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Tax Matters Clause Example with 100 Variations from Business Contracts
This page contains Tax Matters clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation. (b) SECTION 409A COMPLIANCE. (i) The intent of the parties is that payments and benefits under this Agreement are exempt from or comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively "Code Section 409A") and, acc...ordingly, 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 the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code Section 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 amount or 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." Notwithstanding anything to the contrary in this Agreement, if 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" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such "separation from service" of the Executive, and (B) the date of the Executive's 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 16(b)(ii) (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 the Executive in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. 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. (v) Notwithstanding any other provision of this Agreement to the contrary, (i) in no event shall any payment or benefit 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 and (ii) in no event shall the Company, Parent or any of their affiliates have any liability to the Executive with respect to any additional taxes, penalties or interest that may be imposed on Executive under Code Section 409A.
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Variations of a "Tax Matters" Clause from Business Contracts
Tax Matters. (a) WITHHOLDING. The Withholding. All forms of compensation referred to in this letter agreement are subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by law. (b) Section 409A. For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), each salary continuation payment and bonus payment under Section 5 is hereby designated as a separate payment. If the Company may withhold from any determines that you are a "spe...cified employee" under Section 409A(a)(2)(B)(i) of the Code at the time of your Separation, then (i) the salary continuation payments under Section 5(b), to the extent that they are subject to Section 409A of the Code, will commence during the seventh month after your Separation and all (ii) the installments that otherwise would have been paid during the first six months after your Separation will be paid in a lump sum when the salary continuation payments commence. To the fullest extent applicable, amounts and other benefits payable under this Agreement or otherwise such federal, state and local taxes as may be required letter agreement are intended to be withheld pursuant to any applicable law or regulation. (b) SECTION exempt from the definition of "nonqualified deferred compensation" under Section 409A COMPLIANCE. (i) The intent of the parties is that payments and benefits Code in accordance with one or more of the exemptions available under this Agreement are exempt from or comply with Internal Revenue Code the final Treasury regulations promulgated under Section 409A and of the regulations and guidance promulgated thereunder (collectively "Code Section 409A") Code and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof such amount or benefit is, or becomes subject to, Section 409A of the Code due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with Section 409A of the Code, this letter agreement is modified in order intended to comply with Code the applicable requirements of 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 the Executive and the Company 409A of the applicable provision without violating the provisions of Code Section 409A. (ii) with respect to such amounts or benefits. To the extent required to prevent the imposition of taxes or penalties under Code Section 409A, possible, this letter agreement shall be interpreted and administered in 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 amount or 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." Notwithstanding anything to the contrary in this Agreement, if 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 manner consistent with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such "separation from service" of the Executive, and (B) the date of the Executive's 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 16(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence statement of such delay) shall be paid or reimbursed to the Executive in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. 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. (v) Notwithstanding any other provision of this Agreement to the contrary, (i) in intent. In no event shall any payment or benefit 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 and (ii) in no event whatsoever shall the Company, Parent or Company be liable for any of their affiliates have any liability to the Executive with respect to any additional taxes, penalties or interest that may be imposed on Executive you under Section 409A of the Code or under any other similar provision of state tax law, including, without limitation, in connection with any payment or benefits described in this letter, or any damages for failing to comply with Section 409A. 409A of the Code, any other similar provision of state tax law, or the provisions of this paragraph. Paul Farmer August 23, 2011 Page 5 (c) Tax Advice. You are encouraged to obtain your own tax advice regarding your compensation from the Company. You agree that the Company does not have a duty to design its compensation policies in a manner that minimizes your tax liabilities, and you will not make any claim against the Company, Parent, the Board or the Parent Board related to tax liabilities arising from your compensation.
