Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. (b) 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply: (i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein. (ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein. (e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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. (f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company. (g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A. (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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 3 contracts
Sources: Employment Agreement (Horsehead Holding Corp), Employment Agreement (Horsehead Holding Corp), Employment Agreement (Horsehead Holding Corp)
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Code Section 409A (or is intended to qualify for an exemption under Code Section 409A) and such payment or benefit is payable upon Executive’s termination of employment or termination of this Agreement, then the phrase “termination of employment,” “termination of this Agreement” and other similar phrases in this Agreement will be deemed to mean a “separation from service,” as defined in accordance with Code Section 409A and corresponding Treasury regulations. Additionally, to the extent that any reimbursements under this Agreement are subject to the provisions of Section 409A of the Code, any such reimbursements payable to Executive will be paid to Executive no later than December 31 of the year following the year in which the expense was incurred, the amount of the expenses reimbursed in one year will not affect the amount eligible for reimbursement in any subsequent year, and Executive’s right to reimbursement under this Agreement will not be subject to liquidation or exchange for another benefit. The Company makes no representation or warranty and will have no liability to Executive or any other person with respect to whether any provision hereof is modified in order of this Agreement fails to comply with Code Section 409A, such modification shall be made in good faith and shall, 409A or fails to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of satisfy an intended exemption from Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted Executive by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 3 contracts
Sources: Employment Agreement (Acucela Inc.), Employment Agreement (Acucela Inc.), Employment Agreement (Acucela Inc.)
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.”
Appears in 3 contracts
Sources: Employment Agreement (Horsehead Holding Corp), Employment Agreement (Horsehead Holding Corp), Employment Agreement (Horsehead Holding Corp)
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If Executive notifies the Company (with specificity as to the reason therefor) that Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with Executive, reform such provision to attempt to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit benefit/burden to Employee Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, if Employee ” If Executive 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 specified as subject to this Section or that is otherwise considered “nonqualified deferred compensation” compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made on 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 Employeethe Executive, and (ii) the date of EmployeeExecutive’s death to (the extent required under Code Section 409A. “Delay Period”). Upon the expiration of the foregoing delay periodDelay Period, all payments and benefits delayed pursuant to this Section 20(b) (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 Executive in a lump-sumlump sum with interest at the prime rate as published in The Wall Street Journal on the first business day of the Delay Period, and all 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.
(dc) To the extent With regard to any provision herein that severance payments pursuant to this Agreement are conditioned upon the execution provides for reimbursement of costs and delivery expenses or in-kind benefits, except as permitted by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit, and (iiiii) no such reimbursement, the amount of expenses eligible for reimbursement, or in-kind benefits benefits, provided in during any taxable year shall in any way 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 without regard to expenses reimbursed under any arrangement covered by Internal Revenue Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred.
(fd) For purposes of Code Section 409A, Employee’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 daysdays (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.
(ge) Notwithstanding any other provision of The Company shall indemnify Executive, as provided in this Agreement to the contrarysubsection (e), in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes if a violation of Code Section 409A be subject occurs as a result of (1) the Company’s clerical error, (2) the Company’s failure to offset by administer this Agreement or any benefit plan or program in accordance with its written terms, or (3) a provision of any benefit plan or program of the Company (other amount unless otherwise permitted by than this Agreement, the SAR Award Agreements or the RSU Award Agreement) that fails to comply with Code Section 409A.
409A, and Executive incurs additional tax under Code Section 409A as a result thereof (heach an “Indemnified Code Section 409A Violation”). In the event of an Indemnified Code Section 409A Violation, the Company shall reimburse Executive for (i) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, 20% additional income tax described in Code Section 409A(a)(1)(B)(i)(II) (to the extent that Executive incurs the 20% additional income tax as a result of the Indemnified Code Section 409A Violation), and (ii) any interest or penalty that is assessed with respect to Executive’s failure to make a timely payment of base salary the 20% additional income tax described in clause (i), provided that Executive pays the 20% additional income tax promptly upon being notified that the tax is due (the amounts described in clause (i) and clause (ii) are referred to collectively as the “Code Section 409A Tax”). In addition, in the event of an Indemnified Code Section 409A Violation, the Company shall make a payment (the “Code Section 409A Gross-Up Payment”) to Executive such that the net amount Executive retains, after paying any federal, state, or other compensation is local income tax or FICA tax on the Code Section 409A Gross-Up Payment, shall be equal to be paid for a specified continuing period of time beyond the date of Employee’s termination of employment Code Section 409A Tax. The Company and Executive shall calculate, adjust (if necessary), and pay or repay the Code Section 409A Gross-Up Payment in accordance with the Company’s payroll practices procedures specified Annex D (or other similar termbut substituting “Code Section 409A Tax” for “Excise Tax” wherever the latter term appears in Annex D), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 3 contracts
Sources: Employment Agreement (Herbalife Nutrition Ltd.), Employment Agreement (Herbalife Ltd.), Employment Agreement (Herbalife Ltd.)
Code Section 409A Compliance. (ai) The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Internal Revenue Code Section 409A of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(bii) A termination of employment Notwithstanding anything herein to the contrary, (A) the Severance Benefits shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following paid only in connection with a termination of Executive’s employment unless such termination is also that constitutes a “separation from service” within the meaning of Code Section 409A and, for purposes and each reference to “Separation,” “date of any such provision of this Agreement, references to a “terminationSeparation,” “termination of employment” or like terms such similar term shall be interpreted to mean a “separation from service.”
” and (cB) Notwithstanding any other payment schedule provided herein to the contrary, if Employee Executive is deemed on the date of termination to be a “specified employee” within the meaning of that as such term is defined under Code Section 409A(a)(2)(B)409A, payment of the Severance Benefits shall be delayed for a period of six (6) months following Executive’s separation of employment to the extent and up to an amount necessary to ensure such payments are not subject to the penalties and interest under Code Section 409A. If the payments are delayed as a result of the previous sentence, then with regard to any payment that is considered “nonqualified deferred compensation” on the first business day following the end of such six (6) month period (or such earlier date upon which such amount can be paid under Code Section 409A payable on account of without resulting in a “separation from service,” such payment prohibited distribution), the Company shall be made on 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 pay Executive a lump-sum amount equal to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments delayed pursuant to this Section (whether they cumulative amount that would have otherwise been payable in a single sum or in installments in the absence of to Executive during such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them hereinperiod.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(eiii) For purposes of compliance with Code Section 409A, (iA) all expenses or other reimbursements hereunder 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 EmployeeExecutive, (iiB) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, benefit and (iiiC) 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.
(fiv) For purposes of Code Section 409A, EmployeeExecutive’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(gv) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 2 contracts
Sources: Senior Management Agreement (Sotera Health Co), Senior Management Agreement (Sotera Health Co)
Code Section 409A Compliance. To the extent applicable, it is intended that this award and the Plan comply with the requirements of Section 409A of the Code and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Any provision that would cause the Plan or this award to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent permitted by Section 409A. Notwithstanding anything to the contrary in this Agreement, if this is not a Section 409A Compliant Award, in no event will the Shares issuable pursuant to this award be issued later than March 15th of the calendar year following the calendar year in which the RSUs have vested.
(a) The intent of Notwithstanding anything in this Agreement to the parties is that payments and contrary, any compensation or benefits payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, that is designated under this Agreement as payable upon your Termination of Employment shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 payable only upon or following a termination of employment unless such termination is also a your “separation from service” with the Company within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to (a “termination,” “termination of employment” or like terms shall mean “separation Separation from serviceService”).”
(cb) Notwithstanding any other payment schedule provided herein anything in this Agreement to the contrary, if Employee is you are deemed on by the date Company at the time of termination your Separation from Service to be a “specified employee” within for purposes of Section 409A, to the meaning extent delayed commencement of that term any portion of the benefits to which you are entitled under Code this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)409A, then with regard such portion of the Shares issuable to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment you pursuant to this award shall not be made on the date which is provided to you prior to the earlier of (ix) the expiration of the six (6)-month six-month period measured from the date of such “separation your Separation from service” of Employee, and Service with the Company or (iiy) the date of Employee’s death to the extent required under Code Section 409A. Upon your death. Within thirty (30) days following the expiration of the applicable foregoing delay period, all payments delayed Shares deferred pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) preceding sentence shall be paid issued to Employee in a lump-sumyou (or your estate or beneficiaries), and all any remaining payments Shares due to you under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(iic) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s Your right to receive any installment payments pursuant to under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. Whenever payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
(d) Notwithstanding the foregoing, if a Change in Control would give rise to a payment under this Agreement specifies a payment period or settlement event with reference respect to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment or benefit under this Agreement that constitutes “nonqualified deferred compensation,” the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation Section 1.409A-3(i)(5)) in order to give rise to the payment or settlement event for purposes of Code Section 409A be subject such payment or benefit, to offset the extent required by any other amount unless otherwise permitted by Code Section 409A.
(he) Unless this Agreement provides This award will be a specified and objectively determinable payment schedule “Section 409A Compliant Award” if (i) you will be eligible for Retirement at any time prior to the contrary, final Scheduled Vesting Date (determined solely based on whether your age and/or years of service meet the requirements in the definition of “Retirement” and without regard to whether you provide the extent that any payment Company with the minimum twelve (12) months’ advance written notice of base salary or other compensation is to be paid for a specified continuing period of time beyond the your contemplated date of Employee’s termination of employment Retirement and are ultimately eligible for accelerated vesting upon such Retirement), (ii) you are a party to a Change in accordance Control Severance Agreement with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule Company as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.applicable for Executive Officers at any time prior
Appears in 2 contracts
Sources: Restricted Stock Unit Award Agreement (Wd 40 Co), Restricted Stock Unit Award Agreement (Wd 40 Co)
Code Section 409A Compliance. (a) The intent This Agreement is intended to comply with Section 409A of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder of 1986, as amended (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement or an exemption thereunder and shall be interpreted to be construed and administered in compliance therewith. To the extent that any provision hereof is modified in order to comply accordance with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for Notwithstanding any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such other provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule payments provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be paid or provided in accordance with excluded from Section 409A to the normal payment dates specified for them herein.
(d) To the maximum extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employmentpossible. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for For purposes of Code Section 409A, then such each installment payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date provided under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement shall be treated as a right separate payment. Any payments to receive be made under this Agreement upon a series termination of separate and distinct paymentsemployment shall only be made upon a "separation from service" under Section 409A. The parties intend that the provisions of this Agreement will operate in a manner that will avoid adverse federal income tax consequences under section 409A of the Code. Whenever If a payment under this Agreement specifies a payment period with reference to a number the Executive is subject to the requirements of dayssection 409A of the Code, the actual date of payment within Executive hereby acknowledges and agrees that the specified period shall be within the Company may take any actions deemed necessary in its sole discretion to avoid adverse federal income tax consequences under section 409A of the Company.
(g) Notwithstanding any other provision Code and that such action may be taken without the consent of this Agreement to the contraryExecutive, in no event shall including, but not limited to, delaying the commencement of any payment under this Agreement for six (6) months from the Executive’s Termination Date if it is determined that constitutes as of such Termination Date, the Executive is a “nonqualified specified employee” and such amounts are deemed to be “deferred compensation” for purposes subject to the requirements of Code section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations or warranty that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the Company be subject to offset liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by any other amount unless otherwise permitted by Code the Executive on account of non-compliance with Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 2 contracts
Sources: Severance Agreement (Atlantic Tele Network Inc /De), Executive Severance Agreement (Atlantic Tele Network Inc /De)
Code Section 409A Compliance. (a) The intent This Agreement is intended to comply with Section 409A of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement or an exemption thereunder and shall be interpreted to be construed and administered in compliance therewith. To the extent that any provision hereof is modified in order to comply accordance with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for Notwithstanding any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such other provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule payments provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be paid or provided in accordance with excluded from Section 409A to the normal payment dates specified for them herein.
(d) To the maximum extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employmentpossible. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for For purposes of Code Section 409A, then such each installment payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date provided under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement shall be treated as a right separate payment. Any payments to receive be made under this Agreement upon a series termination of separate and distinct payments. Whenever employment shall only be made upon a “separation from service” under Section 409A. The parties intend that the provisions of this Agreement will operate in a manner that will avoid adverse federal income tax consequences under Section 409A. If a payment under this Agreement specifies a payment period with reference to a number the Executive is subject to the requirements of daysSection 409A, the actual date of payment within Executive hereby acknowledges and agrees that the specified period shall be within the Company may take any actions deemed necessary in its sole discretion to avoid adverse federal income tax consequences under Section 409A and that such action may be taken without the consent of the Company.
(g) Notwithstanding any other provision Executive, including, but not limited to, delaying the commencement of this Agreement to the contrary, in no event shall any payment under this Agreement for six (6) months from the Executive’s Termination Date if it is determined that constitutes as of such Termination Date, the Executive is a “nonqualified specified employee” and such amounts are deemed to be “deferred compensation” for purposes subject to the requirements of Code Section 409A. Notwithstanding the foregoing, the Company makes no representations or warranty that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the Company be subject to offset liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by any other amount unless otherwise permitted by Code the Executive on account of non-compliance with Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 2 contracts
Sources: Executive Agreement (ATN International, Inc.), Executive Agreement (ATN International, Inc.)
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order payment or benefit under the Employment Agreement constitutes a “deferral of compensation” subject to comply with Code Section 409A, such modification shall be made then, notwithstanding anything in good faith and shall, the Employment Agreement to the maximum extent reasonably possiblecontrary, maintain such payments or benefits that are to be paid upon the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A Employee’s termination of employment shall not be deemed paid to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also Employee until the Employee has experienced a “separation from service” within the meaning of as defined in Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” from the Company or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to an affiliate who is treated as the contrary, 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 that is considered “nonqualified deferred compensation” employer under Code Section 409A payable on account of a (collectively the “separation from service,” such payment shall be made on the date which Company”). If under this Agreement, an amount 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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sumtwo or more installments, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment each installment shall be made treated as a separate payment. With regard to any provision herein that provides for reimbursement of expenses or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employmentin-kind benefits, and any payments made thereafter shall continue except as provided herein.
(e) For purposes of compliance with permitted by Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (iiiii) no such reimbursement, the amount of expenses eligible for reimbursement, or in-in- kind benefits benefits, provided in during any taxable year shall in any way not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
year (f) For purposes of except as otherwise allowed under Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement ). All such reimbursements 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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s termination of employment reimbursed in accordance with the Company’s payroll practices (reimbursement policies but in no event later than the calendar year following the calendar year in which the related expense is incurred. The provisions of the Employment Agreement governing any payment or other similar term)benefit constituting a “deferral of compensation” shall be interpreted and operated consistently with the requirements of Code Section 409A. The Company shall not be liable to the Employee if any payment or benefit which is to be provided pursuant to the Employment Agreement and which is considered deferred compensation subject to Code Section 409A otherwise fails to comply with, or be exempt from, the payments requirements of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.Code Section 409A.
Appears in 2 contracts
Sources: Employment Agreement (On Assignment Inc), Employment Agreement (On Assignment Inc)
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(a) The If and to the extent any payment or benefits under this Agreement are otherwise subject to the requirements of Code Section 409A, the intent of the parties is that payments such payment and benefits under this Agreement shall comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company parties hereto of the applicable provision without violating the provisions of Code Section 409A. The Company and the Operating Subsidiary make no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payments or benefits. In no event whatsoever shall the Company Westell Companies be liable for any additional tax, interest or penalty that may be imposed on Employee Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a Executive’s termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other Each severance payment schedule provided herein payable to the contrary, if Employee is deemed on the date of termination to be a “specified employee” within the meaning of that term Executive under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment 3.3 shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such treated as a separate and distinct “separation from service” of Employee, and (ii) the date of Employee’s death to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensationpayment” for purposes of Code Section 409A409A. Accordingly, then any such payment shall commence upon payments that would otherwise be payable (i) within 2- 1/2 months after the first scheduled payment date immediately following end of the date that the release is executedCompany’s taxable year containing Executive’s employment termination date, delivered and no longer subject to revocation or (ii) within 2- 1/2 months after Executive’s taxable year containing Executive’s employment termination date, whichever occurs later (the “Release Effective DateShort Term Deferral Period”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though , are exempt from Code Section 409A. Furthermore, any such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue paid after the Short Term Deferral Period are exempt from Code Section 409A as provided herein.
(ii) To severance pay due to an involuntary separation from service to the extent that any the sum of those payments is equal to or less than the maximum amount described in Treasury Regulation Section 1.409A-1(b)(9)(iii)(A) (the “Involuntary Separation Amount”) because such cash payment to be provided is payments are payable only upon Executive’s “nonqualified deferred compensationinvoluntary” separation from service for purposes of Code Section 409A. Accordingly, the sum of (A) such payments that are paid within the Short Term Deferral Period and (B) such payments paid after the Short Term Deferral Period that do not exceed the Involuntary Separation Amount are exempt from Code Section 409A and, therefore, notwithstanding any provision of the Plan to the contrary, if Executive is a “specified employee” (as defined in Code Section 409A), then such payment shall be made or commence upon only those payments that are not otherwise exempt from Code Section 409A under clause (A) and (B) above and that would otherwise have been payable in the sixtieth first six (60th6) day months following EmployeeExecutive’s termination of employment. The first such cash payment shall include payment employment will not be paid to Executive until the date that is six months after the date of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon EmployeeExecutive’s termination of employmentemployment (or, and if earlier, Executive’s date of death). Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the amount of any payments made thereafter otherwise payable to Executive under this Agreement. Thereafter, the remainder of any such payments shall continue as provided hereinbe payable in accordance with Section 3.3.
(ed) For purposes of compliance with Code Section 409A, (i) all All expenses or other reimbursements hereunder to Executive under this Agreement, if any, 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 EmployeeExecutive (provided that if any such reimbursements constitute taxable income to the Executive, (ii) any right such reimbursements shall be paid no later than March 15th of the calendar year following the calendar year in which the expenses to be reimbursed were incurred), and no such reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, reimbursement in any other taxable year.
(fe) For purposes of Code Section 409A, Employee’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., “payment shall be made within thirty (30) days”), the actual date of payment within the specified period shall be within the sole discretion of the Company.
(gf) Notwithstanding any other provision of this Agreement to the contrary, in In no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by payment pursuant to this Agreement or otherwise.
(g) To the extent required under Code Section 409A, (i) any reference herein to the term “Agreement” shall mean this Agreement and any other plan, agreement, method, program, or other arrangement, with which this Agreement is required to be aggregated under Code Section 409A.
