Section 409a Contract Clauses (6,052)

Section 409a. This Agreement is intended to be exempt from Section 409A of the Code to the greatest extent possible, to comply with Section 409A to the extent it is applicable and is to be interpreted and operated consistently with those intentions. To the extent that Section 409A applies to payments in the event of termination of employment under this Agreement, such payments shall be made only if the termination of employment is a "separation from service" within the meaning of Treas. Reg. Section 1.409A-1(...h). 10 The parties have executed this Agreement as of the day and year first above written. MERCANTILE BANK CORPORATION By: /s/ Michael H. Price Its: President and CEO MERCANTILE BANK OF MICHIGAN By: /s/ Michael H. Price Its: Chairman and CEO EMPLOYEE /s/ Robert B. Kaminski, Jr. Robert B. Kaminski, Jr. 11 EX-10.13 3 ex10-13.htm EXHIBIT 10.13 ex10-13.htm EXHIBIT 10.13 EMPLOYMENT AGREEMENT This Amended and Restated Employment Agreement ("Agreement") is made as of the 13th day of November, 2014, effective as of December 31, 2014, by and among Mercantile Bank Corporation, a Michigan corporation (the "Company"), Mercantile Bank of Michigan, a Michigan banking corporation (the "Bank", and collectively with the Company, the "Employers", and each an "Employer"), and Robert B. Kaminski, Jr. (the "Employee"). RECITALS A. The Company, the Bank and the Employee have previously entered into an Employment Agreement dated October 12, 2000, which has been amended and restated by an amended and restated Employment Agreement dated as of October 18, 2001, which was further amended by an amendment dated as of October 17, 2002, an amendment dated as of October 28, 2004 and by a Third Amendment dated as of November 17, 2005 (the "Employment Agreement"). B. The Company, the Bank and the Employee wish to amend and restate the Employment Agreement in its entirety, such that this Agreement will replace and supersede the existing Employment Agreement. C. This Agreement sets forth the terms of the Employee's employment as Executive Vice President, Chief Operating Officer and Secretary of the Company and President, Chief Operating Officer and Secretary of the Bank. D. The Employers believe that entering into this Agreement is in the best interest of their respective shareholders. E. The Employee believes that entering into this Agreement is in his best interest. TERMS OF AGREEMENT In consideration of the mutual covenants and obligations set forth in this Agreement, to induce the Employee to remain in the employment of the Employers, and for other good and valuable consideration, the Employers and the Employee amend and restate the Employment Agreement and agree as follows: 1. Employment, Term, and Acceptance: The Company agrees to employ the Employee as its Executive Vice President, Chief Operating Officer and Secretary, and the Bank agrees to employ the Employee as its President, Chief Operating Officer and Secretary for the period from January 1, 2015 through the Termination Date (the "Employment Period"), unless such employment is terminated earlier pursuant to Section 7 or 8 of this Agreement. The initial Termination Date is December 31, 2017. Effective as of December 31, 2015, and as of each December 31 after December 31, 2015, the Termination Date will automatically extend to the next succeeding December 31 after the then existing Termination Date unless prior to a December 31 automatic extension, the Employee, the Company, or the Bank gives notice to each of the others that the Termination Date shall not be automatically extended on such December 31; in which case the Termination Date will not be extended. Accordingly, unless the Employee, the Company or the Bank gives notice that the Termination Date will not be extended, there will, as of each December 31, be an Employment Period of three years remaining. The Employee hereby accepts such employment. View More

Section 409a. The provisions regarding all payments to be made hereunder shall be interpreted in such a manner that all such payments either comply with Section 409A of the Code or are exempt from the requirements of Section 409A of the Code as "short-term deferrals" as described in Section 409A of the Code. To the extent that any amounts payable hereunder are determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A of the Code, such amounts shall be subject to such add...itional rules and requirements as specified by the Committee from time to time in order to comply with Section 409A of the Code and the payment of any such amounts may not be accelerated or delayed except to the extent permitted by Section 409A of the Code. The Company makes no representation or warranty and shall have no liability to any Participant or any other person if any payments under any provisions of this Plan are determined to constitute deferred compensation under Section 409A of the Code that are subject to the 20 percent additional tax under Section 409A of the Code. View More

Section 409a. This Agreement shall be interpreted to ensure, to the fullest extent possible, that the payments contemplated hereby constitute short-term deferrals as determined under Section 409A of the Code ("Section 409A"). Accordingly, except as otherwise provided in Section 7.D. of the Plan, in no event shall payment be made later than the 15th day of the third month after the end of the first calendar year in which the RSU Award is no longer subject to a "substantial risk of forfeiture" within the meanin...g of Section 409A. However, if the RSU Award is determined to be subject to Section 409A and any payment is triggered by a separation from service, the payment will, if the Participant is a specified employee (as determined under Section 409A) and to the extent required by Section 409A, be delayed until the date that is one day after the six month anniversary of such separation from service. View More