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QLIK TECHNOLOGIES INC contract
Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required General. All forms of compensation referred to be withheld pursuant to any applicable law or regulation. (b) SECTION 409A COMPLIANCE. (i) The intent of the parties is that payments and benefits under in this Agreement are exempt subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by l...aw. You are encouraged to obtain your own tax advice regarding your compensation from the Company. You agree that the Company does not have a duty to design its compensation policies in a manner that minimizes your tax liabilities, and you will not make any claim against the Company or comply with Internal Revenue Code its Board related to tax liabilities arising from your compensation. (b) Section 409A. For purposes of Section 409A and of the regulations and guidance promulgated thereunder (collectively "Code Code, each payment under Section 409A") and, accordingly, 5 is hereby designated as a separate payment for purposes of Treasury Regulation 1.409A-2(b)(2). If the Company determines that you are a "specified employee" under Section 409A(a)(2)(B)(i) of the Code at the time of your Separation, then (i) any payments under this Agreement, 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 they are not exempt from Section 409A of the Code Section 409A, such modification shall be made in good faith (including by operation of the next following sentence) and shall, otherwise subject to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company taxes imposed under Section 409A(a)(1) of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code Section 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 amount or 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." Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed (a "Deferred Payment"), will commence on the date of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of first business day Page 6 following (A) the expiration of the six (6)-month six-month period measured from the date of such "separation from service" of the Executive, and your Separation or (B) the date of your death and (ii) the Executive's 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 16(b)(ii) (whether they installments that otherwise would have otherwise been payable in a single sum or in installments in the absence of paid prior to such delay) shall date will be paid or reimbursed to the Executive in a lump sum, and all remaining sum when such payments and benefits due under this Agreement shall be commence. Notwithstanding the foregoing, any amount paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. 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. (v) Notwithstanding any other provision of this Agreement to the contrary, (i) in no event shall any payment or benefit under this Agreement that constitutes "nonqualified deferred compensation" for purposes either (1) satisfies the requirements of Code the "short-term deferral" rule set forth in Treasury Regulation 1.409A-1(b)(4); or (2) (A) qualifies as a payment made as a result of an involuntary separation from service pursuant to Treasury Regulation 1.409A-1(b)(9)(iii), and (B) does not exceed the Section 409A Limit will not constitute a Deferred Payment. The provisions of this Agreement are intended to comply with, or be exempt from, the requirements of Section 409A of the Code so that none of the payments and benefits to be provided under this Agreement will be subject to offset by any other amount unless otherwise permitted by Code the additional tax imposed under Section 409A of the Code, and (ii) any ambiguities herein will be interpreted to so comply or be exempt. You and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions as are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to you under Section 409A of the Code. In no event shall will the Company, Parent or Company reimburse you for any of their affiliates have any liability to the Executive with respect to any additional taxes, penalties or interest taxes that may be imposed on Executive under Code you as result of Section 409A. 409A of the Code.
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BOINGO WIRELESS INC contract
Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required General. All forms of compensation referred to be withheld pursuant to any applicable law or regulation. (b) SECTION 409A COMPLIANCE. (i) The intent of the parties is that payments and benefits under in this Agreement are exempt subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by l...aw. You are encouraged to obtain your own tax advice regarding your compensation from the Company. You agree that the Company does not have a duty to design its compensation policies in a manner that minimizes your tax liabilities, and you will not make any claim against the Company or comply with Internal Revenue Code its Board related to tax liabilities arising from your compensation. 5 (b) Section 409A. For purposes of Section 409A and of the regulations and guidance promulgated thereunder (collectively "Code Code, each payment under Section 409A") and, accordingly, 5 is hereby designated as a separate payment for purposes of Treasury Regulation 1.409A-2(b)(2). If the Company determines that you are a "specified employee" under Section 409A(a)(2)(B)(i) of the Code at the time of your Separation, then (i) any payments under this Agreement, 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 they are not exempt from Section 409A of the Code Section 409A, such modification shall be made in good faith (including by operation of the next following sentence) and shall, otherwise subject to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company taxes imposed under Section 409A(a)(1) of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code Section 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 amount or 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." Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed (a "Deferred Payment"), will commence on the date of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of first business day following (A) the expiration of the six (6)-month six-month period measured from the date of such "separation from service" of the Executive, and your Separation or (B) the date of your death and (ii) the Executive's 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 16(b)(ii) (whether they installments that otherwise would have otherwise been payable in a single sum or in installments in the absence of paid prior to such delay) shall date will be paid or reimbursed to the Executive in a lump sum, and all remaining sum when such payments and benefits due under this Agreement shall be commence. Notwithstanding the foregoing, any amount paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. 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. (v) Notwithstanding any other provision of this Agreement to the contrary, (i) in no event shall any payment or benefit under this Agreement that constitutes "nonqualified deferred compensation" for purposes either (1) satisfies the requirements of Code the "short-term deferral" rule set forth in Treasury Regulation 1.409A-1(b)(4); or (2) (A) qualifies as a payment made as a result of an involuntary separation from service pursuant to Treasury Regulation 1.409A-1(b)(9)(iii), and (B) does not exceed the Section 409A Limit will not constitute a Deferred Payment. The provisions of this Agreement are intended to comply with, or be exempt from, the requirements of Section 409A of the Code so that none of the payments and benefits to be provided under this Agreement will be subject to offset by any other amount unless otherwise permitted by Code the additional tax imposed under Section 409A of the Code, and (ii) any ambiguities herein will be interpreted to so comply or be exempt. You and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions as are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to you under Section 409A of the Code. In no event shall will the Company, Parent or Company reimburse you for any of their affiliates have any liability to the Executive with respect to any additional taxes, penalties or interest taxes that may be imposed on Executive under Code you as result of Section 409A. 409A of the Code.
