Treat Me Right! Employment Agreements in M&A Deals

The buyer in an M&A transaction will often seek to retain key employees of the target business, either for the short-term, to ensure a smooth transition following the closing of the transaction, or for the long-term, to continue to manage the business going forward. Learn more about the issues EBEC (and/or M&A) counsel should consider.

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Related Content

• Executive Compensation Issues in Corporate Transactions Involving Public Companies
  Recognize that some executives will leave voluntarily, and any severance plan or employment agreement in place will require you to determine whether the contemplated transaction will constitute a change in control for purposes of triggering contractual obligations or tax-related issues.
• Severance and Change-in-Control Agreement Liabilities in Corporate Transactions
  Learn that severance and change-in-control arrangements with existing and prospective target company management and key employees can raise significant issues in the course of a deal, including allocation of liabilities, ensuring a smooth transition in leadership, and complying with legal requirements.

Practical Guidance Updates

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• Employee Benefits & Executive Compensation Key Legal Developments Tracker
  Stay informed on new developments.
  • ERISA Litigation. Supreme Court hears oral arguments in ERISA fiduciary breach suit over 403(b) plan's investment menu selection and excessive fees. Divane v. Northwestern Univ., 953 F.3d 980 (7th Cir. 2020), cert. granted, Hughes v. Northwestern Univ., 2021 U.S. LEXIS 3583 (2021). Oral arguments transcript.
  • Retirement Plans. IRS issues 2021 Required Amendments List for individually designed plans qualified under 401(a) and 403(b) plans (sole entry relating to multiemployer plans seeking special financial assistance). I.R.S. Notice 2021-64. [Note that the required amendments list fails to mention hardship amendments in 401(k) plans that may be required for a plan to comply with final regulations under the Bipartisan Budget Act of 2019.] 
  • Health and Welfare Plans. IRS announces proposed regulations to apply an automatic 30-day extension to ACA deadlines to furnish health coverage information statements to employees under I.R.C. §§ 6055 and 6056 and to permit a simplified alternative method for the Form 1095-B (and certain 1095-C) disclosures so long as the ACA individual mandate penalty remains at zero. 86 Fed. Reg. 68,939 (Dec. 6, 2021); and see IRS, Questions and Answers on Reporting of Offers of Health Insurance Coverage by Employers (Section 6056) (updated 11/23/21).
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  • Hardship Distributions from 401(k) Plans
  • 401(k) Plan Top-10 Year End Laundry List
  • Market Trends 2017-2021: Post-employment Restrictive Covenants

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