deferral” rule under 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 Section 1.409A-1(b)(4), or that qualify as payments made as a result of upon an involuntary separation from termination of service under Treasury Regulations and payable pursuant to Section 1.409A-1(b)(9)(iii) that is within of the limit set forth thereunderTreasury Regulations, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreementmaximum 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, the requirement of Section 409A(a)(2)(B)(i) of the Code that, if Executive is a “specified employee” within the meaning of the aforesaid Section 409A of the Code at the time of Executive’s separation such termination from service (other than due to death)employment, then any payments or benefits under this Agreement that constitute Deferred Payments payable within be delayed until the first earlier of six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event termination of employment or Executive’s death within (such six (6) month periodapplicable date, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.the
Appears in 1 contract
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, Notwithstanding the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executiveforegoing severance provisions, if any, under this Agreement the Board (or otherwise, when considered together with any other severance payments its delegate) determines in its or separation benefits his or her discretion that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employeeSpecified Employee” within (as defined in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal Revenue Code of 1986, as amended, and applicable guidance issued thereunder (“Section 409A”)) as of the meaning of Section 409A at the time of Executive’s separation from service (other than due to deathas defined in Section 409A), then any payments or benefits the following rules will apply with respect to severance payable in installments:
(i) For purposes of applying the exception to Section 409A for short-term deferrals, each severance payment installment under this Agreement that constitute Deferred Payments payable within the first six (6Section 5(g) months after Executive’s separation from service instead above will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum treated as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have 409A. Accordingly, any discretion to choose severance payment paid (i) within 2-1/2 months of the end of the Company’s taxable year containing Executive’s termination date, or (ii) within 2-1/2 months of Executive’s taxable year containing the termination date shall be exempt from Section 409A and shall be paid as described above;
(ii) To the extent severance payments are not exempt from Section 409A under subparagraph (i) above, if Executive’s severance payments otherwise payable in which any payments the first six months following Executive’s termination date are equal to or benefits are provided under this Agreement. In no event will less than the Company Group or any affiliate lesser of the Company Group have amounts described in Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and (2), such severance payments shall be exempt from Section 409A and shall be paid as described above; and
(iii) Only to the extent a portion of Executive’s severance payments are not exempt from Section 409A pursuant to subparagraphs (i) and (ii) above, then, any responsibilitysuch remaining severance payments will not be paid to Executive until the first payroll date of the 7th month following Executive’s termination date. Any deferred payments will be paid in a lump sum and shall be equal to the portion of the severance payment that exceeds the Section 409A limit. Thereafter, liability the remainder of Employee’s severance payments will continue in monthly installments through completion of the Non-Interference Period (with each monthly installment being paid in the gross sum of the Additional Severance Payment divided by 24). If the Board (or obligation its delegate) determines that Executive is a “Specified Employee” and Executive is entitled to reimbursea lump sum severance payment, indemnify or hold harmless Executive for any taxes, penalties or interest that may such payment shall be imposed, or other costs that may be incurred, as a result made on the first day of Section 409A.the 7th month following Executive’s termination date.
Appears in 1 contract
Sources: Executive Employment Agreement (Affirmative Insurance Holdings Inc)
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and Notwithstanding any ambiguities and ambiguous terms provision in this Agreement will to the contrary, no amounts shall be interpreted in accordance with this intent. No payments payable pursuant to Section 2.3(a) or benefits to be provided to Section 4.1(a) unless the Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has ’s termination of employment constitutes a “separation from service” within the meaning of Section 409A. To 1.409A-1(h) of the extent required Department of Treasury Regulations. If the Executive is determined to be exempt from 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 Sections 2.3(a)(i) or comply with Section 409A, references to 4.1(a) hereof (the termination “Severance Payment”) on account of Executive’s employment or similar phrases used in this Agreement will mean the Executive’s “separation from service” shall not be paid to the Executive 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 date of the 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 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 409A.
5.4.11.409A-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 (C) the payment is required under this Agreement to be paid no later than the last day of the second calendar year following the calendar year in which the Executive incurs a “separation from service”. Any For purposes of Section 409A of the Code, the Executive’s right to receive installment payments pursuant to Section 2.3(a) shall be treated as a right to receive a series of separate and distinct payments. To the extent that any reimbursement of any expense under Section 1.4(e) or in-kind benefits paid or provided under this Agreement that satisfy are deemed to constitute taxable compensation to the requirements Executive, such amounts will be reimbursed or provided no later than December 31 of the “shortyear following the year in which the expense was incurred. The amount of any such expenses reimbursed or in-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, and the Executive’s right to such reimbursement or that qualify as payments made as a result payment of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, any such expenses will not constitute Deferred Payments be subject to liquidation or exchange for purposes any other benefit. The determination of this Section 5.4.
5.4.2. Notwithstanding any provisions to whether the contrary in this Agreement, if Executive is a “specified employee” within the meaning for purposes of Section 409A at 409A(a)(2)(B)(i) of the Code as of the time of the Executive’s separation from service shall made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (other than due to deathincluding without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto), then any payments or benefits under this Agreement that constitute Deferred Payments payable within .”
5. The second paragraph of Section 4.1(c) is hereby amended by adding the following provision after the first six (6) months after Executive’s separation from service instead will sentence of that paragraph: “Notwithstanding the forgoing, all Gross-up Payments shall be payable on made to the date six (6) months and one (1) day after Executive’s separation from service; provided that in Executive no later than the event end of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the calendar year whereby the Release Deadline Date will occur in the year immediately following the calendar year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement Executive remits the Excise Tax.”
