Common use of Section 409A Provisions Clause in Contracts

Section 409A Provisions. 23.1 The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that any amounts payable hereunder will be taxable currently to Employee under Section 409A(a)(1)(A) of the Code and related Department of Treasury guidance, the Company and Employee shall cooperate in good faith to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to be necessary or appropriate to exempt the amounts payable hereunder from Code Section 409A or to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 23.1 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing to comply with Code Section 409A.

Appears in 3 contracts

Samples: Employment Agreement (ATI Physical Therapy, Inc.), Employment Agreement (ATI Physical Therapy, Inc.), Employment Agreement (ATI Physical Therapy, Inc.)

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Section 409A Provisions. 23.1 24.1 The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that any amounts payable hereunder will be taxable currently to Employee under Section 409A(a)(1)(A) of the Code and related Department of Treasury guidance, the Company and Employee shall cooperate in good faith to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to be necessary or appropriate to exempt the amounts payable hereunder from Code Section 409A or to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 23.1 24.1 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing to comply with Code Section 409A.

Appears in 3 contracts

Samples: Employment Agreement (ATI Physical Therapy, Inc.), Employment Agreement (Fortress Value Acquisition Corp. II), Employment Agreement (Fortress Value Acquisition Corp. II)

Section 409A Provisions. 23.1 1. EXEMPTION FROM AND COMPLIANCE WITH SECTION 409A OF THE CODE (a) ADMINISTRATION OF AGREEMENT. Certain payments and benefits payable under the Agreement are intended to be exempt from, or comply with, the requirements of Section 409A of the Code. The parties agree that this Agreement shall be interpreted in accordance with the applicable exemptions from Section 409A of the Code and the Treasury Regulations thereunder. To the extent the payments and benefits under the Agreement are subject to comply with or be exempt from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be interpreted, construed and administered in a manner consistent with that satisfies the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrarySections 409A(a)(2), in the event that the Company determines that any amounts payable hereunder will be taxable currently to Employee under Section 409A(a)(1)(A(3) and (4) of the Code and related Department the Treasury Regulations and interpretive guidance issued thereunder. If the Company and Executive determine that any compensation, benefits or other payments that are payable under the Agreement and intended to comply with Sections 409A(a)(2), (3) and (4) of the Code do not comply with Section 409A of the Code, the Treasury guidanceRegulations and interpretive guidance issued thereunder, the Company and Employee shall cooperate in good faith Executive agree to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve amend the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to be the Company and Executive deem reasonably necessary or appropriate to exempt the amounts payable hereunder from Code Section 409A or appropriate, to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 23.1 does not create an obligation on the part of the Company to modify this Code, the Treasury Regulations and interpretive guidance issued thereunder. In the case of any compensation, benefits or other payments that are payable under the Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing intended to comply with Code Section 409A.Sections 409A(a)(2), (3) and (4) of the Code, if any provision of the Agreement would cause such compensation, benefits or other payments to fail to so comply, such provision shall not be effective and shall be null and void with respect to such compensation, benefits or other payments, and such provision shall otherwise remain in full force and effect.

Appears in 2 contracts

Samples: Employment Agreement (Molina Healthcare Inc), Employment Agreement (Molina Healthcare Inc)

Section 409A Provisions. 23.1 The parties agree that this Agreement shall be interpreted to comply with or be exempt (a) Separation from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be construed Service. Notwithstanding anything in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, in to the event that the Company determines extent that any amounts payable hereunder will be taxable currently severance payments or benefits paid or provided to Employee Executive, if any, under this Agreement are considered deferred compensation subject to Section 409A(a)(1)(A) 409A of the Code and related Department of Treasury guidancethe final regulations and any guidance promulgated thereunder (“Section 409A”) (such payments, the Company and Employee shall cooperate in good faith to “Deferred Payments”), then (i) adopt such amendments to the extent required by Section 409A, no Deferred Payments will be payable unless Executive’s termination of employment also constitutes a “separation from service,” as defined in Treasury Regulations Section 1.409A-1(h) (without regard to any alternative definition thereunder) (a “Separation from Service”). Similarly, no Deferred Payments payable to Executive, if any, under this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulations Section 1.409A-1(b)(9) will be payable until Executive has a Separation from Service. For clarity, if Executive terminates employment with the Company in a manner entitling Executive to severance payments and appropriate policies benefits under Section 8, but does not incur a separation from service within the meaning of Section 409A, then any severance payments or benefits that are Deferred Payments and proceduresthat are not immediately payable under this Section 23(a) will instead be paid to Executive when Executive incurs a Separation from Service, including amendments and policies with retroactive effectnotwithstanding that Executive may no longer be employed under this Agreement. For purposes of Section 409A (including, that they mutually determine without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Executive’s right to be necessary or appropriate to preserve receive the intended tax treatment of the benefits provided by payments under this Agreement, to preserve including the economic benefits of this Agreementseverance payments and benefits, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to will be necessary or appropriate to exempt the amounts payable hereunder from Code Section 409A or to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 23.1 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee treated as a result right to receive a series of Code Section 409A or any damages for failing to comply with Code Section 409A.separate payments and, accordingly, each installment payment will at all times be considered a separate and distinct payment.

