Tom Danyael - Perkins Coie by lanyuehua

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									  Structuring Executive
Employment Agreements
Special Considerations for
   the Federal Contractor


             Thomas M. Daniel
            Danielle M. Ryman
           INITIAL CONSIDERATIONS


 What are your goals?
 What are the "must-haves"?
 What is the company's salary structure?
 Review personnel policies and benefit
  plans.
 Look at employment agreements for
  similarly-situated employees.
      ESSENTIAL PROVISIONS

   Position and duties
   Term
   Compensation
   Indemnification
   Termination
   Proprietary Information
   Non-competition/non-solicitation/non-
    disclosure
      ESSENTIAL PROVISIONS


   Injunctive Relief

   Arbitration

   Misc. Provisions (governing law,
    attorneys fees, advice of counsel)
       ESSENTIAL PROVISIONS –
                     Duties

   Outline Duties

   Resignation from Board of Directors

   Location of Position

   Limitation on Outside Activities
      ESSENTIAL PROVISIONS –
                   Term



   Fixed Term

   Year-to-Year
      ESSENTIAL PROVISIONS –
           Compensation
   Salary
   Reimbursement of Expenses
   Benefits
   Stock Issues
   Deferred Compensation & Section 409
   Severance Payment
     ESSENTIAL PROVISIONS –
           Indemnification


 The company can agree, to the extent
    permitted by law, to indemnify the
employee against liability incurred in his or
  her role as an officer or director of the
                company.
       ESSENTIAL PROVISIONS –
                 Termination
   Death

   Disability

   Notice of Termination

   Change in Control
       ESSENTIAL PROVISIONS –
               Termination
 Termination for Cause
       Willful and repeated failure or refusal to carry
        out reasonable instructions;
       Material acts of dishonesty or disloyalty;
       Refusal or failure to furnish material
        information;
       Conviction of a crime constituting fraud, moral
        turpitude or other conduct that compromises
        the reputation of the employee or company;
      ESSENTIAL PROVISIONS –
                Termination
   Termination for Cause
     Engaging in a violation of the Code of Business
      Ethics and Conduct or any written policy or
      procedure which adversely affects the Company
      in any material respect;
     Commission of any act of fraud,
      misappropriation , embezzlement or theft,
      breach of fiduciary duty involving personal profit;
     Alcoholism or drug addiction;
        ESSENTIAL PROVISIONS –
                 Termination
 Termination for Cause
      Conviction of, or guilty plea or plea of nolo
       contendere to any crime punishable as a felony;

      Credible evidence of the commission of acts
       which the Company reasonably believes could
       result in the Company being suspended or
       debarred from performing Government
       Contracts, or
   ESSENTIAL PROVISIONS –
           Termination

 Any other act, course of conduct, or
  omission that has or is reasonably likely to
  have a material adverse effect on the
  Company, its business or financial
  position, or its goodwill or reputation.
      ESSENTIAL PROVISIONS –
Proprietary Information & Inventions
   Under the "work-for-hire" doctrine, a
    company retains a copyright in any works
    prepared by an employee in the regular
    course of business.

   Agreement should contain a provision
    providing that all invention and patent rights
    become the property of the Company.
ESSENTIAL PROVISIONS –
   Non-Competition


        Enforceable so long as
        agreement is reasonable
        in scope, geographical
        limitation and time.
      ESSENTIAL PROVISIONS –
Non-Solicitation& Non-Disclosure

   Non-solicitation agreements are
    enforceable.

   Provision forbidding disclosure of
    confidential or proprietary information
      ESSENTIAL PROVISIONS –
            Non-Disclosure

  Confidential Information Defined: Trade
  secrets, proprietary information, inventions or
technology, policies, research, reports, software,
      customer lists, marketing or business
   development plans, or any other information
  about the company's business or operations
    maintained confidentially by the company.
       ESSENTIAL PROVISIONS –
            Injunctive Relief
Acknowledgement that the non-competition,
non-solicitation, and nondisclosure
provisions of the agreement are essential to
the Company's welfare, and that breach of
the provisions will create a severe unfair
business disadvantage that cannot be
adequately remedied by traditional money
damages.
       ESSENTIAL PROVISIONS –
        The Federal Contractor
        Present Responsibility
Executive confirms:

     (1) He/She has not committed any
criminal conduct; and

    (2) He/She has not been subject to
debarment or suspension;
         Agreement Provisions:
        ESSENTIAL PROVISIONS –
              Arbitration
              Arbitration
Theoretically quicker and less expensive
than trial.

Appeal is not an option except in rare
circumstances

Franken Amendment may prevent
arbitration for DoD contractors.
ESSENTIAL PROVISIONS –
    Miscellaneous

      Governing Law

     Entire Agreement

      Attorneys Fees

     Advice of Counsel
Questions?

								
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