6. A new Section 5.11 is hereby added that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement reads as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.follows:
Appears in 1 contract
Section 409A. The Company intends that all payments This Agreement and benefits provided under this Agreement or otherwise are exempt from, or comply with, Release is intended to meet the requirements of Section 409A so that none of the payments Internal Revenue Code of 1986, as amended, and the regulations and interpretive guidance promulgated thereunder (collectively, “Section 409A”), with respect to amounts subject thereto, and will be interpreted and construed consistent with that intent. No expenses eligible for reimbursement, or in-kind benefits to be provided, during any calendar year will affect the amounts eligible for reimbursement in any other calendar year, to the extent subject to the requirements of Section 409A, and no such right to reimbursement or right to in-kind benefits will be subject to the additional tax imposed under liquidation or exchange for any other benefit. For purposes of Section 409A, and any ambiguities and ambiguous terms each payment in this Agreement will be interpreted in accordance with this intent. No a series of installment payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) and Release will be paid or otherwise provided until Executive has treated as a separate payment. Any payments to be made under this Agreement and Release upon a termination of employment will only be made upon a “separation from service” within under Section ▇▇▇▇. ▇▇▇ makes no representations that the meaning of Section 409A. To the extent required to be exempt from or payments provided under this Agreement and Release comply with Section 409A, references and in no event will SLM be liable for any taxes, interest, penalties or other expenses that may be incurred by me on account of non-compliance with Section 409A, other than as specifically provided in Section (1)(e) above. Notwithstanding any other provision with respect to the termination timing of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy and Release, to the extent necessary to comply with the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)409A, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits to which I may become entitled under this Agreement and Release which are subject to Section 409A (and not otherwise exempt from its application) that constitute Deferred Payments are payable within the first six (6i) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after within six months following the date of Executive’s death. To termination will be withheld until the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs first business day after the six-month anniversary of the date of termination, at a which time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead I will be paid on the Release Deadline Date.
5.4.3. The Company reserves amount of such lump sum payments in a lump sum and (ii) in installments within six months following the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without date of termination will be withheld until the consent of Executive or any other individual, to comply with any provision required to avoid first business day after the imposition six-month anniversary of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to date of termination, at which time I will be paid the actual payment aggregate amount of any benefits or imposition of any additional tax. Each payment, installmentsuch installment payments in a lump sum, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will after the Company Group or any affiliate first business day of the Company Group have any responsibilityseventh month following the date of termination and continuing each month thereafter, liability or obligation I will be paid the regular payments otherwise due to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.me in accordance with the payment terms and schedule set forth herein.
Appears in 1 contract
Sources: Agreement and Release (SLM Corp)
Section 409A. The Company intends that all payments and benefits provided under (a) Subject to this Agreement or otherwise are exempt fromSection 10, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, 5 shall begin only upon the “Deferred Payments”) will be paid or otherwise provided until Executive has date of a “separation from service” of the Executive (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the Executive under Section 5, as applicable:
(i) It is intended that each installment of the payments and benefits provided under Section 5 shall be treated as a separate “payment” for purposes of Section 409A of the Code and the guidance issued thereunder (“Section 409A”). Neither the Company nor the 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.
(ii) If, as of the date of the “separation from service” of the Executive from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A. To 409A), then each installment of the extent required to payments and benefits shall be exempt from or comply with made on the dates and terms set forth in Section 409A5.
(iii) If, references to as of the termination date of Executive’s employment or similar phrases used in this Agreement will mean Executive’s the “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)Executive from the Company, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” (within the meaning of Section 409A at 409A), then:
(1) Each installment of the time payments and benefits due under Section 5 that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (as hereinafter defined) and shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-l(b)(4) to the maximum extent permissible under Section 409A. For purposes of this Agreement, the “Short-Term Deferral Period” means the period ending on the later of the 15th day of the third month following the end of the Executive’s tax year in which the separation from service occurs and the 15th day of the third month following the end of the Company’s tax year in which the separation from service occurs; and
(2) Each installment of the payments and benefits due under Section 5 that is not described in Section 10(a)(iii)(1) and that would, absent this subsection, be paid within the six-month period following the “separation from service” of the Executive from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments and benefits if and to the maximum extent that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (other relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than due to deaththe last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs.
(b) The determination of whether and when a separation from service of the Executive from the Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 10, then any payments or “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Code.
(c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that constitute Deferred Payments payable within such reimbursements or in-kind benefits are subject to Section 409A. The Company will pay or reimburse business expenses in accordance with its policies but, assuming proper substantiation, no later than the first six last day of the calendar year following the calendar year in which the relevant expense was incurred. This Section 10(c) will, among other sections, apply to payments and reimbursements of expenses under Sections 3.4, 3.5, 3.6, 3.7, and 5.
(6d) months after Executive’s separation from service instead The parties agree that if any provision of this Agreement would subject Executive to any additional tax or interest under Section 409A, the parties will be payable on cooperate to reform such provision and that the date six (6) months and one (1) day after Executive’s separation from service; provided Company may reform any such provision unilaterally, provided, that in the event of Executive’s death within any such six unilateral reform by the Company, the Company shall (6x) month periodmaintain, to the maximum extent practicable, the original intent of the applicable provision without subjecting Executive to such additional tax or interest and (y) not incur any payments delayed by this Section 5.4.2 will be paid additional compensation expense as a result of such reformation. Notwithstanding the foregoing, to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive this Agreement or any payment or benefit hereunder is determined not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occursto comply with Section 409A, then neither the Company, its Board, nor any payments of its designees, agents, or benefits under this Agreement that constitute Deferred Payments that otherwise would employees will be payable prior liable to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive person for any taxesactions, penalties or interest that may be imposeddecisions, or other costs that may be incurred, as a result of Section 409A.determinations made under the Agreement or for any resulting adverse tax consequences.
