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Executive Compensation

Led by Dan Janich, our lawyers have over twenty-five years of comprehensive experience in designing and structuring hundreds of executive and equity compensation programs and arrangements for public and private companies and not-for-profit organizations. Dan and other attorneys at Holifield Janich Rachal Ferrera, PLLC (“HJRF”) also have extensive experience in drafting, advising and litigating executive compensation issues, including resolving claims through binding arbitration.  Our deep experience coupled with the independence and value we can offer as a smaller boutique firm, gives us particular strengths in three areas:

  • Advising start-ups to mid-market companies and non-profits on all aspects of executive compensation, including designing and implementing plans.
  • Providing independent representation for executives, boards and companies in major corporate transactions in which separate counsel are needed to represent and protect sometimes competing interests.
  • Represent executives, boards and companies in prosecuting and defending claims for executive compensation.

Our clients range from middle market companies and start-ups, including limited liability companies (LLCs), to health care institutions and other not-for-profits. A significant portion of our executive compensation practice consists of the representation of C-level and other key executives in structuring their compensation packages. We frequently advise boards of directors and compensation committees on executive compensation parameters and governance matters.

Because of our highly developed executive compensation capabilities and our national reputation in the field we frequently act as co-counsel in corporate transactions such as mergers and acquisitions, initial public offerings (IPOs), spin offs and divestitures that have executive compensation implications.

 

Why Clients Hire Us

Our clients hire us to represent them because we listen attentively to fully understand their concerns and subsequently we use our innovative, creative bottom-line approach to provide pragmatic solutions to address their issues. We provide our clients with comprehensive market-oriented advice as a result of our close collaboration with executive compensation benchmarking consultants, venture capital and private equity firms, and wealth managers.

 

Representation of Corporate Entities

Whether you are a publicly traded or a privately held company, to be successful and to sustain continued growth you must have the ability to attract and retain key talent on a consistent, principled and systematic basis. Our attorneys are called upon frequently to design and implement effective compensation programs that achieve their corporate goals. In doing so, we use our considerable knowledge and skills to devise customized executive compensation plans and arrangements that take into account the corporate, securities, tax, accounting, and employment law implications of such plans. We routinely negotiate, design, implement and administer various executive compensation and broad based incentive equity compensation plans, programs and agreements, including:

  • Pre and post IPO equity incentive plans;
  • Supplemental executive retirement plans (SERPs) and Top-Hat plans;
  • Nonqualified deferred compensation arrangements including rabbi trusts;
  • C-suite and other senior executive employment agreements;
  • “Golden” and “silver” parachute agreements;
  • Change-in-control agreements;
  • Executive separation packages;
  • Stock option and restricted stock plans;
  • Stock appreciation rights;
  • Employee stock purchase plans;
  • Phantom stock plans;
  • Performance share and performance unit plans;
  • Key executive retention agreements;
  • Cash and stock bonus plans;
  • Synthetic equity and other incentive plans and arrangements for ESOP companies

We have specialized knowledge and skills navigating the complexities involved in devising equity and incentive compensation plans for limited liability companies (LLCs). These arrangements take into consideration the income tax implications of such plans for both the company and its employees.

 

Representation of Boards of Directors and Compensation Committees

Our lawyers provide counseling services to Boards of Directors and Compensation Committees on their fiduciary duties regarding compensation strategies and policies designed to attract and retain top talent. We advise these clients on how to structure employment agreements with senior executives that meet both the company’s business goals and the incoming executive’s objectives.

 

Representation of C-Suite and other Senior Executives

CEOs and key executives engage us to assist them in strategic planning and negotiations of their compensation packages to enable them to receive the best possible deal. On a highly confidential basis we counsel and guide executives by analyzing their options and negotiating on their behalf a fair and effective compensation package.

As an integral part of our representation of senior executives we provide specialized wealth and estate planning services expressly tailored to their needs and long-term financial objectives.

 

Representation of Health Care Institutions and Other Not-for-Profits

Section 4958 of the Income Revenue Code governs compensation for senior executives of health care institutions and other not-for-profits. Our lawyers are frequently called upon to advise both health care institutions and their executives on how to structure compensation packages that meet the very stringent requirements of tax law. On numerous occasions we have successfully represented our clients in IRS intermediate sanction audits and administrative appeals concerning assessed multi-million dollar deficiencies.

