Friday, October 14, 2016

Employment Agreements (Including Severance, Parachute, Clawback, Noncompete and §409A Issues)

See "Employment Agreements (Including Severance, Parachute, Clawback, Noncompete and §409A Issues)" by Charles C. Shulman, at Tax Management Compensation Planning Journal 9-2-2016
Employment agreements, which are very common for executives and senior management, raise a number of issues relating to terms of employment, severance on termination, change in control, excess parachute tax under Internal Revenue Code §280G, noncompete provisions, clawback provisions, SEC disclosure requirements, and restrictions on nonqualified deferred compensation under §409A.
The terms of employment agreements and severance arrangements are of particular relevance in corporate transactions. Executives may be terminated as a result of a transaction, and the general severance provisions in the employment agreements may be triggered.
Severance provisions are often triggered on termination of employment only if there is also a change in control of the employer, or the amount of severance may be more generous if the termination occurs after a change in control. Some agreements may allow an employee to quit for any reason and still receive severance, if the quitting is in connection with a change in control. Employment and change in control agreements often provide that options will vest on a change in control typically even without a termination of employment.