Application of Internal Revenue Code Section 409a Contract Clauses (25)
Grouped Into 1 Collection of Similar Clauses From Business Contracts
This page contains Application of Internal Revenue Code Section 409a clauses in business contracts and legal agreements. We have organized these clauses into groups of similarly worded clauses.
Application of Internal Revenue Code Section 409a. (a) Notwithstanding anything to the contrary contained in this Agreement, if any payment or reimbursement, or the provision of any benefit under this Agreement that is paid or provided upon Executive's "separation from service" with the Company within the meaning of Code Section 409A(a)(2)(A)(i) would constitute a "deferral of compensation" under Section 409A and Executive is a "specified employee" (as determined pursuant to procedures adopted by the Company in compliance with Section 409A) on t...he date of Executive's "separation from service" with the Company within the meaning of Code Section 409A(a)(2)(A)(i), Executive will receive payment or reimbursement of such amounts or the provision of such benefits upon the earlier of (i) the first day of the seventh month following the date of Executive's "separation from service" with the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code or (ii) Executive's death. 6 (b) To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A, so that the income inclusion provisions of Code Section 409A(a)(1) do not apply to Executive. This Agreement shall be administered in a manner consistent with this intent. (c) Benefits payable under the Agreement, to the extent of payments made from the date of termination of the Executive through March 15th of the calendar year following such termination, are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the "short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations; to the extent such payments are made following said March 15th, they may be subject to the distribution requirements of Section 409A, including, without limitation, the requirement of Code Section 409A(a)(2)(B)(i) that payment to the Executive be delayed until the earlier to occur of six months and one day after separation from service, or the date of Executive's death following such separation of service, if the Executive is a "specified employee" within the meaning of the aforesaid section of the Code at the time of such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive including, without limitation, the additional tax for which Executive would otherwise be liable under Section 409A in the absence of such a deferral. It is intended that each installment of severance benefits payments provided for in this Agreement, and each other payment made pursuant to this Agreement, is a separate "payment" for purposes of Section 409A, including Treasury Regulation Section 1.409A-2(b)(2). For the avoidance of doubt, it is intended that payments of the severance benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). In addition, if any provision of this Agreement would cause Executive to incur any penalty tax or interest under Section 409A of the Code or any regulations or Treasury guidance promulgated thereunder, the Company may reform such provision to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code. The severance benefits are intended to qualify for an exemption from application of Section 409A or comply with its requirements to the extent necessary to avoid adverse personal tax consequences under Section 409A, and any ambiguities herein shall be interpreted accordingly. Notwithstanding anything to the contrary herein, the following provisions apply to the extent severance benefits provided herein are subject to Section 409A. Severance benefits shall not commence until Executive has a "separation from service" for purposes of Section 409A. For purposes of this Agreement, a termination of employment will be determined consistent with the rules relating to a "separation from service" as defined in Section 409A. To the extent any payment under this Agreement may be classified as a "short-term deferral" within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. The Company makes no representation or warranty and shall have no liability to Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, or the conditions of, such Section.View More
Application of Internal Revenue Code Section 409a. (a) Notwithstanding anything to the contrary contained in this Agreement, if any payment or reimbursement, or the provision of any benefit under this Agreement that is paid or provided upon Executive's "separation from service" with the Company within the meaning of Code Section 409A(a)(2)(A)(i) would constitute a "deferral of compensation" under Code Section 409A and Executive is a "specified employee" (as determined pursuant to procedures adopted by the Company in compliance with Code Section ...409A) on the date of Executive's "separation from service" with the Company within the meaning of Code Section 409A(a)(2)(A)(i), Executive will receive payment or reimbursement of such amounts or the provision of such benefits upon the earlier of (i) the first day of the seventh month following the date of Executive's "separation from service" with the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code or (ii) Executive's death. 