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Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required General. All forms of compensation referred to be withheld pursuant to any applicable law or regulation. (b) SECTION 409A COMPLIANCE. (i) The intent of the parties is that payments and benefits under in this Agreement are exempt subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by l...aw. You are encouraged to obtain your own tax advice regarding your compensation from the Company. You agree that the Company does not have a duty to design its compensation policies in a manner that minimizes your tax liabilities, and you will not make any claim against the Company or comply with Internal Revenue Code its Board related to tax liabilities arising from your compensation. (b) Section 409A. For purposes of Section 409A and of the regulations and guidance promulgated thereunder (collectively "Code Code, each payment under Section 409A") and, accordingly, 5 is hereby designated as a separate payment for purposes of Treasury Regulation 1.409A-2(b)(2). If the Company determines that you are a "specified employee" under Section 409A(a)(2)(B)(i) of the Code at the time of your Separation, then (i) any payments under this Agreement, 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 they are not exempt from Section 409A of the Code Section 409A, such modification shall be made in good faith (including by operation of the next following sentence) and shall, otherwise subject to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company taxes imposed under Section 409A(a)(1) of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code Section 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 amount or 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." Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed (a "Deferred Payment"), will commence on the date of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of first business day following (A) the expiration of the six (6)-month six-month period measured from the date of such "separation from service" of the Executive, and your Separation or (B) the date of your death and (ii) the Executive's 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 16(b)(ii) (whether they installments that otherwise would have otherwise been payable in a single sum or in installments in the absence of paid prior to such delay) shall date will be paid or reimbursed to the Executive in a lump sum, and all remaining sum when such payments and benefits due under this Agreement shall be commence. Notwithstanding the foregoing, any amount paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. 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. (v) Notwithstanding any other provision of this Agreement to the contrary, (i) in no event shall any payment or benefit under this Agreement that constitutes "nonqualified deferred compensation" for purposes either (1) satisfies the requirements of Code the "short-term deferral" rule set forth in Treasury Regulation 1.409A-1(b)(4); or (2) (A) qualifies as a payment made as a result of an involuntary separation from service pursuant to Treasury Regulation 1.409A-1(b)(9)(iii), and (B) does not exceed the Section 409A Limit will not constitute a Deferred Payment. The provisions of this Agreement are intended to comply with, or be exempt from, the requirements of Section 409A of the Code so that none of the payments and benefits to be provided under this Agreement will be subject to offset by any other amount unless otherwise permitted by Code the additional tax imposed under Section 409A of the Code, and (ii) any ambiguities herein will be interpreted to so comply or be exempt. You and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions as are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to you under Section 409A of the Code. In no event shall will the Company, Parent or Company reimburse you for any of their affiliates have any liability to the Executive with respect to any additional taxes, penalties or interest taxes that may be imposed on Executive under Code you as result of Section 409A. 409A of the Code.
