Stephen D. Smith

Of Counsel

p: (317) 238-6218

Stephen D. Smith

Of Counsel


Since 1984, Stephen Smith has dedicated his private law practice primarily to employee stock ownership plans ("ESOPs") and structuring ESOP transactions.  Mr. Smith has been responsible for structuring over 300 ESOP transactions for public and private companies throughout the United States.  He also designs and implements equity and non-equity-based incentive compensation programs for public and private companies.  Mr. Smith represents ESOP sponsors, ESOP fiduciaries (including employer-appointed "committees") and independent ESOP trustees in ESOP transactions, including the sale of ESOP companies.

Mr. Smith was directly involved in drafting the S corporation ESOP enabling legislation contained in the Taxpayer Relief Act of 1997.  He was a co-author of the S corporation ESOP "anti-abuse" legislation known as the "Breaux/Ramstad Bill."

From 1975 through 1980, Mr. Smith served on active duty with the U.S. Air Force as a Judge Advocate; from 1980 through 2001, he continued his service as a member of the U.S. Air Force Reserve and retired in January 2001 with the rank of Colonel.  For the last several years of his Reserve duty, Mr. Smith acted as a legal advisor to the Chairman of the Joint Chiefs of Staff and the Under Secretary of Defense in connection with employee benefit plan matters affecting the Department of Defense.  He designed and drafted the first "401(k)" plan for members of the Armed Services and authored the related Report to Congress.

Representative Experience

  • Structured the first ESOP to be approved by the Board of Governors of the Federal Reserve system as a registered bank holding company, the Horizon Bancorp ESOP
  • Drafted amendments to Internal Revenue Code and ERISA to enable S corporations to sponsor ESOPs and implemented first S corporation ESOP for Liberty Enterprises
  • Structured leveraged S corporation ESOP purchase of 100% of the stock of regional accounting firm
  • Structured leveraged S corporation ESOP purchase of largest provider of optometry and ophthalmology services in Rocky Mountain area
  • Represented ESOP trustee in connection with purchase by employees of sponsoring employer with funds transferred from 401(k) plan
  • Structured leveraged ESOP purchase of professional service firms using simultaneously implemented ESOPs by acquiror and target companies
  • Conceived of, designed and drafted enabling legislation for thrift savings plan for active and reserve members of the Armed Forces
  • Assembled Department of Defense Working Group, analyzed U.S. and state laws on division of military retirement pay on divorce and authored Report to Congress for legislative reforms legislation
  • Founded firm's Atlanta Office


  • Indiana University Robert H. McKinney School of Law, Indianapolis, Indiana (J.D., 1975)
  • Georgetown University School of Law, Washington, D.C. (LL.M in Taxation, 1983)
  • Indiana University, Bloomington, Indiana (A.B., 1972)

Bar Admissions

  • Indiana, 1975
  • U.S. Supreme Court, 1978
  • U.S. Tax Court, 1983
  • Georgia, 2008
  • U.S. Court of Military Appeals, 1975

Professional Associations

  • The ESOP Association and its New South Chapter
  • The ESOP Association Interdisciplinary Advisory Committee on Fiduciary Issues, Past Chair
  • The National Center for Employee Ownership

Awards and Recognitions

  • Best Lawyers In America©, Employee Benefits (ERISA) Law, 2007-2018
  • Best Lawyers® 2017 Employee Benefits (ERISA) Law "Lawyer of the Year" in Indianapolis
  • Indiana Super Lawyers, 2004-2017
  • Pro Bono Publico Award - Indiana State Bar Association
  • Military Decorations:  The Legion of Merit, Defense Meritorious Service Medal, Meritorious Service Medal (four awards) and Air Force Commendation Medal (two awards)