Appears in 1 contract
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from(a) Subject to her Section 10, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, 5 shall begin only upon the “Deferred Payments”) will be paid or otherwise provided until Executive has date of a “separation from service” of the Executive (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the Executive under Section 5, as applicable:
(i) It is intended that each installment of the payments and benefits provided under Section 5 shall be treated as a separate “payment” for purposes of Section 409A of the Code and the guidance issued thereunder (“Section 409A”). Neither the Company nor the 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.
(ii) If, as of the date of the “separation from service” of the Executive from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A. To 409A), then each installment of the extent required to payments and benefits shall be exempt from or comply with made on the dates and terms set forth in Section 409A5.
(iii) If, references to as of the termination date of Executive’s employment or similar phrases used in this Agreement will mean Executive’s the “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)Executive from the Company, or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” (within the meaning of Section 409A at 409A), then:
(1) Each installment of the time payments and benefits due under Section 5 that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of Executive’s when the separation from service (other than due to death)occurs, then any payments or benefits under this Agreement that constitute Deferred Payments payable be paid within the first six Short-Term Deferral Period (6as hereinafter defined) months after shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A. For purposes of her Agreement, the “Short-Term Deferral Period” means the period ending on the later of the 15th day of the third month following the end of the Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the tax year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to separation from service occurs and the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition 15th day of the additional third month following the end of the Company’s tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.separation from service occurs; and
Appears in 1 contract
Section 409A. (a) The Company intends parties intend that all this Agreement and the payments and benefits provided under this Agreement or otherwise are hereunder be exempt from, or comply with, from the requirements of Section 409A, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A so is applicable to this Agreement, the parties intend that none this Agreement and any payments and benefits thereunder comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.
(b) Without limiting the generality of the payments or benefits will be subject foregoing, and notwithstanding any other provision of this Agreement to the additional tax imposed contrary: (i) if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A, then with regard to any payment that is considered a “deferral of compensation” under Section 409A payable on account of a “separation from service,” such payment shall be made on the date which is the earlier of (A) the date that is six months and any ambiguities one day after the date of such “separation from service” of the Executive and ambiguous terms (B) the date of the Executive’s death (the “Delay Period”), to the extent required under Section 409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section 14(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and 13 all remaining payments due under this Agreement will shall be interpreted paid or provided in accordance with the normal payment dates specified for those payments in this intent. No Agreement; (ii) to the extent that any payments or benefits under this Agreement are conditioned on a Release, if the Release is executed and delivered by the Executive to the Company and becomes irrevocable and effective within the specified 60-day post-termination period, then, subject to Section 14(b)(i) and to the extent not exempt under Section 409A, such payments or benefits shall be made or commence on the first payroll date after the date that is 60 days after the Termination Date (but, in any event, by no later than March 15 of the calendar year immediately following the calendar year that includes the Termination Date). If a payment or benefit under this Agreement is conditioned on a Release and such Release is not executed, delivered and effective by the 60th day after the Termination Date, such payment or benefit shall not be paid or provided to the Executive; (iii) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive. No such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year, if anyand the Executive’s right to reimbursement shall not be subject to liquidation or exchange for any other benefit; (iv) for purposes of Section 409A, the Executive’s right to receive a series of installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within 30 days”), the actual date of payment within the specified period shall be within the sole discretion of the Company; (v) in no event shall any payment under this Agreement that constitutes a “deferral of compensation” for purposes of Section 409A be offset by any other payment pursuant to this Agreement or otherwise; and (vi) to the extent required for purposes of compliance with Section 409A, when considered together with termination of employment shall not be deemed to have occurred for purposes of any other severance payments provision of this Agreement providing for the payment of any amounts or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid upon or otherwise provided until Executive has following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, and for purposes of any such provision of this Agreement, references to the a “termination,” “termination of Executive’s employment employment” or similar phrases used in this Agreement will like terms shall mean Executive’s “separation from service” within .”
(c) The Company and the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4)may be necessary, appropriate, or that qualify as payments made as a result desirable to avoid imposition of an involuntary separation from service additional tax or income recognition on the Executive under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within 409A, in each case to the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2maximum extent permitted by applicable law. Notwithstanding any provisions provision of this Agreement to the contrary contrary, (i) in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive be liable for any taxesadditional tax, penalties interest or interest penalty that may be imposedimposed on the Executive by Section 409A or damages for failing to comply with Section 409A and (ii) the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Company or any of 14 its employees, officers, directors or other costs agents in the event it is determined that may be incurred, as a result of any payment or benefit provided hereunder does not comply with Section 409A.
Appears in 1 contract
Sources: Employment Agreement
Section 409A. The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject Notwithstanding anything to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms contrary in this Agreement will be interpreted in accordance with this intent. No payments Agreement, no severance payment or benefits to be paid or provided to ExecutiveEMPLOYEE, if any, under any pursuant to this Agreement or otherwisethat, when considered together with any other severance payments or separation benefits that benefits, are considered deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (“Section 409A”) (together, the “Deferred Payments”) will be paid or otherwise provided until Executive EMPLOYEE has a “separation from service” within the meaning of Section 409A. To the extent required Similarly, no severance payable to EMPLOYEE, if any, pursuant to this Agreement that otherwise would be exempt from or comply with Section 409A, references 409A pursuant to the termination of Executive’s employment or similar phrases used in this Agreement Treasury Regulation Section 1.409A-1(b)(9) will mean Executive’s be payable until EMPLOYEE has a “separation from service” within the meaning of Section 409A.
