Photo of Michael Album

Michael J. Album is a partner in the Employee Benefits & Executive Compensation Group, and represents companies and compensation committees, private equity firms and hedge funds, and CEOs, senior executives (in numerous business sectors) and portfolio managers on a full range of executive compensation matters. As part of his practice he has represented management teams in numerous management buy-outs (including in the health care, retail and asset management sectors) and has represented “founders” and partners in a variety of businesses on restructuring and “business divorce” matters.

Michael also is a member of the Restrictive Covenants, Trade Secrets & Unfair Competition, which is an interdisciplinary group at Proskauer that represents clients on non-compete, trade secret and intellectual property matters.

Michael has written and spoken extensively in the area of executive compensation. He has contributed to the NCEO publication Selected Issues in Equity Compensation (2019 Edition) and Dow Jones Private Equity Analyst – Global Compensation Study, and his articles on MBO compensation have been featured in two publications (Private Equity Mathematics and Human Capital in Private Equity).

His other articles have appeared in The Business LawyerBloombergNew York Law JournalEmployment Relations Today, and Venture Capital Review and he has been a featured speaker on executive compensation developments at ALI-ABA, Dow Jones Private Equity and other webinars and seminars.

In addition, Michael has served on the Board of Directors of the Yale Law School Fund, and as co-Chairman of his Reunion Class Campaign for the Yale Law School Fund.

Under Delaware law, executives (and former executives) may be entitled to indemnification and advancement from their employer for claims arising in connection with their employment. These rights to indemnification/advancement are generally contractual; they typically arise under the company’s governing documents (e.g., charter, by-laws, or partnership or LLC agreements) or indemnification agreements.

Indemnification may

The Tax Court’s May 3, 2023, decision in ES NPA Holding, LLC v. Commissioner (T.C. Memo 2023‑55), upholding a taxpayer’s position to characterize a partnership interest as a profits interest under the “safe harbor” of IRS Revenue Procedure 93-27 (as clarified by IRS Revenue Procedure 2001-43), provides helpful guidance to issuers of profits interests, including private equity funds and other investment partnerships and their portfolio companies.

On November 28, 2022, the Securities and Exchange Commission (the “SEC”) published the final clawback rules (the “Final Rules”) under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in the Federal Register.

Now that the Final Rules have been published in the Federal Register, issuers should be aware of the following key

Twelve years after the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and many years after the Securities and Exchange Commission started considering regulations implementing the clawback provisions of Dodd-Frank, the SEC published the Final “Clawback” Rules (the “Final Rules”) on October 26, 2022. The Final Rules task national securities exchanges (“exchanges”)