Appears in 1 contract

Samples: Employment Agreement (Rexahn Pharmaceuticals, Inc.)

Section 409A Provisions. 23.1 24.1 The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that any amounts payable hereunder will be taxable currently to Employee under Section 409A(a)(1)(A) of the Code and related Department of Treasury guidance, the Company and Employee shall cooperate in good faith to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this DocuSign Envelope ID: B997F1AF-6852-4463-BA24-4091D4C9DBC763092C01-9149- 620-8C02-E1770CAE9945 -18- WEIL:\97844204\2\18434.0003 Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to be necessary or appropriate to exempt the amounts payable hereunder from Code Section 409A or to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 23.1 24.1 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing to comply with Code Section 409A.409A. 24.2 A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “nonqualified deferred compensation” under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A. For purposes of Code Section 409A, the Employee’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. 24.3 If 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 with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Employee, and (ii) the date of Employee’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 24.3 (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 on the first business day following the expiration of the Delay Period to Employee in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 24.4 With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, to the extent that any such reimbursements or in-kind benefits constitute “nonqualified deferred compensation” under Code Section 409A, (x) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (y) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits, to be provided in any other taxable year, provided, that this clause (y) shall not be violated with regard to any medical expenses subject to a limit as set forth in Treasury Regulations Section 1.409A-3(i)(1)(iv)(B), and (z) such payments shall be made on or before the last day of Employee’s taxable year following the taxable year in which the expense occurred. [SIGNATURE PAGE FOLLOWS] DocuSign Envelope ID: B997F1AF-6852-4463-BA24-4091D4C9DBC763092C01-9149- 620-8C02-E1770CAE9945 The parties hereto have each executed and delivered this Agreement as of the day and year first above written. FORTRESS VALUE ACQUISITION CORP. II By: ________________________________ Name: Xxxxxxxxx X. Xxxxxxxx Title: General Counsel and Secretary %& -2- The parties hereto have each executed and delivered this Agreement as of the day and year first above written. ATI Holdings, LLC By: ________________________________ Name: Title: Athletic & Therapeutic Institute of Naperville, LLC By: ________________________________ Name: Title: DocuSign Envelope ID: B997F1AF-6852-4463-BA24-4091D4C9DBC763092C01-9149- 620-8C02-E1770CAE9945 Xxxxxx Xxxx Xxxxxx Xxxx CEO CEO

Appears in 1 contract

Samples: Employment Agreement (ATI Physical Therapy, Inc.)

