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

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?


Jeffrey A. Lieberman, Counsel
Skadden Arps Slate Meagher & Flom, New York

Mr. Lieberman has more than 25 years of experience advising a broad range of clients on ERISA, employee benefits, and executive compensation matters, including counseling on the design and operation of compensation and benefit arrangements and on issues under IRS Code Sections 280G, 162(m), 409A, and 457A; advising on employee benefits and ERISA issues in M&As and other corporate transactions; advising on plan compliance, corporate governance, and reporting matters; and providing support for ERISA controversies and litigation.

Ryan J. Liebl, Partner
Mayer Brown, Chicago

Mr. Liebl focuses his practice on advising public and private companies and individual executives on executive compensation related matters, including designing, drafting and administering nonqualified deferred compensation plans, excess benefit plans, severance plans and equity compensation agreements, among others. Mr. Liebl also has extensive experience advising clients regarding employee benefits and executive compensation issues in corporate transactions.

Gabriel S. Marinaro, Special Counsel
Katten Muchin Rosenman, Chicago

Mr. Marinaro's practice focuses on all aspects of employee benefits and executive compensation. He regularly counsels publicly traded and privately held companies, tax-exempt organizations, and governmental entities on a variety of employee benefits and executive compensation matters. He provides guidance on nonqualified deferred compensation plans both for for-profit companies and tax-exempt clients. Gabe regularly drafts nonqualified deferred compensation arrangements, including supplemental executive retirement plans, and change in control agreements. Additionally, Gabe advises employers and executives on issues under Code Sections 409A, 457(f), 457A, 162(m), 280G and 83 regarding compensation arrangements for executives.


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