Executive Compensation

Our ML BeneHelp program recognizes that our employee benefits clients often need an extra pair of hands due to a variety of circumstances—both unforeseen and expected. Through ML BeneHelp, our senior benefits advisors are available for in-person or virtual temporary assignment to assist during crunch times (we expect these assignments would last no more than six months). These professional advisors, many of whom have more than 20 years of experience and have varied backgrounds that include working for corporate human resources/benefits departments, consulting firms, and other law firms (and some are nonpracticing lawyers), bring unique and substantial technical knowledge and practical experience to our benefits practice and clients.

The types of projects ML BeneHelp can assist with include, but are not limited to, the following:

• Drafting, reviewing, and amending plan documents, summary plan descriptions, and summaries of material modifications
• Drafting and reviewing participant communications and notices, including open enrollment materials
• Drafting, reviewing, and processing qualified domestic relations orders (QDROs) and qualified medical child support orders (QMSCOs)
• Conducting internal plan audits (document, operational, and dependent), and assisting with governmental agency audits
• Assisting with and reviewing Form 5500 filings 
• Running point between the client and outside vendors, including assisting with outside vendor RFPs
• Assisting with corrections filings under the Internal Revenue Service Employee Plan Compliance Resolution System (EPCRS) and the US Department of Labor Voluntary Compliance Program (VCP), as well as determination letter submissions
• Assisting with day-to-day administration issues, including benefits claims and appeals matters, enrollment questions, COBRA (and other continuation coverage) questions, tax withholding questions, and other matters
• Assisting with reductions-in-force voluntary severance programs to ensure that the programs and related documentation comply with ERISA, COBRA, tax rules, and plan documents
• Assisting with due diligence reviews and post-closing benefits integration related to mergers, acquisitions, and other transactions

Our senior benefits advisors regularly perform these services and others for health and welfare and retirement plans. They are available to be dedicated to your projects—whether from the client’s offices, remotely, or a combination thereof.

ML BeneHelp services are priced in a variety of ways, including on a fixed-fee basis, which account for the scope of work and whether the senior benefits advisors are working at the client’s location or remotely from their Morgan Lewis offices (or some combination thereof).

Equity compensation is an essential tool to attract and retain top talent, provide appropriate performance incentives, and reward exceptional service. Our lawyers help public, private, global, and emerging companies design and implement broad-based and executive-level equity compensation plans.

We assist clients daily with the full range of equity compensation, including stock options, restricted stock and restricted stock units, performance shares, stock appreciation rights (SARs), hybrid rights, and other phantom equity structures, as well as ESPPs. We design performance-based equity compensation that meets complex tax requirements, including sections 409A and 162(m) of the Internal Revenue Code (IRC). We assist clients with identifying the accounting issues associated with equity compensation plans, including issues raised by performance-based grants and modifications of equity grants.

Representing clients with multinational operations, our lawyers routinely help design, implement, and maintain global equity plans.

We take a comprehensive approach—taking into account income and employment tax laws, ERISA, corporate laws, and employment laws associated with various types of equity compensation plans. We assist companies and executives with securities law compliance, including proxy disclosure, registration requirements, and insider trading/short-swing profits restrictions.

We help clients secure shareholder approval of equity plans, considering the views of various constituencies, including Institutional Shareholder Services Inc. (ISS); Glass, Lewis & Co.; and others.

Among our broad client base, our team assists a number of large financial institutions and brokerages with their broker-related compensation programs. We assist these clients with broker-specific fringe benefits, offer letters, and incentive compensation, equity compensation, and deferred compensation programs. 

Our legal professionals understand the complex statutory and regulatory provisions that apply to nonqualified plans and deferred compensation plans. When helping to design, implement, and administer such plans, we regularly work through issues that arise under the IRC, ERISA, the Dodd-Frank Act, the Sarbanes-Oxley Act (SOX), and the relevant accounting, legal, and practical considerations.

Working with companies and executives, our lawyers structure nonqualified and deferred compensation plans that yield tax benefits and achieve business goals. For example, we help clients create plans with flexible distribution options, appropriate long-term retention incentives, benefit security, and financial efficiency. We work with our university and nonprofit clients to design and implement plans that address the special requirements and concerns of tax-exempt organizations.

We have experience with supplemental executive retirement plans (SERPs), rabbi and secular trusts, corporate-owned life insurance (COLI), and other funding devices. We routinely address the application of Section 409A to forms of compensation that do not fit the typical deferred compensation mold, such as severance pay and equity compensation, and address complex Section 409A issues that arise in transactions. 