6 8 (b) To the extent applicable, it is intended that this Agreement comply with the provisions of Code Section 409A, so that the income inclusion provisions of Code Section 409A(a)(1) do not apply to Executive. This Agreement shall be administered in a manner consistent with this intent. (c) Benefits payable under the Agreement, Reference to the extent of payments made from the date of termination of the Executive through March 15th of the calendar year following such termination, are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the "short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations; to the extent such payments are made following said March 15th, they may be subject to the distribution requirements of Section 409A, including, without limitation, the requirement of Code Section 409A(a)(2)(B)(i) that payment 409A is to the Executive be delayed until the earlier to occur of six months and one day after separation from service, or the date of Executive's death following such separation of service, if the Executive is a "specified employee" within the meaning of the aforesaid section of the Code at the time of such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive including, without limitation, the additional tax for which Executive would otherwise be liable under Section 409A in the absence of such a deferral. It is intended that each installment of severance benefits payments provided for in this Agreement, and each other payment made pursuant to this Agreement, is a separate "payment" for purposes of Section 409A, including Treasury Regulation Section 1.409A-2(b)(2). For the avoidance of doubt, it is intended that payments of the severance benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). In addition, if any provision of this Agreement would cause Executive to incur any penalty tax or interest under Section 409A of the Internal Revenue Code or of 1986, as amended, and will also include any regulations or Treasury any other formal guidance promulgated thereunder, with respect to such Section by the Company may reform such provision to maintain to the maximum extent practicable the original intent U.S. Department of the applicable provision without violating the provisions of Section 409A of the Code. The severance benefits are intended to qualify for an exemption from application of Section 409A or comply with its requirements to the extent necessary to avoid adverse personal tax consequences under Section 409A, and any ambiguities herein shall be interpreted accordingly. Notwithstanding anything to the contrary herein, the following provisions apply to the extent severance benefits provided herein are subject to Section 409A. Severance benefits shall not commence until Executive has a "separation from service" for purposes of Section 409A. For purposes of this Agreement, a termination of employment will be determined consistent with the rules relating to a "separation from service" as defined in Section 409A. To the extent any payment under this Agreement may be classified as a "short-term deferral" within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. The Company makes no representation or warranty and shall have no liability to Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, Treasury or the conditions of, such Section. Internal Revenue Service. View More
Application of Internal Revenue Code Section 409a. (a) Notwithstanding anything to the contrary contained in this Agreement, if set forth herein, any payment or reimbursement, or the provision of any benefit payments and benefits provided under this Agreement {the "Severance Benefits") that is paid or provided upon Executive's "separation from service" with the Company within the meaning of Code Section 409A(a)(2)(A)(i) would constitute a "deferral of "deferred compensation" under Section 409A and Executive is a "specified employee" (as determin...ed pursuant to procedures adopted by the Company in compliance with Section 409A) on the date of Executive's "separation from service" with the Company within the meaning of Code Section 409A(a)(2)(A)(i), Executive will receive payment or reimbursement of such amounts or the provision of such benefits upon the earlier of (i) the first day of the seventh month following the date of Executive's "separation from service" with the Company within the meaning of Section 409A(a)(2)(A)(i) 409A of the Code or (ii) Executive's death. 6 (b) To and the extent applicable, it is intended that this Agreement comply regulations and other guidance thereunder and any state law of similar effect (collectively "Section 409A") shall not commence in connection with the provisions of Section 409A, so that the income inclusion provisions of Code Section 409A(a)(1) do not apply to Executive. This Agreement shall be administered in a manner consistent with this intent. (c) Benefits payable under the Agreement, to the extent of payments made from the date of your termination of the Executive through March 15th of the calendar year following employment unless and until you have also incurred a "separation from service" (as such termination, are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the "short-term deferral" rule set forth term is defined in Section 1.409A-1(b)(4) of the Treasury Regulations; to the extent such payments are made following said March 15th, they may be subject to the distribution requirements of Section 409A, including, without limitation, the requirement of Code Section 409A(a)(2)(B)(i) that payment to the Executive be delayed until the earlier to occur of six months and one day after separation from service, or the date of Executive's death following such separation of service, if the Executive is a "specified employee" within the meaning of the aforesaid section of the Code at the time of such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive including, without limitation, the additional tax for which Executive would otherwise be liable under Section 409A in the absence of such a deferral. It is intended that each installment of severance benefits payments provided for in this Agreement, and each other payment made pursuant to this Agreement, is a separate "payment" for purposes of Section 409A, including Treasury Regulation Section 1.409A-2(b)(2). 