The form of a corporate transaction sets the stage for the employee
The form of a corporate transaction sets the stage for the employee
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Compensation in Context Newsletter
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Why the Form of a Transaction is so Critical to Employee Benefits and Executive Compensation Strategy


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May 10, 2021 | Foley & Lardner LLP


Thanks to Casey D. Knapp and Kathleen Dreyfus Bardunias


The form of a corporate transaction sets the stage for the employee benefits and executive compensation (EBEC) strategy – in the scope of due diligence and purchase agreement negotiations and post-closing activity. The charts below provide a high-level analysis of some of the most critical EBEC issues that companies and their advisors should consider in corporate transactions.
For purposes of this chart, we discuss three different forms of a corporate transaction:
  • A (complete) stock purchase transaction: For this purpose, we assume that the buyer purchases all of the stock of a holding or stand-alone company, such that no entities with employees or benefit arrangements remain behind with the seller.

  • An asset purchase transaction: For this purpose, we assume that the buyer has the ability to “pick and choose” which assets and liabilities (including benefit plans and compensation arrangements) to purchase and which to leave behind.

  • A “carve out” transaction: For this purpose, we assume that the buyer purchases all of the stock of an operating subsidiary, but that the benefit plans remain behind with the seller.
    Will the benefit plans and compensation arrangements come with the transaction?
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      Will employees and employment agreements come with the transaction?
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        What happens to the 401(k) plan?
          Compensation in Context Newsletter - Executive Pay
          What happens to nonqualified retirement plans?
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            What happens to equity awards?
              Compensation in Context Newsletter - Executive Pay
              Does the structure impact how/whether Code Section 280G ("golden parachute rules") applies?
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                What happens to group health plans?
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                  What about flexible spending accounts (FSAs)?
                    Compensation in Context Newsletter - Executive Pay
                    What about accrued vacation or bonus liabilities?
                      Compensation in Context Newsletter - Executive Pay
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