A Change of Control Agreement Saves the Day When Your Company Is In Play

Two and a half weeks ago, on Thursday December 16, 2021, the website Ivy Exec published under executive “Advancing” an article I wrote on “A Change of Control Agreement Saves the Day When Your Company Is in Play”.
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This new article is designed not only for C-level and senior executives, but even for many directors and mid-level executives, whose companies are now “in play” — that there may be a sale of the company with new owners and to some extent a whole new successor employer.

My article first discusses this situation faced by the executives, then advocates self-assessment of your role and importance in the pre-deal and post deal environment, and finally the importance of establishing your role and rights in a retention / change of control agreement. Among the key elements of that agreement are the following:

• Significant equity of the target company to the executive
• Liquidity for the executive on the levels of liquidity offered owners
• Properly structured equity, tax favored for capital gain taxation
• Proper severance in the event of early termination after the acquisition
• Ability to trigger severance if the executive’s position or responsibilities are reduced
• Proper structuring to avoid potential excise tax for parachute payments under IRC §280G.

To see my full IvyExec Career Advice website article, go to LINK https://www.ivyexec.com/career-advice/2021/a-change-of-control-agreement-saves-the-day-when-your-company-is-in-play/
Or on my website at https://www.executiveemploymentattorney.com/a-change-of-control-agreement-saves-the-day-when-your-company-is-in-play/

IvyExec hosts articles and webinars from experts in the career, leadership, and business spaces who wish to share their knowledge with our audience. In April 2021, I was invited to write for IvyExec since it seeks original content on the topics of career development, leadership, and business strategy as it applies to senior-level and C-Suite professionals. IvyExec blog posts and webinars are shared with its community of more than 2 million members on its website, in its newsletter, and on its social media channels. https://www.ivyexec.com/career-advice/write-for-us/

It is my hope that this article will be of benefit to VPs, directors and senior executives who have are trying to navigate a change in control in their companies. My article suggests terms and approaches to each of you and thus I hope will provide you a benefit in your negotiations.
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Feel free to tweet or share this article. If you or any colleague of yours needs assistance in negotiating a change of control situation, please do reach out to me.

Finding your Market Niche to Set your Startup Apart

This is an article of mine published last month in the October 2021 issue of the IEEE Reflector, the online monthly newspaper, that circulates to the 10,000 members of IEEE in Massachusetts.  www.ieee.org  My article is the featured Guest Article on page 12 of the October 2021 issue. 

This new article is directed toward entrepreneurs, founders and CEOs of small and early stage companies, seeking angel or VC investment or trying to recruit co-founders and first employees or contractors. 

In such circumstances, the interested parties would be looking to the founder’s or CEO’s competitive analysis and demonstrated knowledge and mastery of his or her target marketplace to set his or her startup apart.   Thus, my article mentions or discusses the following areas:

1. What market niche you intend to enter and can dominate
2. Your plan for how your company will penetrate the target
3. Identity of your chief competitors, both direct competitors and indirect competitors that could be substitutes for your product or service
4. The value proposition that you offer that will enable you to overcome the normal tendency for no change
5. Strengths of the competition and your plan to overcome those
6. Weakness of your competitors and your plan to avoid those same weaknesses
7. Barriers to entry you would seek to create to surmount new competition once you gain market traction

To read my full Reflector article, go to pages 12 to 13 at this LINK:  https://ieeeboston.org/wp-content/uploads/2021/10/OctoberDR-2021.pdf

Or view the article on my website at https://www.executiveemploymentattorney.com/knowing-your-competition-and-establishing-your-market-niche-to-set-your-startup-apart/

If you have any questions on this article, or questions in dealing with these issues for yourself or a colleague, let me know.

CMO Employment Contract Tips to Protect You and Your Job

 On September 30, 2021, the website Ivy Exec published under executive “Advancing” an article I wrote on “CMO Employment Contract Tips to Protect You and Your Job”.

This new article is designed not only for C-level and senior executives, but even for many directors and mid-level executives, who currently are considering offers for the Chief Marketing Officer position but expect to soon receive such an executive job offer or who aspire to such an offer in the future.