Section 409a. a. To the extent (i) any payment to which the Participant becomes entitled under this Agreement, or any agreement or plan referenced herein, in connection with the Participant's termination of employment with the Company constitutes deferred compensation subject to Section 409A of the Code; (ii) the Participant is deemed at the time of his separation from service to be a "specified employee" under Section 409A of the Code; and (iii) at the time of the Participant's separation from service the Co...mpany is publicly traded (as defined in Section 409A of the Code), then such payment or transfer (other than any payment or transfer permitted by Section 409A of the Code to be paid within six (6) months of the Participant's separation from service) shall not be made until the earlier of (x) the first day of the seventh month following the Participant's separation from service or (y) the date of the Participant's death following such separation from service. During any period that a payment to the Participant is deferred pursuant to the foregoing, the Participant shall be entitled to interest on the deferred payment at a per annum rate equal to Federal-Funds rate as published in The Wall Street Journal on the date of the Participant's termination of employment with the Company. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this Section 23 (together with, as applicable, accrued interest thereon) shall be paid to the Participant or the Participant's beneficiary in one lump sum. 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 Section 409A of the Code). c. It is intended that this Agreement comply with the provisions of Section 409A of the Code so as to not subject the Participant to the payment of additional interest and taxes under Section 409A of the Code, and in furtherance of this intent, this Agreement shall be interpreted, operated and administered in a manner consistent with these intentions. View More

Section 409a. The Company intends that the Retention Incentive is not compensation paid under a "nonqualified deferred compensation plan" within the meaning of section 409A of the Internal Revenue Code of 1986, as amended, ("Section 409A") , and this Agreement shall be interpreted, construed and administered in a manner that reflects this intention.

Section 409a. All benefits hereunder are intended to be paid solely on account of a separation pay plan as specified in this Agreement due to your separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended ("Code"), and to be excludible from the requirements of Code Section 409A, either as separation pay amounts or as a short-term deferral amounts (e.g., amounts payable under the schedule prior to March 15 of the calendar year following the calendar year of you...r separation from service) to the maximum possible extent. Any reimbursements or in-kind benefits provided during your employment or under this Agreement shall be made or provided to you as part of said separation pay plan and shall be excludible from the requirements of Section 409A of the Code pursuant to the exception from 409A of the Code for such reimbursement and in-kind benefits that are furnished as part of said separation pay plan, and in all events such reimbursement or benefit and the benefits pursuant to Section 2(a) above shall be paid to you, or on your behalf, no later than March 15 of the calendar year following the calendar year of your separation from service. Furthermore, nothing herein shall be construed as a guarantee of any particular tax treatment to you. 2 8. Non-Admission and No Wrongdoing. Nothing contained in this Agreement shall be deemed to constitute an admission or evidence of any wrongdoing or liability on the part of you or the Company and Releasees, nor of any violation of any federal, state or municipal statute, regulation or principle of common law or equity. The Company and Releasees expressly deny any wrongdoing of any kind in regard to your employment or your termination. Further, by signing this Agreement you acknowledge that this Agreement is being entered into voluntarily and solely for the purpose of amicably resolving all matters concerning the termination of your employment. View More

Section 409a. The provisions of this Agreement are intended either (i) to be exempt from Section 409A of the Code under the short-term deferral exception, the separation pay exception, or such other exceptions that may be available under Section 409A of the Code and applicable authority or guidance promulgated thereunder or (ii) to comply with Section 409A of the Code, and shall be administered in a manner consistent with such intent. Notwithstanding any provision to the contrary, to the extent Employee is co...nsidered a specified employee under Section 409A of the Code and would be entitled during the six (6) month period beginning on his date of termination to a payment that is not otherwise excluded under Section 409A of the Code, such payment will not be Mattersight® Confidential and Restricted © 2014 Mattersight Corporation 10 made to Employee until the earlier of the six (6) month anniversary of his date of termination or his death. For purposes of Section 409A, each payment under this Agreement (including, but not limited to, those in Section 2(b)) shall be considered a separate payment. View More