Section 409A Provisions. 23.1 24.1 The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that any amounts payable hereunder will be taxable currently to Employee under Section 409A(a)(1)(A) of the Code and related Department of Treasury guidance, the Company and Employee shall cooperate in good faith to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to be necessary or appropriate to exempt the amounts payable hereunder from Code Section 409A or to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 23.1 24.1 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing to comply with Code Section 409A.409A. 24.2 A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits DocuSign Envelope ID: 24F1ED1D-3A11-4ED0-9318-52F83027E97B9009BC7B 5468-4B59-8EBE B836EDC9FDF -18- WEIL:\97844204\2\18434.0003 considered “nonqualified deferred compensation” under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A. For purposes of Code Section 409A, the Employee’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. 24.3 If 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 with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Employee, and (ii) the date of Employee’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 24.3 (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 on the first business day following the expiration of the Delay Period to Employee in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 24.4 With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, to the extent that any such reimbursements or in-kind benefits constitute “nonqualified deferred compensation” under Code Section 409A, (x) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (y) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits, to be provided in any other taxable year, provided, that this clause (y) shall not be violated with regard to any medical expenses subject to a limit as set forth in Treasury Regulations Section 1.409A-3(i)(1)(iv)(B), and (z) such payments shall be made on or before the last day of Employee’s taxable year following the taxable year in which the expense occurred. [SIGNATURE PAGE FOLLOWS] DocuSign Envelope ID: 24F1ED1D-3A11-4ED0-9318-52F83027E97B9009BC7B 5468-4B59-8EBE B836EDC9FDF The parties hereto have each executed and delivered this Agreement as of the day and year first above written. FORTRESS VALUE ACQUISITION CORP. II By: ________________________________ Name: Xxxxxxxxx X. Xxxxxxxx Title: General Counsel and Secretary %& -2- WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 The parties hereto have each executed and delivered this Agreement as of the day and year first above written. ATI Holdings, LLC By: ________________________________ Name: Title: Athletic & Therapeutic Institute of Naperville, LLC By: ________________________________ Name: Title: DocuSign Envelope ID: 24F1ED1D-3A11-4ED0-9318-52F83027E97B9009BC7B 5468-4B59-8EBE B836EDC9FDF Xxxxxx Xxxx Xxxxxx Xxxx CEO CEO -4- WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 Employee has read this Mutual Release, fully understand it and freely and knowingly agree to its terms. Dated this _____ day of ___________________, 20___. ____________________________________ Signature ____________________________________ Xxxxx Xxxxxx AGREED AND ACCEPTED: Fortress Value Acquisition Corp. II By: Title: Date: DocuSign Envelope ID: 24F1ED1D-3A11-4ED0-9318-52F83027E97B9009BC7B 5468-4B59-8EBE B836EDC9FDF WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 EXHIBIT B [To Be Completed by Employee, if any] DocuSign Envelope ID: 24F1ED1D-3A11-4ED0-9318-52F83027E97B9009BC7B 5468-4B59-8EBE B836EDC9FDF WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 EXHIBIT C [To Be Completed by Employee, if any] DocuSign Envelope ID: 24F1ED1D-3A11-4ED0-9318-52F83027E97B9009BC7B 5468-4B59-8EBE B836EDC9FDF

Appears in 1 contract

Samples: Employment Agreement (ATI Physical Therapy, Inc.)

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Section 409A Provisions. 23.1 The parties agree that this Agreement shall be interpreted payment of Common Shares under the Award is intended to comply with or be exempt from the application of Section 409A of the Code, and Code by reason of the regulations and authoritative guidance promulgated thereunder to short-term deferral exemption set forth in Treasury Regulation §1.409A-1(b)(4). Notwithstanding anything in the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be construed in a manner consistent with Plan or the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement Award to the contrary, in to the event that the Company determines extent that any amounts payable amount or benefit hereunder will be taxable currently to Employee that constitutes nonqualified deferred compensation under Section 409A(a)(1)(A409A of the Code and applicable guidance thereunder is otherwise payable or distributable to you under the Plan or the Award solely by reason of the occurrence of a termination of employment following a Change of Control or due to your Disability, such amount or benefit will not be payable or distributable to you by reason of such circumstance unless the Committee determines in good faith that (i) the termination of employment following a Change in Control constitutes a “separation from service” or the Disability is a “disability”, as the case may be, under Section 409A(a)(2)(A) of the Code and related Department of Treasury guidanceapplicable final regulations, the Company and Employee shall cooperate in good faith to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take the payment or distribution of such other actions as mutually determined to amount or benefit would be necessary or appropriate to exempt from the amounts payable hereunder from Code application of Section 409A by reason of the short-term deferral exemption or otherwise. In no event shall the Company have any responsibility for tax consequences to comply with you (or your beneficiary) resulting from the requirements terms or operation of Code this Award Agreement. Any payment or distribution that constitutes nonqualified deferred compensation subject to Section 409A and thereby avoid that becomes payable to you while you are a specified employee as defined in Section 409A(a)(2)(B) of the application Code on account of penalty taxes thereunder; provided, however, that this Section 23.1 does not create an obligation separation from service instead shall be made on the part earlier of the Company to modify this Agreement date that is six months and does not guarantee that one day after the amounts payable hereunder will not be subject to interest or penalties under Code Section 409Adate of such separation from service and your death. The undersigned hereby acknowledges, accepts, and in no event whatsoever shall agrees to all terms and provisions of the Company or any of its Affiliates be liable for any additional taxforegoing Agreement. ___________________________________ Employee ___________________________________ Date THE SIGNED AGREEMENT MUST BE RETURNED TO XXXX X. XXXX, interestVICE PRESIDENT AND CHIEF FINANCIAL OFFICER, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing to comply with Code Section 409A.WITHIN 30 DAYS OF THE AWARD DATE.