, and (hii) Unless this Agreement provides a specified and objectively determinable payment schedule any reference herein 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 date of Employee’s termination of employment in accordance with term “Company” and “Operating Subsidiary” shall mean the Company’s payroll practices (or other similar term), the payments of such base salary Operating Subsidiary, and all persons with whom the Company and the Operating Subsidiary would be considered a single employer under Code Section 414(b) or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly414(c).” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 2 contracts
Sources: Employment Agreement (Westell Technologies Inc), Employment Agreement (Westell Technologies Inc)
Code Section 409A Compliance. (a) The intent of To the parties is extent amounts or benefits that payments and benefits become payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company on account of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A Executive’s termination of employment shall not be deemed to have occurred for purposes (other than by reason of any provision of this Agreement providing for the payment of any amounts or benefits upon or following Executive’s death) constitute a termination of employment unless such termination is also distribution under a “separation from servicenonqualified deferred compensation plan” within the meaning of Code Section 409A and(“Deferred Compensation”), for purposes of any such provision of this Agreement, references to a “termination,” “Executive’s termination of employment” or like terms employment shall mean be deemed to occur on the date that Executive incurs a “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, if Employee is deemed on the date of termination to be a “specified employeeService” with Company within the meaning of that term under Code Treasury Regulation Section 409A(a)(2)(B1.409A-1(h). If at the time of Executive’s separation from service, then with regard to any payment that Executive is considered a “nonqualified deferred compensationspecified Executive” under (within the meaning of Code Section 409A payable and Treasury Regulation Section 1.409A-1(i)), the payment of such Deferred Compensation shall commence on account the first business day of a “the seventh month following Executive’s separation from service,” such payment Service and Company shall be made on 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 Employeethen pay Executive, and (ii) the date of Employee’s death to the extent required under Code Section 409A. Upon the expiration of the foregoing delay periodwithout interest, all payments delayed pursuant to this Section (whether they such Deferred Compensation that would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement during the first six months following Executive’s separation from service had Executive not been a specified Executive. Thereafter, Company shall be paid or provided pay Executive any remaining unpaid Deferred Compensation in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery as if there had not been a six-month delay imposed by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employmentthis paragraph. If the foregoing release any expense reimbursement by Executive under this Agreement is executed and delivered and no longer subject determined to revocation as provided in the preceding sentencebe Deferred Compensation, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment reimbursement shall be made or commence upon to Executive as soon as practicable after submission for the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employmentreimbursement, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day but no later than December 31 of the taxable year following the taxable year in during which such expenses were incurred by Employee, (ii) any expense was incurred. Any reimbursement amount provided in one year shall not affect the amount eligible for reimbursement in another year and the right to such reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. In addition, and (iii) no such reimbursement, expenses eligible for reimbursement, if any provision of this Agreement would subject Executive to any additional tax 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.
(f) For purposes of interest under Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement then Company 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, the actual date of payment within the specified period reform such provision; provided that Company shall be within the sole discretion of the Company.
(gx) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrarymaintain, to the maximum extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of Employee’s termination of employment in accordance with the Company’s payroll practices (or other similar term)practicable, the payments original intent of the applicable provision without subjecting Executive to such additional tax or interest and (y) not incur any additional compensation expense as a result of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthlyreformation.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 2 contracts
Sources: Executive Employment Agreement (theMaven, Inc.), Executive Employment Agreement (theMaven, Inc.)
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(a) The If and to the extent any payment or benefits under this Agreement are otherwise subject to the requirements of Code Section 409A, the intent of the parties is that payments such payment and benefits under this Agreement shall comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company parties hereto of the applicable provision without violating the provisions of Code Section 409A. The Company makes no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payments or benefits. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee the Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment the Executive’s Termination Date unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other Each payment schedule provided herein payable to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due Executive under this Agreement on or after the Executive’s Termination Date shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution treated as a separate and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not distinct “nonqualified deferred compensationpayment” for purposes of Code Section 409A and, further, except with respect to the payment described in paragraph 4(h), is intended to be exempt from Code Section 409A, then including but not limited to the short-term deferral exemption thereunder. If and to the extent any such payment shall commence is determined to be subject to Code Section 409A and is otherwise payable upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon EmployeeExecutive’s termination of employment, in the event the Executive is a “specified employee” (as defined in Code Section 409A), any such payment that would otherwise have been payable in the first six (6) months following the Executive’s Termination Date will not be paid to the Executive until the date that is six (6) months and one (1) day following the Executive’s Termination Date (or, if earlier, the Executive’s date of death). Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the amount of any payments made thereafter otherwise payable to the Executive under this Agreement. Thereafter, the remainder of any such payments shall continue as provided hereinbe payable in accordance with this Agreement.
(iid) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all All expenses or other reimbursements hereunder to the Executive under this Agreement, if any, 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 Employeethe Executive (provided that if any such reimbursements constitute taxable income to the Executive, (ii) any right such reimbursements shall be paid no later than March 15th of the calendar year following the calendar year in which the expenses to be reimbursed were incurred), and no such reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, reimbursement in any other taxable year.
(fe) For purposes of Code Section 409A, Employee’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 period within which such payment period with reference to a number of daysmay be made, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(gf) Notwithstanding any other provision of this Agreement to the contrary, in In no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by payment pursuant to this Agreement or otherwise.
(g) To the extent required under Code Section 409A.
409A, (hi) Unless any reference herein to the term “Agreement” shall mean this Agreement provides a specified and objectively determinable payment schedule any other plan, agreement, method, program, or other arrangement, with which this Agreement is required to be aggregated under Code Section 409A, and (ii) any reference herein to the contrary, to term “Company” shall mean the extent that any payment of base salary Company and all persons with whom the Company would be considered a single employer under Code Section 414(b) or other compensation is to be paid for a specified continuing period of time beyond the date of Employee’s termination of employment in accordance with the Company’s payroll practices (or other similar term414(c), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 2 contracts
Sources: Change in Control Agreement (Castle a M & Co), Change in Control Agreement (Castle a M & Co)
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for For purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following Agreement, a termination of employment unless such termination is also will be determined consistent with the rules relating to a “separation from service” within the meaning of Code as defined in Section 409A and, for purposes of any such provision of the Code and the regulations thereunder (“Section 409A”). The Parties intend that this Agreement, references to the extent possible, will be administered in accordance with Section 409A and the Treasury Regulations and other applicable regulatory guidance issued thereunder, and will be interpreted in a “termination,” “manner so that no payments made to Executive under this Agreement constitute a deferral of compensation or, if so, will constitute a deferral for which the payment and other terms are compliant with Section 409A so as to avoid imposition of any additional tax to Executive under Section 409A. Company makes no representation or warranty as to compliance with Section 409A and shall have no liability to the Executive or any other person for any adverse consequences arising under Section 409A. Notwithstanding anything else provided herein, to the extent any payments provided under this Agreement in connection with Executive’s termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein employment constitute deferred compensation subject to the contrarySection 409A, if Employee and Executive is deemed on at the date time of such termination of employment to be a “specified employeeExecutive” within the meaning of that term under Code Section 409A(a)(2)(B)409A, then with regard to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment shall not be made on the date which is or commence until the earlier of (i) the expiration of the six (6)-month 6-month period measured from the date of such “Executive’s separation from service” of Employee, and service from Company or (ii) the date of EmployeeExecutive’s death following such a 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 tax for which Executive would otherwise be liable under Code Section 409A. Upon the expiration of the foregoing delay period, all payments delayed pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments 409A(a)(1)(B) in the absence of such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”)deferral. The first such cash payment shall thereof will include a catch-up payment of all amounts covering the amount that otherwise would have otherwise been due prior to paid during the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employeebetween Executive’s termination of employment and the first payment date but for the application of this provision, and the balance of the installments (if any) will be payable in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthlytheir original schedule.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Sources: Change in Control Agreement (Riverview Bancorp Inc)
Code Section 409A Compliance. (ai) The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Internal Revenue Code Section 409A of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(bii) A termination of employment Notwithstanding anything herein to the contrary, (A) the Severance Benefits shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following paid only in connection with a termination of Executive’s employment unless such termination is also that constitutes a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
and (cB) Notwithstanding any other payment schedule provided herein to the contrary, if Employee Executive is deemed on the date of termination to be a “specified employee” within the meaning of that as such term is defined under Code Section 409A(a)(2)(B)409A, payment of the Severance Benefits shall be delayed for a period of six (6) months following Executive’s separation of employment to the extent and up to an amount necessary to ensure such payments are not subject to the penalties and interest under Code Section 409A. If the payments are delayed as a result of the previous sentence, then with regard to any payment that is considered “nonqualified deferred compensation” on the first business day following the end of such six (6) month period (or such earlier date upon which such amount can be paid under Code Section 409A payable on account of without resulting in a “separation from service,” such payment prohibited distribution), the Company shall be made on 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 pay Executive a lumpsum amount equal to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments delayed pursuant to this Section (whether they cumulative amount that would have otherwise been payable in a single sum or in installments in the absence of to Executive during such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them hereinperiod.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(eiii) For purposes of compliance with Code Section 409A, (iA) all expenses or other reimbursements hereunder 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 EmployeeExecutive, (iiB) any right to reimbursement or in-kind inkind benefits is not subject to liquidation or exchange for another benefit, benefit and (iiiC) no such reimbursement, expenses eligible for reimbursement, or in-kind inkind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind inkind benefits to be provided, in any other taxable year.
(fiv) For purposes of Code Section 409A, EmployeeExecutive’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(gv) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with with, or be exempt from, Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the Executive notifies the Company (with specificity as to the reason therefor) that the Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Executive, reform such provision to try to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment that are considered “nonqualified deferred compensation” under Code Section 409A unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to ” If the contrary, if Employee Executive 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 that is considered “nonqualified non-qualified deferred compensation” compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made on 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 Employeethe Executive, and (ii) the date of Employeethe Executive’s death to (the extent required under Code Section 409A. “Delay Period”). Upon the expiration of the foregoing delay periodDelay Period, all payments and benefits delayed pursuant to this Section 25 (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 the Executive in a lump-sumlump sum without interest, and all 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.
(dc) To the extent With regard to any provision herein that severance payments pursuant to this Agreement are conditioned upon the execution provides for reimbursement of costs and delivery expenses or in-kind benefits, except as permitted by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit, and (iiiii) no such reimbursement, the amount of expenses eligible for reimbursement, or in-kind benefits benefits, provided in during any taxable year shall in any way 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 without regard to expenses reimbursed under any arrangement covered by Internal Revenue Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred.
(fd) For purposes of Code Section 409A, Employeethe 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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in In no event shall may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement that constitutes “is considered nonqualified deferred compensation” for purposes . In no event shall the timing of Code Section 409A be Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable execution of the Release could be made in more than one taxable year, 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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthlylater taxable year.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the fullest extent that any provision hereof is modified in order to comply with Code Section 409Aapplicable, such modification shall be made in good faith amounts and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 other benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of payable under this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding and amounts and benefits payable under any other payment schedule provided herein to the contraryagreements or plans referenced in this Agreement, if Employee is deemed on the date of termination are intended to be a “specified employee” within exempt from the meaning definition of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensation” under Section 409A of the Code in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A. In this regard, each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A payable on account due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent, and any ambiguity as to its compliance with Section 409A will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.
(b) Notwithstanding anything in this Agreement or elsewhere to the contrary, if the Executive is a “separation from service,specified employee” such payment shall be made as determined by the Compensation Committee on 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” (as such terms are defined for purposes of EmployeeCode Section 409A), and the Company reasonably determines that any amount or other benefit payable under this Agreement on account of such separation from service constitutes nonqualified deferred compensation that will subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (iitogether with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month following the date of Employeetermination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). The Executive and the Company may agree to take other actions to avoid the extent required imposition of a 409A Tax at such time and in such manner as permitted under Code Section 409A. Upon In the expiration of the foregoing delay period, all payments delayed pursuant to event that this Section (whether they would have otherwise been payable 7 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum or in installments in on the absence of such delay) shall be paid to Employee in a lump-sumDelayed Payment Date, and all 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.
(d) To . In addition, the extent that severance payments pursuant to provisions of this Agreement are conditioned upon which require the execution and delivery by Employee commencement of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s Section 409A upon a termination of employment. If employment shall be interpreted to require that the foregoing release is executed and delivered and no longer subject to revocation Executive have a “separation from service” with the Company as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” defined for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.409A.
(iic) To the extent that the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the Executive, the Company shall reimburse any such cash eligible fees or expenses no later than 2-1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2-1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. 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 be provided is “nonqualified deferred compensation” subject to Section 409A of the Code, the amount of any such expenses eligible for purposes reimbursement, or the provision of Code Section 409Aany in-kind benefit, then such payment in one calendar year shall be made or commence upon not affect the sixtieth expenses eligible for reimbursement in any other taxable year (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and except for any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses lifetime or other reimbursements hereunder aggregate limitation applicable to medical expenses), in no event shall any expenses be made on or prior to reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the Executive incurred such expenses were incurred by Employeeexpenses, (ii) and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit.
(d) The provisions of this Section 7 shall also apply to all payments and benefits that may be provided under the Change in Control Agreement, notwithstanding any provision to the contrary contained therein, if required in order to comply with Section 409A. In addition to the provisions set forth in subsections (a) through (c) above: (i) the cash severance payable under the Change in Control Agreement shall be paid at the same time and in the same form provided under this Agreement for severance payable under Section 5(b) (that is, in installments over twenty-four (24) months rather than a lump sum) unless the Executive’s separation from service occurs within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5); (ii) if the Executive’s separation from service does occur within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5), then the cash severance payable to the Executive under Section 1(b)(1) of the Change in Control Agreement shall be paid on the sixtieth (60th) day following his separation from service (subject to Section 7(b)) provided the Executive has fulfilled the conditions for payment of the cash severance under the Change in Control Agreement (including that the Release of Claims as defined therein shall have become effective) on or before such date (and shall not be paid otherwise); 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 reimbursement of taxes required to be provided, made by the Company under the Change in any other taxable year.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Control 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, made by the actual date of payment within the specified period shall be within the sole discretion end of the Company.
(gcalendar year next following the calendar year in which the Executive remits the related taxes. If the payment of cash severance has commenced pursuant to Section 5(b)(1) Notwithstanding any other provision of this Agreement before the occurrence of a Change in Control that results in the Executive’s eligibility for severance benefits under the Change in Control Agreement, then the payment of cash severance shall be governed by the Change in Control Agreement rather than Section 5(b)(1) of this Agreement, and any adjustment to reflect an underpayment or overpayment of the amount that otherwise would have been due before the Change in Control pursuant to the contrary, Change in no event Control Agreement shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule applied to the contraryfirst installment due after the Change in Control Agreement, 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 date of Employee’s termination of employment proceeding in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule chronological order thereafter as in effect upon the date of termination, but no less frequently than monthlynecessary.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. To the extent applicable, it is intended that this award and the Plan comply with the requirements of Section 409A of the Code and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Any provision that would cause the Plan or this award to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent permitted by Section 409A. Notwithstanding anything to the contrary in this Agreement, if this is not a Section 409A Compliant Award, in no event will any Shares issuable pursuant to this award be issued later than March 15th of the calendar year following the calendar year in which corresponding portion of the award has vested.
(a) The intent of Notwithstanding anything in this Agreement to the parties is that payments and contrary, any compensation or benefits payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, that is designated under this Agreement as payable upon your Termination of Employment shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 payable only upon or following a termination of employment unless such termination is also a your “separation from service” with the Company within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to (a “termination,” “termination of employment” or like terms shall mean “separation Separation from serviceService”).”
(cb) Notwithstanding any other payment schedule provided herein anything in this Agreement to the contrary, if Employee is you are deemed on by the date Company at the time of termination your Separation from Service to be a “specified employee” within for purposes of Section 409A, to the meaning extent delayed commencement of that term any portion of the benefits to which you are entitled under Code this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)409A, then with regard such portion of the Shares issuable to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment you pursuant to this award shall not be made on the date which is provided to you prior to the earlier of (ix) the expiration of the six (6)-month six-month period measured from the date of such “separation your Separation from service” of Employee, and Service with the Company or (iiy) the date of Employee’s death to the extent required under Code Section 409A. Upon your death. Within thirty (30) days following the expiration of the applicable foregoing delay period, all payments delayed Shares deferred pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) preceding sentence shall be paid issued to Employee in a lump-sumyou (or your estate or beneficiaries), and all any remaining payments Shares due to you under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(iic) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s Your right to receive any installment payments pursuant to under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. Whenever payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
(d) Notwithstanding the foregoing, if a Change in Control would give rise to a payment under this Agreement specifies a payment period or settlement event with reference respect to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment or benefit under this Agreement that constitutes “nonqualified deferred compensation,” the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation Section 1.409A-3(i)(5)) in order to give rise to the payment or settlement event for such payment or benefit, to the extent required by Section 409A.