As Chief Marketing Officer the executive may be expected to oversee all areas of a company’s overall promotion, branding, digital presence, advertising and sales strategy, as well as coordinating marketing efforts with the company’s product development, financial position and goals. My article mentions how responsibilities and authority of the CMO can vary by organization but often include most or all of these duties:

• Market research and analysis to better understand customer tastes and needs, and develop pricing strategy,
• Determination of the type of media best suited to reach target audience,
• Development and execution of a Digital marketing plan through various online and social media channels, proper SEO, email, and website development,
• Utilization where appropriate of advertising campaigns with giveaways, contests and other means to build interest in company products or services.

My article also discusses delineation of your duties, responsibilities, authority and reporting and including in your offer letter or employment contract key executive employment terms on which you rely to take the job.

Finally, but also importantly, my article next discusses what to seek in getting the right CMO Compensation Package, and concludes with a discussion of severance rights to enable you to protect the terms of your bargain reached with the company.

To see my full IvyExec Career Advice website article, go to LINK: https://www.ivyexec.com/career-advice/2021/cmo-employment-contract-tips

Or on my website at

https://www.executiveemploymentattorney.com/cmo-employment-contract-tips-to-protect-you-and-your-job/

IvyExec hosts articles and webinars from experts in the career, leadership, and business spaces who wish to share their knowledge with our audience. In April 2021, I was invited to write for IvyExec since it seeks original content on the topics of career development, leadership, and business strategy as it applies to senior-level and C-Suite professionals. IvyExec blog posts and webinars are shared with its community of more than 2 million members on its website, in its newsletter, and on its social media channels. https://www.ivyexec.com/career-advice/write-for-us/

It is my hope that this article will be of benefit to VPs, directors and senior executives who have the opportunity to negotiate their first job offer to be Chief Marketing Officer or for those who are already CMOs and seek more appropriate terms in their next job offer. My article suggests terms and approaches to each of you and thus I hope will provide you a benefit in your negotiations.

Feel free to tweet or share this article. If you or any colleague of yours has a need in this area, please do reach out to me at rob@attorneyadelson.com.

Duty of “Good Faith and Fair Dealing” Ensures Your Executive Compensation is not Taken Away from You

 On September 2, 2021, CEOWorld magazine published an article I wrote on “Duty of “Good Faith and Fair Dealing” Ensures Your Executive Compensation is not Taken Away from You”.

This new article is designed for CEOs, C-level and senior executives, who at some point face employment termination for no good reason when you are close to making a big score for what you have achieved for the company.

My article discusses an important duty or implied covenant in the law that provides that even if you are an employee “at will”, with no contractual rights, you might still have a valid enforceable claim against your employer to be made whole — to be paid what you are due. The article discusses landmark state Supreme Court cases from three different states around the USA where plaintiffs have been made whole because of the defendant’s breach of the duty of “Good Faith and Fair Dealing”. In doing so, courts consider where the plaintiff suffered harm because he or she was prevented from receiving the benefits of their agreement, including these bad faith actions by a defendant:

• Preventing the other party from performing its obligations,
• Engaging in schemes to deprive the other party of its right to benefits or withholding contractual benefits,
• Seeking to obtain benefits prohibited by contract,
• Having no intent to complete a contract or engaging in a contract that is unreasonable or deceitful.

My article concludes with discussion of two of my recent client representations of senior executives from two different states and different industries, where the executives did all that was expected of them from the time of their hiring, and, in doing so, made important contributions to their companies but were, in the end, prevented from realizing the benefits they had bargained for and earned, and thus how each had claims under this duty or doctrine of Good Faith and Fair Dealing.

To see my full CEOWorld magazine. article, go to LINK: https://ceoworld.biz/2021/09/02/duty-of-good-faith-and-fair-dealing-ensures-your-executive-compensation-is-not-taken-away-from-you/

Or https://www.executiveemploymentattorney.com/duty-of-good-faith-and-fair-dealing-ensures-your-executive-compensation-is-not-taken-away-from-you/

This was my 35th article published in CEOWORLD since 2016. Previously, the editor advised that I can use “Featured in the CEOWORLD magazine” and the CEOWORLD “Logo” on my website and add CEOWORLD magazine in my LinkedIn profile’s “Experience Section” as an “Opinion Columnist.” and authority in the field.