A volatile business climate can lead to frequent restructurings, including reductions in force. Improper handling of employee benefit liabilities can derail potential mergers, acquisitions, or spinoffs—and hidden liabilities can be a time bomb for the postclosing entity. Drawing on our experience in some of the largest corporate transactions in the United States, our lawyers advise clients on the executive compensation and employee benefits aspects of mergers, acquisitions, spinoffs, divestitures, and other transactions.

Prior to and during a transaction, our services include conducting due diligence of executive plans and agreements, equity plans, retirement plans, and health and welfare plans; negotiating the contractual provisions that relate to compensation and benefits; assisting our clients in addressing the potential benefit liabilities (many of which are hidden); and engaging in strategic thinking and advice about how to structure benefits postclosing.

We continue to counsel clients after a deal is completed. Our lawyers advise on ways to transition, integrate, and streamline new benefit structures after the transaction. We work with clients to implement employment agreements, employee equity programs, retention agreements, and other incentive programs in ways to ensure the services of key employees during the postacquisition period. Issues to be addressed include the tax and accounting implications of subjecting employee equity to indemnity escrows or earn-out arrangements; the application of the “golden parachute” tax rules (Section 280G of the IRC) to accelerated benefits and severance pay; and the development of retention arrangements in the form of employment agreements or special cash or equity grants.

We also assist with designing and implementing severance plans to encourage retention before and after closing.

Examples of our work in transactional matters include:

• Representation of an oil and gas company in negotiating a merger agreement with an exploration and production (E&P) company for an all-stock transaction in which the E&P company became a wholly owned subsidiary of the oil and gas company. We handled all matters related to executive compensation, employee benefits, and employees, including equity compensation and executive agreements.
• Counsel to a global telecommunications company when it acquired a large private US company. We advised on structuring the payout of equity awards and retention agreements.
• We led the effort to integrate employees of a seller company into the benefit plans of the acquiring company (a major retailer) and involvement with strategic decisions relating to employee benefits and transition. Our work included advice with regard to terminating the seller’s 401(k) plan and distributing the plan assets to participants, through rollover into the acquiring company’s 401(k) plan, cash payments, or IRA rollovers. We also assisted with integration of the seller’s employees into the acquiring company’s nonqualified deferred compensation plan and employee stock purchase plan.

Our lawyers serve as fund counsel and deal counsel for many private equity funds. In addition, we regularly represent the interests of senior management and assist in large, prominent private equity buyouts.

Through experience in numerous deals, our lawyers have acquired comprehensive knowledge of market and off-market practices in private equity transactions. We also help to analyze the economics of sponsor management equity proposals.

Examples of our management representation service include:

• Representation of the senior executive team of a department store group in its sale to a private equity firm and a pension plan investment board for $6 billion. We advised the members of the senior executive team with respect to the impact of the transaction on their existing employment arrangements and the negotiation of new arrangements with the buying group.
• Representation of the senior executive team of a retail brand in its definitive agreement to be acquired by funds of a private equity investment group. The transaction was valued at approximately $1.1 billion. We advised the members of the senior executive team with respect to the impact of the transaction on their existing employment arrangements and the negotiation of new arrangements with the buying group.

With 12 multinational offices in Europe, Asia, and the Middle East, and extensive working relationships with local counsel in Latin America and across the globe, Morgan Lewis provides comprehensive, cross-platform service to clients with global operations. Our lawyers routinely advise on equity compensation programs, executive compensation, employment agreements, severance benefits, tax equalization agreements, and other issues that arise in connection with global transactions and operations. We also advise on issues that relate to income tax treaties between the United States and its treaty partners.

When we assist with designing and structuring global equity plans, we help clients analyze tax implications to obtain favorable tax treatment while complying with local employer income tax and social contribution obligations. We also partner with clients to ensure that plans comply with local securities registration and disclosure requirements, including preparing and filing prospectuses and registration statements. We advise clients regarding labor and exchange control requirements; data privacy and electronic administration; and cross-border tax consequences of equity grants.

US subsidiaries of non-US corporations seek our service when designing equity compensation and executive compensation arrangements for US employees that coordinate with the objectives of the parent company’s global programs. We also advise multinational clients on issues such as termination of employment, severance obligations, and settlement arrangements. 

We advise compensation committees of public and private companies, including private equity–owned, family-owned, and emerging growth companies, on the various aspects of executive compensation.

On behalf of compensation committee clients, our lawyers attend compensation committee meetings, conduct board education, and assist with officer transactions. We advise on equity compensation, incentive programs, employment and change-of-control arrangements, and CD&A and other proxy issues. We also counsel on litigation issues that relate to proxy disclosure and executive compensation.

We help compensation committees address questions as to whether they should have independent counsel that does not otherwise represent the company or its management, and when relying on management counsel is appropriate.