Developing Trends in Employee Benefits and Executive Compensation Representations, Covenants and Indemnification Clauses in M&A

Navigating the Impact of the Affordable Care Act, Recent IRS Guidance on Determination Letters, and Recent 409A Guidance

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, January 17, 2017

Recorded event now available

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Program Materials

This CLE webinar will highlight new developments for employee benefits counsel to consider when drafting and negotiating representations, covenants and indemnification provisions addressing employee benefit plans and executive compensation programs in the context of mergers and acquisitions. The panel will discuss key considerations when drafting such provisions and offer their perspectives on what is market.


With new developments under the Affordable Care Act, Code Section 409A, and major changes to the IRS determination letter program, employee benefits and executive compensation due diligence continues to be a developing area that employee benefits practitioners and others involved in corporate transactions need to be mindful of. The CLE webinar will walk through developing trends in both the due diligence process and negotiating the terms of the purchase agreement, including:

  • Affordable Care Act compliance considerations, including the employer mandate and reporting requirements
  • Recent IRS guidance regarding the end of the determination letter program, and questions surrounding how retirement plans should be reviewed and representations should be made without the benefit of a recent determination letter
  • Recent Code Section 409A and 457(f) guidance
  • Sun Capital and controlled group liability considerations

Listen as our panel of employee benefits attorneys discusses best practices for negotiating, drafting and enforcing employee benefits and executive compensation reps, warranties and indemnification clauses in the context of mergers and acquisitions.



  1. Qualified retirement plans – what types of representations do we look for when there is no recent determination letter?
  2. Welfare benefit plans – due diligence considerations including Code Section 4980H considerations, HIPAA compliance, and ACA reporting
  3. Executive Compensation-handling equity awards and deferred compensation in transactions, Section 409A considerations (including recent IRS guidance), Section 280G considerations
  4. Drafting indemnification provisions when considering certain liabilities such as ACA compliance, Section 409A, etc.


The panel will address these and other key issues:

  • What are some best practices for employee benefits counsel when drafting and negotiating representations, covenants and indemnification provisions in these developing areas?
  • What are the most commonly disputed issues when negotiating these new representations and covenants and what are some effective strategies for resolving them?
  • What are some hidden liabilities employee benefits counsel should look for when conducting due diligence in these developing areas?


Lieberman, Jeffrey
Jeffrey A. Lieberman

Skadden Arps Slate Meagher & Flom

Mr. Lieberman has more than 25 years of experience advising a broad range of clients on ERISA, employee benefits, and...  |  Read More

Liebl, Ryan
Ryan J. Liebl

Mayer Brown

Mr. Liebl focuses his practice on advising public and private companies and individual executives on executive...  |  Read More

Marinaro, Gabriel
Gabriel S. Marinaro

Special Counsel
Katten Muchin Rosenman

Mr. Marinaro's practice focuses on all aspects of employee benefits and executive compensation. He regularly...  |  Read More

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