(e) This award will be a “Section 409A Compliant Award” if (i) you will be eligible for Retirement at any time prior to the Final Payment Date, (ii) you are a party to an executive Change in Control Severance Agreement with the Company as applicable for Executive Officers at any time prior to the Final Payment Date, or (iii) this award otherwise constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject 409A. Subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule 5 of the Market Share Unit Award Agreement, the MSUs shall vest with respect to the contrary, Applicable Percentage of the Target Number of MSUs set forth in the following applicable Executive Officer or Senior Management Employee table based on relative total stockholder return (“TSR”) for the Company over the Measurement Period as compared to the extent that any payment total return (“Return”) for the ▇▇▇▇▇▇▇ 2000 Index (the “Index”) as reported for total return (with dividends reinvested) by ▇▇▇▇▇▇▇ Investments. For purposes of base salary computing the relative TSR for the Company as compared to the Return for the Index, dividends paid with respect to the Shares shall be treated as having been reinvested as of the ex-dividend date for each declared dividend, as further described below. TSR for the Company shall equal the percentage change (positive or other compensation negative) of the “Measurement Share Value” (as defined below) as compared to the “Base Share Value” (as defined below). The Return for the Index shall equal the percentage change (positive or negative) of the “Measurement Index Value” (as defined below) as compared to the “Base Index Value” (as defined below). The relative TSR (“Relative TSR”) represents the absolute percentage point difference between the TSR for the Company and the Return for the Index. The Applicable Percentage will be determined on a straight line sliding scale from the minimum 50% Applicable Percentage achievement level to the applicable maximum 200% or 150% % Applicable Percentage achievement level as noted in the applicable Executive Officer or Senior Management Employee table above. For purposes of determining relative achievement, actual results are to be rounded to the nearest tenth of one percent and rounded upward from the midpoint, in all events in a positive direction. For example, if the Relative TSR is 4.94% (the absolute difference between the TSR for the Company and the Return for the Index over the Measurement Period being 4.94 percentage points), Relative TSR will be 4.9% and the Applicable Percentage will be 124.5%. The number of Shares to be issued on the Settlement Date is to be paid for a specified continuing period of time beyond rounded to the date of Employee’s termination of employment in accordance with nearest whole share and rounded upward from the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthlymidpoint.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of To the parties is extent amounts or benefits that payments and benefits become payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company on account of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A Executive’s termination of employment shall not be deemed to have occurred for purposes (other than by reason of any provision of this Agreement providing for the payment of any amounts or benefits upon or following Executive’s death) constitute a termination of employment unless such termination is also distribution under a “separation from servicenonqualified deferred compensation plan” within the meaning of Code Section 409A and(“Deferred Compensation”), for purposes of any such provision of this Agreement, references to a “termination,” “the Executive’s termination of employment” or like terms employment shall mean be deemed to occur on the date that the Executive incurs a “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to Service’ with the contrary, if Employee is deemed on the date of termination to be a “specified employee” Company within the meaning of that term under Code Treasury Regulation Section 409A(a)(2)(B1.409A-1(h). If at the time of the Executive’s separation from service, then with regard to any payment that the Executive is considered a “nonqualified deferred compensation” under specified employee (within the meaning of Code Section 409A payable and Treasury Regulation Section 1.409A-1(i)), the payment of such Deferred Compensation shall commence on account the first business day of a “the seventh month following Executive’s separation from service,” such payment Service and the Company shall be made on then pay 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 EmployeeExecutive, and (ii) the date of Employee’s death to the extent required under Code Section 409A. Upon the expiration of the foregoing delay periodwithout interest, all payments delayed pursuant to this Section (whether they such Deferred Compensation that would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement during the first six months following the Executive’s separation from service had the Executive not been a specified employee. Thereafter, the Company shall be paid or provided pay Executive any remaining unpaid Deferred Compensation in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery as if there had not been a six-month delay imposed by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employmentthis paragraph. If any expense reimbursement by the foregoing release Executive under this Agreement is executed and delivered and no longer subject determined to revocation as provided in the preceding sentencebe Deferred Compensation, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment reimbursement shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day Executive as soon as practicable after submission for the reimbursement, but no later than December 31 of the taxable year following the taxable year in during which such expenses were incurred by Employee, (ii) any expense was incurred. Any reimbursement amount provided in one year shall not affect the amount eligible for reimbursement in another year and the right to such reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. In addition, and (iii) no such reimbursement, expenses eligible for reimbursement, if any provision of this Agreement would subject the Executive to any additional tax 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.
(f) For purposes of interest under Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement then the Company 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, reform such provision; provided that the actual date of payment within the specified period Company shall be within the sole discretion of the Company.
(gx) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrarymaintain, to the maximum extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of Employee’s termination of employment in accordance with the Company’s payroll practices (or other similar term)practicable, the payments original intent of the applicable provision without subjecting the Executive to such additional tax or interest and (y) not incur any additional compensation expense as a result of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthlyreformation.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent Company and you each hereby affirm that it is their mutual view that the provision of the parties is that payments and benefits under this Agreement comply described or referenced herein are either exempt from or intended to be in compliance with Internal Revenue Code the requirements of Section 409A of the Code and the Treasury regulations and guidance promulgated thereunder relating thereto (collectively “Code Section 409A”) andand that each party’s tax reporting will be completed in a manner consistent with such view. The Company and you each agree that upon the Retirement Date, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also you will experience a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A will be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement, references to Agreement will be treated as a “termination,” “termination separate payment of employment” or like terms shall mean “separation from service.”
(c) compensation. Notwithstanding any other payment schedule provided anything contained herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required in order to avoid accelerated taxation and/or tax penalties under Code Section 409A. Upon the expiration of the foregoing delay period409A, all payments delayed Severance Pay amounts in Section 3.1(b) that would otherwise be payable pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in Agreement on account of separation from service during the absence of such delay) shall six-month period immediately following the Retirement Date will instead be paid on the first business day after the date that is six months following the Retirement Date (or death, if earlier). Notwithstanding anything to Employee the contrary in a lumpthis Agreement, all reimbursements and in-sum, and all remaining payments due kind benefits provided under this Agreement shall will be paid made or provided in accordance with the normal payment dates specified requirements of Section 409A of the Code, including, where applicable, the requirement that (x) the amount of expenses eligible for them herein.
(d) To reimbursement, or in kind benefits provided, during a calendar year may not affect the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claimsexpenses eligible for reimbursement, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided or in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment kind benefits to be provided is not “nonqualified deferred compensation” for purposes provided, in any other calendar year; (y) the reimbursement of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall an eligible expense will be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to no later than the last day of the taxable calendar year following the taxable year in which such expenses were incurred by Employee, the expense is incurred; and (iiz) any the right to reimbursement or in-in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company nor its affiliates will be liable in any manner for any federal, and state or local income or excise taxes (iii) no such reimbursement, expenses eligible for reimbursementincluding but not limited to any taxes under Sections 409A of the Code), or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursementpenalties or interest with respect thereto, or in-kind benefits to be provided, in any other taxable year.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion result of the Company.
(g) Notwithstanding payment of any other provision compensation or benefits hereunder or the inclusion of this Agreement to any such compensation or benefits or the contrary, value thereof in no event shall your income. You acknowledge and agree that the Company will not be responsible for any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes additional taxes or penalties resulting from the application of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties This Performance Award Agreement is that payments and benefits under this Agreement intended to comply with Internal Revenue the requirements of Code Section 409A and the regulations and guidance promulgated thereunder (collectively “any right or benefit which is provided pursuant to or in connection with this Performance Award Agreement which is considered to be nonqualified deferred compensation subject to Code Section 409A409A (referred to as a “409A Award”) andshall be provided and paid in a manner, accordinglyand at such time and in such form, as complies with the applicable requirements of Code Section 409A to avoid the maximum extent permittedunfavorable tax consequences provided therein for non-compliance. Consequently, this Performance Award Agreement shall be interpreted is intended to be administered, interpreted and construed in compliance therewith. To the extent that any provision hereof is modified in order to comply accordance with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions requirements of Code Section 409A. In no event whatsoever Notwithstanding the foregoing, the Employee and his or her successor in interest shall the Company be solely responsible and liable for any additional tax, interest or penalty the satisfaction of all taxes and penalties that may be imposed on the Employee by or his or her successor in interest in connection with this Performance Award Agreement (including any taxes and penalties under Code Section 409A 409A); and neither the Company nor any of its affiliates shall have any obligation to indemnify or damages for failing to comply with otherwise hold the Employee or his or her successor in interest harmless from any or all of such taxes or penalties.
(i) Except as permitted under Code Section 409A.409A, any 409A Award payable to the Employee or for his or her benefit with respect to the Performance Award may not be reduced by, or offset against, any amount owing by the Employee to the Company or any of its affiliates.
(bii) A To the extent that entitlement to payment of any 409A Award occurs due to termination or cessation of employment, termination or cessation of employment shall not be deemed read to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also mean a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean 409A. A “separation from service.”
” shall occur where it is reasonably anticipated that no further services will be performed after that date or that the level of bona fide services the Employee will perform after that date (cwhether as an employee or independent contractor of the Company or an affiliate) Notwithstanding any other will permanently decrease to less than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period. Continued services solely as a director of the Company or an affiliate shall not prevent a separation from service from occurring by the Employee as permitted by Code Section 409A. Where entitlement to payment schedule provided herein to occurs by reason of a separation from service and the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior as applicable to the Release Effective Date under Company and its affiliates and using the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To identification methodology selected by the extent that any such cash payment Company from time to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance time in accordance with Code Section 409A) on the date of his or her “separation from service”, (i) all expenses or other reimbursements hereunder then payment of such 409A Award shall be made on or prior to delayed (without interest) until the last first business day after the end of the taxable year following the taxable year in which such expenses were incurred by Employee, six (ii6) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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 month delay period required under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to or, if earlier, after 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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthlydeath.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent Company and you each hereby affirm that it is their mutual view that the provision of the parties is that payments and benefits under this Agreement comply described or referenced herein are either exempt from or intended to be in compliance with Internal Revenue Code the requirements of Section 409A of the Code and the Treasury regulations and guidance promulgated thereunder relating thereto (collectively “Code Section 409A”) andand that each party’s tax reporting will be completed in a manner consistent with such view. The Company and you each agree that upon the Resignation Date, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also you will experience a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A will be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement will be treated as a separate payment of compensation. Notwithstanding anything to the contrary in this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule all reimbursements and in-kind benefits provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall will be paid made or provided in accordance with the normal payment dates specified requirements of Section 409A of the Code, including, where applicable, the requirement that (x) the amount of expenses eligible for them herein.
(d) To reimbursement, or in kind benefits provided, during a calendar year may not affect the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claimsexpenses eligible for reimbursement, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided or in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment kind benefits to be provided is not “nonqualified deferred compensation” for purposes provided, in any other calendar year; (y) the reimbursement of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall an eligible expense will be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to no later than the last day of the taxable calendar year following the taxable year in which such expenses were incurred by Employee, the expense is incurred; and (iiz) any the right to reimbursement or in-in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company nor its affiliates will be liable in any manner for any federal, and state or local income or excise taxes (iii) no such reimbursement, expenses eligible for reimbursementincluding but not limited to any taxes under Sections 409A of the Code), or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursementpenalties or interest with respect thereto, or in-kind benefits to be provided, in any other taxable year.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion result of the Company.
(g) Notwithstanding payment of any other provision compensation or benefits hereunder or the inclusion of this Agreement to any such compensation or benefits or the contrary, value thereof in no event shall your income. You acknowledge and agree that the Company will not be responsible for any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes additional taxes or penalties resulting from the application of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Sources: Separation and Release Agreement (Reading International Inc)
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the fullest extent that any provision hereof is modified in order to comply with Code Section 409Aapplicable, such modification shall be made in good faith amounts and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 other benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of payable under this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding and amounts and benefits payable under any other payment schedule provided herein to the contraryagreements or plans referenced in this Agreement, if Employee is deemed on the date of termination are intended to be a “specified employee” within exempt from the meaning definition of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensation” under Section 409A of the Code in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A. In this regard, each payment under Section 1 of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A payable on account due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent, and any ambiguity as to its terms or its compliance with Section 409A will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.
(b) Notwithstanding anything in this Agreement or elsewhere to the contrary, if Executive is a “separation from service,specified employee” such payment shall be made as determined by the Compensation Committee on 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” (as such terms are defined for purposes of EmployeeCode Section 409A), and the Company reasonably determines that any amount or other benefit payable under this Agreement on account of such separation from service constitutes nonqualified deferred compensation that will subject Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (iitogether with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month following the date of Employeetermination or, if earlier, the date of Executive’s death (the “Delayed Payment Date”). Executive and the Company may agree to take other actions to avoid the extent required imposition of a 409A Tax at such time and in such manner as permitted under Code Section 409A. Upon In the expiration of the foregoing delay period, all payments delayed pursuant to event that this Section (whether they would have otherwise been payable 4 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum or in installments in on the absence of such delay) shall be paid to Employee in a lump-sumDelayed Payment Date, and all 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.
(d) To . In addition, the extent that severance payments pursuant to provisions of this Agreement are conditioned upon which require the execution and delivery by Employee commencement of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s Section 409A upon a termination of employment. If employment shall be interpreted to require that Executive have a “separation from service” with the foregoing release is executed and delivered and no longer subject to revocation Company as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” defined for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.409A.
(iic) To the extent that the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the Executive, the Company shall reimburse any such cash eligible fees or expenses no later than 2-1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2-1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. 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 be provided is “nonqualified deferred compensation” subject to Section 409A of the Code, the amount of any such expenses eligible for purposes reimbursement, or the provision of Code Section 409Aany in-kind benefit, then such payment in one calendar year shall be made or commence upon not affect the sixtieth expenses eligible for reimbursement in any other taxable year (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and except for any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses lifetime or other reimbursements hereunder aggregate limitation applicable to medical expenses), in no event shall any expenses be made on or prior to reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the Executive incurred such expenses were incurred by Employeeexpenses, (ii) and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Sources: Executive Change in Control Agreement (Headwaters Inc)
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the fullest extent that any provision hereof is modified in order to comply with Code Section 409Aapplicable, such modification shall be made in good faith amounts and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 other benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of payable under this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding and amounts and benefits payable under any other payment schedule provided herein to the contraryagreements or plans referenced in this Agreement, if Employee is deemed on the date of termination are intended to be a “specified employee” within exempt from the meaning definition of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensation” under Section 409A of the Code in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A. In this regard, each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A payable on account due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent, and any ambiguity as to its compliance with Section 409A will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.
(b) Notwithstanding anything in this Agreement or elsewhere to the contrary, if the Executive is a “separation from service,specified employee” such payment shall be made as determined by the Compensation Committee on 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” (as such terms are defined for purposes of EmployeeCode Section 409A), and the Company reasonably determines that any amount or other benefit payable under this Agreement on account of such separation from service constitutes nonqualified deferred compensation that will subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (iitogether with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month following the date of Employeetermination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). The Executive and the Company may agree to take other actions to avoid the extent required imposition of a 409A Tax at such time and in such manner as permitted under Code Section 409A. Upon In the expiration of the foregoing delay period, all payments delayed pursuant to event that this Section (whether they would have otherwise been payable 8 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum or in installments in on the absence of such delay) shall be paid to Employee in a lump-sumDelayed Payment Date, and all 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.
(d) To . In addition, the extent that severance payments pursuant to provisions of this Agreement are conditioned upon which require the execution and delivery by Employee commencement of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s Section 409A upon a termination of employment. If employment shall be interpreted to require that the foregoing release is executed and delivered and no longer subject to revocation Executive have a “separation from service” with the Company as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” defined for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.409A.
(iic) To the extent that the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the Executive, the Company shall reimburse any such cash eligible fees or expenses no later than 2 1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2 1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. 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 be provided is “nonqualified deferred compensation” subject to Section 409A of the Code, the amount of any such expenses eligible for purposes reimbursement, or the provision of Code Section 409Aany in-kind benefit, then such payment in one calendar year shall be made or commence upon not affect the sixtieth expenses eligible for reimbursement in any other taxable year (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and except for any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses lifetime or other reimbursements hereunder aggregate limitation applicable to medical expenses), in no event shall any expenses be made on or prior to reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the Executive incurred such expenses were incurred by Employeeexpenses, (ii) and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties to this Agreement is that payments and benefits under this Agreement paid or provided hereunder be exempt from or comply with Internal Revenue Code Section 409A of the Code, as amended and the regulations and guidance promulgated thereunder (collectively together, “Code Section 409A”) and, accordingly, to the maximum extent permitted, and that this Agreement shall be interpreted and administered in accordance with such intention. Notwithstanding anything herein to be the contrary, if at the time of Executive’s termination of employment with Company, Executive is a “specified employee” as defined in compliance therewith. To Section 409A and the extent that deferral of the commencement of any provision hereof payments or benefits otherwise payable hereunder as a result of such termination of employment is modified necessary in order to comply with Code prevent any accelerated or additional tax under Section 409A, then the commencement of such modification payments or benefits hereunder shall be made in good faith delayed until the date that is six (6) months and shallone day following Executive’s termination of employment with Company; provided that, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing necessary to comply with Code the requirements of IRS Notice 2010-6, in no event shall a payment described in this sentence be paid prior to the date which is eighteen (18) months and one day following September 29, 2010. For purposes of any payments and benefits which are (i) subject to Section 409A.
409A and (bii) A payable due to a termination of employment Executive’s employment, Executive shall not be deemed considered to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of terminated employment unless such termination is also with Company until Executive incurs a “separation from service” from Company within the meaning of Code Section 409A and, 409A. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code, and any such provision of payments described in this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, if Employee is deemed on the date of termination to be a “specified employee” Agreement that are due within the meaning of that “short term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensationdeferral period” under Code as defined in Section 409A payable on account of a “separation from service,” such payment shall be made on 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 to Code shall not be treated as deferred compensation unless applicable law requires otherwise. To the extent required to avoid accelerated taxation and/or tax penalties under Code Section 409A. Upon the expiration 409A of the foregoing delay periodCode, all payments delayed pursuant amounts reimbursable 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 Employee in a lump-sum, and all remaining payments due Executive under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made Executive on or prior to before the last day of the taxable year following the taxable year in which such expenses were the expense was incurred by Employee, (ii) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, the amount of expenses eligible for reimbursement, or reimbursement (and in-kind benefits provided to Executive) during any one year may not effect amounts reimbursable or 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 subsequent year.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Sources: Employment Agreement (Icon Acquisition Holdings, L.P.)
Code Section 409A Compliance. To the extent applicable, it is intended that this award and the Plan comply with the requirements of Section 409A of the Code and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Any provision that would cause the Plan or this award to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent permitted by Section 409A. Notwithstanding anything to the contrary in this Agreement, if this is not a Section 409A Compliant Award, in no event will the Shares issuable pursuant to this award be issued later than March 15th of the calendar year following the calendar year in which the RSUs have vested.
(a) The intent of Notwithstanding anything in this Agreement to the parties is that payments and contrary, any compensation or benefits payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, that is designated under this Agreement as payable upon your Termination of Employment shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 payable only upon or following a termination of employment unless such termination is also a your “separation from service” with the Company within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to (a “termination,” “termination of employment” or like terms shall mean “separation Separation from serviceService”).”
(cb) Notwithstanding any other payment schedule provided herein anything in this Agreement to the contrary, if Employee is you are deemed on by the date Company at the time of termination your Separation from Service to be a “specified employee” within for purposes of Section 409A, to the meaning extent delayed commencement of that term any portion of the benefits to which you are entitled under Code this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)409A, then with regard such portion of the Shares issuable to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment you pursuant to this award shall not be made on the date which is provided to you prior to the earlier of (ix) the expiration of the six (6)-month six-month period measured from the date of such “separation your Separation from service” of Employee, and Service with the Company or (iiy) the date of Employee’s death to the extent required under Code Section 409A. Upon your death. Within thirty (30) days following the expiration of the applicable foregoing delay period, all payments delayed Shares deferred pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) preceding sentence shall be paid issued to Employee in a lump-sumyou (or your estate or beneficiaries), and all any remaining payments Shares due to you under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(iic) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s Your right to receive any installment payments pursuant to under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. Whenever payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
(d) Notwithstanding the foregoing, if a Change in Control would give rise to a payment under this Agreement specifies a payment period or settlement event with reference respect to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment or benefit under this Agreement that constitutes “nonqualified deferred compensation,” the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation Section 1.409A-3(i)(5)) in order to give rise to the payment or settlement event for such payment or benefit, to the extent required by Section 409A.