On its own initiative, CEOWORLD magazine created on their website a library of Robert Adelson published articles. You can peruse this library and/or read as many of my 34 published articles as you wish. See https://ceoworld.biz/author/robert-adelson/

With more than 12.4+ million-page views, CEOWORLD magazine is the world’s leading business magazine written strictly for CEOs, CFOs, CIOs, senior management executives, business leaders, and high net worth individuals worldwide.

CEOWORLD magazine | LinkedIn

CEOWORLD magazine | 6,584 followers on LinkedIn. World's leading magazine for CEOs, CFOs, investors, senior executives…

www.linkedin.com

It is my hope that this article will be of benefit to CEOs, C-level and senior executives who, at some point in your career, might be at the point of receiving a major benefit in executive compensation, equity vesting or payout, only to be deprived or threatened with loss of that benefit earned, by employment termination without cause or reason or other arbitrary act by the employer. The goal of this article is to let you know that if that happens to you or a colleague of yours, there may be a basis to seek redress for your loss or potential loss. Feel free to share this article. If you or any colleague of yours has a need in this area, please do reach out to me.

Phantom Stock as Executive Compensation for Family Businesses

One week ago, on Wednesday September 1, 2021, the website Ivy Exec published under “Business Strategy” an article I wrote on “Phantom Stock as Executive Compensation for Family Businesses.”

This new article is designed not only for C-level and senior executives, but even for many directors and mid-level executives, who currently work in a family business or are offered a position in a family business and received NO executive equity compensation because most family businesses do not issue equity to non-family members.

My article discusses the use of phantom stock as a mean to give the executive a substitute to equal for him or her all the benefits of stock, options or RSUs. This technique also benefits the family business by not only avoiding use of actual stock and offering a key executive recruitment / retention tool but also providing a technique where all payments are tax deductible.

The technique is highly beneficial to CEOs and senior executives because it not only gives him or her a meaningful stake in the growth of the company, but also offers the possibility for capital gains level taxation, plus a liquidity feature often missing in stock plans of private companies.

To see my full IvyExec Career Advice website article, go to

 LINK: https://www.ivyexec.com/career-advice/2021/phantom-stock-as-executive-compensation-for-family-businesses/

Or https://www.executiveemploymentattorney.com/phantom-stock-as-executive-compensation-for-family-businesses/

IvyExec hosts articles and webinars from experts in the career, leadership, and business spaces who wish to share their knowledge with our audience. In April 2021, I was invited to write for IvyExec since it seeks original content on the topics of career development, leadership, and business strategy as it applies to senior-level and C-Suite professionals. IvyExec blog posts and webinars are shared with its community of more than 2 million members on its website, in its newsletter, and on its social media channels. https://www.ivyexec.com/career-advice/write-for-us/

It is my hope that this article will be of benefit to C-level and senior executives who have the opportunity or should have the opportunity to gain an equity stake in the family businesses that their management skills and efforts or helping to build, so that you along with the family owners can share in the benefits of that company growth.

Family business owners do have good reason to avoid taking on minority owners, but that does not mean you, as the non-family executive, need to be deprived of the kind of equity or equity-like stake you would receive in a non-family business. My article suggests a way to do this — to the benefit of the non-family executive and the family business owners too. Feel free to tweet or share this article. If you or any colleague of yours has a need in this area, please do reach out to me.

Executive Stock Options, Restricted Shares and Restricted Stock Units – What’s Best for You

 One week ago, on Tuesday August 3, 2021, the website Ivy Exec published under “Career Advice” an article I wrote on “Executive Stock Options, Restricted Shares and Restricted Stock Units – What’s Best for You”. 

This new article is designed not only for C-level and senior executives, but even for many directors and mid-level executives, where a major part of executive compensation involves executive equity in the employer company.   This article is intended to assist executives in those negotiations by setting out key things to look for in your equity package, including the level, tax structuring and terms of equity compensation. 

The article discusses the merits and issues among the four main choices for structure of equity:

• ISOs – Incentive stock options, qualified under the tax code,

• Non-quals – Non-qualified stock options,

• Restricted Stock – where you are actually issued shares and might want to make a tax election to take unvested shares into income, and

• RSUs – Restricted Stock Units, where stock is also issued and taxed as it vests. 

My article first discusses where equity might achieve its highest value for you using important favorable tax leverage, and then the level of equity to seek appropriate to your position.  The remainder of my article goes over the different circumstances under which each of the four main equity choices can be beneficial to you, to help you determine which structure is best for you in your case.