1.409A-1(h)) (the "Separation From Service"), unless the Company reasonably determines that such amounts may be provided to you without causing you to incur adverse taxation under Section 409A. For the avoidance of doubt, it is intended that payments of the severance benefits Severance Benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). In addition, if any provision of 1.409A-1(b)(9) and this Agreement would cause Executive will be construed to incur the greatest extent possible as consistent with those provisions, and to the extent no so exempt, this Agreement (and any penalty tax or interest definitions hereunder) will be construed in a manner that complies with Section 409A. However, if the Company (or, if applicable, the successor entity thereto) determines that the Severance Benefits constitute "deferred compensation" under Section 409A and you are, on the termination of your service, a "specified employee" of the Code Company or any regulations successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, the timing of the Severance Benefit payments shall be delayed until the earlier to occur of (i) the date that is six months and one day after your Separation From Service, (ii) the date of your death or Treasury guidance promulgated thereunder, (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation (such applicable date, the "Specified Executive Initial Payment Date"). Upon the first business day following the Specified Executive Initial Payment Date, and subject to the effectiveness of the Release and Waiver, the Company may reform such provision {or the successor entity thereto, as applicable) shall pay to maintain you a lump sum amount equal to the maximum extent practicable the original intent sum of the applicable provision without violating Severance Benefit payments that you would otherwise have received through the Specified Executive Initial 3545 John Hopkins Court Ste 160 | San Diego, CA 92121 | 858.888.7600 tel | 858.888.7601 fax | www.bionanomatrix.com Payment Date if the commencement of the payment of the Severance Benefits had not been so delayed pursuant to this paragraph and any remaining payments due shall be paid as otherwise provided herein. No interest shall be due on any amounts so deferred. Notwithstanding the foregoing provisions of Section 409A this Agreement, you shall receive Severance Benefits only if you execute and return to the Company, within the applicable time period set forth therein but in no event more than forty-five (45) days following the date of your termination of employment, the Code. The severance benefits Release and Waiver in the form attached hereto as Exhibit B, and permit such release to become effective in accordance with its terms (such latest permitted date, the "Release Deadline"). If the Severance Benefits are intended to qualify for an exemption not covered by one or more exemptions from the application of Section 409A or comply with its requirements to and the extent necessary to avoid adverse personal tax consequences under Section 409A, Release and any ambiguities herein shall be interpreted accordingly. Notwithstanding anything to Waiver could become effective in the contrary herein, calendar year following the following provisions apply to the extent severance benefits provided herein are subject to Section 409A. Severance benefits shall not commence until Executive has a "separation from service" for purposes of Section 409A. For purposes of this Agreement, a calendar year in which your termination of employment occurs, the Release and Waiver will not be deemed effective any earlier than the Release Deadline. None of the Severance Benefits will be determined consistent paid or otherwise delivered prior to the effective date of the Release and Waiver. Except to the minimum extent that payments must be delayed until the Specified Executive Initial Payout Date because you are a "specified employee" or until the effectiveness of the Release and Waiver, the Company will pay you the Severance Benefits as soon as practicable in accordance with the rules relating to a "separation from service" as defined in Section 409A. To Company's normal payroll practices. All amounts payable under the extent any payment under this Agreement may will be classified as a "short-term deferral" within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. The Company makes no representation or warranty and shall have no liability to Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, or the conditions of, such Section. standard payroll taxes and deductions. View More