5.4.1. 409A. 20.2 Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then any severance payments or benefits under this Agreement that constitute would be considered Deferred Payments payable within will be paid on, or in the first six case of installments, will not commence until, the thirtieth (630th) months after Executive’s day following EMPLOYEE'S separation from service instead will be payable on or, if later, such time as required by Section 20.3 below. Except as required by Section 20.3 below, any installment payments that would have been made to EMPLOYEE during the date six thirty (6) months and one (130) day after Executive’s period immediately following EMPLOYEE'S separation from service; provided that in service but for the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 preceding sentence will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid Employee on the Release Deadline Date.
5.4.3. The Company reserves thirtieth (30th) day following EMPLOYEE'S separation from service and the right to amend this Agreement remaining payments shall be made as it considers necessary or advisable, provided in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 1 contract
Sources: Employment Agreement
Section 409A. The Company intends (a) If Executive is a “key employee,” as defined in Section 416(i) of the Code (without regard to paragraph 5 thereof), except to the extent permitted under Section 409A of the Code, no benefit or payment that is subject to Section 409A of the Code (after taking into account all payments applicable exceptions to Section 409A of the Code, including but not limited to the exceptions for short-term deferrals and benefits provided for “separation pay only upon an involuntary separation from service”) shall be made under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none on account of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within as defined in Section 409A of the meaning Code, with the Company until the later of Section 409A.
5.4.1. Any payments or benefits paid or provided under the date prescribed for payment in this Agreement that satisfy and the requirements first day of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or seventh calendar month that qualify as payments made as a result begins after the date of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to deathor, if earlier, the date of death of the Executive).
(b) For purposes of Section 409A of the Code (including, but not limited to, application of the exceptions for short-term deferrals and for “separation pay only upon involuntary separation from service”), then any payments or benefits each payment provided for under this Agreement is hereby designated as a separate payment, rather than a part of a larger single payment or one of a series of payments.
(c) Any amount that Executive is entitled to be reimbursed under this Agreement will be reimbursed to Executive as promptly as practicable and in any event not later than the last day of the calendar year after the calendar year in which the expenses to be reimbursed are incurred, and the amount of the expenses eligible for reimbursement during any calendar year. In addition, any such reimbursement payments described in this Section shall not be subject to liquidation or exchange for any other payment or benefit.
(d) In the event that Executive is required to execute a release to receive any payments from the Company that constitute Deferred Payments payable within nonqualified deferred compensation under Section 409A of the first six Code, payment of such amounts shall not commence until the sixtieth (660th) months after day following Executive’s separation from service instead will with the Company. Any installment payments suspended during such sixty (60) day period shall be payable paid as a single lump sum payment on the first payroll date six (6) months and one (1) day after Executive’s separation from service; provided that in following the event end of Executive’s death within such six (6) month suspension period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum . Executed as soon as administratively practicable after of the date of first written above. Signed: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Executive’s death) Signed: /s/ ▇▇▇▇▇▇▇ ▇. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3Best ▇▇▇▇▇▇▇ ▇. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition Best Chairman of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to Board Newpark Resources, Inc. Witness: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Witness: /s/ ▇▇▇▇▇ Best Name: ▇▇▇▇▇ Best THIS LOUISIANA UNFAIR COMPETITION, CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (this “Ancillary Agreement”) dated and effective as of April 22, 2016 is made by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“ Executive ”) and Newpark Resources, Inc. (the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2“ Company ”). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 1 contract
Section 409A. The Company intends (a) If Executive is a “key employee,” as defined in Section 416(i) of the Code (without regard to paragraph 5 thereof), except to the extent permitted under Section 409A of the Code, no benefit or payment that is subject to Section 409A of the Code (after taking into account all payments applicable exceptions to Section 409A of the Code, including but not limited to the exceptions for short-term deferrals and benefits provided for “separation pay only upon an involuntary separation from service”) shall be made under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none on account of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within as defined in Section 409A of the meaning Code, with the Company until the later of Section 409A.
5.4.1. Any payments or benefits paid or provided under the date prescribed for payment in this Agreement that satisfy and the requirements first day of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or seventh calendar month that qualify as payments made as a result begins after the date of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to deathor, if earlier, the date of death of the Executive).
(b) For purposes of Section 409A of the Code (including, but not limited to, application of the exceptions for short-term deferrals and for “separation pay only upon involuntary separation from service”), then any payments or benefits each payment provided for under this Agreement is hereby designated as a separate payment, rather than a part of a larger single payment or one of a series of payments.
(c) Any amount that Executive is entitled to be reimbursed under this Agreement will be reimbursed to Executive as promptly as practicable and in any event not later than the last day of the calendar year after the calendar year in which the expenses to be reimbursed are incurred, and the amount of the expenses eligible for reimbursement during any calendar year. In addition, any such reimbursement payments described in this Section shall not be subject to liquidation or exchange for any other payment or benefit.
(d) In the event that Executive is required to execute a release to receive any payments from the Company that constitute Deferred Payments payable within nonqualified deferred compensation under Section 409A of the first six Code, payment of such amounts shall not commence until the sixtieth (660th) months after day following Executive’s separation from service instead will with the Company. Any installment payments suspended during such sixty (60) day period shall be payable paid as a single lump sum payment on the first payroll date six (6) months and one (1) day after Executive’s separation from service; provided that in following the event end of Executive’s death within such six (6) month suspension period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum . Executed as soon as administratively practicable after of the date first written above. THIS LOUISIANA UNFAIR COMPETITION, CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (this “Ancillary Agreement ”) dated and effective as of Executive’s death. To October 15, 2010 is made by ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ (“ Executive ”) and Newpark Resources, Inc. (the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date“ Company ”).