 

Publications and Presentations

Led by Dan Janich, attorneys at HJRF speak and write extensively in the area of executive compensation, including:

Publications:

  • Dan Janich, co-author on Equity Interests in Limited Liability Corporations, 20 The Journal of Employee Ownership Law and Finance 19 (Winter 2008); expanded and reprinted in Equity Compensation for Limited Liability Companies (LLCs)(NCEO, 1st 2009).
  • Dan Janich, co-author on Securities Law Considerations in Decision-Maker’s Guide to Equity Compensation (NCEO, 1st 2007; updated in 2nd ed. 2011). 
  • Dan Janich, author of Underwater Stock Options and Repricing Strategy: Is Your Company Drowning in Confusion? 13 The Journal of Employee Ownership Law and Finance 17 (Fall 2001); reprinted in Stock Options: Beyond the Basics (NCEO, 2nd 2003), and Selected Issues in Stock Options (NCEO, 1st ed. 2004); updated in 18 The Journal of Employee Ownership Law and Finance 53 (Winter 2006); reprinted or updated in Selected Issues in Equity Compensation (NCEO, 3rd ed. 2006 – 8th ed. 2011).
  • Dan Janich, co-author on A Tiered Approach to Equity Design with Multiple Equity Compensation Vehicles, 16 THE JOURNAL OF EMPLOYEE OWNERSHIP LAW AND FINANCE 29 (Winter 2004); reprinted or updated in BEYOND STOCK OPTIONS (NCEO, 2nd ed. 2004 – 9th ed. 2011).
  • Dan Janich, co-author on If Not Options, Then What? Equity Compensation in Today’s Economy, WORKSPAN, pp. 26-32, (Sept. 2003).

Presentations:

  • Robert Rachal, panel presenter at Practising Law Institute on Hot Issues in Executive Compensation 2016, “Ethical Considerations When Counseling Boards, Compensation Committees, Companies and Executives,” focusing on fiduciary privilege and Delaware executive compensation litigation (Sept. 2016, New York, NY).
  • Dan Janich, panel presenter at The National Association of Stock Plan Professionals 23rd Annual Conference on “Audit Insurgency: Revenue Recognition, Audit Guidelines & Executive Compensation” (October 2015, San Diego, CA).
  • Robert Rachal, panel presenter at Practising Law Institute on Hot Issues in Executive Compensation 2015, “Ethical Considerations When Counseling Boards, Compensation Committees, Companies and Executives,” focusing on fiduciary privilege and Delaware executive compensation litigation (Sept. 2015, New York, NY).
  • Robert Rachal, speaker at ABA JCEB National Institute program on Executive Compensation on “Counseling Companies, Boards, Compensation Committees and Executives – Ethical Obligations and Issues” (Nov. 2014, Chicago, IL).
  • Dan Janich, panel presenter at 2014 ESOP Association Midwest Regional Conference on “Executive Nonqualified Deferred Compensation Plans for ESOP Companies” (Sept. 2014, Oakbrook, IL).
  • Robert Rachal, panel presenter at Practising Law Institute on Hot Issues in Executive Compensation 2014 on Ethical Considerations When Counseling Boards, Compensation Committees, Companies and Executives, focusing on fiduciary privilege and Delaware executive compensation litigation (Sept. 2014, New York, NY).
  • Dan Janich speaker at NCEO Employee Ownership Conference 2014 on “Compensating and Incentivizing LLC Employees Through Equity Compensation: An Attractive Alternative to ESOPs” (April 2014, Atlanta GA).
  • Robert Rachal, speaker at ABA JCEB National Institute program on Employee Benefits in Mergers & Acquisitions on Ethical Complexities in Deals (June 2014, New York, NY).
  • Dan Janich, speaker at NCEO/Beyster Institute Employee Ownership Conference 2013 on “Compensation for Privately Held Companies: Forms of Executive Compensation” (April 2013, Seattle, WA).
  • Dan Janich, panel presenter for NCEO Webinar, on “Top 10 Considerations for the Design and Roll-out of Equity Compensation Plans” (February 2012).
  • Dan Janich, panel presenter at NCEO/Beyster Institute Employee Ownership Conference on “Reality TV: Lessons Learned Structuring Executive Compensation in ESOP Companies” (April 2011, Denver, CO).
  • Dan Janich, panel presenter for Strafford Publications Webinar on “Tax Treatment of Equity Compensation for LLC Members: Structuring Equity-Based Interests for Optimal Tax Outcomes,” (Sept. & Oct. 2010).
  • Dan Janich, panel presenter for NCEO Webinar on “What Kind of Equity Plans are Exempt and What are Not?” and “Navigating the 409A Deferred Compensation Plan Rules” (Nov. 2009).
  • Dan Janich, moderator and speaker at NCEO/Beyster Institute Employee Ownership Conference on “Stock Appreciation Rights, Phantom Stock & Warrants” (April 2009, Portland, OR).
  • Dan Janich, moderator and speaker at ABA Employee Benefits Committee mid-winter meeting on “409A Update” (Feb. 2009, Charleston, SC).
  • Dan Janich, moderator and speaker at NCEO/Beyster Institute Joint Annual Conference on “Plan Litigation and Latest Trends in Equity Compensation” (April 2008, Chicago, IL).
  • Dan Janich, moderator and speaker at NCEO/Beyster Institute Joint Annual Conference on “Negotiating & Structuring Stock Compensation” (March 2007, San Diego, CA).
  • Dan Janich, moderator and speaker at CEO/Beyster Institute Employee Ownership Conference on “Equity Compensation Litigation & Enforcement Trends” (April 2006, Minneapolis, MI).
  • Dan Janich, panel presenter for NCEO Webinar on “Types of Equity Compensation” (April 2006).