(e) This award will be a “Section 409A Compliant Award” if (i) you will be eligible for Retirement at any time prior to the final Scheduled Vesting Date, (ii) you are a party to a Change in Control Severance Agreement with the Company as applicable for Executive Officers at any time prior to the final Scheduled Vesting Date, or (iii) this award otherwise constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (ai) The intent of To the parties is that payments fullest extent applicable, amounts and other benefits payable under this Agreement comply with Internal Revenue Code are intended to be exempt from the definition of “nonqualified deferred compensation” under Section 409A and of the regulations and guidance promulgated thereunder Code (collectively “Code Section 409A”) ), in accordance with one or more of the exemptions available under the final Treasury Regulations promulgated under Section 409A and, accordingly, to the maximum extent permittedthat any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to be in compliance therewith. To the extent that any provision hereof is modified possible in order a manner consistent with the foregoing statement of intent. For purposes of this Agreement, all rights to comply with Code Section 409A, such modification payments and benefits hereunder shall be made in good faith treated as rights to receive a series of separate payments and shall, benefits to the maximum fullest extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company allowed by Section 409A of the applicable provision without violating Code.
(ii) Notwithstanding anything in this Agreement or elsewhere to the provisions contrary, for purposes of Code Section 409A. In no event whatsoever shall determining the Company be liable for payment date of any additional tax, interest or penalty amounts that may be imposed on Employee by Code are treated as nonqualified deferred compensation under Section 409A or damages for failing that become payable under this Agreement in connection with a termination of employment, the date that the Executive is deemed to comply with Code Section 409A.
(b) A have incurred 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 upon or following a termination of employment unless such termination is also date on which the Executive has incurred a “separation from service” within the meaning of Code Treasury Regulation section 1.409A-1(h), or in subsequent Internal Revenue Service guidance under Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”409A.
(ciii) Notwithstanding any other payment schedule provided herein anything in this Agreement or elsewhere to the contrary, if Employee the Company reasonably determines that (A) the Executive is deemed on the date of termination to be a “specified employee” (within the meaning of that term under Code Treasury Regulation Section 409A(a)(2)(B1.409A-1(i), then with regard to any payment that is considered “nonqualified 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 (i) the expiration of the six (6)-month period measured from the date of such Executive’s “separation from service” (within the meaning of Employee, Treasury Regulation Section 1.409A-1(h)) and (iiB) the date commencement of Employee’s death to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all any payments delayed pursuant to this Section (whether they would have otherwise been or other benefits payable in a single sum or in installments in the absence of such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance connection with the normal Executive’s separation from service on the scheduled payment dates specified for them herein.
in Section 8(a) through (dc), will subject the Executive to an “additional tax” under Section 409A(a)(1)(B) To (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “Section 409A Tax”), then the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee Company shall withhold payment of a release of claims, Employee shall forfeit all rights to any such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days or benefits until the first business day of the seventh month following the date of Employeethe Executive’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentenceseparation from service or, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409Aif earlier, then such payment shall commence upon the first scheduled payment date immediately following the date that of the release is executed, delivered and no longer subject to revocation Executive’s death (the “Release Effective Delayed Payment Date”). The first In the event that this Section 8(e)(iii) requires any payments to be withheld, such cash payment withheld payments shall include payment of all amounts that otherwise would have been due prior be accumulated and paid in a single lump sum, with interest equal to the Release Effective “short-term applicable Federal rate” (within the meaning of Section 1274(d) of the Code), compounded annually, in effect on the date of such termination, on the Delayed Payment Date under and the terms balance of this Agreement applied the payments shall be made as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided hereinotherwise scheduled.
(iiiv) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Executive within a designated period (e.g., within 30 days after the date of termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 8(e)(iii) above, be determined by the Company, in its sole discretion, and the Executive shall have no right to designate the year in which the payment shall be made.
(v) The Company and the Executive may agree to take other actions to avoid the imposition of a Section 409A Tax at such time and in such manner as permitted under Section 409A. To the extent that any such cash payment applicable, each of the exceptions to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment ’s prohibition on acceleration of payments of deferred compensation provided under Treasury Regulation 1.409A-3(j)(4) shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto permitted under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided hereinAgreement.
(evi) For Each of the Company and the Executive acknowledge and agree that (A) they have had their own independent legal counsel review this Agreement for purposes of compliance with Code the requirements of Section 409A, (i) all expenses 409A or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefitan exemption therefrom, and (iiiB) no each party is relying solely on the advice of its independent legal counsel for 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 yearpurposes.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Sources: Employment Agreement (Live Nation Entertainment, Inc.)
Code Section 409A Compliance. (a) The It is Company’s intent of the parties is that payments and benefits amounts paid under this Agreement comply with generally shall not constitute “deferred compensation” as that term is defined under Section 409A of the Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder of 1986, as amended (collectively “Code Section 409A”) and), accordinglyand the regulations promulgated thereunder, to because the maximum extent permitted, amounts paid under this Agreement shall be interpreted are structured to be in compliance therewith. comply with either the “short-term deferral” exception or other applicable exceptions to Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of individual payments under this Agreement providing do not qualify for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a an exception and are determined to be “separation from servicedeferred compensation” within the meaning of Code Section 409A and, for purposes of any such provision and compliance with an applicable term of this Agreement, references to a “termination,” “termination of employment” Agreement would cause or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments delayed pursuant to this Section (whether they would have otherwise been payable result in a single sum or in installments in the absence of such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes violation of Code Section 409A, then such payment provision shall commence upon be interpreted or reformed in the first scheduled payment date immediately following manner necessary to achieve compliance with Code Section 409A. Accordingly, the “Termination Date” is the date that the release is executedEmployee incurred a “separation from service” under Code Section 409A, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of thus all amounts that otherwise would have been due prior to the Release Effective Date payments under the terms of this Agreement applied as though such payments commenced immediately are being made upon Employee’s termination separation from service. In no event may Employee, directly or indirectly, designate the calendar year of employmenta payment and where payment may occur in one year or the next, it shall be made in the second year. Each payment under this Agreement, including each salary continuation payment of Severance Pay, Bonus Amount, and any payments made thereafter each Benefits Offset Payment, shall continue be treated as provided herein.
(ii) To the extent that any such cash a separate identified payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall 409A. Employee is a specified employee (as defined in Treasury Regulation Section 1.409A-1(i)). Company and Employee agree that all payments under this Agreement that are scheduled to be made or commence upon the sixtieth (60th) day following paid within six months after Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Termination Date qualify for an exception to Code Section 409A, (i) and all expenses other payments are made at a time and in a form that complies with Code Section 409A. Employee acknowledges that Company does not make any representations or other reimbursements hereunder shall be made on or prior is providing tax advice to the last day of the taxable year following the taxable year in which such expenses were incurred by Employee, (ii) any right and that Employee has had the opportunity to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, consult with her own tax 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.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant financial counsel with respect 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, the actual date of payment within the specified period shall be within the sole discretion of the CompanyAgreement.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(a1) The If and to the extent any payment or benefits under this Agreement are otherwise subject to the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, including any regulations and other applicable authorities promulgated thereunder (the “Code”), the intent of the parties is that payments such payment and benefits under this Agreement shall comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company parties hereto of the applicable provision without violating the provisions of Code Section 409A. The Company makes no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payments or benefits. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(b2) 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 upon or following a Executive’s termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c3) Notwithstanding any other Each payment schedule provided herein payable to the contrary, if Employee is deemed Executive under this Section 6 on the or after his 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 that is considered “nonqualified 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 (i) the expiration of the six (6)-month period measured from the date of such treated as a separate and distinct “separation from service” of Employee, and (ii) the date of Employee’s death to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensationpayment” for purposes of Code Section 409A and, further is intended to be exempt from Code Section 409A, then including but not limited to the short-term deferral and involuntary separation pay plan exemptions thereunder. If and to the extent any such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer determined to be subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that Code Section 409A and is otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately payable upon EmployeeExecutive’s termination of employment, in the event Executive is a “specified employee” (as defined in Code Section 409A), any such payment that would otherwise have been payable in the first six (6) months following Executive’s termination of employment will not be paid to Executive until the date that is six (6) months and one (1) day following the date of Executive’s termination of employment (or, if earlier, Executive’s date of death). Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the amount of any payments made thereafter otherwise payable to Executive under this Agreement. Thereafter, the remainder of any such payments shall continue as provided hereinbe payable in accordance with this Section 6.
(ii4) To the extent that With respect to any such cash payment right to be provided is “nonqualified deferred compensation” for purposes reimbursement of Code Section 409A, then such payment shall be made expenses or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto in-kind benefits under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409AAgreement, (i) all reimbursement of expenses or other reimbursements hereunder to Executive shall be made on or prior to the last day of the Executive’s taxable year following the taxable year in which such expenses were incurred by EmployeeExecutive, except that if any such reimbursements constitute taxable income to Executive, such reimbursements shall be paid no later than March 15th of calendar year following the calendar year in which the expenses to be reimbursed were incurred, (ii) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, the amount of expenses eligible for reimbursement, or in-kind benefits provided in any provided, during Executive’s taxable year shall not in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(f5) For purposes of Code Section 409A, Employee’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 period within which such payment period with reference to a number of daysmay be made, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g6) Notwithstanding any other provision of this Agreement to the contrary, in In no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by payment pursuant to this Agreement or otherwise.
(7) To the extent required under Code Section 409A.
409A, (hi) Unless any reference herein to the term “Agreement” shall mean this Agreement provides a specified and objectively determinable payment schedule any other plan, agreement, method, program, or other arrangement, with which this Agreement is required to be aggregated under Code Section 409A, and (ii) any reference herein to the contrary, to term “Company” shall mean the extent that any payment of base salary Company and all persons with whom the Company would be considered a single employer under Code Section 414(b) or other compensation is to be paid for a specified continuing period of time beyond the date of Employee’s termination of employment in accordance with the Company’s payroll practices (or other similar term414(c), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code IRC Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under IRC Section 409A (or is intended to qualify for an exemption under IRC Section 409A) and such payment or benefit is payable upon Executive’s termination of employment or termination of this Agreement, then the phrase “termination of employment,” “termination of this Agreement” and other similar phrases in this Agreement will be deemed to mean a “separation from service,” as defined in accordance with IRC Section 409A and corresponding Treasury regulations. Additionally, to the extent that any reimbursements under this Agreement are subject to the provisions of IRC Section 409A , any such reimbursements payable to Executive will be paid to Executive no later than December 31 of the year following the year in which the expense was incurred, the amount of the expenses reimbursed in one year will not affect the amount eligible for reimbursement in any subsequent year, and Executive’s right to reimbursement under this Agreement will not be subject to liquidation or exchange for another benefit. The Company makes no representation or warranty and will have no liability to Executive or any other person with respect to whether any provision hereof is modified in order of this Agreement fails to comply with Code IRC Section 409A, such modification shall be made in good faith and shall, 409A or fails to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code satisfy an intended exemption from IRC Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee Executive by Code Section 409A or damages for failing to comply with Code IRC Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(a) The If and to the extent any payment or benefits under this Agreement are otherwise subject to the requirements of Code Section 409A, the intent of the parties is that payments such payment and benefits under this Agreement shall comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company parties hereto of the applicable provision without violating the provisions of Code Section 409A. The Company makes no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payments or benefits. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee the Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment the Executive’s Termination Date unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” “Termination Date,” or like terms shall mean “separation from service.”
(c) Notwithstanding any other Each payment schedule provided herein payable to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due Executive under this Agreement on or after the Executive’s Termination Date shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution treated as a separate and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not distinct “nonqualified deferred compensationpayment” for purposes of Code Section 409A and, further, is intended to be exempt from Code Section 409A, then including but not limited to the short-term deferral exemption thereunder. If and to the extent any such payment shall commence is determined to be subject to Code Section 409A and is otherwise payable upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon EmployeeExecutive’s termination of employment, in the event the Executive is a “specified employee” (as defined in Code Section 409A), any such payment that would otherwise have been payable in the first six (6) months following the Executive’s Termination Date will not be paid to the Executive until the date that is six (6) months and one (1) day following the Executive’s Termination Date (or, if earlier, the Executive’s date of death). Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the amount of any payments made thereafter otherwise payable to the Executive under this Agreement. Thereafter, the remainder of any such payments shall continue as provided hereinbe payable in accordance with this Agreement.
(iid) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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 period within which such payment period with reference to a number of daysmay be made, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(ge) Notwithstanding any other provision of this Agreement to the contrary, in In no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by payment pursuant to this Agreement or otherwise.
(f) To the extent required under Code Section 409A.
409A, (hi) Unless any reference herein to the term “Agreement” shall mean this Agreement provides a specified and objectively determinable payment schedule any other plan, agreement, method, program, or other arrangement, with which this Agreement is required to be aggregated under Code Section 409A, and (ii) any reference herein to the contrary, to term “Company” shall mean the extent that any payment of base salary Company and all persons with whom the Company would be considered a single employer under Code Section 414(b) or other compensation is to be paid for a specified continuing period of time beyond the date of Employee’s termination of employment in accordance with the Company’s payroll practices (or other similar term414(c), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the fullest extent that any provision hereof is modified in order to comply with Code Section 409Aapplicable, such modification shall be made in good faith amounts and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 other benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of payable under this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding and amounts and benefits payable under any other payment schedule provided herein to the contraryagreements or plans referenced in this Agreement, if Employee is deemed on the date of termination are intended to be a “specified employee” within exempt from the meaning definition of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensation” under Section 409A of the Code in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A. In this regard, each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A payable on account due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent, and any ambiguity as to its compliance with Section 409A will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.
(b) Notwithstanding anything in this Agreement or elsewhere to the contrary, if the Executive is a “separation from service,specified employee” such payment shall be made as determined by the Compensation Committee on 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” (as such terms are defined for purposes of EmployeeCode Section 409A), and the Company reasonably determines that any amount or other benefit payable under this Agreement on account of such separation from service constitutes nonqualified deferred compensation that will subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (iitogether with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month following the date of Employeetermination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). The Executive and the Company may agree to take other actions to avoid the extent required imposition of a 409A Tax at such time and in such manner as permitted under Code Section 409A. Upon In the expiration of the foregoing delay period, all payments delayed pursuant to event that this Section (whether they would have otherwise been payable 8 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum or in installments in on the absence of such delay) shall be paid to Employee in a lump-sumDelayed Payment Date, and all 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.
(d) To . In addition, the extent that severance payments pursuant to provisions of this Agreement are conditioned upon which require the execution and delivery by Employee commencement of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s Section 409A upon a termination of employment. If employment shall be interpreted to require that the foregoing release is executed and delivered and no longer subject to revocation Executive have a “separation from service” with the Company as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” defined for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.409A.
(iic) To the extent that the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the Executive, the Company shall reimburse any such cash eligible fees or expenses no later than 2 1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2 1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. 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 be provided is “nonqualified deferred compensation” subject to Section 409A of the Code, the amount of any such expenses eligible for purposes reimbursement, or the provision of Code Section 409Aany in-kind benefit, then such payment in one calendar year shall be made or commence upon not affect the sixtieth expenses eligible for reimbursement in any other taxable year (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and except for any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses lifetime or other reimbursements hereunder aggregate limitation applicable to medical expenses), in no event shall any expenses be made on or prior to reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the Executive incurred such expenses were incurred by Employeeexpenses, (ii) and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit.
(d) The provisions of this Section 8 shall also apply to all payments and benefits that may be provided under the Change in Control Agreement, notwithstanding any provision to the contrary contained therein, if required in order to comply with Section 409A. In addition to the provisions set forth in subsections (a) through (c) above: (i) the cash severance payable under the Change in Control Agreement shall be paid at the same time and in the same form provided under this Agreement for severance payable under Section 6(b) (that is, in installments over twenty-four (24) months rather than a lump sum) unless the Executive’s separation from service occurs within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5); (ii) if the Executive’s separation from service does occur within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5), then the cash severance payable to the Executive under Section 1(b)(1) of the Change in Control Agreement shall be paid on the sixtieth (60th) day following his separation from service (subject to Section 8(b)) provided the Executive has fulfilled the conditions for payment of the cash severance under the Change in Control Agreement (including that the Release of Claims as defined therein shall have become effective) on or before such date (and shall not be paid otherwise); 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 reimbursement of taxes required to be provided, made by the Company under the Change in any other taxable year.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Control 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, made by the actual date of payment within the specified period shall be within the sole discretion end of the Company.
