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Employee Benefits, ERISA and Executive Compensation
For more than 25 years, Bracewell & Giuliani has counseled clients on various employee benefits and employee compensation issues, including legal compliance, fiduciary responsibility, employment relationships, tax, and other withholding issues.
Our attorneys work with clients to develop comprehensive employee benefit plans and arrangements in both the retirement and welfare benefit areas. We ensure that the retirement and welfare benefit plans comply with the appropriate laws and regulatory mandates, including the Internal Revenue Code and the Employee Retirement Income Security Act (ERISA.)
Our attorneys have a deep understanding of all aspects of retirement plans. We implement and assist in the administration of all qualified plans, such as 401(k) plans, Employee Stock Ownership Plans (ESOP), cash balance plans, pension plans, and money purchase plans, as well as nonqualified plans, including Supplemental Executive Retirement Plans (SERPS), phantom stock retirement programs and all other forms of deferred compensation retirement plans.
Welfare Benefit Plans
We develop and implement severance, health, cafeteria, flexible benefit, "wrap," medical expense reimbursement, and dependent care assistance plans, and provide a full range of support related to the administration of welfare benefit plans, including compliance with Consolidated Omnibus Reconciliation Act (COBRA), Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), Health Insurance Portability and Accountability Act (HIPAA), and Internal Revenue Code requirements.
Our attorneys have knowledge of tax, disclosure and securities considerations to advise on all aspects of compensation and benefits, including equity and deferred compensation planning. We provide guidance on equity-based compensation, such as stock appreciation and phantom stock plans, stock option, bonus and restricted stock plans, bonus programs, omnibus stock incentive plans, and employee stock purchase plans.
We represent companies and executives in connection with employment, consulting, severance, and retention agreements. Our attorneys have experience in the design of golden parachute agreements, incentive compensation plans, supplemental executive retirement plans, excess benefit plans, rabbi trusts, and other funding arrangements. Additionally, our attorneys are well-versed in Code Sections 162(m), 280G and 409A and their effects on executive compensation. We also advise compensation committees on their fiduciary duties to shareholders in structuring the terms of such compensation arrangements.
We advise plan administrators and trustees with respect to ERISA fiduciary determinations and duties, potential conflicts of interest and prohibited transactions.
Mergers, Acquisitions and Divestitures
Our attorneys design and negotiate the structure of employee benefits in corporate reorganizations, acquisitions, mergers and divestitures. We conduct due diligence on all matters and documents relating to employee benefits and executive compensation to ensure that we are addressing every issue in the best interest of our clients, whether representing the seller or the purchaser.
Below is a list of some of recent transactions in which we have counseled the seller or the purchaser:
- Represented BHP Billiton Limited in its acquisition of Petrohawk Energy Corporation with respect to employee benefits due diligence and negotiations. This included complex Code Section 409A issues relating to the management team’s compensation arrangements.
- Provided employee benefits due diligence and negotiated employee benefit and compensation issues, including Code Section 409A and 280G issues, with respect to Constellation Energy’s purchase of StarTex Power. This included numerous complex benefit-related issues related to StarTex Power’s Employee Share Ownership Plan (ESOP).
- Represented Apache Corporation with respect to employee benefits negotiations, including complicated severance and other welfare issues, in Apache’s acquisition of a 75% interest of Phoenix Exploration Company.
- Represented Apache Corporation with respect to its acquisition of Cordillera Energy Partners, which included employee benefit due diligence and the negotiation of the benefit structures for the employees transferring to Apache Corporation.
- Represented Kinder Morgan in its acquisition of El Paso Corporation, which involved complex issues with respect to the integration of the companies’ benefit plans into a unified structure.
- Represented Chesapeake Energy Corporation in its sale of its midstream assets (pipeline interests) to Global Infrastructure Partners. This sale included benefit issues related to the transfer of employees to the purchaser.
- Represented Three Rivers Operating Company in the sale of its oil and gas assets, which included the negotiation of the employee benefits for the employees transferring to Concho.