The compensation packages your business offers to executives are central to attracting crucial talent and maintaining workforce continuity. But these packages can also bring in enforcers and regulators and affect your company’s public image. In recent years, legal and regulatory changes, Internal Revenue Service guidance, and public opinion have led to intensified scrutiny of these kinds of plans.

How you attract key employees while working under that scrutiny is much more involved than simply offering the highest pay and a retirement plan. For instance, you may be required to provide qualified and non-qualified deferred compensation, equity compensation, golden parachutes, or golden handcuff instruments.

At Epstein Becker Green, we understand how executive compensation plans and arrangements can affect your organization as a whole. We help you navigate the complexities of executive compensation issues, implement equity-based retention and other compensation plans, stay legally compliant, and safeguard company interests while attracting high-level talent. We also use our skills and knowledge to assist you in retaining a strong leadership team that can meet your business goals.

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Pay for Performance

Nowadays, many executive compensation plans are tied to performance or other conditions. We help employers craft objectives and similar criteria that are attainable and well defined. Future litigation can sometimes turn on those measurable goalposts, so having them spelled out clearly gives our clients peace of mind if a lawsuit ever arises. Because these kinds of plans can also trigger different tax provisions, including Internal Revenue Code sections 409A and 162(m), clients rely on us to ensure that they fully understand and comply with those provisions.

Transactional Issues

Existing executive compensation plans can complicate mergers, acquisitions, and other transactions that involve all or a large part of an organization’s stock or assets. We counsel our clients on the employee, executive, and HR issues that arise in these transactions. Clients also ask us to handle the due diligence, analyze their financial and legal risks, negotiate key terms of the transaction documents, create executive succession arrangements, and design and implement new compensation arrangements, all to make the transaction proceed as smoothly as possible.

The Full Spectrum

Domestic and non-U.S. clients, including taxable and tax-exempt entities, count on us to deliver practical solutions and comprehensive advice. Our assignments often involve international and expatriate executive compensation and employment-related matters. With our strategic partnerships—including with Deloitte Legal—we have the ability to structure executive compensation programs for businesses around the globe.

The services we provide our clients include the following:

  • Working with clients to identify, prepare, and then implement and maintain an executive compensation program carefully tailored to their organization's needs.
  • Representing employers and executives in connection with the negotiation and preparation of employment and severance agreements and non-competes, and counseling on a variety of executive compensation benefits, including stock options, restricted stock, restricted stock units, stock appreciation rights, performance units, deferred compensation, incentive compensation arrangements, loans, performance shares, and phantom awards.
  • Advising on the legal ramifications of those instruments, including the effects of ERISA and tax, securities, labor, and corporate laws (and their implications), as well as change-in-control and golden parachute issues, plan terminations, COBRA, multi-employer plan withdrawal liability, and Pension Benefit Guaranty Corporation issues, in mergers and other transactions.
  • Counseling employers on the ramifications of performance-based compensation, shareholder best practices, ISS interplay, and proxy assistance.
  • Auditing existing executive compensation plans.

Representative Experience

  • Assisted a surgery provider with its executive benefit and tax-related matters related to their acquisition of another surgical services company.
  • Provided day-to-day counsel to the U.S. arm of a foreign multinational conglomerate concerning qualified retirement plans and Section 409A-compliant incentive plans.
  • Advised the U.S. division of a global communications corporation on qualified and non-qualified deferred compensation plans and Section 409A compliance.
  • Counseled a foreign-based bank with U.S. operations on the structure of its equity compensation arrangements.
  • Provided executive compensation counsel to a foreign multinational advertising and public relations firm on non-qualified retirement plans.

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