Appears in 1 contract

Samples: Restricted Stock Unit (1347 Property Insurance Holdings, Inc.)

Section 409A Provisions. 23.1 24.1 The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that any amounts payable hereunder will be taxable currently to Employee under Section 409A(a)(1)(A) of the Code and related Department of Treasury guidance, the Company and Employee shall cooperate in good faith to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 -18- WEIL:\97844204\2\18434.0003 Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to be necessary or appropriate to exempt the amounts payable hereunder from Code Section 409A or to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 23.1 24.1 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing to comply with Code Section 409A.409A. 24.2 A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “nonqualified deferred compensation” under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A. For purposes of Code Section 409A, the Employee’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. 24.3 If 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 with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Employee, and (ii) the date of Employee’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 24.3 (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 on the first business day following the expiration of the Delay Period to Employee in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 24.4 With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, to the extent that any such reimbursements or in-kind benefits constitute “nonqualified deferred compensation” under Code Section 409A, (x) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (y) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits, to be provided in any other taxable year, provided, that this clause (y) shall not be violated with regard to any medical expenses subject to a limit as set forth in Treasury Regulations Section 1.409A-3(i)(1)(iv)(B), and (z) such payments shall be made on or before the last day of Employee’s taxable year following the taxable year in which the expense occurred. [SIGNATURE PAGE FOLLOWS] DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 The parties hereto have each executed and delivered this Agreement as of the day and year first above written. FORTRESS VALUE ACQUISITION CORP. II By: ________________________________ Name: Xxxxxxxxx X. Xxxxxxxx Title: General Counsel and Secretary %& -2- WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 The parties hereto have each executed and delivered this Agreement as of the day and year first above written. ATI Holdings, LLC By: ________________________________ Name: Title: Athletic & Therapeutic Institute of Naperville, LLC By: ________________________________ Name: Title: DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 CEO Xxxxxx Xxxx Xxxxxx Xxxx CEO -3- WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 The parties hereto have each executed and delivered this Agreement as of the day and year first above written. EMPLOYEE ____________________________________ Xxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxx Downers Grove, IL 60515 DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 EXHIBIT A FORM OF MUTUAL RELEASE In exchange for good and valuable consideration set forth in that certain Employment Agreement (the “Employment Agreement”) between the undersigned, Xxxxxxxx Xxxxx (“Employee”) and Fortress Value Acquisition Corp. II (the “Company”), the sufficiency of which is hereby acknowledged, Employee, on behalf of Employee, Employee’s executors, heirs, administrators, assigns and anyone else claiming by, through or under Employee, irrevocably and unconditionally, releases, and forever discharges the Company, its predecessors, successors and related and affiliate entities, including, without limitation, parents and subsidiaries, and each of their respective directors, officers, employees, attorneys, insurers, agents and representatives (collectively, the “Released Parties”), from, and with respect to, any and all debts, demands, actions, causes of action, suits, covenants, contracts, wages, bonuses, damages and any and all claims, demands, liabilities, and expenses (including attorneys’ fees and costs) whatsoever of any name or nature both in law and in equity that Employee now has, ever had or may in the future have against the Released Parties with respect to Employee’s employment with, or service as an officer or director of, the Released Parties (severally and collectively, “Claims”), including but not limited to, any and all Claims in tort or contract, whether by statute or common law, and any Claims relating to salary, wages, bonuses and commissions, the breach of an oral or written contract, unjust enrichment, promissory estoppel, misrepresentation, defamation, and interference with prospective economic advantage, interference with contract, wrongful termination, intentional and negligent infliction of emotional distress, negligence, breach of the covenant of good faith and fair dealing, and Claims arising out of, based on, or connected with the termination of that Employee’s employment as set forth in the Employment Agreement, including any Claims for unlawful employment discrimination of any kind, whether based on age, race, sex, disability or otherwise, including specifically and without limitation, claims arising under or based on Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act, as amended; the Civil Rights Act of 1991; the Family and Medical Leave Act; the Americans with Disabilities Act, as amended; the Employee Retirement Income Security Act of 1974; the Equal Pay Act of 1963; the Illinois Human Rights Act; the Illinois Equal Pay Law; the rules under the Illinois Administrative Code relating to discrimination; the Chicago Ordinance on Human Rights; the Illinois Worker Adjustment and Retraining Notification Act; and the Cook County Ordinance on Human Rights; and any other local, state or federal equal employment opportunity or anti- discrimination law, statute, policy, order, ordinance or regulation