Section 409a. The Award of RSUs evidenced by this Agreement is intended to be exempt from the nonqualified deferred compensation rules of Section 409A of the Code as a "short term deferral" (as that term is used in the final regulations and other guidance issued under Section 409A of the Code, including Treasury Regulation Section 1.409A-1(b)(4)(i)), and shall be construed accordingly. 7 EX-10.17 20 d593074dex1017.htm EX-10.17 EX-10.17 Exhibit 10.17 Award No. AMEDICA CORPORATION Restricted Stock Award under t...he Company's 2012 Equity Incentive Plan 1. Name and Address of Participant: [NAME] [STREET] [CITY, STATE ZIP] 2. Date of Award: [AWARD DATE] 3. Type of Grant: Restricted Stock Unit 4. Number of RSUs: [NUMBER OF SHARES] 4. Expiration Date: [EXPIRATION DATE] (Calculate 3 years from date of award) Amedica Corporation, a Delaware corporation (the "Company") hereby grants to the above named Participant the aggregate number of RSUs shown above (the "Restricted Stock Award") which represents a contingent entitlement of the Participant to receive shares of Common Stock, on the terms and conditions and subject to all the limitations set forth herein and in the 2012 Employee, Director and Consultant Equity Incentive Plan (the "Plan"), which is incorporated herein by reference. The Participant acknowledges receipt of a copy of the Plan. The Company and the Participant hereby acknowledge receipt of this Grant and agree to the terms of the Restricted Stock Unit Agreement attached hereto and incorporated by reference herein, the Plan and the terms of this Restricted Stock Award as set forth above. AMEDICA CORPORATION By: Name: Kevin Ontiveros Title: Chief Legal Officer PARTICIPANT: [NAME] RESTRICTED STOCK UNIT AGREEMENT AMEDICA CORPORATION NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Grant of Award. The Company hereby grants to the Participant an aggregate of RSUs (the "Award") which represents a contingent entitlement of the Participant to receive shares of Common Stock, on the terms and conditions and subject to all the limitations set forth herein and in the Plan, which is incorporated herein by reference. The Participant acknowledges receipt of a copy of the Plan. View More

Section 409a. Each party hereto intends that all payments made under this Agreement are exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, the regulations and other guidance there under and any state law of similar effect (collectively "Section 409A") so that none of the payments or benefits will be subject to the adverse tax penalties imposed under Section 409A, and any ambiguities herein will be interpreted to be so exempt.

Section 409a. 7.1 General. The Company intends that the payments and benefits provided under the Plan shall either be exempt from the application of, or comply with, the requirements of Section 409A of the Code (recognizing that, if the Plan is not exempt from or compliant with the requirements of Section 409A, non-compliant payments to Participants would be subject to significant tax penalties, which would be borne by the Participant). The Plan shall be construed in a manner that affects the Company's intent... to be exempt from or comply with Section 409A. Nevertheless, the tax treatment of the benefits provided under the Plan is not warranted or guaranteed. Neither the Company nor its respective directors, officers, employees or advisers (other than in his or her capacity as a Participant) shall be held liable for any taxes, interest, penalties or other monetary amounts owed by any Participant or other taxpayer as a result of the Plan. Notwithstanding anything in the Plan to the contrary, the Committee may amend the Plan, to take effect retroactively or otherwise, as deemed necessary or advisable for the purpose of remaining exempt from or complying with the requirements of Section 409A of the Code and the administrative regulations and rulings promulgated thereunder. 7.2 Definitional Restrictions. Notwithstanding anything in the Plan to the contrary, to the extent that any amount or benefit that would constitute non-exempt "deferred compensation" for purposes of Section 409A of the Code ("Non-Exempt Deferred Compensation") would otherwise be payable or distributable under the Plan by reason of the occurrence of the Participant's Qualifying Termination, such Non-Exempt Deferred Compensation will not be payable or distributable to the Participant by reason of such circumstance unless such termination is also a "separation from service" within the meaning of Section 409A of the Code and applicable regulations (without giving effect to any elective provisions that may be available under such definition). This provision does not prohibit the vesting of any amount upon a 11 Qualifying Termination that is not a "separation of service". If this Section 7.2 prevents the payment or distribution of any Non-Exempt Deferred Compensation upon a Participant's Qualifying Termination, such payment or distribution shall be made on the date, if any, on which the Participant shall have a "separation from service," or such later date as may be required by Section 7.3 below. 7.3 Six-Month Delay in Certain Circumstances. In the event that, notwithstanding the clear language of the Plan and the intent of the Company, any amount or benefit under this Plan constitutes Non-Exempt Deferred Compensation and is payable or distributable by reason of a Participant's separation from service during a period in which the Participant qualifies as a "Specified Employee" under 409A, then, subject to any permissible acceleration of payment under 409A: (a) the amount of such Non-Exempt Deferred Compensation that would otherwise be payable during the six-month period immediately following the Participant's separation from service under the terms of this Plan will be accumulated through and paid or provided on the first day of the seventh month following the Participant's separation from service (or, if the Participant dies during such period, within thirty (30) days after the Participant's death) (in either case, the "Required Delay Period"); and (b) the normal payment or distribution schedule for any remaining payments or distributions will resume at the end of the Required Delay Period. For purposes of this Plan, the term "Specified Employee" has the meaning given such term in Code Section 409A and the final regulations thereunder. View More