Executive and Incentive Compensation

Haynes and Boone is one of the best places for public and private companies to turn to for counseling and guidance on executive and incentive compensation issues. Our lawyers provide clients with knowledge and experienced counseling in all aspects of executive compensation issues. We devise compensation programs to help clients link pay to performance, retain key employees and take advantage of relevant tax regulations. And when there are changes made to the law or new government enforcement efforts are underway, our lawyers will make sure you are kept up to date and remain in compliance with applicable laws.

Plan Compliance and Documents

Equity-based compensation plans
Nonqualified deferred compensation plans for taxable and tax-exempt entities
Retention and bonus plans
Supplemental executive retirement plans
Change in control agreements

Shareholder Adviser Compliance

Counsel clients facing scrutiny from Institutional Shareholder Services or Glass, Lewis & Co.
Help clients navigate limitations that shareholder advisers place on equity incentive plans
Draft compensation and incentive programs in a manner that anticipates issues likely to be raised by Institutional Shareholder Services or Glass Lewis
Work with Institutional Shareholder Services and Glass Lewis to win preliminary approval of draft compensation plans

Code Section 409A Compliance

Review and revision of existing plans and agreements
Correction of plan document and operational failures

Code Section 162(m) Compliance

Plan document terms
Shareholder approval requirements
Composition of the Compensation Committee
Performance metrics
Defend shareholder suits arising from 162(m) compliance issues

Drafting and Negotiation of Agreements

Equity Incentive Plans
Change of Control/Golden Parachute Agreements
Phantom Equity Plans, including in Canada, the U.K., and other markets
Employment Agreements
Severance/Retention Agreements
Employee Non-Compete/Confidentiality Agreements
Consulting and Director Fee Arrangements
Equity Grant Agreements with executives, including “clawbacks” and other “bad boy” clauses

Assistance With Global Executive Compensation Issues

Review and compliance of foreign pension and compensation arrangements that cover U.S. taxpayer employees
In bound foreign employee compensation and taxation
Advise corporate subsidiaries in countries outside of the U.S., including Canada, Mexico, the United Kingdom, China, Israel and Norway, among others
Design cross-border, employee compensation programs to maximize tax savings in various jurisdictions

Executive Bonus Plans

Draft bonus plans for private and public companies in various industries
Advise energy clients on innovative bonus programs tied to oil and gas production

Disclosures Relating To Executive Compensation

Proxy disclosures
SEC and exchange disclosures
Tax consequences of tender offers related to repriced stock options
“Top Hat” plan disclosures

Advice in Mergers and Acquisitions

Identification and quantification “excess parachute payments”
Acceleration of vesting and “cashing-out” of equity grants
Drafting change in control bonus and severance plans for executives and non-executive employees
Structure agreements in a manner that helps avoid tax implications

Employee vs. Independent Contractor

Analysis of relevant factors
Determination of eligibility for employee benefit plans
Code Section 409A implications of change in employment relationship

Primary Contacts

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Blogs

DOL’s Proposed Retirement Plan Fiduciary Rule

November 14, 2023

On October 31, 2023, DOL issued a proposed rule (the “Proposed Rule”) and related prohibited transaction exemption amendments defining when a person is providing fiduciary investment advice to ERISA plan sponsors, ERISA plan participants, Individual Retirement Accounts (“IRAs”), and IRA owners or beneficiaries (each, a “Retirement Investor”). The Proposed Rule provides that a person is an investm [...]