affecting or relating to Claims that Employee ever had, now has, or claims to have against the Released Parties; except, in each case, with respect to Claims arising out of or otherwise relating to the purchase, ownership or sale of any equity securities of the Company or any successor thereof; provided, however, the Employee does not release the Released Parties with respect to claims arising out of or relating to their fraud, gross negligence or willful misconduct. The Employee further waives any claims the Employee may have for employment by the Company and agrees not to seek such employment or reemployment by the Company in the future. Employee warrants and represents that Employee has not assigned or transferred to any person or entity any of the Claims released by this Mutual Release, and Employee agrees to defend (by counsel of the Company’s choosing), and to indemnify and hold harmless, the Released Parties DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 -2- WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 from and against any claims based on, in connection with, or arising out of any such assignment or transfer made, purported or claimed. Except for obligations created by this Mutual Release and the Employment Agreement, the Company hereby covenants not to sue and fully releases Employee and Employee’s successors and assigns (the “Employee Releasees”), with respect to and from all actions, and claims of any kind, known or unknown, suspected or unsuspected, which the Company may now have or has ever had against any of the Employee Releasees, including all claims arising from Employee’s position as an officer, director or employee of the Company and the termination of that relationship, as of the date of this Mutual Release; except, in each case, with respect to Claims arising out of or otherwise relating to the purchase, ownership or sale of any equity securities of the Company or any successor thereof; provided, however, the Company does not release the Employee Releasees with respect to claims arising out of or relating to their fraud, gross negligence or willful misconduct. As further consideration for Employee’s entering into the Employment Agreement and this Mutual Release, the Company covenants and agrees that for one (1) year after the date of this Mutual Release, the Company will instruct its directors and executive officers not to disparage Employee in any manner harmful to Employee’s business or personal reputation. As further consideration for the Company entering into the Employment Agreement and this Mutual Release, Employee covenants and agrees that for one year after the date of this Mutual Release, Employee will not disparage the Company in any manner harmful to the Company’s business reputation. Notwithstanding anything to the contrary in this Mutual Release or the Employment Agreement, the foregoing release shall not cover, and Employee does not intend to release, any rights of indemnification under the Company’s Certificate of Incorporation (the “Certificate”) or Bylaws (the “Bylaws”) or Operating Agreement (the “Operating Agreement”), as applicable, rights to directors and officers liability insurance, or any rights and obligations under the Employment Agreement. Employee further acknowledges that the Company’s obligations under the Certificate, Bylaws or Operating Agreement are, to the extent required therein, conditioned upon receipt by the Company of an undertaking by Employee to repay any applicable indemnification amount if it shall be determined by a court of competent jurisdiction by final judicial determination that Employee is not entitled to be indemnified by the Company under the Certificate, Bylaws or Operating Agreement. The parties hereto agree that neither this Mutual Release, nor the furnishing of the consideration for this Mutual Release, shall be deemed or construed at any time to be an admission by the any Released Party or the Employee Releasees of any improper or unlawful conduct. EMPLOYEE HAS READ THIS MUTUAL RELEASE AND BEEN PROVIDED A FULL AND AMPLE OPPORTUNITY TO STUDY IT, AND EMPLOYEE UNDERSTANDS THAT THIS IS A FULL, COMPREHENSIVE AND MUTUAL RELEASE AND INCLUDES ANY CLAIM UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS BEEN ADVISED IN WRITING TO CONSULT WITH LEGAL COUNSEL BEFORE SIGNING THIS MUTUAL RELEASE AND THE EMPLOYMENT AGREEMENT, AND EMPLOYEE HAS CONSULTED WITH AN ATTORNEY. EMPLOYEE WAS GIVEN A DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 -3- WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 PERIOD OF AT LEAST TWENTY-ONE DAYS TO CONSIDER SIGNING THIS MUTUAL RELEASE, AND EMPLOYEE HAS SEVEN DAYS FROM THE DATE OF SIGNING TO REVOKE EMPLOYEE’S ACCEPTANCE BY DELIVERING TIMELY NOTICE OF EMPLOYEE’S REVOCATION TO THE COMPANY’S HUMAN RESOURCES DEPARTMENT AT ITS PRINCIPAL PLACE OF BUSINESS. EMPLOYEE IS SIGNING THIS MUTUAL RELEASE VOLUNTARILY, WITHOUT COERCION, AND WITH FULL KNOWLEDGE THAT IT IS INTENDED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AS A COMPLETE AND FINAL RELEASE AND WAIVER OF ANY AND ALL CLAIMS. EMPLOYEE ACKNOWLEDGES AND AGREES THAT THE PAYMENTS SET FORTH IN THE EMPLOYMENT AGREEMENT ARE CONTINGENT UPON EMPLOYEE SIGNING THIS MUTUAL RELEASE AND WILL BE PAYABLE ONLY IF AND AFTER THE REVOCATION PERIOD HAS EXPIRED. [SIGNATURE PAGE(S) TO FOLLOW] DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 -4- WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 Employee has read this Mutual Release, fully understand it and freely and knowingly agree to its terms. Dated this _____ day of ___________________, 20___. ____________________________________ Signature ____________________________________ Xxxxxxxx Xxxxx AGREED AND ACCEPTED: Fortress Value Acquisition Corp. II By: Title: Date: DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 EXHIBIT B [To Be Completed by Employee, if any] DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6 WEIL:\97844204\2\18434.0003 FEC\41815\0004\8324229.v3-2/17/21 EXHIBIT C [To Be Completed by Employee, if any] DocuSign Envelope ID: BD1B918C-BDFE-441B-80D5-518F84AFC6F89F7D5B75-2D69-46F7-864B-ED466CB18FE6