(gcalendar year next following the calendar year in which the Executive remits the related taxes. If the payment of cash severance has commenced pursuant to Section 6(b)(1) Notwithstanding any other provision of this Agreement before the occurrence of a Change in Control that results in the Executive’s eligibility for severance benefits under the Change in Control Agreement, then the payment of cash severance shall be governed by the Change in Control Agreement rather than Section 6(b)(1) of this Agreement, and any adjustment to reflect an underpayment or overpayment of the amount that otherwise would have been due before the Change in Control pursuant to the contrary, Change in no event Control Agreement shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule applied to the contraryfirst installment due after the Change in Control Agreement, 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 date of Employee’s termination of employment proceeding in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule chronological order thereafter as in effect upon the date of termination, but no less frequently than monthlynecessary.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent This Plan is intended to comply with Section 409A of the parties Code so that no excise tax or penalties will apply to the Severance Benefits and any ambiguous provisions will be construed in a manner so that the Plan is that payments and benefits under this Agreement comply compliant with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, but only to the maximum extent permittedthat it is applicable or so that the Plan is exempt from the application of Section 409A of the Code. If a provision of the Plan would result in the imposition of earlier or additional taxes under Section 409A of the Code, this Agreement the Company and Participants agree that such provision shall be interpreted or otherwise reformed to be in compliance therewithavoid imposition of such taxes. To No Participant shall have any right to determine the extent date of the payment of any amount under this Plan. Notwithstanding anything herein to the contrary, for any amounts payable hereunder that any provision hereof is modified in order are deferred compensation subject to comply with Code Section 409A, such modification shall any amount payable to a Participant who is a specified employee on account of a Separation from Service will be made in good faith withheld and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination of employment shall will not be deemed to have occurred for purposes of any provision of this Agreement providing for paid until the payment of any amounts or benefits upon or following a termination of employment unless such termination first business day that is also a “separation six (6) months after the Participant’s Separation from service” Service within the meaning of Code Section 409A and, for 409A. For purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such the Code, each payment or amount due under this Plan shall be made on 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 to considered a separate payment. To the extent required under Code Section 409A. Upon the expiration 409A, a “termination of employment” shall mean Participant’s “separation from service” as defined in Section 1.409A-1(h) of the foregoing delay periodFinal Treasury Regulations promulgated under Section 409A of the Code, including the default presumptions thereof. Notwithstanding anything in this Plan to the contrary, the Severance Benefits will be paid as follows: (i) to the extent required by Code Section 409A on the first business day following the date which is six (6) months following a Participant’s Termination Date with respect to all payments delayed pursuant or the portion of the Severance Benefit that is subject to Code Section 409A if the Participant is a “specified employee” under Code Section 409A, provided, however, that if the Participant has not executed the Separation and Release Agreement (which has not been revoked in the time period specified in such agreement) prior to this date no Severance Benefits will be paid or payable to such a Participant, or (ii) if the Severance Benefit is subject to the requirements of Code Section 409A, but is not subject to the requirements of clause (whether they would have otherwise i) above, on the first scheduled payroll date following 15 days from Company’s receipt of an executed Separation and Release (which has not been payable in a single sum or in installments revoked in the absence of applicable time period as provided in such delayagreement) shall provided that if the period during which the Participant has discretion to execute and revoke the Separation and Release Agreement straddles two calendar years the payment will only be paid in the second calendar year, but in no event later than seventy (70) days after the Participant’s Termination Date. The following rules shall apply to Employee in a lump-sum, and all remaining payments due of any amounts under this Agreement shall be paid that are treated as “reimbursement payments” or provided “in accordance with the normal payment dates specified for them herein.
(d) To the extent kind payments” that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocationSection 409A of the Code: (i) the amount of expenses eligible for reimbursement or paid in kind benefits in one calendar year shall not limit the available reimbursements or paid in kind for any other calendar year; (ii) Participant shall file a claim for all reimbursement payments not later than thirty (30) days following the end of the calendar year during which the expenses were incurred, if applicable(iii) the Company shall make such reimbursement within sixty thirty (6030) days following the date Participant delivers written notice of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior expenses to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon EmployeeCompany; (iv) Participant’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to such reimbursement payments or in-in kind benefits is shall not be subject to liquidation or exchange for another any other payment or benefit, ; and (iiiv) all reimbursements will be made no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect later than the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion end of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all calendar year following calendar year of the terms and conditions thereofParticipant’s Termination Date .
Appears in 1 contract
Sources: Restructuring Support Agreement (Petroquest Energy Inc)
Code Section 409A Compliance. (a) The intent of the parties This Performance Award Agreement is that payments and benefits under this Agreement intended to comply with Internal Revenue the requirements of Code Section 409A and any right or benefit which is provided pursuant to or in connection with this Performance Award Agreement which is considered to be nonqualified deferred compensation subject to Code Section 409A (referred to as a “409A Award”) shall be provided and paid in a manner, and at such time and in such form, as complies with the regulations applicable requirements of Code Section 409A to avoid the unfavorable tax consequences provided therein for non-compliance. Consequently, this Performance Award Agreement is intended to be administered, interpreted and guidance promulgated thereunder construed in accordance with the applicable requirements of Code Section 409A. Notwithstanding the foregoing, the Executive and her successor in interest shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on the Executive or her successor in interest in connection with this Performance Award Agreement (collectively “including any taxes and penalties under Code Section 409A”) and); and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold the Executive or her successor in interest harmless from any or all of such taxes or penalties. Except as permitted under Code Section 409A, accordingly, any 409A Award payable to the maximum extent permittedExecutive or for her benefit with respect to the Performance Award may not be reduced by, this Agreement shall be interpreted or offset against, any amount owing by the Executive to be in compliance therewiththe Company or any of its affiliates. To the extent that entitlement to payment of any provision hereof is modified in order 409A Award occurs due to comply with Code Section 409Atermination or cessation of employment, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest termination or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination cessation of employment shall not be deemed read to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also mean a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean 409A. A “separation from service.”
” shall occur where it is reasonably anticipated that no further services will be performed after that date or that the level of bona fide services the Executive will perform after that date (cwhether as an employee or independent contractor of the Company or an affiliate) Notwithstanding any other will permanently decrease to less than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period. Continued services solely as a director of the Company or an affiliate shall not prevent a separation from service from occurring by the Executive as permitted by Code Section 409A. Where entitlement to payment schedule provided herein to occurs by reason of a separation from service and the contrary, if Employee Executive 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior as applicable to the Release Effective Date under Company and its affiliates and using the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To identification methodology selected by the extent that any such cash payment Company from time to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance time in accordance with Code Section 409A) on the date of her “separation from service”, (i) all expenses or other reimbursements hereunder then payment of such 409A Award shall be made on or prior to delayed (without interest) until the last first business day after the end of the taxable year following the taxable year in which such expenses were incurred by Employee, six (ii6) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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 month delay period required under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to or, if earlier, after 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 date of EmployeeExecutive’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthlydeath.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) Notwithstanding any other provision in this Agreement, the parties hereto agree that the bona fide level of services that Executive will be required to perform pursuant to Section 1(b) shall in no event be at a level that would prevent Executive from being treated as having a “separation from service” (within the meaning of Code Section 409A) on the Transition Date.
(c) 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 amount or benefits benefit upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to any expense reimbursement or in-kind benefit under this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not constitutes “nonqualified non-qualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses such expense or other reimbursements reimbursement hereunder 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 EmployeeExecutive, (ii) any right to reimbursement or in-kind benefits is will 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.
(fe) For purposes of Code Section 409A, EmployeeExecutive’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Sources: Separation Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(a) The intent of If and to the parties is that payments and extent any payment or benefits under this Agreement are otherwise subject to the requirements of Code Section 409A, the intent of the Parties is that such payment and benefits shall comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company Parties hereto of the applicable provision without violating the provisions of Code Section 409A. The Company makes no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with the Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payments or benefits. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee the Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for the purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment the Executive’s Termination Date unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other Each payment schedule provided herein payable to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due Executive under this Agreement on or after the Executive’s Termination Date shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution treated as a separate and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not distinct “nonqualified deferred compensationpayment” for purposes of Code Section 409A and, further, is intended to be exempt from Code Section 409A, then including but not limited to the short-term deferral exemption thereunder. If and to the extent any such payment shall commence is determined to be subject to Code Section 409A and is otherwise payable upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon EmployeeExecutive’s termination of employment, and any payments made thereafter shall continue in the event the Executive is a “specified employee” (as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of defined in Code Section 409A), then any such payment that would otherwise have been payable in the first six (6) months following the Executive’s Termination Date will not be paid to the Executive until the date that is six (6) months and one (1) day following the Executive’s Termination Date (or, if earlier, the Executive’s date of death). Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the amount of any payment otherwise payable to the Executive under this Agreement. Thereafter, the reminder of such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of payable in accordance with this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided hereinAgreement.
(ed) For purposes of compliance with Code Section 409A, (i) all All expenses or other reimbursements hereunder to the Executive under this Agreement, if any, 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 Employeethe Executive (provided that if any such reimbursements constitute taxable income to the Executive, (ii) any right such reimbursements shall be paid no later than March 15th of the calendar year following the calendar year in which the expenses to be reimbursed were incurred), and no such reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, reimbursement in any other taxable year.
(fe) For purposes of Code Section 409A, Employee’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 period within which such payment period with reference to a number of daysmay be made, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(gf) Notwithstanding any other provision of this Agreement to the contrary, in In no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by payment pursuant to this Agreement or otherwise.
(g) To the extent required under Code Section 409A.
409A, (hi) Unless any reference herein to the term “Agreement” shall mean this Agreement provides a specified and objectively determinable payment schedule to the contraryany other plan, to the extent that any payment of base salary agreement, method, program, or other compensation arrangement, with which this Agreement is required to be paid for a specified continuing period of time beyond the date of Employee’s termination of employment in accordance with the Company’s payroll practices (or other similar term)aggregated under Code Section 409A, the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.and
Appears in 1 contract
Sources: Severance Agreement (Atkore International Holdings Inc.)
Code Section 409A Compliance. (a) The intent of the parties This Performance Award Agreement is that payments and benefits under this Agreement intended to comply with Internal Revenue the requirements of Code Section 409A and any right or benefit which is provided pursuant to or in connection with this Performance Award Agreement which is considered to be nonqualified deferred compensation subject to Code Section 409A (referred to as a “409A Award”) shall be provided and paid in a manner, and at such time and in such form, as complies with the regulations applicable requirements of Code Section 409A to avoid the unfavorable tax consequences provided therein for non-compliance. Consequently, this Performance Award Agreement is intended to be administered, interpreted and guidance promulgated thereunder construed in accordance with the applicable requirements of Code Section 409A. Notwithstanding the foregoing, the Employee and his or her successor in interest shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on the Employee or his or her successor in interest in connection with this Performance Award Agreement (collectively “including any taxes and penalties under Code Section 409A”) and); and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold the Employee or his or her successor in interest harmless from any or all of such taxes or penalties. Except as permitted under Code Section 409A, accordingly, any 409A Award payable to the maximum extent permittedEmployee or for his or her benefit with respect to the Performance Award may not be reduced by, this Agreement shall be interpreted or offset against, any amount owing by the Employee to be in compliance therewiththe Company or any of its affiliates. To the extent that entitlement to payment of any provision hereof is modified in order 409A Award occurs due to comply with Code Section 409Atermination or cessation of employment, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest termination or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination cessation of employment shall not be deemed read to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also mean a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean 409A. A “separation from service.”
” shall occur where it is reasonably anticipated that no further services will be performed after that date or that the level of bona fide services the Employee will perform after that date (cwhether as an employee or independent contractor of the Company or an affiliate) Notwithstanding any other will permanently decrease to less than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period. Continued services solely as a director of the Company or an affiliate shall not prevent a separation from service from occurring by the Employee as permitted by Code Section 409A. Where entitlement to payment schedule provided herein to occurs by reason of a separation from service and the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior as applicable to the Release Effective Date under Company and its affiliates and using the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To identification methodology selected by the extent that any such cash payment Company from time to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance time in accordance with Code Section 409A) on the date of his or her “separation from service”, (i) all expenses or other reimbursements hereunder then payment of such 409A Award shall be made on or prior to delayed (without interest) until the last first business day after the end of the taxable year following the taxable year in which such expenses were incurred by Employee, six (ii6) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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 month delay period required under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to or, if earlier, after 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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthlydeath.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the fullest extent that any provision hereof is modified in order to comply with Code Section 409Aapplicable, such modification shall be made in good faith amounts and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 other benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of payable under this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding and amounts and benefits payable under any other payment schedule provided herein to the contraryagreements or plans referenced in this Agreement, if Employee is deemed on the date of termination are intended to be a “specified employee” within exempt from the meaning definition of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensation” under Section 409A of the Code in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A. In this regard, each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A payable on account due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent, and any ambiguity as to its compliance with Section 409A will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.
(b) Notwithstanding anything in this Agreement or elsewhere to the contrary, if the Executive is a “separation from service,specified employee” such payment shall be made as determined by the Compensation Committee on 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” (as such terms are defined for purposes of EmployeeCode Section 409A), and the Company reasonably determines that any amount or other benefit payable under this Agreement on account of such separation from service constitutes nonqualified deferred compensation that will subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (iitogether with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month following the date of Employeetermination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). The Executive and the Company may agree to take other actions to avoid the extent required imposition of a 409A Tax at such time and in such manner as permitted under Code Section 409A. Upon In the expiration of the foregoing delay period, all payments delayed pursuant to event that this Section (whether they would have otherwise been payable 7 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum or in installments in on the absence of such delay) shall be paid to Employee in a lump-sumDelayed Payment Date, and all 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.
(d) To . In addition, the extent that severance payments pursuant to provisions of this Agreement are conditioned upon which require the execution and delivery by Employee commencement of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s Section 409A upon a termination of employment. If employment shall be interpreted to require that the foregoing release is executed and delivered and no longer subject to revocation Executive have a “separation from service” with the Company as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” defined for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.409A.
(iic) To the extent that the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the Executive, the Company shall reimburse any such cash eligible fees or expenses no later than 2‑1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2‑1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. 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 be provided is “nonqualified deferred compensation” subject to Section 409A of the Code, the amount of any such expenses eligible for purposes reimbursement, or the provision of Code Section 409Aany in‑kind benefit, then such payment in one calendar year shall be made or commence upon not affect the sixtieth expenses eligible for reimbursement in any other taxable year (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and except for any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses lifetime or other reimbursements hereunder aggregate limitation applicable to medical expenses), in no event shall any expenses be made on or prior to reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the Executive incurred such expenses were incurred by Employeeexpenses, (ii) and in no event shall any right to reimbursement or in-kind benefits is not the provision of any in‑kind benefit be subject to liquidation or exchange for another benefit.
(d) The provisions of this Section 7 shall also apply to all payments and benefits that may be provided under the Change in Control Agreement, notwithstanding any provision to the contrary contained therein, if required in order to comply with Section 409A. In addition to the provisions set forth in subsections (a) through (c) above: (i) the cash severance payable under the Change in Control Agreement shall be paid at the same time and in the same form provided under this Agreement for severance payable under Section 5(b) (that is, in installments over twenty‑four (24) months rather than a lump sum) unless the Executive’s separation from service occurs within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A‑3(i)(5); (ii) if the Executive’s separation from service does occur within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A‑3(i)(5), then the cash severance payable to the Executive under Section 1(b)(1) of the Change in Control Agreement shall be paid on the sixtieth (60th) day following his separation from service (subject to Section 7(b)) provided the Executive has fulfilled the conditions for payment of the cash severance under the Change in Control Agreement (including that the Release of Claims as defined therein shall have become effective) on or before such date (and shall not be paid otherwise); 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 reimbursement of taxes required to be provided, made by the Company under the Change in any other taxable year.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Control 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, made by the actual date of payment within the specified period shall be within the sole discretion end of the Company.
(gcalendar year next following the calendar year in which the Executive remits the related taxes. If the payment of cash severance has commenced pursuant to Section 5(b)(1) Notwithstanding any other provision of this Agreement before the occurrence of a Change in Control that results in the Executive’s eligibility for severance benefits under the Change in Control Agreement, then the payment of cash severance shall be governed by the Change in Control Agreement rather than Section 5(b)(1) of this Agreement, and any adjustment to reflect an underpayment or overpayment of the amount that otherwise would have been due before the Change in Control pursuant to the contrary, Change in no event Control Agreement shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule applied to the contraryfirst installment due after the Change in Control Agreement, 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 date of Employee’s termination of employment proceeding in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule chronological order thereafter as in effect upon the date of termination, but no less frequently than monthlynecessary.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (aA) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To Any payments that qualify for the short-term deferral exception, the separation pay exception or another exception under Code Section 409A shall be paid under the applicable exception to the maximum extent permitted. Each payment of compensation under this Agreement shall be treated as a separate payment of compensation for all purposes under Code Section 409A. In the event that the Company determines reasonably and in good faith that there is any provision hereof is modified in order of this Agreement that could cause the Executive to comply with be subject to additional tax, interest or penalties under the provisions of Code Section 409A, such modification provision shall be made interpreted and resolved in the manner the Company reasonably and in good faith and shall▇▇▇▇▇ ▇▇▇▇▇ necessary to prevent the application of such taxes, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of interest or penalties under Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee the Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(bB) 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 amount or benefits benefit upon or following a termination of employment if such payment or benefit constitutes a “deferral of compensation” under Code Section 409A unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreementpayment or benefit, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) ” Notwithstanding any other payment schedule provided herein anything to the contrarycontrary in this Agreement, if Employee the Executive 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” compensation under Code Section 409A payable on account of a “separation from service,” ”, such payment or benefit shall not be made on or provided until the date which is the earlier of (i) the expiration first day of the six (6)-month period measured from seventh month following the date of such “separation from service” of Employeethe Executive, and (ii) the date of Employeethe Executive’s death death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits 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 or reimbursed to Employee the Executive in a lump-sumlump sum without interest, and all 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.
(dC) To the extent that severance payments or benefits pursuant to this Agreement are conditioned upon the execution and delivery by Employee the Executive of a release of claims, Employee the Executive shall forfeit all rights to such payments and benefits which constitute “deferred compensation” under Code Section 409A unless such release is signed and delivered (delivered, and no longer subject to revocationthe period for revocation has expired, if applicable) within sixty (60) days following the date of Employeethe Executive’s termination of employment. In this regard, the Company agrees to provide the Executive with the form of release required under Section 5(K) no later than 5 days after the Executive’s termination date. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance cash payment or continuing benefit to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment or benefit shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employeethe Executive’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment or continuing benefit to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then then, subject to the delay set forth above in clause (B), if applicable, such payment payments or benefits shall be made or commence upon the sixtieth (60th) day following Employeethe Executive’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employeethe Executive’s termination of employment, and any payments made thereafter shall continue as provided herein.
(eD) For purposes of compliance with Code Section 409AWith respect to reimbursements or other in-kind benefits under this Agreement, (i) all expenses or other reimbursements hereunder 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 Employeethe Executive, (ii) any right to reimbursement or in-kind benefits is 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.
(fE) For purposes of Code Section 409A, Employeethe 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, the actual date of payment within the specified period shall be be, to the extent permitted under Code Section 409A, within the sole discretion of the Company.
