Change of Control Definition

[Guest KLCarter]

Does anyone see a problem with providing for vesting and distribution upon "change in control" where the def comp agreement provides a definition of change in control that is narrower than the definition in 409A?

[JDuns]

So long as all of the change in control events are listed in the 409A definition, the fact that other possible 409A change in control events have not been included would not cause a problem in my opinion.

[ERISAatty]

So long as all of the change in control events are listed in the 409A definition, the fact that other possible 409A change in control events have not been included would not cause a problem in my opinion.

A Plan is not required to include "all of the change of control event." The 409A definition operates as a minimum standard. If an employer chooses to recognize only a stricter definition (i.e. say only ONE of the defined types of change of control) that's fine. What the employer can NOT do is to made MORE things constitute change of control than 409A allows. But recognizing FEWER change of control events is fine. From a policy basis, this makes sense. Why would the IRS worry about it being HARDER for an executive to get a payment?

Indeed, 1.409A-3(g)(5) provides that "The arrangement may provide for a payment on any change in control event, and need not provide for a payment on all such events, provided that each event upon which a payment is provided qualifies as a change in control event."