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 1 contract
Section 409A. The Company intends It is intended that all payments and benefits provided under this Agreement will comply with, or otherwise are be exempt from, Section 409A of the Code and any regulations and guidelines promulgated thereunder, to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision in this Agreement to the contrary—
(a) the payment (or comply with, commencement of a series of payments) hereunder of any nonqualified deferred compensation (within the requirements meaning of Section 409A so that none of the payments or benefits will Code) upon a termination of employment shall be subject to delayed until such time as the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has also undergone a “separation from service” within as defined in Treas. Reg. 1.409A-1(h), at which time such nonqualified deferred compensation (calculated as of the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination date of Executive’s termination of employment hereunder) shall be paid (or similar phrases used commence to be paid) to the Executive on the schedule set forth in this Agreement will mean Executive’s as if the Executive had undergone such termination of employment (under the same circumstances) on the date of his ultimate “separation from service” within .”
(b) if the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within of the meaning of Company under Section 409A of the Code at the time of Executive’s his separation from service (other than due to death), then and if payment of any payments or benefits amount under this Agreement that constitute Deferred Payments payable within the first is required to be delayed for a period of six (6) months after Executive’s separation from service instead will to meet the requirements of Section 409A(a)(2)(B)(i) of the Code, payment of such amount shall be payable on delayed as required by Section 409A, and the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will accumulated postponed amount shall be paid to Executive in a lump sum as soon as administratively practicable payment within 10 days after the date end of Executive’s deaththe six-month period. To If the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time dies during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable postponement period prior to the Release Deadline Date instead will payment of postponed amount, the amounts withheld on account of section 409A shall be paid on to the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition personal representative of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.estate
Appears in 1 contract
Section 409A. The Company intends that all payments and benefits (i) Except as provided under this Agreement or otherwise are exempt from, or comply within the next sentence, the requirements Award shall be administered as subject to Code section 409A and in compliance with Code section 409A and the Department of Section Treasury regulations and other guidance thereunder (collectively, “409A so and Related Guidance”). If the Company determines that none of the payments or benefits Participant is not subject to Code section 409A (for example, because the Participant is not and will not be subject to taxation under the additional tax imposed under Section 409ACode at all times relevant to this Award), the Award shall be administered as exempt from Code section 409A.
(ii) Compliance with 409A and Related Guidance shall include the following: (A) any ambiguities and ambiguous terms in provisions of this Agreement will be interpreted in accordance with this intent. No payments or benefits that provide for payment of compensation that is subject to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits Code section 409A and that are considered deferred compensation under Section 409A (together, has vesting and payment triggered by the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the Participant’s termination of Executive’s employment or similar phrases used in this Agreement will mean Executiveshall be deemed to provide for vesting and payment that is triggered only by the Participant’s “separation from service” within the meaning of Treasury Regulation Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the §1.409A-1(h) (a “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4409A Separation from Service”), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii(B) that is within if the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive Participant is a “specified employee” within the meaning of Treasury Regulation Section §1.409A-1(i) on the date of his or her 409A at Separation from Service (with such status determined by the time Company in accordance with rules established by the Company in writing in advance of Executive’s the “specified employee identification date” that relates to the date of such separation from service (other than due to deathor, in the absence of such rules established by the Company, under the default rules for identifying specified employees under Treasury Regulation Section 1.409A-1(i)), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will compensation shall be paid to Executive in a lump sum as soon as administratively practicable the Participant six months following the date of such 409A Separation from Service (provided, however, that if the Participant dies after the date of Executivesuch 409A Separation from Service, this six-month delay shall not apply from and after the date of the Participant’s death. To ), and (C) to the extent necessary to comply with Code section 409A, the definition of change in control that applies under Code section 409A shall apply under this Agreement to the extent that Executive it is not a specified employee but Executive’s Qualifying Termination occurs at a time during more restrictive than the year whereby definition of Change in Control that would otherwise apply. In any case, where payment is delayed under clause (B) of the Release Deadline Date will occur in preceding sentence, payment of the year immediately following portion of the year in which Award that was vested on the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to date of the Release Deadline Date instead will Separation from Service shall be paid on the Release Deadline Date.
5.4.3date applicable under clause (B), with the payment determined as if such date were the applicable payment date under Section 4. The Participant acknowledges and agrees that the Company reserves has made no representation regarding the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment treatment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable payment under this Agreement and, notwithstanding anything else in this Agreement, that the Participant is intended solely responsible for all taxes due with respect to constitute a separate any payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 1 contract
Sources: Performance Share Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Section 409A. The Company intends that all payments and benefits provided under (a) To the extent applicable, this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will shall be interpreted in accordance with this intent. No payments or benefits to be provided to ExecutiveSection 409A. For purposes of Section 409A, if any, (i) each “payment” (as defined by Section 409A) made under this Agreement or otherwise, when shall be considered together with any other severance a “separate payment,” and (ii) payments or separation benefits that are considered shall be deemed exempt from the definition of deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided fullest extent possible under this Agreement that satisfy the requirements of (x) the “short-term deferral” rule under exemption of Treasury Regulations Section Regulation § 1.409A-1(b)(4), or that qualify as payments made as a result and (y) the exemptions of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunderRegulation § 1.409A-1(b)(9)-(11), will not constitute Deferred Payments for purposes of this Section 5.4which exemptions are hereby incorporated by reference.