(gF) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of To the parties is extent amounts or benefits that payments and benefits become payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company on account of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A Executive’s termination of employment shall not be deemed to have occurred for purposes (other than by reason of any provision of this Agreement providing for the payment of any amounts or benefits upon or following Executive’s death) constitute a termination of employment unless such termination is also distribution under a “separation from servicenonqualified deferred compensation plan” within the meaning of Code Section 409A and(“Deferred Compensation”), for purposes of any such provision of this Agreement, references to a “termination,” “the Executive’s termination of employment” or like terms employment shall mean be deemed to occur on the date that the Executive incurs a “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to Service’ with the contrary, if Employee is deemed on the date of termination to be a “specified employee” Company within the meaning of that term under Code Treasury Regulation Section 409A(a)(2)(B1.409A-1(h). If at the time of the Executive’s separation from service, then with regard to any payment that the Executive is considered a “nonqualified deferred compensationspecified Executive” under (within the meaning of Code Section 409A payable and Treasury Regulation Section 1.409A-1(i)), the payment of such Deferred Compensation shall commence on account the first business day of a “the seventh month following Executive’s separation from service,” such payment Service and the Company shall be made on then pay 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 EmployeeExecutive, and (ii) the date of Employee’s death to the extent required under Code Section 409A. Upon the expiration of the foregoing delay periodwithout interest, all payments delayed pursuant to this Section (whether they such Deferred Compensation that would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement during the first six months following the Executive’s separation from service had the Executive not been a specified Executive. Thereafter, the Company shall be paid or provided pay Executive any remaining unpaid Deferred Compensation in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery as if there had not been a six-month delay imposed by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employmentthis paragraph. If any expense reimbursement by the foregoing release Executive under this Agreement is executed and delivered and no longer subject determined to revocation as provided in the preceding sentencebe Deferred Compensation, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment reimbursement shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day Executive as soon as practicable after submission for the reimbursement, but no later than December 31 of the taxable year following the taxable year in during which such expenses were incurred by Employee, (ii) any expense was incurred. Any reimbursement amount provided in one year shall not affect the amount eligible for reimbursement in another year and the right to such reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. In addition, and (iii) no such reimbursement, expenses eligible for reimbursement, if any provision of this Agreement would subject the Executive to any additional tax 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.
(f) For purposes of interest under Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement then the Company 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, reform such provision; provided that the actual date of payment within the specified period Company shall be within the sole discretion of the Company.
(gx) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrarymaintain, to the maximum extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of Employee’s termination of employment in accordance with the Company’s payroll practices (or other similar term)practicable, the payments original intent of the applicable provision without subjecting the Executive to such additional tax or interest and (y) not incur any additional compensation expense as a result of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthlyreformation.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the fullest extent that any provision hereof is modified in order to comply with Code Section 409Aapplicable, such modification shall be made in good faith amounts and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 other benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of payable under this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding and amounts and benefits payable under any other payment schedule provided herein to the contraryagreements or plans referenced in this Agreement, if Employee is deemed on the date of termination are intended to be a “specified employee” within exempt from the meaning definition of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensation” under Section 409A of the Code in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A. In this regard, each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A payable on account due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent, and any ambiguity as to its compliance with Section 409A will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.
(b) Notwithstanding anything in this Agreement or elsewhere to the contrary, if the Executive is a “separation from service,specified employee” such payment shall be made as determined by the Compensation Committee on 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” (as such terms are defined for purposes of EmployeeCode Section 409A), and the Company reasonably determines that any amount or other benefit payable under this Agreement on account of such separation from service constitutes nonqualified deferred compensation that will subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (iitogether with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month following the date of Employeetermination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). The Executive and the Company may agree to take other actions to avoid the extent required imposition of a 409A Tax at such time and in such manner as permitted under Code Section 409A. Upon In the expiration of the foregoing delay period, all payments delayed pursuant to event that this Section (whether they would have otherwise been payable 8 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum or in installments in on the absence of such delay) shall be paid to Employee in a lump-sumDelayed Payment Date, and all 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.
(d) To . In addition, the extent that severance payments pursuant to provisions of this Agreement are conditioned upon which require the execution and delivery by Employee commencement of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s Section 409A upon a termination of employment. If employment shall be interpreted to require that the foregoing release is executed and delivered and no longer subject to revocation Executive have a “separation from service” with the Company as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” defined for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.409A.
(iic) To the extent that the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the Executive, the Company shall reimburse any such cash eligible fees or expenses no later than 2-1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2-1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. 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 be provided is “nonqualified deferred compensation” subject to Section 409A of the Code, the amount of any such expenses eligible for purposes reimbursement, or the provision of Code Section 409Aany in-kind benefit, then such payment in one calendar year shall be made or commence upon not affect the sixtieth expenses eligible for reimbursement in any other taxable year (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and except for any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses lifetime or other reimbursements hereunder aggregate limitation applicable to medical expenses), in no event shall any expenses be made on or prior to reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the Executive incurred such expenses were incurred by Employeeexpenses, (ii) and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit.
(d) The provisions of this Section 8 shall also apply to all payments and benefits that may be provided under the Change in Control Agreement, notwithstanding any provision to the contrary contained therein, if required in order to comply with Section 409A. In addition to the provisions set forth in subsections (a) through (c) above: (i) the cash severance payable under the Change in Control Agreement shall be paid at the same time and in the same form provided under this Agreement for severance payable under Section 6(b) (that is, in installments over twenty-four (24) months rather than a lump sum) unless the Executive’s separation from service occurs within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5); (ii) if the Executive’s separation from service does occur within twelve (12) months following the effective date of the closing of the Change in Control and the Change in Control qualifies as a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5), then the cash severance payable to the Executive under Section 1(b)(1) of the Change in Control Agreement shall be paid on the sixtieth (60th) day following his separation from service (subject to Section 8(b)) provided the Executive has fulfilled the conditions for payment of the cash severance under the Change in Control Agreement (including that the Release of Claims as defined therein shall have become effective) on or before such date (and shall not be paid otherwise); 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 reimbursement of taxes required to be provided, made by the Company under the Change in any other taxable year.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Control 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, made by the actual date of payment within the specified period shall be within the sole discretion end of the Company.
(gcalendar year next following the calendar year in which the Executive remits the related taxes. If the payment of cash severance has commenced pursuant to Section 6(b)(1) Notwithstanding any other provision of this Agreement before the occurrence of a Change in Control that results in the Executive’s eligibility for severance benefits under the Change in Control Agreement, then the payment of cash severance shall be governed by the Change in Control Agreement rather than Section 6(b)(1) of this Agreement, and any adjustment to reflect an underpayment or overpayment of the amount that otherwise would have been due before the Change in Control pursuant to the contrary, Change in no event Control Agreement shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule applied to the contraryfirst installment due after the Change in Control Agreement, 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 date of Employee’s termination of employment proceeding in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule chronological order thereafter as in effect upon the date of termination, but no less frequently than monthlynecessary.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. To the extent applicable, it is intended that this award and the Plan comply with the requirements of Section 409A of the Code and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Any provision that would cause the Plan or this award to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent permitted by Section 409A. Notwithstanding anything to the contrary in this Agreement, if this is not a Section 409A Compliant Award, in no event will any Shares issuable pursuant to this award be issued later than March 15th of the calendar year following the calendar year in which corresponding portion of the award has vested.
(a) The intent of Notwithstanding anything in this Agreement to the parties is that payments and contrary, any compensation or benefits payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, that is designated under this Agreement as payable upon your Termination of Employment shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 payable only upon or following a termination of employment unless such termination is also a your “separation from service” with the Company within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to (a “termination,” “termination of employment” or like terms shall mean “separation Separation from serviceService”).”
(cb) Notwithstanding any other payment schedule provided herein anything in this Agreement to the contrary, if Employee is you are deemed on by the date Company at the time of termination your Separation from Service to be a “specified employee” within for purposes of Section 409A, to the meaning extent delayed commencement of that term any portion of the benefits to which you are entitled under Code this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)409A, then with regard such portion of the Shares issuable to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment you pursuant to this award shall not be made on the date which is provided to you prior to the earlier of (ix) the expiration of the six (6)-month six-month period measured from the date of such “separation your Separation from service” of Employee, and Service with the Company or (iiy) the date of Employee’s death to your death. Upon the extent required under Code Section 409A. Upon first business day following the expiration of the applicable foregoing delay period, all payments delayed Shares deferred pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) preceding sentence shall be paid issued to Employee in a lump-sumyou (or your estate or beneficiaries), and all any remaining payments Shares due to you under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(iic) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s Your right to receive any installment payments pursuant to under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. Whenever payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
(d) Notwithstanding the foregoing, if a Change in Control would give rise to a payment under this Agreement specifies a payment period or settlement event with reference respect to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment or benefit under this Agreement that constitutes “nonqualified deferred compensation,” the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation Section 1.409A-3(i)(5)) in order to give rise to the payment or settlement event for such payment or benefit, to the extent required by Section 409A.
(e) This award will be a “Section 409A Compliant Award” if (i) you will be eligible for Retirement at any time prior to the Final Payment Date, (ii) you are a party to an executive Change in Control Severance Agreement with the Company as applicable for Executive Officers at any time prior to the Final Payment Date, or (iii) this award otherwise constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject 409A. Subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule 5 of the Market Share Unit Award Agreement, the MSUs shall vest with respect to the contraryApplicable Percentage of the Target Number of MSU Shares set forth in the following applicable Executive Officer, Senior Management Employee or Management Employee table based on relative total stockholder return (“TSR”) for the Company over the Measurement Period as compared to the extent that any payment total return (“Return”) for the R▇▇▇▇▇▇ 2000 Index (the “Index”) as reported for total return (with dividends reinvested) by R▇▇▇▇▇▇ Investments. For purposes of base salary computing the relative TSR for the Company as compared to the Return for the Index, dividends paid with respect to the Shares shall be treated as having been reinvested as of the ex-dividend date for each declared dividend, as further described below. TSR for the Company shall equal the percentage change (positive or other compensation negative) of the “Measurement Share Value” (as defined below) as compared to the “Base Share Value” (as defined below). The Return for the Index shall equal the percentage change (positive or negative) of the “Measurement Index Value” (as defined below) as compared to the “Base Index Value” (as defined below). The relative TSR (“Relative TSR”) represents the absolute percentage point difference between the TSR for the Company and the Return for the Index. The Applicable Percentage will be determined on a straight line sliding scale from the minimum 50% Applicable Percentage achievement level to the applicable maximum 200%, 150% or 125% Applicable Percentage achievement level as noted in the applicable Executive Officer, Senior Management Employee or Management Employee table above. For purposes of determining relative achievement, actual results are to be rounded to the nearest tenth of one percent and rounded upward from the midpoint, in all events in a positive direction. For example, if the Relative TSR is 4.94% (the absolute difference between the TSR for the Company and the Return for the Index over the Measurement Period being 4.94 percentage points), Relative TSR will be 4.9% and the Applicable Percentage will be 124.5%. The number of MSU Shares to be issued on the Settlement Date is to be paid for a specified continuing period of time beyond rounded to the date of Employee’s termination of employment in accordance with nearest whole share and rounded upward from the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.midpoint.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with with, or be exempt from, Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the Executive notifies the Company (with specificity as to the reason therefor) that the Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Executive, reform such provision to try to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment that are considered “nonqualified deferred compensation” under Code Section 409A unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to ” If the contrary, if Employee Executive 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 EXECUTION VERSION with regard to any payment that is considered “nonqualified non-qualified deferred compensation” compensation under Code Section 409A (and not otherwise exempt under Code Section 409A) payable on account of a “separation from service,” such payment or benefit shall be made on 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 Employeethe Executive, and (ii) the date of Employeethe Executive’s death to (the extent required under Code Section 409A. “Delay Period”). Upon the expiration of the foregoing delay periodDelay Period, all payments and benefits delayed pursuant to this Section 25 (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 the Executive in a lump-sumlump sum without interest, and all 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.
(dc) To the extent With regard to any provision herein that severance payments pursuant to this Agreement are conditioned upon the execution provides for reimbursement of costs and delivery expenses or in-kind benefits, except as permitted by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit, and (iiiii) no such reimbursement, the amount of expenses eligible for reimbursement, or in-kind benefits benefits, provided in during any taxable year shall in any way 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 without regard to expenses reimbursed under any arrangement covered by Internal Revenue Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred.
(fd) For purposes of Code Section 409A, Employeethe 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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in In no event shall may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement that constitutes “is considered nonqualified deferred compensation” for purposes . In no event shall the timing of Code Section 409A be Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable execution of the Release could be made in more than one taxable year, 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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthlylater taxable year.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Sources: Employment Agreement
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If Executive notifies the Company (with specificity as to the reason therefore) that Executive believes that any provision of this Agreement (or of any award of compensation) would cause Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with Executive, reform such provision to attempt to comply with Code Section 409A through good-faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company and Executive of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 409A. 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, if Employee ” If Executive 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)409A, then with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” compensation under Code Section 409A payable on account of a “separation from service,” such payment Payment or benefit shall be made on 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 your “separation from service” of Employee”, and (ii) the date of EmployeeExecutive’s death death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 23 (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 Executive in a lump-sumlump sum with interest at the prime rate as published in The Wall Street Journal on the first business day following the date of the “separation from service”, and all 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.
(d) . To the extent that severance payments pursuant to reimbursements or other in-kind benefits under this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not constitute “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (ix) all expenses or other reimbursements hereunder 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 Employeeyou, (iiy) any right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit, and (iiiz) 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.
(f) . For purposes of Code Section 409A, EmployeeExecutive’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent This Performance Award Agreement is intended to comply with the requirements of Section 409A of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A of 1986, as amended from time to time, and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) andand any right or benefit which is provided pursuant to or in connection with this Performance Award Agreement which is considered to be 9 nonqualified deferred compensation subject to Code Section 409A (referred to as a “409A Award”) shall be provided and paid in a manner, accordinglyand at such time and in such form, as complies with the applicable requirements of Code Section 409A to avoid the unfavorable tax consequences provided therein for non-compliance. Consequently, this Performance Award Agreement is intended to be administered, interpreted and construed in accordance with the applicable requirements of Code Section 409A. Notwithstanding the foregoing, the Executive and her successor in interest shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on the Executive or her successor in interest in connection with this Performance Award Agreement (including any taxes and penalties under Code Section 409A); and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold the Executive or her successor in interest harmless from any or all of such taxes or penalties. Except as permitted under Code Section 409A, any 409A Award payable to the maximum extent permittedExecutive or for her benefit with respect to the Performance Award may not be reduced by, this Agreement shall be interpreted or offset against, any amount owing by the Executive to be in compliance therewiththe Company or any of its affiliates. To the extent that entitlement to payment of any provision hereof is modified in order 409A Award occurs due to comply with Code Section 409Atermination or cessation of employment, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest termination or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination cessation of employment shall not be deemed read to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also mean a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean 409A. A “separation from service.”
” shall occur where it is reasonably anticipated that no further services will be performed after that date or that the level of bona fide services the Executive will perform after that date (cwhether as an employee or independent contractor of the Company or an affiliate) Notwithstanding any other will permanently decrease to less than twenty percent (20%) of the average level of bona fide services performed over the immediately preceding thirty-six (36) month period. Continued services solely as a director of the Company or an affiliate shall not prevent a separation from service from occurring by the Executive as permitted by Code Section 409A. Where entitlement to payment schedule provided herein to occurs by reason of a separation from service and the contrary, if Employee Executive 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior as applicable to the Release Effective Date under Company and its affiliates and using the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To identification methodology selected by the extent that any such cash payment Company from time to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance time in accordance with Code Section 409A) on the date of her “separation from service”, (i) all expenses or other reimbursements hereunder then payment of such 409A Award shall be made on or prior to delayed (without interest) until the last first business day after the end of the taxable year following the taxable year in which such expenses were incurred by Employee, six (ii6) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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 month delay period required under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule to or, if earlier, after 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 date of EmployeeExecutive’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthlydeath.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (aA) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To Any payments that qualify for the short-term deferral exception, the separation pay exception or another exception under Code Section 409A shall be paid under the applicable exception to the maximum extent permitted. Each payment of compensation under this Agreement shall be treated as a separate payment of compensation for all purposes under Code Section 409A. In the event that the Company determines reasonably and in good faith that there is any provision hereof is modified in order of this Agreement that could cause the Executive to comply with be subject to additional tax, interest or penalties under the provisions of Code Section 409A, such modification provision shall be made interpreted and resolved in the manner the Company reasonably and in good faith and shall▇▇▇▇▇ ▇▇▇▇▇ necessary to prevent the application of such taxes, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of interest or penalties under Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee the Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(bB) 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 amount or benefits benefit upon or following a termination of employment if such payment or benefit constitutes a “deferral of compensation” under Code Section 409A unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreementpayment or benefit, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) ” Notwithstanding any other payment schedule provided herein anything to the contrarycontrary in this Agreement, if Employee the Executive 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” compensation under Code Section 409A payable on account of a “separation from service,” ”, such payment or benefit shall not be made on or provided until the date which is the earlier of (i) the expiration first day of the six (6)-month period measured from seventh month following the date of such “separation from service” of Employeethe Executive, and (ii) the date of Employeethe Executive’s death death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits 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 or reimbursed to Employee the Executive in a lump-sumlump sum without interest, and all 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.
(dC) To the extent that severance payments or benefits pursuant to this Agreement are conditioned upon the execution and delivery by Employee the Executive of a release of claims, Employee the Executive shall forfeit all rights to such payments and benefits which constitute “deferred compensation” under Code Section 409A unless such release is signed and delivered (delivered, and no longer subject to revocationthe period for revocation has expired, if applicable) within sixty (60) days following the date of Employeethe Executive’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance cash payment or continuing benefit to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment or benefit shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employeethe Executive’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment or continuing benefit to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then then, subject to the delay set forth above in clause (B), if applicable, such payment payments or benefits shall be made or commence upon the sixtieth (60th) day following Employeethe Executive’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employeethe Executive’s termination of employment, and any payments made thereafter shall continue as provided herein.
(eD) For purposes of compliance with Code Section 409AWith respect to reimbursements or other in-kind benefits under this Agreement, (i) all expenses or other reimbursements hereunder 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 Employeethe Executive, (ii) any right to reimbursement or in-kind benefits is 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.
(fE) For purposes of Code Section 409A, Employeethe 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, the actual date of payment within the specified period shall be be, to the extent permitted under Code Section 409A, within the sole discretion of the Company.
(gF) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent Company and you each hereby affirm that it is their mutual view that the provision of the parties is that payments and benefits under this Agreement comply described or referenced herein are either exempt from or intended to be in compliance with Internal Revenue Code the requirements of Section 409A of the Code and the Treasury regulations and guidance promulgated thereunder relating thereto (collectively “Code Section 409A”) andand that each party’s tax reporting will be completed in a manner consistent with such view. The Company and you each agree that upon the Retirement Date, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment unless such termination is also you will experience a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A will be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement, references to Agreement will be treated as a “termination,” “termination separate payment of employment” or like terms shall mean “separation from service.”