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BOINGO WIRELESS INC contract
Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation. (b) SECTION Application of Section 409A COMPLIANCE. (i) The intent of the parties Code. It is intended that all of the payments and benefits provided under this Agreement are exempt the Plan satisfy, to the greatest extent possible, the exemptions from or comply with Interna...l Revenue Code the application of Section 409A of the Code and the regulations and other guidance promulgated thereunder (collectively "Code Section and any state law of similar effect (collectively, "Section 409A") and, accordingly, provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5), and 1.409A-1(b)(9), and the Plan will be construed to the maximum greatest extent permitted, this Agreement shall be interpreted to be in compliance therewith. possible as consistent with those provisions. To the extent not so exempt, the Plan (and any definitions in the Plan) will be construed in a manner that any provision hereof is modified in order to comply complies with Code Section 409A, such modification shall be made in good faith and shall, will incorporate by reference all required definitions and payment terms. Notwithstanding anything to the maximum extent reasonably possible, maintain the original intent and economic benefit contrary herein, to the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code comply with Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement the Plan providing for the payment payments of any amount amounts or benefit benefits upon or following a termination of employment unless such termination is also a "separation from service" within the -8- meaning of Code Section 409A and, for purposes of any such provision of this Agreement, the Plan, references to a "termination," "resignation," "termination, "termination of employment" or like terms shall mean "separation separation from service." Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date service. For purposes of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such "separation from service" of the Executive, and (B) the date of the Executive's 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 16(b)(ii) (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 the Executive in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" (including, without limitation, for purposes of Code Treasury Regulations Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's 1.409A-2(b)(2)(iii)), a Participant's right to receive any installment payments pursuant to this Agreement shall under the Plan will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under the Plan will at all times be considered a separate and distinct payments. Whenever payment. If the Plan Administrator determines that any of the payments upon a payment Separation from Service provided under this Agreement specifies the Plan (or under any other arrangement with the Participant) constitute "deferred compensation" under Section 409A and if the Participant is a payment period with reference "specified employee" of the Company, as such term is defined in Section 409A(a)(2)(B)(i), at the time of his or her Separation from Service, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon a number Separation from Service will be delayed as follows: on the earlier to occur of days, (i) the actual date that is six (6) months and one (1) day after the effective date of payment within the specified period shall be within Participant's Separation from Service, and (ii) the sole discretion date of the Company. (v) Notwithstanding any other provision of this Agreement Participant's death (such earlier date, the "Delayed Initial Payment Date"), the Company will (A) pay to the contrary, (i) Participant a lump sum amount equal to the sum of the payments upon Separation from Service that the Participant would otherwise have received through the Delayed Initial Payment Date if the commencement of the payments had not been delayed pursuant to this Section 6(a), and (B) commence paying the balance of the payments in no event shall accordance with the applicable payment schedules set forth above. No interest will be due on any payment or benefit amounts so deferred. (b) Withholding. All payments and benefits under this Agreement that constitutes "nonqualified deferred compensation" for purposes of Code Section 409A the Plan will be subject to offset by all applicable deductions and withholdings, including, without limitation, obligations to withhold for federal, state, provincial, foreign and local income and employment taxes. (c) Tax Advice. By becoming a Participant in the Plan, the Participant agrees to review with Participant's own tax advisors the federal, state, provincial, local, and foreign tax consequences of participation in the Plan. The Participant will rely solely on such advisors and not on any other amount unless otherwise permitted by Code Section 409A and (ii) in no event shall statements or representations of the Company, Parent Company or any of their affiliates have any its agents. The Participant understands that the Participant (and not the Company) will be responsible for the Participant's own tax liability to the Executive with respect to any additional taxes, penalties or interest that may be imposed on Executive under Code Section 409A. arise as a result of becoming a Participant in the Plan.
