Presenting a live 90-minute webinar with interactive Q&A Structuring and Negotiating Executive Compensation Packages: Addressing Pay, Severance, Restrictive Covenants, and More TUESDAY, SEPTEMBER 19, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Kenneth J. Laverriere, Partner, Shearman & Sterling , New York Austin S. Lilling, Partner, Katten Muchin Rosenman , New York Andrea S. Rattner, Partner, Proskauer Rose , New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Today’s Agenda Threshold Considerations Types of Compensation Negotiating Severance Change in Control (CIC) Considerations Restrictive Covenants Other Key Provisions and Considerations 5 5 5
Threshold Considerations – Pros and Cons of Entering into Executive Employment Agreements Employer’s Perspective ̶ Pros Cons May limit employer’s flexibility, including by locking in financial Helps attract key talent, particularly individuals leaving current employment and other commitments, locking in title/role Limits ability to pivot (without executive’s consent) as the Typically contains restrictive covenants that are beneficial to employer’s needs change over time employer and affiliates May create a structure where expectations and conditions are May create expectations of other executives and create desire for generally established (e.g., execution of release as a condition to similar agreements severance) Fixed term contracts could delay “renegotiation” of the business May undercut ability to have uniform severance program for deal certain levels of employees and may encourage individual deals May provide clarity as to dispute resolution (e.g., arbitration, jury Increases scrutiny (and potential criticism) by institutional trial waiver, choice of law, injunctive relief) investors Adds economic consequences to “at - will” employment Enhanced legal compliance and considerations (e.g., SEC disclosure, tax considerations (e.g., 409A, 280G and 162(m)) and employment law considerations 6 6 6
Threshold Considerations – Pros and Cons of Entering into Executive Employment Agreements (cont’d) Executive’s Perspective ̶ Pros Cons May provide significant protection to executive in Often contains restrictive covenants, which may event of certain termination event of certain negatively impact future prospects and employment termination events or possibly events or possibly in connection with a Change in Control Adds economic consequences to “at - will” employment Upfront compensation, such as a signing bonus, structured as a retention payment to require a clawback if employment termination precedes certain date Establishes employer’s financial and other Certain protections may be asked to be waived commitments to executive (e.g., title, position, (e.g., arbitration vs. court proceeding) reporting, salary, benefits, severance) Creates greater certainty in event of breach and/or termination (e.g., economic and non-economic consequences) 7 7 7
Threshold Considerations – Term Fixed term ̶ The term sets the parties’ expectations and provides for a specified period of time during which the employer and the employee are bound to the agreement and its obligations. Term Considerations: • Automatic renewals unless notice of “non - renewal” by either party What should be proper notice period (e.g., 90 days-6 months)? • Opportunity to renew upon notice of “renewal” • “Fixed term” without renewal opportunities • “No term” and open -ended • “Term” generally refers to period of agreed upon employment, not duration of agreement, as agreement will typically contain obligations that continue after employment 8 8 8
Threshold Considerations – Term (cont’d) What is the relevanc e of the “term”? • Creates a time period during which the employee is expected to be employed and during which the employer is expected to employ the executive under agreed upon terms • What are the consequences if employer/executive terminates employment during the stated term? Employer pays what it would otherwise pay? Stipulated severance? Can the employee quit during the term without breaching the agreement? • Sometimes used as a basis for calculating severance (e.g., severance is salary that would have otherwise been paid until end of term; sometimes minimum severance is included, sometimes target bonus opportunities are included) 9 9 9
Threshold Considerations – Term (cont’d) What happens at end of term? • Is severance paid on the employer’s non -renewal? • Does employment terminate or just agreement? • If employment not terminated, will employment continue on an at-will basis? • How does continued employment on an at-will basis affect the restrictive covenants, if they are solely embedded in the expired employment agreement? 10 10 10
Threshold Considerations – Title/Duties/Reporting Senior executive agreements (CEO, EVPs) tend to have precise titles, duties and reporting lines. Mid-level contracts, if offered, tend to be open-ended to preserve employee flexibility. Interplay of stated duties, reporting structure, and title with Good Reason 11 11 11
Threshold Considerations – Time Commitments Time Commitment : Duty to act in best interest of employer and dedicate time to the business (e.g., all time, substantially all time, business time). • Possible carve-outs for pre-approved and other permitted outside activities (e.g., serving on not-for-profit boards and other charitable endeavors, serving on for-profit boards (typically with pre-approval), speaking at industry events, managing personal investments). • Ability to shut down activity if “materially interferes” or interferes in any “material respect” or general discretion to shut down or refuse. • Ability to shut down if “competitive” or conflict of interest • May be relevant in determining whether the executive has Good Reason to terminate employment and collect severance 12 12 12
Types of Compensation – Base Salary Base salary ̶ Initial rate of base salary virtually always stated in executive employment agreement and is a core feature of the agreement, because it factors into many other elements of compensation and benefits. Other considerations: • Annual reviews • Discretionary increases • Automatic increases (e.g., COLA) • Across-the- board or “class” decreases What happens if the employer decides to increase base salary? • Does the employer have ability to reduce the salary down to initial level? Once increased, can it be decreased? • Good reason considerations Often base salary is used as the basis for or a component of severance formula Code Section 162(m) tax deductibility concerns for base salary in excess of $1M paid to certain named executive officers of a public company 13 13 13
Types of Compensation – Bonus/Short-term Incentive Pay Annual bonuses • Discretionary or Performance – based If performance-based, how and when are goals set and communicated Should agreement provide for clawback of amounts paid (e.g., in error, misconduct, restating financials) • General or specific Consider whether to specify percentage of base salary to be paid as a bonus at threshold, target, maximum performance Is there a plan? • Consider impact of termination Must be employed at payment date or year-end to receive bonus? What about certain termination events such as death, disability, by the employer without Cause or by executive for Good Reason 14 14 14
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