Legally binding right

[Ken Davis]

Does the E'ee have a legally binding right to deferred comp in the following situation. E'er promises to pay E'ee $xx if E'ee works two more years. The payment is due to be paid the day after the two-year period has passed. If E'ee quits before the two year period has passed, he/she receives nothing. Neither E'er nor E'ee can change the amount of, timing of, or E'ee rights to the payment.

Thanks,

Ken Davis

[Guest gaham]

Yes

[Just Me]

Yes. A legally binding right exists even it if is contingent on future services.

[david rigby]

Hey, I'm not a lawyer, but doesn't the question of "legally binding" require analysis of the context?

Is there a contract? Is it in writing? Etc.

[Guest gaham]

Based on the facts as described by Mr. Davis, it certainly appears to be a legally binding promise to pay deferred compensation. It doesn't matter that there is substantial risk of forfeiture. From a pure contract law standpoint it doesn't have to be in writing; however, it obviously does need to be in writing from a 409A/ERISA standpoint. We shouldn't muddy the waters; this is a pretty clear one.