To see my full IvyExec Career Advice website article, go to LINK: https://www.ivyexec.com/career-advice/2021/executive-equity-structure/

 Or on my website at https://www.executiveemploymentattorney.com/executive-stock-options-restricted-shares-and-restricted-stock-units-whats-best-for-you/

IvyExec hosts articles and webinars from experts in the career, leadership, and business spaces who wish to share their knowledge with our audience.  In April 2021, I was invited to write for IvyExec since it seeks original content on the topics of career development, leadership, and business strategy as it applies to senior-level and C-Suite professionals.  IvyExec blog posts and webinars are shared with its community of more than 2 million members on its website, in its newsletter, and on its social media channels.  https://www.ivyexec.com/career-advice/write-for-us/

It is my hope that this article will be of benefit to C-level and senior executives who have the opportunity or should have the opportunity to gain an equity stake in the company that their management skills and efforts or helping to build, so that you along with the investors can share in the benefits of that company growth.  This article discusses the merits of the four main choices among equity structures.  Taxation and financial benefits differ among them.  As I tweeted… One size does not fit all.  So, I hope this article will be instructive for you.   Feel free to tweet or share this article. If you or any colleague of yours has a need in this area, please do reach out to me.

Executive Contract Terms to Negotiate with Your Prospective Employer

On Tuesday June 22, 2021, the website Ivy Exec published under “Career Advice” an article I wrote on “Executive Contract Terms to Negotiate with Your Prospective Employer”.

 

This new article is designed for CEOs, C-level and senior executives, who are sometimes neglectful of their own interests and might be tempted to accept the assurance from a prospective employer that the job offer terms are just standard.  But executive contract terms are not standard.

My article discusses critical contract terms that, as a senior executive, you should consider negotiable to assure you are receiving fair financial treatment and to provide important protections to your career path and reputation.  I suggest negotiation strategies for key contract terms including: 

• Signing Bonus – to make you whole for what you are giving up from your job and also compensate you for the risks you are taking going into a new situation where you will have to prove yourself yet again,

• Meaningful Equity – giving you a stake in the company sufficient in size and upside potential to justify the move.

• Tax-favored Equity – with my structuring suggestions to maximize your take-home pay.

• Restrictive covenants – NDAs limited to not bar you from future utilization of  your prior knowledge and connections, Non-competes limited so no significant detour is created to the expected path for your future career growth,

• Severance triggers – to allow you to quit for good reason if the company fails to live up to promises you relied on accepting the offer;  

• Robust severance terms – with not only severance pay but continuation of health benefits, prorated bonus and equity acceleration.

My article then concludes with a discussion of other non-contract factors that go into the decision to accept a job offer such as compatibility with company, fit of skills and personality, and your belief in company prospects.  

But remember, even where you see a good fit going in, things can change: so, having a good contract is an important protection against your champion leaving or other unforeseen developments.

To see my full article, as published in the “Career Advice” section of the Ivy Exec website, go to LINK: https://www.ivyexec.com/career-advice/2021/executive-contract-terms-to-negotiate-with-your-prospective-employer/

 Or on my website at https://www.executiveemploymentattorney.com/articles-section/executive-contract-terms/

IvyExec hosts articles and webinars from experts in the career, leadership, and business spaces who wish to share their knowledge with our audience.  In April 2021, I was invited to write for IvyExec since it seeks original content on the topics of career development, leadership, and business strategy as it applies to senior-level and C-Suite professionals.  IvyExec blog posts and webinars are shared with its community of more than 2 million members on its website, in its newsletter, and on its social media channels.  https://www.ivyexec.com/career-advice/write-for-us/

It is my hope that this article will be of benefit to CEOs, C-level and senior executives who are contemplating a new job offer or employment contract and want to assure the key need financial terms and career protections are in place.  This article suggests to you what is negotiable and that it may be wise to seek these items even when you feel confident the job is a good fit for you.  Because sometimes, your champion may leave or other things might happen – so that, at that point, it might be comforting to you to know you have in writing critical contractual protections.

So, my hope is that this article will offer insights on these important matters. Feel free to tweet or share this article. If you or any colleague of yours has a need in this area, please do reach out to me.