Executive Compensation and Employee Benefits

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The attorneys in Willkie’s Executive Compensation and Employee Benefits Department are uniquely positioned to help clients successfully navigate through the ever-changing world of executive compensation and employee benefits.

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Our Executive Compensation and Employee Benefits Department offers a full range of legal services to public and private entities, boards of directors, compensation committees, management teams and individual executives regarding complex executive compensation and employee benefit matters. We are among the leaders in the industry in designing, negotiating, drafting and implementing cutting edge plans, programs and policies for compensating, attracting and retaining key executives, employees, partners and board members. We also provide comprehensive service to our clients in resolving complicated fiduciary and compliance issues under ERISA and the Internal Revenue Code, and play an integral role in the firm’s other transactional practice areas.

To better serve our clients, we have developed a broad range of experience that extends beyond what is typically classified as traditional employee benefits work, including an extensive knowledge of securities, partnership, restructuring and tax laws. We have also cultivated strong relationships with compensation industry professionals (such as compensation consultants, actuaries, accountants and valuation experts) outside of the firm, and are able to work effectively with these professionals to facilitate more expeditious and favorable results for our clients.

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  • Corporate and Partnership Representation

    We devote a significant portion of our practice to navigating the complex tax, regulatory and accounting restraints that arise when designing, negotiating, drafting and implementing plans, programs and policies to compensate, attract and retain key executives, employees, partners and board members. We have experience designing a wide variety of different compensatory arrangements, including:

    • employment, change in control, retention, consulting, severance and "golden parachute" plans and agreements;
    • equity-based incentive programs, including stock options, stock appreciation rights (SARs), restricted stock, restricted stock units (RSUs), phantom or performance awards, carried interests and profits interests;
    • long-term and annual incentive plans;
    • Section 162(m) plans
    • nonqualified deferred compensation plans;
    • tax-qualified defined benefit and defined contribution pension plans; and
    • employee stock ownership plans (ESOPs) and employee stock purchase plans (ESPPs).

    Additionally, we regularly advise clients in preparing filings with the U.S. Securities and Exchange Commission, including proxies, Section 16 filings, annual reports on Form 10-K, current reports on Form 8-K, registration statements and prospectuses. Together with our Corporate and Financial Services Department, we also advise clients in initial public offerings, 144A offerings and debt offerings, and in other similar offerings.

  • Transactional Representation

    To ensure that our clients receive the exceptional service that one expects from Willkie, we work hand in hand with the firm’s corporate, real estate and tax attorneys on complex commercial transactions, including mergers and acquisitions, leverage or management buyouts, bankruptcies, reorganizations, asset sales, joint ventures, divestitures, and credit negotiations. We regularly represent clients on all sides of complex commercial transactions, including purchasers, sellers, debtors, creditors, underwriters, management teams and individual executives. Our extensive experience on all sides of commercial transactions enables us to provide clients with a unique business and legal perspective in negotiating a wide variety of corporate documents, including purchase agreements, compensation arrangements, credit agreements and transition services agreements.

  • Compensation Committee Representation

    We are among the leaders in the industry in providing comprehensive legal services directly to compensation committees, helping them comply with continuously changing best practices and regulations regarding public company executive compensation. We also assist compensation committees in designing, negotiating and drafting compensation programs and policies that directly link executive compensation with long-term performance of the company.

  • Asset Management

    We count among our clients institutional and benefit plan investors, investment professionals, and investment funds whom we assist with important and complex fiduciary and structuring issues. With the firm’s Asset Management Group, we help design complex financial products for funds and institutional investors, with particular focus on ERISA issues affecting the participation by employee benefit plans in investment funds and asset securitizations.

    We also help clients avoid prohibited transactions and other fiduciary breaches under ERISA and the Internal Revenue Code and assist them in applying the ERISA plan asset regulations. Additionally, we advise investment advisers in satisfying the qualified professional asset manager (QPAM) requirements and help our private equity and real estate clients satisfy the requirements to qualify as venture capital operating companies (VCOCs) or real estate operating companies (REOCs).

  • Tax-Qualified Plans

    We regularly assist clients in the design, implementation and operation of all types of tax-qualified retirement plans, including:

    • traditional defined benefit plans;
    • cash balance plans;
    • 401(k) plans;
    • money purchase plans;
    • ESOPs; and
    • employee stock purchase plans.

    We also counsel clients with respect to plan administration and management, including day-to-day support for in-house benefits personnel regarding plan operations (e.g., distributions, loans, withdrawals, investment changes), participant communications, participant claims and inquiries, and contractual relationships with plan service providers. Additionally, we provide assistance relating to plan operation and compliance matters, including comprehensive compliance audit services and advice and assistance in correcting errors under the Internal Revenue Service’s Employee Plans Compliance Resolution System (EPCRS), the Department of Labor’s Voluntary Fiduciary Correction Program (VFCP) and other similar plan compliance programs.

    We have broad experience advising 401(k) plan committees, institutional trustees, boards of directors, and other plan fiduciaries regarding their powers and responsibilities under ERISA and other applicable law.