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Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation. (b) SECTION Application of Section 409A COMPLIANCE. (i) The intent of the parties Code. It is intended that all of the payments and benefits provided under this Agreement are exempt the Plan satisfy, to the greatest extent possible, the exemptions from or comply with Interna...l Revenue Code the application of Section 409A of the Code and the regulations and other guidance promulgated thereunder (collectively "Code Section and any state law of similar effect (collectively, "Section 409A") and, accordingly, provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5), and 1.409A-1(b)(9), and the Plan will be construed to the maximum greatest extent permitted, this Agreement shall be interpreted to be in compliance therewith. possible as consistent with those provisions. To the extent not so exempt, the Plan (and any definitions in the Plan) will be construed in a manner that any provision hereof is modified in order to comply complies with Code Section 409A, such modification shall be made in good faith and shall, will incorporate by reference all required definitions and payment terms. Notwithstanding anything to the maximum extent reasonably possible, maintain the original intent and economic benefit contrary herein, to the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code comply with Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement the Plan providing for the payment payments of any amount amounts or benefit 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, the Plan, references to a "termination," "resignation," "termination, "termination of employment" or like terms shall mean "separation separation from service." Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date service. For purposes of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such "separation from service" of the Executive, and (B) the date of the Executive's 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 16(b)(ii) (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 the Executive in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" (including, without limitation, for purposes of Code Treasury Regulations Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's 1.409A-2(b)(2)(iii)), a Participant's right to receive any installment payments pursuant to this Agreement shall under the Plan will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under the Plan will at all times be considered a separate and distinct payments. Whenever payment. If the Plan Administrator determines that any of the payments upon a payment Separation from Service provided under this Agreement specifies the Plan (or under any other arrangement with the Participant) constitute "deferred compensation" under Section 409A and if the Participant is a payment period with reference "specified employee" of the Company, as such term is defined in Section 409A(a)(2)(B)(i), at the time of his or her Separation from Service, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon a number Separation from Service will be delayed as follows: on the earlier to occur of days, (i) the actual date that is six (6) months and -9- one (1) day after the effective date of payment within the specified period shall be within Participant's Separation from Service, and (ii) the sole discretion date of the Company. (v) Notwithstanding any other provision of this Agreement Participant's death (such earlier date, the "Delayed Initial Payment Date"), the Company will (A) pay to the contrary, (i) Participant a lump sum amount equal to the sum of the payments upon Separation from Service that the Participant would otherwise have received through the Delayed Initial Payment Date if the commencement of the payments had not been delayed pursuant to this Section 6(a), and (B) commence paying the balance of the payments in no event shall accordance with the applicable payment schedules set forth above. No interest will be due on any payment or benefit amounts so deferred. (b) Withholding. All payments and benefits under this Agreement that constitutes "nonqualified deferred compensation" for purposes of Code Section 409A the Plan will be subject to offset by all applicable deductions and withholdings, including, without limitation, obligations to withhold for federal, state, provincial, foreign and local income and employment taxes. (c) Tax Advice. By becoming a Participant in the Plan, the Participant agrees to review with Participant's own tax advisors the federal, state, provincial, local, and foreign tax consequences of participation in the Plan. The Participant will rely solely on such advisors and not on any other amount unless otherwise permitted by Code Section 409A and (ii) in no event shall statements or representations of the Company, Parent Company or any of their affiliates have any its agents. The Participant understands that the Participant (and not the Company) will be responsible for the Participant's own tax liability to the Executive with respect to any additional taxes, penalties or interest that may be imposed on Executive under Code Section 409A. arise as a result of becoming a Participant in the Plan.
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Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation. (b) SECTION Application of Section 409A COMPLIANCE. (i) The intent of the parties Code. It is intended that all of the payments and benefits provided under this Agreement are exempt the Plan satisfy, to the greatest extent possible, the exemptions from or comply with Interna...l Revenue Code the application of Section 409A of the Code and the regulations and other guidance promulgated thereunder (collectively "Code Section and any state law of similar effect (collectively, "Section 409A") and, accordingly, provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5), and 1.409A-1(b)(9), and the Plan will be construed to the maximum greatest extent permitted, this Agreement shall be interpreted to be in compliance therewith. possible as consistent with those provisions. To the extent not so exempt, the Plan (and any definitions in the Plan) will be construed in a manner that any provision hereof is modified in order to comply complies with Code Section 409A, such modification shall be made in good faith and shall, will incorporate by reference all required definitions and payment terms. Notwithstanding anything to the maximum extent reasonably possible, maintain the original intent and economic benefit contrary herein, to the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code comply with Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement the Plan providing for the payment payments of any amount amounts or benefit 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, the Plan, references to a "termination," "resignation," "termination, "termination of employment" or like terms shall mean "separation separation from service." Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date service. For purposes of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such "separation from service" of the Executive, and (B) the date of the Executive's 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 16(b)(ii) (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 the Executive in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" (including, without limitation, for purposes of Code Treasury Regulations Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's 1.409A-2(b)(2)(iii)), a Participant's right to receive any installment payments pursuant to this Agreement shall under the Plan will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under the Plan will at all times be considered a separate and distinct payments. Whenever payment. If the Plan Administrator determines that any of the payments upon a payment Separation from Service provided under this Agreement specifies the Plan (or under any other arrangement with the Participant) constitute "deferred compensation" under Section 409A and if the Participant is a payment period with reference "specified employee" of the Company, as such term is defined in Section 409A(a)(2)(B)(i), at the time of his or her Separation from Service, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon a number Separation from Service will be delayed as follows: on the earlier to occur of days, (i) the actual date that is six (6) months and one (1) day after the effective date of payment within the specified period shall be within Participant's Separation from Service, and (ii) the sole discretion date of the Company. (v) Notwithstanding any other provision of this Agreement Participant's death (such earlier date, the "Delayed Initial Payment Date"), the Company will (A) pay to the contrary, (i) Participant a lump sum amount equal to the sum of the payments upon Separation from Service that the Participant would otherwise have received through the Delayed Initial Payment Date if the commencement of the payments had not been delayed pursuant to this Section 6(a), and (B) commence paying the balance of the payments in no event shall accordance with the applicable payment schedules set forth above. No interest will be due on any payment or benefit amounts so deferred. 8 (b) Withholding. All payments and benefits under this Agreement that constitutes "nonqualified deferred compensation" for purposes of Code Section 409A the Plan will be subject to offset by all applicable deductions and withholdings, including, without limitation, obligations to withhold for federal, state, provincial, foreign and local income and employment taxes. (c) Tax Advice. By becoming a Participant in the Plan, the Participant agrees to review with Participant's own tax advisors the federal, state, provincial, local, and foreign tax consequences of participation in the Plan. The Participant will rely solely on such advisors and not on any other amount unless otherwise permitted by Code Section 409A and (ii) in no event shall statements or representations of the Company, Parent Company or any of their affiliates have any its agents. The Participant understands that the Participant (and not the Company) will be responsible for the Participant's own tax liability to the Executive with respect to any additional taxes, penalties or interest that may be imposed on Executive under Code Section 409A. arise as a result of becoming a Participant in the Plan.
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Vaxart, Inc. contract
Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation. (b) SECTION Application of Section 409A COMPLIANCE. (i) The intent of the parties Code. It is intended that all of the payments and benefits provided under this Agreement are exempt the Plan satisfy, to the greatest extent possible, the exemptions from or comply with Interna...l Revenue Code the application of Section 409A of the Code and the regulations and other guidance promulgated thereunder (collectively "Code Section and any state law of similar effect (collectively, "Section 409A") and, accordingly, provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5), and 1.409A-1(b)(9), and the Plan will be construed to the maximum greatest extent permitted, this Agreement shall be interpreted to be in compliance therewith. possible as consistent with those provisions. To the extent not so exempt, the Plan (and any definitions in the Plan) will be construed in a manner that any provision hereof is modified in order to comply complies with Code Section 409A, such modification shall be made in good faith and shall, will incorporate by reference all required definitions and payment terms. Notwithstanding anything to the maximum extent reasonably possible, maintain the original intent and economic benefit contrary herein, to the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code comply with Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement the Plan providing for the payment payments of any amount amounts or benefit 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, the Plan, references to a "termination," "resignation," "termination, "termination of employment" or like terms shall mean "separation separation from service." Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date service. For purposes of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such "separation from service" of the Executive, and (B) the date of the Executive's 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 16(b)(ii) (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 the Executive in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" (including, without limitation, for purposes of Code Treasury Regulations Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's 1.409A-2(b)(2)(iii)), a Participant's right to receive any installment payments pursuant to this Agreement shall under the Plan will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under the Plan will at all times be considered a separate and distinct payments. Whenever payment. If the Plan Administrator determines that any of the payments upon a payment Separation from Service provided under this Agreement specifies the Plan (or under any other arrangement with the Participant) constitute "deferred compensation" under Section 409A and if the Participant is a payment period with reference "specified employee" of the Company, as such term is defined in Section 409A(a)(2)(B)(i), at the time of his -9- or her Separation from Service, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon a number Separation from Service will be delayed as follows: on the earlier to occur of days, (i) the actual date that is six (6) months and one (1) day after the effective date of payment within the specified period shall be within Participant's Separation from Service, and (ii) the sole discretion date of the Company. (v) Notwithstanding any other provision of this Agreement Participant's death (such earlier date, the "Delayed Initial Payment Date"), the Company will (A) pay to the contrary, (i) Participant a lump