Application of Internal Revenue Code Section 409a. (a) Notwithstanding anything to the contrary contained in this Agreement, if set forth herein, any payment or reimbursement, or the provision of any benefit payments and benefits provided under this Agreement (the "Severance Benefits") that is paid or provided upon Executive's "separation from service" with the Company within the meaning of Code Section 409A(a)(2)(A)(i) would constitute a "deferral of "deferred compensation" under Section 409A and Executive is a "specified employee" (as determin...ed pursuant to procedures adopted by the Company in compliance with Section 409A) on the date of Executive's "separation from service" with the Company within the meaning of Code Section 409A(a)(2)(A)(i), Executive will receive payment or reimbursement of such amounts or the provision of such benefits upon the earlier of (i) the first day of the seventh month following the date of Executive's "separation from service" with the Company within the meaning of Section 409A(a)(2)(A)(i) 409A of the Code or (ii) and the regulations and other guidance thereunder and any state law of similar effect (collectively "Section 409A") shall not commence in connection with Executive's death. 6 (b) To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A, so that the income inclusion provisions of Code Section 409A(a)(1) do not apply to Executive. This Agreement shall be administered in a manner consistent with this intent. (c) Benefits payable under the Agreement, to the extent of payments made from the date of termination of the employment unless and until Executive through March 15th of the calendar year following has also 16Exhibit 10.3 incurred a "separation from service" (as such termination, are intended to constitute separate payments for purposes of term is defined in Treasury Regulation Section 1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the "short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations; to the extent 1.409A-1(h) ("Separation From Service"), unless Employer reasonably determines that such payments are made following said March 15th, they amounts may be subject to the distribution requirements of Section 409A, including, without limitation, the requirement of Code Section 409A(a)(2)(B)(i) that payment to the Executive be delayed until the earlier to occur of six months and one day after separation from service, or the date of Executive's death following such separation of service, if the Executive is a "specified employee" within the meaning of the aforesaid section of the Code at the time of such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment provided to Executive including, without limitation, causing Executive to incur the additional 20% tax for which Executive would otherwise be liable under Section 409A in the absence of such a deferral. 409A. It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement, and each other payment made pursuant to this Agreement, Agreement is a separate "payment" for purposes of Section 409A, including Treasury Regulation Section 1.409A-2(b)(2). 1.409A-2(b)(2)(i). For the avoidance of doubt, it is intended that payments of the severance benefits Severance Benefits set forth in this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). In addition, However, if any provision of this Agreement would cause Executive to incur any penalty tax or interest Employer (or, if applicable, the successor entity thereto) determines that the Severance Benefits constitute "deferred compensation" under Section 409A and Executive is, on the termination of service, a "specified employee" of Employer or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code or any regulations or Treasury guidance promulgated thereunder, the Company may reform such provision to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code. The severance benefits are intended to qualify for an exemption from application of Section 409A or comply with its requirements Code, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, and any ambiguities herein the timing of the Severance Benefit payments shall be interpreted accordingly. Notwithstanding anything delayed until the earlier to occur of: (i) the date that is six months and one day after Executive's Separation From Service, or (ii) the date of Executive's death (such applicable date, the "Specified Employee Initial Payment Date"), the Employer (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the contrary herein, sum of the following provisions apply Severance Benefit payments that Executive would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the Severance Benefits had not been so delayed pursuant to this Section and (B) commence paying the extent severance benefits provided herein are balance of the Severance Benefits in accordance with the applicable payment schedules set forth in this Agreement. This Agreement is intended to comply with Section 409A, and it is intended that no amounts payable hereunder shall be subject to tax under Section 409A. Severance benefits Employer shall not commence until Executive has a "separation from service" for purposes of Section 409A. For purposes of this Agreement, a termination of employment will be determined consistent use commercially reasonable efforts to comply with the rules relating to a "separation from service" as defined in Section 409A. To the extent any payment under this Agreement may be classified as a "short-term deferral" within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision with respect to payments of Section 409A. The Company makes no representation or warranty and shall have no liability to Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, or the conditions of, such Section. benefits hereunder. View More