5.4.2. (b) Notwithstanding any provisions anything to the contrary in this Agreement, if the Company determines that the Executive is a “specified employee” (as defined in Section 409A and as applied according to procedures of the Company and its affiliates) as of the Executive’s separation from service, to the extent any payment under this Agreement that is payable upon or in connection with a separation from service would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, no such payment will be made to the Executive during the six-month period following the Executive’s separation from service. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first day of the seventh month following the Executive’s separation from service (or such earlier date upon which such amount can be paid under Section 409A without resulting in a prohibited distribution, including as a result of the Executive’s death), the Company shall pay the Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Executive during such period.
(c) Any expense reimbursements or in kind benefits under this Agreement that constitute deferred compensation within the meaning of Section 409A at shall be made or provided in accordance with the time requirements of Executive’s separation from service Section 409A, including, without limitation, that: (i) the 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; (ii) the reimbursement of an eligible expense shall be made no later than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments payable within the first six (6) months after Executive’s separation from service instead will be payable on the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event end of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following after the year in which such expense was incurred; and (iii) the Qualifying Termination occursright to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(d) Notwithstanding any provision of this Agreement to the contrary, then if the Company determines that any payments compensation or benefits payable under this Agreement that constitute Deferred Payments that otherwise would may be payable prior subject to Section 409A, the Release Deadline Date instead will be paid on Company shall work in good faith with the Release Deadline Date.
5.4.3. The Company reserves the right Executive to amend adopt such amendments to this Agreement as it considers or adopt other policies and procedures (including amendments, | policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required appropriate to avoid the imposition of the additional tax imposed taxes under Section 409A or 409A, including without limitation, actions intended to otherwise avoid income recognition under Section 409A prior to (i) exempt the actual payment of any compensation and benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended from Section 409A, and/or (ii) comply with the requirements of Section 409A. If this Agreement fails to constitute a separate payment for purposes meet the requirements of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive 409A, neither the Company nor any of its affiliates shall have any discretion to choose Executive’s taxable year in which liability for any payments tax, penalty or benefits are provided under this Agreement. In interest imposed on the Executive by Section 409A, and the Executive shall have no event will recourse against the Company Group or any affiliate of the Company Group have its affiliates for payment of any responsibilitysuch tax, liability or obligation to reimbursepenalty, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of imposed by Section 409A.
Appears in 1 contract
Sources: Employment Agreement (Four Corners Property Trust, Inc.)
Section 409A. The Company intends that all payments and benefits provided Each payment made under this Agreement or otherwise are exempt from, or comply with, shall be treated as a separate payment and the requirements right to a series of Section 409A so that none of the installment payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required is to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made treated as a result right to a series of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2separate payments. Notwithstanding any provisions anything to the contrary in this Agreement, if Executive is at the time of your separation from service, you are a “specified employee,” within the meaning as defined below, any and all amounts payable under this Agreement on account of Section 409A at the time of Executive’s such separation from service that would (other than due to death), then any payments or benefits under but for this Agreement that constitute Deferred Payments provision) be payable within the first six (6) months after Executive’s separation from service following the date of termination, will instead will be payable paid on the date six (6) months and one (1) next business day after Executive’s separation from service; provided that in following the event expiration of Executive’s death within such six (6) month periodperiod or, any payments delayed by this Section 5.4.2 will be paid if earlier, upon your death; except (A) to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent of amounts that Executive is do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by RMR and ▇▇▇▇▇▇▇ in their reasonable good faith discretion); or (B) other amounts or benefits that are not subject to the requirements of Section 409A of the Code. For purposes of this Agreement, all references to "termination of employment,” “Retirement Date” and correlative phrases shall be construed to require a "separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the term "specified employee” means an individual determined by RMR and ▇▇▇▇▇▇▇ to be a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occursunder Treasury regulation Section 1.409A-1(i). In any event, then RMR and Sonesta make no representation or warranty and shall have no liability to you or to any payments or benefits under other person if any provisions of this Agreement that are determined to constitute Deferred Payments that otherwise would be payable prior “nonqualified deferred compensation” subject to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to but do not satisfy the actual payment requirements of any benefits or imposition of any additional taxthat Section. Each paymentHowever, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes comply with the requirements of Section 409A of the Internal Revenue Code (the “Code”) and shall be interpreted and construed consistently with such intent. The payments to you pursuant to this Agreement are also intended to be exempt from Section 409A of the Code to the maximum extent possible. Notwithstanding anything in this Agreement to the contrary, in the event that any amounts payable (or benefits provided) under this Agreement are subject to the provisions of Section 409A of the Code, to the extent determined necessary, the parties agree to act in good faith to amend this Agreement in the least restrictive manner necessary to avoid imposition of any additional tax or income recognition on you under Section 409A of the Code, the final Treasury Regulations Section 1.409A-2(b)(2and other Internal Revenue Service guidance thereunder (“409A Penalties”). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A..