Appears in 1 contract

Samples: Employment Agreement (ATI Physical Therapy, Inc.)

Section 409A Provisions. 23.1 The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, all provisions of this Agreement are intended to comply with Section 409A of the Internal Revenue Code of 1986 (the “Code”), and the applicable Treasury regulations and administrative guidance issued thereunder (collectively, “Section 409A”) or an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the event that the Company determines that any amounts payable hereunder will maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be taxable currently treated as a separate payment. Any payments to Employee be made under this Agreement upon a termination of Executive’s employment shall only be made if such termination of employment constitutes a “separation from service” under Section 409A(a)(1)(A409A. Notwithstanding any provision in this Agreement to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under Section 409A if Executive’s receipt of such payment or benefit is not delayed until the earlier of (i) the date of Executive’s death or (ii) the Code and related Department date that is six months after the date of Treasury guidanceExecutive’s termination (such date, the “Section 409A Payment Date”), then such payment or benefit shall not be provided to Executive (or Executive’s estate, if applicable) until the Section 409A Payment Date. Notwithstanding the foregoing, the Company makes no representations that the payments and Employee shall cooperate in good faith to (i) adopt such amendments to benefits provided under this Agreement and appropriate policies and proceduresare exempt from, including amendments and policies with retroactive effector compliant with, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to be necessary or appropriate to exempt the amounts payable hereunder from Code Section 409A or to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 23.1 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever shall the Company or any of its Affiliates be liable for all or any additional taxportion of any taxes, interestpenalties, interest or penalties other expenses that may be imposed incurred by Executive on Employee as a result account of Code Section 409A or any damages for failing to comply non-compliance with Code Section 409A.

Appears in 1 contract

Samples: Tax Equalization Agreement (Moneygram International Inc)

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