sum amount equal to the sum of the payments upon Separation from Service that the Participant would otherwise have received through the Delayed Initial Payment Date if the commencement of the payments had not been delayed pursuant to this Section 6(a), and (B) commence paying the balance of the payments in no event shall accordance with the applicable payment schedules set forth above. No interest will be due on any payment or benefit amounts so deferred. (b) Withholding. All payments and benefits under this Agreement that constitutes "nonqualified deferred compensation" for purposes of Code Section 409A the Plan will be subject to offset by all applicable deductions and withholdings, including, without limitation, obligations to withhold for federal, state, provincial, foreign and local income and employment taxes. (c) Tax Advice. By becoming a Participant in the Plan, the Participant agrees to review with Participant's own tax advisors the federal, state, provincial, local, and foreign tax consequences of participation in the Plan. The Participant will rely solely on such advisors and not on any other amount unless otherwise permitted by Code Section 409A and (ii) in no event shall statements or representations of the Company, Parent Company or any of their affiliates have any its agents. The Participant understands that the Participant (and not the Company) will be responsible for the Participant's own tax liability to the Executive with respect to any additional taxes, penalties or interest that may be imposed on Executive under Code Section 409A. arise as a result of becoming a Participant in the Plan.
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Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation. (b) SECTION (a)Application of Section 409A COMPLIANCE. (i) The intent of the parties Code. It is intended that all of the payments and benefits provided under this Agreement are exempt the Plan satisfy, to the greatest extent possible, the exemptions from or comply with Inte...rnal Revenue Code the application of Section 409A of the Code and the regulations and other guidance promulgated thereunder (collectively "Code Section and any state law of similar effect (collectively, "Section 409A") and, accordingly, provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5), and 1.409A-1(b)(9), and the Plan will be construed to the maximum greatest extent permitted, this Agreement shall be interpreted to be in compliance therewith. possible as consistent with those provisions. To the extent not so exempt, the Plan (and any definitions in the Plan) will be construed in a manner that any provision hereof is modified in order to comply complies with Code Section 409A, such modification shall be made in good faith and shall, will incorporate by reference all required definitions and payment terms. Notwithstanding anything to the maximum extent reasonably possible, maintain the original intent and economic benefit contrary herein, to the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code comply with Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement the Plan providing for the payment payments of any amount amounts or benefit 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, the Plan, references to a "termination," "resignation," "termination, "termination of employment" or like terms shall mean "separation separation from service." Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date service. For purposes of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such "separation from service" of the Executive, and (B) the date of the Executive's 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 16(b)(ii) (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 the Executive in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" (including, without limitation, for purposes of Code Treasury Regulations Section 409A, (A) 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 the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) 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. (iv) For purposes of Code Section 409A, the Executive's 1.409A-2(b)(2)(iii)), a Participant's right to receive any installment payments pursuant to this Agreement shall under the Plan will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under the Plan will at all times be considered a separate and distinct payments. Whenever payment. If the Plan Administrator determines that any of the payments upon a payment Separation from Service provided under this Agreement specifies the Plan (or under any other arrangement with the Participant) constitute "deferred compensation" under Section 409A and if the Participant is a payment period with reference "specified employee" of the Company, as such term is defined in Section 409A(a)(2)(B)(i), at the time of his or her Separation from Service, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments upon a number Separation from Service will be delayed as follows: on the earlier to occur of days, (i) the actual date that is six (6) months and one (1) day after the effective date of payment within the specified period shall be within Participant's Separation from Service, and (ii) the sole discretion date of the Company. (v) Notwithstanding any other provision of this Agreement Participant's death (such earlier date, the "Delayed Initial Payment Date"), the Company will (A) pay to the contrary, (i) Participant a lump sum amount equal to the sum of the payments upon Separation from Service that the Participant would otherwise have received through the Delayed Initial Payment Date if the commencement of the payments had not been delayed pursuant to this Section 6(a), and (B) commence paying the balance of the payments in no event shall accordance with the applicable payment schedules set forth above. No interest will be due on any payment or benefit amounts so deferred. (b)Withholding. All payments and benefits under this Agreement that constitutes "nonqualified deferred compensation" for purposes of Code Section 409A the Plan will be subject to offset by all applicable deductions and withholdings, including, without limitation, obligations to withhold for federal, state, provincial, foreign and local income and employment taxes. (c)Tax Advice. By becoming a Participant in the Plan, the Participant agrees to review with Participant's own tax advisors the federal, state, provincial, local, and foreign tax consequences of participation in the Plan. The Participant will rely solely on such advisors and not on any other amount unless otherwise permitted by Code Section 409A and (ii) in no event shall statements or representations of the Company, Parent Company or any of their affiliates have any its agents. The Participant understands that the Participant (and not the Company) will be responsible for the Participant's own tax liability to the Executive with respect to any additional taxes, penalties or interest that may be imposed on Executive under Code Section 409A. arise as a result of becoming a Participant in the Plan.