(c) compensation. Notwithstanding any other payment schedule provided anything contained herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required in order to avoid accelerated taxation and/or tax penalties under Code Section 409A. Upon the expiration of the foregoing delay period409A, all payments delayed consulting and noncompetition fee amounts in Section 4.1(d) that would otherwise be payable pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in Agreement on account of separation from service during the absence of such delay) shall six-month period immediately following the Retirement Date will instead be paid on the first business day after the date that is six months following the Retirement Date (or death, if earlier). Notwithstanding anything to Employee the contrary in a lumpthis Agreement, all reimbursements and in-sum, and all remaining payments due kind benefits provided under this Agreement shall will be paid made or provided in accordance with the normal payment dates specified requirements of Section 409A of the Code, including, where applicable, the requirement that (x) the amount of expenses eligible for them herein.
(d) To reimbursement, or in kind benefits provided, during a calendar year may not affect the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claimsexpenses eligible for reimbursement, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided or in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment kind benefits to be provided is not “nonqualified deferred compensation” for purposes provided, in any other calendar year; (y) the reimbursement of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall an eligible expense will be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to no later than the last day of the taxable calendar year following the taxable year in which such expenses were incurred by Employee, the expense is incurred; and (iiz) any the right to reimbursement or in-in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company nor its affiliates will be liable in any manner for any federal, and state or local income or excise taxes (iii) no such reimbursement, expenses eligible for reimbursementincluding but not limited to any taxes under Sections 409A of the Code), or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursementpenalties or interest with respect thereto, or in-kind benefits to be provided, in any other taxable year.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion result of the Company.
(g) Notwithstanding payment of any other provision compensation or benefits hereunder or the inclusion of this Agreement to any such compensation or benefits or the contrary, value thereof in no event shall your income. You acknowledge and agree that the Company will not be responsible for any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes additional taxes or penalties resulting from the application of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Sources: Separation and Release Agreement (Gulfport Energy Corp)
Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary:
(a) The If and to the extent any payment or benefits under this Agreement are otherwise subject to the requirements of Code Section 409A, the intent of the parties is that payments such payment and benefits under this Agreement shall comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted interpreted, and such payment and benefits shall be paid or provided under such other conditions determined by the Company that cause such payment and benefits, to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company parties hereto of the applicable provision without violating the provisions of Code Section 409A. The Company makes no representation that any or all of the payments or benefits provided under this Agreement will be exempt from or comply with Code Section 409A and makes no undertaking to preclude Code Section 409A from applying to any such payments or benefits. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee the Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 upon or following a termination of employment the Executive’s Termination Date unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service".”
(c) Notwithstanding any other Each payment schedule provided herein payable to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due Executive under this Agreement on or after the Executive’s Termination Date shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution treated as a separate and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not distinct “nonqualified deferred compensationpayment” for purposes of Code Section 409A and, further, except with respect to the payment described in paragraph 4(h), is intended to be exempt from Code Section 409A, then including but not limited to the short-term deferral exemption thereunder. If and to the extent any such payment shall commence is determined to be subject to Code Section 409A and is otherwise payable upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon EmployeeExecutive’s termination of employment, in the event the Executive is a “specified employee” (as defined in Code Section 409A), any such payment that would otherwise have been payable in the first six (6) months following the Executive’s Termination Date will not be paid to the Executive until the date that is six (6) months and one (1) day following the Executive’s Termination Date (or, if earlier, the Executive’s date of death). Any such deferred payments will be paid in a lump sum; provided that no such actions shall reduce the amount of any payments made thereafter otherwise payable to the Executive under this Agreement. Thereafter, the remainder of any such payments shall continue as provided hereinbe payable in accordance with this Agreement.
(iid) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all All expenses or other reimbursements hereunder to the Executive under this Agreement, if any, 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 Employeethe Executive (provided that if any such reimbursements constitute taxable income to the Executive, (ii) any right such reimbursements shall be paid no later than March 15th of the calendar year following the calendar year in which the expenses to be reimbursed were incurred), and no such reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, reimbursement in any other taxable year.
(fe) For purposes of Code Section 409A, Employee’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 period within which such payment period with reference to a number of daysmay be made, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(gf) Notwithstanding any other provision of this Agreement to the contrary, in In no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by payment pursuant to this Agreement or otherwise.
(g) To the extent required under Code Section 409A.
409A, (hi) 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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.reference
Appears in 1 contract
Code Section 409A Compliance. To the extent applicable, it is intended that this award and the Plan comply with the requirements of Section 409A of the Code and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Any provision that would cause the Plan or this award to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent permitted by Section 409A. Notwithstanding anything to the contrary in this Agreement, if this is not a Section 409A Compliant Award, in no event will the Shares issuable pursuant to this award be issued later than March 15th of the calendar year following the calendar year in which the RSUs have vested.
(a) The intent of Notwithstanding anything in this Agreement to the parties is that payments and contrary, any compensation or benefits payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, that is designated under this Agreement as payable upon your Termination of Employment shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 payable only upon or following a termination of employment unless such termination is also a your “separation from service” with the Company within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to (a “termination,” “termination of employment” or like terms shall mean “separation Separation from service.Service”).
(cb) Notwithstanding any other payment schedule provided herein anything in this Agreement to the contrary, if Employee is you are deemed on by the date Company at the time of termination your Separation from Service to be a “specified employee” within for purposes of Section 409A, to the meaning extent delayed commencement of that term any portion of the benefits to which you are entitled under Code this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)409A, then with regard such portion of the Shares issuable to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment you pursuant to this award shall not be made on the date which is provided to you prior to the earlier of (ix) the expiration of the six (6)-month six-month period measured from the date of such “separation your Separation from service” of Employee, and Service with the Company or (iiy) the date of Employee’s death to your death. Upon the extent required under Code Section 409A. Upon first business day following the expiration of the applicable foregoing delay period, all payments delayed Shares deferred pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) preceding sentence shall be paid issued to Employee in a lump-sumyou (or your estate or beneficiaries), and all any remaining payments Shares due to you under this Agreement shall be paid or as otherwise provided in accordance with the normal payment dates specified for them herein..
(dc) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s Your right to receive any installment payments pursuant to under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. Whenever payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
(d) Notwithstanding the foregoing, if a Change in Control would give rise to a payment under this Agreement specifies a payment period or settlement event with reference respect to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment or benefit under this Agreement that constitutes “nonqualified deferred compensation,” the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation Section 1.409A-3(i)(5)) in order to give rise to the payment or settlement event for such payment or benefit, to the extent required by Section 409A.
(e) This award will be a “Section 409A Compliant Award” if (i) you will be eligible for Retirement at any time prior to the final Scheduled Vesting Date, (ii) you are a party to an executive Change in Control Severance Agreement with the Company as applicable for Executive Officers at any time prior to the final Scheduled Vesting Date, or (iii) this award otherwise constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. To the extent applicable, it is intended that this award and the Plan comply with the requirements of Section 409A of the Code and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Any provision that would cause the Plan or this award to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent permitted by Section 409A. Notwithstanding anything to the contrary in this Agreement, in no event will any Shares issuable pursuant to this award be issued later than March 15th of the calendar year following the calendar year in which corresponding portion of the award has vested.
(a) The intent of Notwithstanding anything in this Agreement to the parties is that payments and contrary, any compensation or benefits payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, that is designated under this Agreement as payable upon your Termination of Employment shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 payable only upon or following a termination of employment unless such termination is also a your “separation from service” with the Company within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to (a “termination,” “termination of employment” or like terms shall mean “separation Separation from serviceService”).”
(cb) Notwithstanding any other payment schedule provided herein anything in this Agreement to the contrary, if Employee is you are deemed on by the date Company at the time of termination your Separation from Service to be a “specified employee” within for purposes of Section 409A, to the meaning extent delayed commencement of that term any portion of the benefits to which you are entitled under Code this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)409A, then with regard such portion of the Shares issuable to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment you pursuant to this award shall not be made on the date which is provided to you prior to the earlier of (ix) the expiration of the six (6)-month six-month period measured from the date of such “separation your Separation from service” of Employee, and Service with the Company or (iiy) the date of Employee’s death to your death. Upon the extent required under Code Section 409A. Upon first business day following the expiration of the applicable foregoing delay period, all payments delayed Shares deferred pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) preceding sentence shall be paid issued to Employee in a lump-sumyou (or your estate or beneficiaries), and all any remaining payments Shares due to you under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(iic) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s Your right to receive any installment payments pursuant to under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. Whenever payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
(d) Notwithstanding the foregoing, if a Change in Control would give rise to a payment under this Agreement specifies a payment period or settlement event with reference respect to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment or benefit under this Agreement that constitutes “nonqualified deferred compensation,” for purposes of Code the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation Section 409A be subject 1.409A-3(i)(5)) in order to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule give rise to the contrarypayment or settlement event for such payment or benefit, 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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.required by Section 409A.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for For purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following Agreement, a termination of employment unless such termination is also will be determined consistent with the rules relating to a “separation from service” within the meaning of Code as defined in Section 409A and, for purposes of any such provision of the Code and the regulations thereunder (“Section 409A”). The Parties intend that this Agreement, references to the extent possible, will be administered in accordance with Section 409A and the Treasury Regulations and other applicable regulatory guidance issued thereunder, and will be interpreted in a “termination,” “manner so that no payments made to Executive under this Agreement constitute a deferral of compensation or, if so, will constitute a deferral for which the payment and other terms are compliant with Section 409A so as to avoid imposition of any additional tax to Executive under Section 409A. Company makes no representation or warranty as to compliance with Section 409A and shall have no liability to the Executive or any other person for any adverse consequences arising under Section 409A. Notwithstanding anything else provided herein, to the extent any payments provided under this Agreement in connection with Executive’s termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein employment constitute deferred compensation subject to the contrarySection 409A, if Employee and Executive is deemed on at the date time of such termination of employment to be a “specified employeeExecutive” within the meaning of that term under Code Section 409A(a)(2)(B)409A, then with regard to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment shall not be made on the date which is or commence until the earlier of (i) the expiration of the six (6)-month 6-month period measured from the date of such “Executive’s separation from service” of Employee, and service from Company or (ii) the date of EmployeeExecutive’s death following such a 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 tax for which Executive would otherwise be liable under Code Section 409A. Upon the expiration of the foregoing delay period, all payments delayed pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments 409A(a)(1)(B) in the absence of such delay) shall be a deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been paid to Employee in a lump-sumduring the period between Executive’s termination of employment and the first payment date but for the application of this provision, and all remaining payments due under this Agreement shall the balance of the installments (if any) will be paid or provided payable in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employmenttheir original schedule. If the foregoing release is executed and delivered and no longer subject to revocation Except as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as expressly provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.any
Appears in 1 contract
Code Section 409A Compliance. (ai) The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Internal Revenue Code Section 409A of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(bii) A termination of employment Notwithstanding anything herein to the contrary, (A) the Severance Payments shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following paid only in connection with a termination of Executive’s employment unless such termination is also that constitutes a “separation from service” within the meaning of Code Section 409A and, for purposes and each reference to “Separation,” “date of any such provision of this Agreement, references to a “terminationSeparation,” “termination of employment” or like terms such similar term shall be interpreted to mean a “separation from service.”
” and (cB) Notwithstanding any other payment schedule provided herein to the contrary, if Employee Executive is deemed on the date of termination to be a “specified employee” within the meaning of that as such term is defined under Code Section 409A(a)(2)(B)409A, payment of the Severance Payments shall be delayed for a period of six (6) months following Executive’s separation of employment to the extent and up to an amount necessary to ensure such payments are not subject to the penalties and interest under Code Section 409A. If the payments are delayed as a result of the previous sentence, then with regard to any payment that is considered “nonqualified deferred compensation” on the first business day following the end of such six (6) month period (or such earlier date upon which such amount can be paid under Code Section 409A payable on account of without resulting in a “separation from service,” such payment prohibited distribution), the Company shall be made on 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 pay Executive a lump-sum amount equal to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments delayed pursuant to this Section (whether they cumulative amount that would have otherwise been payable in a single sum or in installments in the absence of to Executive during such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them hereinperiod.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(eiii) For purposes of compliance with Code Section 409A, (iA) all expenses or other reimbursements hereunder 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 EmployeeExecutive, (iiB) any right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, benefit and (iiiC) 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.
(fiv) For purposes of Code Section 409A, EmployeeExecutive’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(gv) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the fullest extent that any provision hereof is modified in order to comply with Code Section 409Aapplicable, such modification shall be made in good faith amounts and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 other benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of payable under this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding and amounts and benefits payable under any other payment schedule provided herein to the contraryagreements or plans referenced in this Agreement, if Employee is deemed on the date of termination are intended to be a “specified employee” within exempt from the meaning definition of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered “nonqualified deferred compensation” under Section 409A of the Code in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A. In this regard, each payment under Section 6(b) of this Agreement shall be deemed a separate payment for purposes of Code Section 409A. To the extent that any such amount or benefit is or becomes subject to Section 409A payable on account due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent, and any ambiguity as to its compliance with Section 409A will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.
(b) Notwithstanding anything in this Agreement or elsewhere to the contrary, if the Executive is a “separation from service,specified employee” such payment shall be made as determined by the Compensation Committee on 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” (as such terms are defined for purposes of EmployeeCode Section 409A), and the Company reasonably determines that any amount or other benefit payable under this Agreement on account of such separation from service constitutes nonqualified deferred compensation that will subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (iitogether with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month following the date of Employeetermination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). The Executive and the Company may agree to take other actions to avoid the extent required imposition of a 409A Tax at such time and in such manner as permitted under Code Section 409A. Upon In the expiration of the foregoing delay period, all payments delayed pursuant to event that this Section (whether they would have otherwise been payable 8 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum or in installments in on the absence of such delay) shall be paid to Employee in a lump-sumDelayed Payment Date, and all 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.
(d) To . In addition, the extent that severance payments pursuant to provisions of this Agreement are conditioned upon which require the execution and delivery by Employee commencement of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s Section 409A upon a termination of employment. If employment shall be interpreted to require that the foregoing release is executed and delivered and no longer subject to revocation Executive have a “separation from service” with the Company as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” defined for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.409A.
(iic) To the extent that the Company is required pursuant to this Agreement to reimburse fees or expenses incurred by the Executive, and such reimbursement is taxable as compensation to the Executive, the Company shall reimburse any such cash eligible fees or expenses no later than 2 1/2 months after the end of the calendar year in which the fees or expenses were incurred (or if later, 2 1/2 months after the end of the Company’s taxable year in which the fees or expenses were incurred), subject to any earlier required deadline for payment otherwise applicable under this Agreement. Notwithstanding any contrary provision herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be provided is “nonqualified deferred compensation” subject to Section 409A of the Code, the amount of any such expenses eligible for purposes reimbursement, or the provision of Code Section 409Aany in-kind benefit, then such payment in one calendar year shall be made or commence upon not affect the sixtieth expenses eligible for reimbursement in any other taxable year (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and except for any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses lifetime or other reimbursements hereunder aggregate limitation applicable to medical expenses), in no event shall any expenses be made on or prior to reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the Executive incurred such expenses were incurred by Employeeexpenses, (ii) and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s termination of employment in accordance with the Company’s payroll practices (or other similar termd), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. To the extent applicable, it is intended that this award and the Plan comply with the requirements of Section 409A of the Code and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Any provision that would cause the Plan or this award to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent permitted by Section 409A. Notwithstanding anything to the contrary in this Agreement, if this is not a Section 409A Compliant Award, in no event will any Shares issuable pursuant to this award be issued later than March 15th of the calendar year following the calendar year in which corresponding portion of the award has vested.
(a) The intent of Notwithstanding anything in this Agreement to the parties is that payments and contrary, any compensation or benefits payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, that is designated under this Agreement as payable upon your Termination of Employment shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 payable only upon or following a termination of employment unless such termination is also a your “separation from service” with the Company within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to (a “termination,” “termination of employment” or like terms shall mean “separation Separation from serviceService”).”
(cb) Notwithstanding any other payment schedule provided herein anything in this Agreement to the contrary, if Employee is you are deemed on by the date Company at the time of termination your Separation from Service to be a “specified employee” within for purposes of Section 409A, to the meaning extent delayed commencement of that term any portion of the benefits to which you are entitled under Code this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)409A, then with regard such portion of the Shares issuable to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment you pursuant to this award shall not be made on the date which is provided to you prior to the earlier of (ix) the expiration of the six (6)-month six-month period measured from the date of such “separation your Separation from service” of Employee, and Service with the Company or (iiy) the date of Employee’s death to the extent required under Code Section 409A. Upon your death. Within thirty (30) days following the expiration of the applicable foregoing delay period, all payments delayed Shares deferred pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) preceding sentence shall be paid issued to Employee in a lump-sumyou (or your estate or beneficiaries), and all any remaining payments Shares due to you under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(iic) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s Your right to receive any installment payments pursuant to under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. Whenever payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
(d) Notwithstanding the foregoing, if a Change in Control would give rise to a payment under this Agreement specifies a payment period or settlement event with reference respect to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment or benefit under this Agreement that constitutes “nonqualified deferred compensation,” the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation Section 1.409A-3(i)(5)) in order to give rise to the payment or settlement event for such payment or benefit, to the extent required by Section 409A.