Appears in 1 contract
Section 409A. The Company intends that all payments (a) This Agreement is intended to comply with and benefits provided under this Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intentSection 409A of the Code and implementing regulations and guidance (collectively, “Section 409A”). No Each payment in a series of payments or benefits to be provided to Executive, if any, the Executive pursuant to this Agreement will be deemed a separate payment for purposes of Section 409A. If any amount payable under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered upon a termination of employment is determined by the Company to constitute nonqualified deferred compensation for purposes of Section 409A (after taking into account the short-term deferral exception and the involuntary separation pay exception of the regulations promulgated under Section 409A (togetherwhich are incorporated by reference), the “Deferred Payments”) will that amount shall not be paid or otherwise provided unless and until Executive has the Executive’s termination of employment also constitutes a “separation from service” within from the meaning Company for purposes of Section 409A. To Any payments that qualify for the “short term deferral” exception or another exception under Section 409A shall be paid under the applicable exception. With respect to any payments of nonqualified deferred compensation that are payable on termination of employment subject to the effectiveness of the Release, if the twenty-one (21)-day review period for such Release straddles two (2) calendar years, then such payments will be paid (or commence being paid) in the later calendar year to the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of under Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement (b) In the event that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is determined by the Company to be a “specified employee” within the meaning for purposes of Section 409A at the time of Executive’s his separation from service (other than due to death)service, then any payments or benefits of nonqualified deferred compensation (after giving effect to any exemptions available under this Agreement that constitute Deferred Payments Section 409A) otherwise payable within to the Executive during the first six (6) months after Executive’s following separation from service instead will shall be payable delayed and paid in a lump sum (with interest from the date the Executive’s employment terminates at a rate of interest equal to the six (6)-month Treasury Bill rate in effect on the date six of termination) upon the earlier of (6x) months and one the Executive’s date of death, or (1y) the first day after of the seventh (7th) month following the Executive’s separation from service; provided that in , and the event balance of Executive’s death within such six the installments (6if any) month period, any payments delayed by this Section 5.4.2 will be paid payable in accordance with their original schedule.
(c) All expenses, reimbursements, or in-kind benefits provided to the Executive under this Agreement shall be made or provided in accordance with Section 409A, including (i) the amount of any expense eligible for reimbursement or the provision of any in-kind benefit with respect to any calendar year shall not affect the amount of expense eligible for reimbursement or the amount of in-kind benefit provided to the Executive in a lump sum as soon as administratively practicable after any other calendar year, (ii) the date of Executive’s death. To reimbursements for expenses for which the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during entitled to be reimbursed shall be made on or before the last day of the calendar year whereby the Release Deadline Date will occur in the year immediately following the calendar year in which the Qualifying Termination occursapplicable expense is incurred, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline Date.
5.4.3. The Company reserves and (iii) the right to amend this Agreement as it considers necessary payment or advisable, in its sole discretion and without the consent of Executive reimbursement or in-kind benefits may not be subject to liquidation for any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.benefit.
Appears in 1 contract
Section 409A. The Company intends It is the intent of the parties hereto that all severance payments and benefits provided under pursuant to this Employment Agreement or otherwise are exempt from, or comply with, the requirements of Section 409A so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, under this Agreement or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “qualify as short-term deferral” rule under deferrals, as defined in Treasury Regulations Section 1.409A-1(b)(4Regulation §1.409A-1(a)(4), or that qualify as payments made as a result of separation pay due to an involuntary separation from service under Treasury Regulations Regulation §1.409A-1(b)(9)(iii), reimbursement of medical benefits under Treasury Regulation §1.409A-1(b)(9)(v)(B), and/or limited payments, as defined in Treasury Regulation §1.409A-1(b)(9)(v)(D). If (a) it is determined that any payments or benefits provided pursuant to this Employment Agreement that are paid upon “separation from service” (as that term is used in Section 1.409A-1(b)(9)(iii409A of the Internal Revenue Code of 1986, as amended, and any related regulations or other applicable guidance promulgated thereunder (collectively, “Section 409A”)) that is within the limit set forth thereunder, will not constitute Deferred Payments deferred compensation for purposes of this Section 5.4.
5.4.2. Notwithstanding 409A (after taking into account the exceptions listed in the prior sentence and/or any provisions to other applicable exceptions) and (b) the contrary in this Agreement, if Executive is a “specified employee” within (as that term is used in Section 409A) on the meaning of Section 409A at date on which the time of separation from service occurs, such payments or benefits (or portions thereof) that constitute deferred compensation and that are to be paid or provided during the six (6) month period following the Executive’s separation from service (other than due to death), then any payments shall not be paid or benefits under this Agreement that constitute Deferred Payments payable within provided until the first business day after the date that is six (6) months after following the Executive’s separation from service instead will be payable on or, if the date six (6) months and one (1) day after Executive’s separation from service; provided that in the event of Executive’s death within Executive dies during such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable on the first business day after the date of the Executive’s death. To The payment that is made pursuant to the extent prior sentence shall include the cumulative amount of any amounts that Executive is could not a specified employee but Executive’s Qualifying Termination occurs at a time be paid during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any six (6) month period. All other payments or benefits under this Employment Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will shall be paid on or provided in accordance with the Release Deadline Date.
5.4.3. The Company reserves the right to amend applicable provision of this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional taxEmployment Agreement. Each payment, installment, and benefit payable installment payment under this Employment Agreement is intended to constitute shall be treated as a separate payment as defined under Treasury Regulation §1.409A-2(b)(2). For all purposes under this Employment Agreement, references to termination of the Executive’s employment and similar terms shall be interpreted to mean “separation from service,” as that term is used in Section 409A, and the Executive’s employment shall not be deemed to have terminated for purposes of Treasury Regulations this Section 1.409A-2(b)(2). In no event will Executive 12 unless and until a separation from service shall have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive occurred for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result purposes of Section 409A.