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Tax Matters. (a) WITHHOLDING. The Company may withhold from any and all amounts payable under 7.1 Withholding, Taxes, Deductions. All forms of compensation referred to in this Agreement or otherwise such federal, state are subject to reduction to reflect applicable withholding and local payroll taxes and other deductions required by law as may be required to be withheld pursuant to any applicable law or regulation. (b) SECTION 409A COMPLIANCE. (i) referenced in this Agreement. 7.2 Code Section 409A. The foll...owing provisions shall apply in connection with compliance with Code Section 409A: (a) The intent of the parties Parties is that payments and benefits under this the Agreement that are not exempt from or comply Section 409A of the Code shall be in compliance with Internal Revenue Code Section 409A and the (and regulations and guidance promulgated thereunder (collectively by the IRS and/or Treasury related to Code Section 409A) (together "Code Section 409A") and, accordingly, to the maximum extent permitted, this the Agreement shall be interpreted to be in compliance therewith. To (b) All reimbursements and in-kind benefits provided under this Agreement or otherwise to the Consultant, to the extent that any provision hereof is modified in order such payments or benefits are subject to comply with Code Section 409A, such modification shall be made or provided in good faith and shall, to accordance with the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company requirements of Section 409A of the applicable provision without violating the provisions of Code and specifically, consistent with Treasury Regulation Section 409A. (ii) To the extent required to prevent the imposition of taxes or penalties under Code Section 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 amount or 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." 1.409A-3(i)(1)(iv). 7.3 Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if the Executive Consultant is deemed on the date of termination to be a "specified employee" within the meaning of that term under Code "disqualified individual" (as defined in Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered "nonqualified deferred compensation" under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration 280G(c) of the six (6)-month period measured from Code), and the date of such "separation from service" of the Executive, and (B) the date of the Executive's death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to provided for in this Section 16(b)(ii) (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 the Executive in a lump sum, and all remaining Agreement, together with any other payments and benefits due under which the Consultant has the right to receive from the Company or any of its affiliates, would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be paid or provided either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Consultant from the Company and its affiliates will be one dollar ($1.00) less than three times the Consultant's "base amount" (as defined in accordance with the normal payment dates specified for them herein. 9 (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) all expenses or other reimbursements hereunder shall be made on or prior to the last day 280G(b)(3) of the taxable year following the taxable year in which Code) and so that no portion of such expenses were incurred amounts and benefits received by the Executive, (B) any right to reimbursement or in-kind benefits Consultant shall not be subject to liquidation the excise tax imposed by Section 4999 of the Code or exchange for another benefit, (b) paid in full, whichever produces the better net after-tax position to the Consultant (taking into account any applicable excise tax under Section 4999 of the 4 Code and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided any other applicable taxes, and as determined by the Company and its advisors in any taxable year their sole discretion). Nothing in this Section 6.3 shall in any way affect require the expenses eligible for reimbursement, or in-kind benefits Company to be provided, in any other taxable year. (iv) For purposes of Code Section 409A, the Executive's right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. 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. (v) Notwithstanding any other provision of this Agreement to the contrary, (i) in no event shall any payment responsible for, or benefit 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 and (ii) in no event shall the Company, Parent or any of their affiliates have any liability to the Executive or obligation with respect to any additional taxes, penalties or interest that may be imposed on Executive to, the Consultant's excise tax liabilities under Code Section 409A. 4999 of the Code.
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Passage BIO, Inc. contract