(e) This award will be a “Section 409A Compliant Award” if (i) you will be eligible for Retirement at any time prior to the Final Payment Date, (ii) you are a party to an executive Change in Control Severance Agreement with the Company as applicable for Executive Officers at any time prior to the Final Payment Date, or (iii) this award otherwise constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject 409A. Subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule 5 of the Market Share Unit Award Agreement, the MSUs shall vest with respect to the contrary, Applicable Percentage of the Target Number of MSUs set forth in the following applicable Executive Officer or Senior Management Employee table based on relative total stockholder return (“TSR”) for the Company over the Measurement Period as compared to the extent that any payment total return (“Return”) for the ▇▇▇▇▇▇▇ 2000 Index (the “Index”) as reported for total return (with dividends reinvested) by ▇▇▇▇▇▇▇ Investments. For purposes of base salary computing the relative TSR for the Company as compared to the Return for the Index, dividends paid with respect to the Shares shall be treated as having been reinvested as of the ex-dividend date for each declared dividend, as further described below. TSR for the Company shall equal the percentage change (positive or other compensation negative) of the “Measurement Share Value” (as defined below) as compared to the “Base Share Value” (as defined below). The Return for the Index shall equal the percentage change (positive or negative) of the “Measurement Index Value” (as defined below) as compared to the “Base Index Value” (as defined below). The relative TSR (“Relative TSR”) represents the percentage point difference between the TSR for the Company minus the Return for the Index. The Applicable Percentage will be determined on a straight line sliding scale from the minimum 50% Applicable Percentage achievement level to the applicable maximum 200% or 150% Applicable Percentage achievement level as noted in the applicable Executive Officer or Senior Management Employee table above. For purposes of determining relative achievement, actual results are to be rounded to the nearest tenth of one percent and rounded upward from the midpoint, in all events in a positive direction. For example, if the Relative TSR is 4.94% (the difference between the TSR for the Company minus the Return for the Index over the Measurement Period being 4.94 percentage points), Relative TSR will be 4.9% and the Applicable Percentage will be 124.5%. The number of Shares to be issued on the Settlement Date is to be paid for a specified continuing period of time beyond rounded to the date of Employee’s termination of employment in accordance with nearest whole share and rounded upward from the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthlymidpoint.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (aA) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To Any payments that qualify for the extent short-term deferral exception, the separation pay exception or another exception under Code Section 409A shall be paid under the applicable exception. For purposes of the limitations on deferred compensation under Code Section 409A, each payment of compensation under this Agreement shall be treated as a separate payment of compensation for all purposes under Code Section 409A. In the event that the Company determines reasonably and in good faith that there is any provision hereof is modified in order of this Agreement that could cause the Executive to comply with be subject to additional tax, interest or penalties under the provisions of Code Section 409A, such modification provision shall be made interpreted and resolved in the manner the Company reasonably and in good faith and shall▇▇▇▇▇ ▇▇▇▇▇ necessary to prevent the application of such taxes, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of interest or penalties under Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee the Executive by Code Section 409A or damages for failing to comply with Code Section 409A.
(bB) 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 amount or benefits benefit upon or following a termination of employment if such payment or benefit constitutes a “deferral of compensation” under Code Section 409A unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreementpayment or benefit, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) ” Notwithstanding any other payment schedule provided herein anything to the contrarycontrary in this Agreement, if Employee the Executive 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” compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made on or provided until the date which is the earlier of (i) the expiration first day of the six (6)-month period measured from seventh month following the date of such “separation from service” of Employeethe Executive, and (ii) the date of Employeethe Executive’s death death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits 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 or reimbursed to Employee the Executive in a lump-sumlump sum without interest, and all 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.
(dC) To the extent that severance payments or benefits pursuant to this Agreement are conditioned upon the execution and delivery by Employee the Executive of a release of claims, Employee the Executive shall forfeit all rights to such payments and benefits which constitute “deferred compensation” under Code Section 409A unless such release is signed and delivered (delivered, and no longer subject to revocationthe period for revocation has expired, if applicable) within sixty (60) days following the date of Employeethe Executive’s termination of employment. In this regard, the Company agrees to provide the Executive with the form of release required under Section 5(I) no later than 5 days after the Executive’s termination date. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance cash payment or continuing benefit to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment or benefit shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all such amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement Agreement, applied as though such payments commenced immediately upon Employeethe Executive’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment or continuing benefit to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then then, subject to the delay set forth above in clause (B), if applicable, such payment payments or benefits shall be made or commence upon the sixtieth (60th) day following Employeethe Executive’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employeethe Executive’s termination of employment, and any payments made thereafter shall continue as provided herein.
(eD) For purposes of compliance with Code Section 409AWith respect to reimbursements or other in-kind benefits under this Agreement, (i) all expenses or other reimbursements hereunder 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 Employeethe Executive, (ii) any right to reimbursement or in-kind benefits is 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.
(fE) For purposes of Code Section 409A, Employeethe 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, the actual date of payment within the specified period shall be be, to the extent permitted under Code Section 409A, within the sole discretion of the Company.
(gF) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (ai) The intent This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and Treasury guidance promulgated thereunder.
(ii) The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on the Executive of any additional tax, penalty, or interest under Section 409A of the Code.
(iii) If the Company determines in good faith that any provision of this Agreement would cause the Executive to incur an additional tax, penalty, or interest under Section 409A of the Code, the Compensation Committee and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) andExecutive shall use reasonable efforts to reform such provision, accordinglyif possible, in a mutually agreeable fashion to maintain to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain practicable the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Section 409A of the Code Section 409A. In no event whatsoever shall or causing the Company be liable for any imposition of such additional tax, penalty, or interest or penalty that may be imposed on Employee by Code under Section 409A or damages for failing to comply with Code Section 409A.of the Code.
(biv) A termination of employment The preceding provisions, however, shall not be deemed to have occurred for purposes construed as a guarantee by the Company of any provision of particular tax effect to Executive under this Agreement providing Agreement. The Company shall not be liable to Executive for the any payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of made under this Agreement, references at the direction or with the consent of Executive, that is determined to a “termination,” “termination result in an additional tax, penalty, or interest under Section 409A of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contraryCode, 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 nor for reporting in good faith any payment that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided as an amount includible in accordance with gross income under Section 409A of the normal payment dates specified for them hereinCode.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ev) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day 409A of the taxable year following Code, the taxable year in which such expenses were incurred by Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes a series of Code Section 409A, Employee’s right to receive any installment payments pursuant to under 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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(gvi) Notwithstanding With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the Executive, as specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (A) 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 provision taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (B) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (C) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(vii) “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement to the contrarymeans, in no event shall for purposes of any payment payments under this Agreement that constitutes are payments of deferred compensation subject to Section 409A of the Code, the Executive’s “nonqualified separation from service” as defined in Section 409A of the Code.
(viii) If a payment obligation under this Agreement arises on account of the Executive’s separation from service while the Executive is a “specified employee” (as defined under Section 409A of the Code and determined in good faith by the Compensation Committee), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six months after such separation from service (the aggregate of such scheduled payments, the “Delayed Payment”) shall, in lieu thereof, be paid, as adjusted for earnings or losses thereon, within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of the Executive’s estate following his death. In the event that the provisions of this Section 11(l)(viii) shall apply to any payment obligation under this Agreement, and provided that the Executive executes a general release as the Company may request, the Company shall make an irrevocable contribution of an amount equal to the Delayed Payment to a grantor trust established consistent with the terms of Revenue Procedure 92-64, 1992-33 I.R.B. 11 (the “Rabbi Trust”) with a financial institution approved by the Executive, which approval will not be withheld unreasonably, serving as the third-party trustee thereof, under the terms of which the assets of the trust may be used, in the absence of the Company’s insolvency, solely for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s termination of employment in accordance with fulfilling the Company’s payroll practices (or other similar term)obligation to pay the Delayed Payment to the Executive in compliance with Section 409A(a)(2)(B)(i) of the Code. The Company’s obligation to make the contribution to the Rabbi Trust under the immediately preceding sentence shall arise on the due date of the payment obligation had this Section 11(l)(viii) not applied or, if later, the payments of date that any general release becomes effective, and such base salary or other compensation contribution shall be made upon such schedule as in effect upon by no later than the date of termination, but no less frequently than monthlytenth business day (excluding federal holidays) after the applicable date. The Executive shall be permitted to direct the trustee how to invest the trust assets held on the Executive’s behalf.” SECOND: Except as specifically modified herein
5. In all other respects, the Employment Agreement shall remain in full force is hereby ratified and effect in accordance with all of the terms and conditions thereofconfirmed.
Appears in 1 contract
Code Section 409A Compliance. To the extent applicable, it is intended that this award and the Plan comply with the requirements of Section 409A of the Code and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Any provision that would cause the Plan or this award to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent permitted by Section 409A. Notwithstanding anything to the contrary in this Agreement, if this is not a Section 409A Compliant Award, in no event will any Shares issuable pursuant to this award be issued later than March 15th of the calendar year following the calendar year in which corresponding portion of the award has vested.
(a) The intent of Notwithstanding anything in this Agreement to the parties is that payments and contrary, any compensation or benefits payable under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, that is designated under this Agreement as payable upon your Termination of Employment shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) 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 payable only upon or following a termination of employment unless such termination is also a your “separation from service” with the Company within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to (a “termination,” “termination of employment” or like terms shall mean “separation Separation from serviceService”).”
(cb) Notwithstanding any other payment schedule provided herein anything in this Agreement to the contrary, if Employee is you are deemed on by the date Company at the time of termination your Separation from Service to be a “specified employee” within for purposes of Section 409A, to the meaning extent delayed commencement of that term any portion of the benefits to which you are entitled under Code this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)409A, then with regard such portion of the Shares issuable to any payment that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment you pursuant to this award shall not be made on the date which is provided to you prior to the earlier of (ix) the expiration of the six (6)-month six-month period measured from the date of such “separation your Separation from service” of Employee, and Service with the Company or (iiy) the date of Employee’s death to the extent required under Code Section 409A. Upon your death. Within thirty (30) days following the expiration of the applicable foregoing delay period, all payments delayed Shares deferred pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) preceding sentence shall be paid issued to Employee in a lump-sumyou (or your estate or beneficiaries), and all any remaining payments Shares due to you under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(iic) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s Your right to receive any installment payments pursuant to under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. Whenever payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.
(d) Notwithstanding the foregoing, if a Change in Control would give rise to a payment under this Agreement specifies a payment period or settlement event with reference respect to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment or benefit under this Agreement that constitutes “nonqualified deferred compensation,” the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation Section 1.409A-3(i)(5)) in order to give rise to the payment or settlement event for such payment or benefit, to the extent required by Section 409A.
(e) This award will be a “Section 409A Compliant Award” if (i) you will be eligible for Retirement at any time prior to the Final Payment Date, (ii) you are a party to an executive Change in Control Severance Agreement with the Company as applicable for Executive Officers at any time prior to the Final Payment Date, or (iii) this award otherwise constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject 409A. Subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment schedule 5 of the Market Share Unit Award Agreement, the MSUs shall vest with respect to the contrary, Applicable Percentage of the Target Number of MSUs set forth in the following applicable Executive Officer or Senior Management Employee table based on relative total stockholder return (“TSR”) for the Company over the Measurement Period as compared to the extent that any payment total return (“Return”) for the ▇▇▇▇▇▇▇ 2000 Index (the “Index”) as reported for total return (with dividends reinvested) by ▇▇▇▇▇▇▇ Investments. For purposes of base salary computing the relative TSR for the Company as compared to the Return for the Index, dividends paid with respect to the Shares shall be treated as having been reinvested as of the ex-dividend date for each declared dividend, as further described below. TSR for the Company shall equal the percentage change (positive or other compensation negative) of the “Measurement Share Value” (as defined below) as compared to the “Base Share Value” (as defined below). The Return for the Index shall equal the percentage change (positive or negative) of the “Measurement Index Value” (as defined below) as compared to the “Base Index Value” (as defined below). The relative TSR (“Relative TSR”) represents the percentage point difference between the TSR for the Company minus the Return for the Index. The Applicable Percentage will be determined on a straight line sliding scale from the minimum 50% Applicable Percentage achievement level to the applicable maximum 200% or 150% % Applicable Percentage achievement level as noted in the applicable Executive Officer or Senior Management Employee table above. For purposes of determining relative achievement, actual results are to be rounded to the nearest tenth of one percent and rounded upward from the midpoint, in all events in a positive direction. For example, if the Relative TSR is 4.94% (the difference between the TSR for the Company minus the Return for the Index over the Measurement Period being 4.94 percentage points), Relative TSR will be 4.9% and the Applicable Percentage will be 124.5%. The number of Shares to be issued on the Settlement Date is to be paid for a specified continuing period of time beyond rounded to the date of Employee’s termination of employment in accordance with nearest whole share and rounded upward from the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthlymidpoint.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The intent To the fullest extent applicable, amounts and other benefits payable under this Agreement, and amounts and benefits payable under any other agreements or plans referenced in this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under Section 409A of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and 409A. In this regard, each payment under this Agreement, including without limitation, each payment other than a life annuity (within the regulations and guidance promulgated thereunder meaning of Treasury Regulation Section 1.409A-2(b)(2)(ii)) in a series of scheduled installments (collectively “within the meaning of Treasury Regulation Section 1.409A-2(b)(2)(iii)), shall be deemed a separate payment for purposes of Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. 409A. To the extent that any provision hereof such amount or benefit is modified or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in order accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.
(b) Notwithstanding anything in this Agreement or elsewhere to the contrary, if you are a “specified employee” as determined by the Company’s Compensation Committee on the date of termination of employment within the meaning of Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company reasonably determines that any amount or other benefit payable under this Agreement, including Transition Period compensation and benefits, on account of your termination of employment constitutes nonqualified deferred compensation that will subject you to “additional tax” under Section 409A(a)(1)(B) of the applicable Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision without violating of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month following the date of termination or, if earlier, the date of your death (the “Delayed Payment Date”). You and the Company may agree to take other actions to avoid the imposition of a 409A Tax at such time and in such manner as permitted under Section 409A. In the event that this Section 4 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date. In addition, the provisions of Code Section 409A. In no event whatsoever shall this Agreement which require the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code commencement of payments subject to Section 409A or damages for failing to comply with Code Section 409A.
(b) A upon a termination of employment shall not be deemed interpreted to require that you have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation Company as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” defined for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’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, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The It is Company’s intent of the parties is that payments and benefits amounts paid under this Agreement shall comply with Section 409A of the Internal Revenue Code Section 409A of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, or qualify for an exception to Code Section 409A because the maximum extent permitted, amounts paid under this Plan are structured to comply with exceptions to Code Section 409A. This Agreement shall be interpreted interpreted, operated and administered in a manner consistent with these intentions, and payment shall be made in a manner consistent with Code Section 409A and its applicable exceptions. No payments to be in compliance therewith. made under this Agreement may be accelerated or deferred except as specifically permitted under Code Section 409A. To the extent that any provision hereof is modified regulations or other guidance issued under Code Section 409A would result in order Employee being subject to comply with payment of additional income taxes or interest under Code Section 409A, such modification shall be made in good faith and shall, the parties agree to amend this Agreement to maintain to the maximum extent reasonably possible, maintain practicable the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for while avoiding the payment application of any amounts such taxes or benefits interest. All payments to be made upon or following a termination of employment unless such termination is also under this Plan may only be made upon a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing 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 Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include Each payment of all amounts that otherwise would have been due prior to the Release Effective Date compensation under the terms of this Agreement applied as though such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements hereunder 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 Employee, (ii) any right to reimbursement or in-kind benefits is not 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.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series separate payment of separate and distinct payments. Whenever a payment _/s/BWS/DS_ Initials compensation under this Agreement specifies a payment period with reference to a number of daysCode Section 409A. Accordingly, the actual date of payment within the specified period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment those payments under this Agreement that constitutes “nonqualified deferred compensation” for purposes when aggregated together exceed the lesser of Code Section 409A be subject to offset by any other amount unless otherwise permitted two times (a) Employee’s annual compensation in the year preceding the year of the Termination Date or (b) the annual compensation limit prescribed by Code Section 409A.
(h401(a)(17) Unless this Agreement provides a specified and objectively determinable payment schedule to shall not commence until the contrary, to the extent first payroll date that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond occurs after the date that is 6 months after the Termination Date. In no event may Employee, directly or indirectly, designate the calendar year of Employee’s termination of employment a payment and where payment may occur in accordance with one year or the Company’s payroll practices (or other similar term)next, the payments of such base salary or other compensation it shall be made upon such schedule as in effect upon the date of termination, but no less frequently than monthlysecond year.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
Appears in 1 contract
Code Section 409A Compliance. (a) The It is Company’s intent of the parties is that payments and benefits amounts paid under this Agreement comply with generally shall not constitute “deferred compensation” as that term is defined under Section 409A of the Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder of 1986, as amended (collectively “Code Section 409A”) and), accordinglyand the regulations promulgated thereunder, to because the maximum extent permitted, amounts paid under this Agreement shall be interpreted are structured to be in compliance therewith. comply with either the “short-term deferral” exception or other applicable exceptions to Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of individual payments under this Agreement providing do not qualify for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a an exception and are determined to be “separation from servicedeferred compensation” within the meaning of Code Section 409A and, for purposes of any such provision and compliance with an applicable term of this Agreement, references to a “termination,” “termination of employment” Agreement would cause or like terms shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, 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 that is considered “nonqualified 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 (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 to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments delayed pursuant to this Section (whether they would have otherwise been payable result in a single sum or in installments in the absence of such delay) shall be paid to Employee in a lump-sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned upon the execution and delivery by Employee of a release of claims, Employee shall forfeit all rights to such payments unless such release is signed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following the date of Employee’s termination of employment. If the foregoing release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(i) To the extent that any such severance payment to be provided is not “nonqualified deferred compensation” for purposes violation of Code Section 409A, then such payment provision shall commence upon be interpreted or reformed in the first scheduled payment date immediately following manner necessary to achieve compliance with Code Section 409A. Accordingly, the “Termination Date” is the date that the release is executedEmployee incurred a “separation from service” under Code Section 409A, delivered and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of thus all amounts that otherwise would have been due prior to the Release Effective Date payments under the terms of this Agreement applied as though such payments commenced immediately are being made upon Employee’s termination separation from service. In no event may Employee, directly or indirectly, designate the calendar year of employmenta payment and where payment may occur in one year or the next, it shall be made in the second year. Each payment under this Agreement, including each salary continuation payment of Severance Pay, and any payments made thereafter each Benefits Offset Payment, shall continue be treated as provided herein.
(ii) To the extent that any such cash a separate identified payment to be provided is “nonqualified deferred compensation” for purposes of Code Section 409A, then such payment shall 409A. Employee is a specified employee (as defined in Treasury Regulation Section 1.409A-1(i)). Company and Employee agree that all payments under this Agreement that are scheduled to be made or commence upon the sixtieth (60th) day following paid within six months after Employee’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Employee’s termination of employment, and any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Termination Date qualify for an exception to Code Section 409A, (i) and all expenses other payments are made at a time and in a form that complies with Code Section 409A. Employee acknowledges that Company does not make any representations or other reimbursements hereunder shall be made on or prior is providing tax advice to the last day of the taxable year following the taxable year in which such expenses were incurred by Employee, (ii) any right and that Employee has had the opportunity to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, consult with his own tax 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.
(f) For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant financial counsel with respect 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, the actual date of payment within the specified period shall be within the sole discretion of the CompanyAgreement.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
(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 date of Employee’s 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 upon such schedule as in effect upon the date of termination, but no less frequently than monthly.” SECOND: Except as specifically modified herein, the Agreement shall remain in full force and effect in accordance with all of the terms and conditions thereof.
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