Guide · Labor and Employment

Employment Agreements and Executive Compensation: A Comprehensive Guide to Terms, Equity, and Exit

29 U.S.C. § 1002

Type
Guide
Jurisdiction
National
Date
2024-02-21
Topic
Labor and Employment

This guide states the law and drafting practice governing employment agreements and executive compensation. Part 1 covers the at-will baseline and what an agreement changes; Part 2 covers compensation structure from base and bonus through long-term incentives. Part 3 covers equity, including the tax treatment of incentive and nonqualified options, restricted stock, the 83(b) election, and restricted stock units. Part 4 covers Section 409A, its exemptions, and the drafting consequences for good reason and release timing. Parts 5 and 6 cover cause, good reason, severance, change-of-control arrangements, the parachute rules of Section 280G, and clawbacks. Parts 7 and 8 cover restrictive covenants, inventions assignment, non-waivable disclosure rights, indemnification, and insurance. Later parts address releases and arbitration, the statutory rules that override the document, public company disclosure obligations, and the state variations that decide enforceability.

Employment Agreements and Executive Compensation: A Comprehensive Guide to Terms, Equity, and Exit

Labor and Employment > Employment Agreements and Executive Pay | Published 21 February 2024 - Updated 13 October 2024 | UpLaw - uplaw.us

Part 1 — The Baseline and What an Agreement Changes

Employment in nearly every state is presumed at-will, terminable by either party at any time for any lawful reason. Exceptions recognized in varying degrees include implied contract from handbooks or course of dealing, promissory estoppel, the implied covenant of good faith and fair dealing in a minority of states, and public policy limits on termination for refusing to break the law, exercising a statutory right, or reporting wrongdoing.

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