Appears in 1 contract
Sources: Executive Employment, Non Competition and Non Disclosure Agreement (Candela Corp /De/)
Section 409A. The Company intends that all payments Notwithstanding any payment dates provided pursuant to this Agreement, the payment or provision of any amounts and benefits provided under this Agreement or otherwise are exempt from, or described herein shall be delayed as necessary to comply with, the requirements of with Section 409A so of the Internal Revenue Code of 1986, as amended (the “Code”) to the extent required by Section 409A(a)(2)(B)(i) of the Code and its related Treasury regulations (relating to payments made to certain “key employees” of certain publicly-traded companies) and then only that none portion of the payments or and/or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms in provided by this Agreement will that does not exceed the Section 409A Limit (as defined below) and which qualifies as separation pay under Treasury Regulation Section 1.409A-1(b)(9)(iii), may be interpreted in accordance with this intentpaid within the thirty (30) days following Employee’s separation from service. No Any portion of such payments or benefits to be provided to Executive, if any, under this Agreement that does not qualify as separation pay or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under exceeds the Section 409A Limit will accrue during the six (together, the “Deferred Payments”6) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2. Notwithstanding any provisions to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executivemonth period immediately following Employee’s separation from service (other than due to death), then any payments or benefits under this Agreement that constitute Deferred Payments and will become payable within the first six (6) months after Executive’s separation from service instead will be payable in a lump sum on the date six (6) months and one (1) day after Executivefollowing such separation from service (or the next business day if such date is not business day). For purposes of this Agreement, “Section 409A Limit” means the lesser of two (2) times: (i) Employee’s annual base salary paid to Employee during the Company’s taxable year preceding the taxable year of Employee’s separation from serviceservice as determined under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and any related Internal Revenue Service guidance; provided or (ii) the maximum amount that in may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the event of Executive’s death within such six (6) month period, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of Executive’s death. To the extent that Executive is not a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following Code for the year in which such separation from service occurs. Employee and the Qualifying Termination occurs, then any payments or benefits under Company acknowledge that Employee and the Company intend that the compensation arrangements set forth in this Agreement that constitute Deferred Payments that otherwise would be payable prior are in compliance with Section 409A, and Employee and the Company agree to cooperate with one another, to the Release Deadline Date instead will be paid on extent reasonably requested by the Release Deadline Date.
5.4.3. The Company reserves the right other party, to amend restructure any compensation set forth in this Agreement as it considers necessary or advisablein a manner, in its sole discretion if possible and without any increase in cost to Company, such that no earlier and/or additional taxes to Employee or the consent of Executive Company or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed will arise under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.”
Appears in 1 contract
Sources: Employment Agreement (Ceva Inc)
Section 409A. The Company intends that This Agreement shall be construed insofar as possible for all payments to be exempt from Section 409A and benefits provided under if any amounts are not so exempt, then this Agreement or otherwise shall be construed and administered so as to avoid the imposition of additional tax and/or penalties under Section 409A. To the extent that any payments are exempt fromsubject to Section 409A, or comply with, the requirements of Section 409A so that none of the such payments or benefits will shall be subject to the additional tax imposed under Section 409Afollowing: (i) amounts conditioned upon execution of a release shall not be paid before the year in which the last possible date for revocation of the release occurs (measured from the date of termination of employment), even if the release is actually signed and any ambiguities and ambiguous terms the revocation period actually expires in this Agreement will be interpreted in accordance with this intent. No payments or benefits to be provided to Executive, if any, an earlier year; (ii) each payment made under this Agreement or otherwiseshall be treated as a separate payment and Executive’s right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A and (togetheriii) to the extent payment of an amount is triggered by termination of employment, the “Deferred Payments”) will be paid or otherwise provided until Executive has a termination of employment” and correlative phrases shall mean “separation from service” within the meaning of Section 409A. To the extent required to be exempt from or comply with Section 409A, references to the termination of Executive’s employment or similar phrases used in this Agreement will mean Executive’s “separation from service” within the meaning of Section 409A.
5.4.1. Any payments or benefits paid or provided under this Agreement that satisfy the requirements of the “short-term deferral” rule under Treasury Regulations Section 1.409A-1(b)(4), or that qualify as payments made as a result of an involuntary separation from service under Treasury Regulations Section 1.409A-1(b)(9)(iii) that is within the limit set forth thereunder, will not constitute Deferred Payments for purposes of this Section 5.4.
5.4.2409A and applicable regulations. Notwithstanding any provisions anything to the contrary in this Agreement, if Executive at the time Executive’s employment terminates, he
is a “specified employee,” within the meaning as defined below, any and all amounts payable under this Agreement on account of Section 409A at the time of Executive’s such separation from service that would (other than due to death), then any payments or benefits under but for this Agreement that constitute Deferred Payments provision) be payable within the first six (6) months after Executive’s separation from service following the date of termination, shall instead will be payable paid on the date six (6) months and one (1) next business day after Executive’s separation from service; provided that in following the event expiration of Executive’s death within such six (6) month periodperiod or, any payments delayed by this Section 5.4.2 will be paid to Executive in a lump sum as soon as administratively practicable after the date of if earlier, upon Executive’s death. To ; except (A) to the extent of amounts that Executive is do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Companies in its reasonable good faith discretion); (B) benefits which qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A. For purposes of this Agreement, the term “specified employee” means an individual determined by the Companies to be a specified employee but Executive’s Qualifying Termination occurs at a time during the year whereby the Release Deadline Date will occur in the year immediately following the year in which the Qualifying Termination occurs, then any payments or benefits under this Agreement that constitute Deferred Payments that otherwise would be payable prior to the Release Deadline Date instead will be paid on the Release Deadline DateTreasury regulation Section 1.409A-1(i).
5.4.3. The Company reserves the right to amend this Agreement as it considers necessary or advisable, in its sole discretion and without the consent of Executive or any other individual, to comply with any provision required to avoid the imposition of the additional tax imposed under Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Treasury Regulations Section 1.409A-2(b)(2). In no event will Executive have any discretion to choose Executive’s taxable year in which any payments or benefits are provided under this Agreement. In no event will the Company Group or any affiliate of the Company Group have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any taxes, penalties or interest that may be imposed, or other costs that may be incurred, as a result of Section 409A.
Appears in 1 contract
Sources: Employment Agreement (Ensemble Health Partners, Inc.)