Seminars and Presentations

  • "Current ESOP Transaction Structuring Issues: How Much is Too Much?," The ESOP Association Las Vegas Conference and Trade Show
  • "Current ESOP Transaction Structures: When is Agressive TOO Agressive?," NCEO Employee Ownership Conference
  • "Sale of an ESOP Company - Valuation Perspectives," The ESOP Association Annual Conference
  • "Digging Deeper: Sustainability, Repurchase Obligation and More "Legal" Issues Associated With Addressing the ESOP Repurchase Obligation ('RO')," The ESOP Association South Chapter Spring Workshop
  • "Interdisciplinary Panel on Current ESOP Events," ESOP Association Las Vegas Conference and Trade Show
  • “The Cal-Tex Experience – Releveraging a Mature ESOP,” NCEO Employee Ownership Conference
  • Co-Chair, Education for Internal ESOP Trustees-special two day track at ESOP Association Las Vegas Conference and Trade Show, "Boards of Directors' and Trustees' Roles in ESOP Companies - II"
  • “Workshop for Internal Trustees,” NCEO Employee Ownership Conference
  • “Legal and Fiduciary Issues with Sale of an ESOP Company,” ESOP Association Annual Conference
  • "Common Legal and Plan Administration Issues Applicable to Bank ESOPs", The ESOP Association Banks and ESOPs Conference
  • "ERISA Fiduciary Issues for Minority ESOPs," The ESOP Association Conference for Minority ESOPs
  • "Current ESOP Fiduciary Issues," The ESOP Association Forum for ESOP Professionals
  • "Sticky Fiduciary Wickets," The ESOP Association Las Vegas Conference & Trade Show
  • "ESOP Committees: Types, Responsibilities and Relationships," Indiana Chapter, The ESOP Association
  • "Interaction Between ESOP Trustees and Board of Directors," The ESOP Association 35th Annual Conference
  • "Incentive ESOP Alternative in Business Succession Planning," NCEO/Beyster Employee Ownership Conference
  • "Best Practices in Corporate Governance: How to Recruit and Run an Effective Board," The ESOP Association Tri-Chapter Regional Conference
  • "Interdisciplinary Panel on Current ESOP Events," The ESOP Association Las Vegas Conference & Trade Show
  • "Recent Developments and Trends for ESOP Fiduciaries," The ESOP Association 34th Annual Conference
  • "The Repurchase Obligation and Stock Valuation: Opening the Can of Worms," NCEO/Beyster Annual Conference
  • "Boards of Directors: Composition and Roles," The ESOP Association Las Vegas Conference and Trade Show
  • "Repurchase Obligation/Valuation Issues in ESOP Companies," The ESOP Association Sustainability Conference
  • "Issues on Selling an ESOP Company," The New South Chapter of the ESOP Association Fall Conference
  • "Sale to Company or Sale to ESOP, Using Redemptions in ESOP Transactions," The ESOP Association 33rd Annual Conference
  • "Employee Stock Ownership Plans - Leadership Challenges and Opportunities," Miller College of Business, Ball State University
  • "Should the ESOP Repurchase Value be Reflected in Stock Value?," NCEO/Beyster Employee Ownership Conference
  • "What Do I Do? Someone Wants to Buy Me!", The ESOP Association Tri-State Regional Conference
  • "The Role of the Board in an ESOP Company," The ESOP Association Third Annual Conference for Boards of Directors of ESOP Companies
  • "Workshop for Internal Trustees, A Roundtable Discussion," The ESOP Association Las Vegas Conference and Trade Show
  • "Board of Directors: Roles and Compositions," The ESOP Association Las Vegas Conference and Trade Show
  • “Conflicts in Governance: Board, Trustees, Fiduciaries,” The ESOP Association Annual Conference
  • “Repurchase Obligations and ESOP Stock Valuation,” NCEO/Beyster Institute Employee Ownership Conference
  • “Fiduciary Responsibility for Valuations,” ESOP Association Annual Technical Conference
  • “Roles and Responsibilities of Board of Directors of Employee-Owned Companies,” ESOP Association Board of Directors Retreat
  • “Fiduciary Review of Service Providers,” ESOP Association Annual Conference
  • “Legal and Regulatory Update,” NCEO Annual Conference
  • “ESOPs For S Corporation Bank Holding Companies,” S Corporation Bank Association Annual and The ESOP Association Southeast Regional Conferences
  • “Fiduciary Oversight of the Valuation Process,” ESOP Association S Corporation, Annual and Technical Conferences
  • “Winding Down, Winding Up and Terminating an ESOP,” NCEO National Conference
  • “Structuring ESOP Loans,” ESOP Association Annual Technical Conference
  • “Fiduciary Review of Valuation Reports,” ESOP Association Annual S Corporation Conference
  • “Section 409(p) Regulations,” Ohio Employee Ownership Center Annual Conference
  • “Sale of an ESOP Company,” NCEO National Conference
  • "New S Corporation ESOP Regulations," New South Chapter, ESOP Association Conference
  • "ESOPs in Mergers and Acquisitions," Employee-Owned S Corporation of America, Issues Conference
  • "S Corporation ESOPs," Employee Owned S Corporations of America, Issues Conference
  • "S Corporation ESOPs," First Annual ESOP Conference, ICLEF
  • "S Corporation ESOPs, 'Tax Loophole' or 'Retirement Plan'," Indiana Pension Conference
  • "Using ESOPs for Planning Estates for Family Businesses," ICLEF
  • "Benefits of the New ESOP Rules for the S Corporation," ICLEF Midwest Estate, Tax & Business Planning Institute
  • "The Internal Revenue Service Voluntary Compliance Resolution and Closing Agreement Programs," The Indiana Tax Institute
  • "ESOPs for Registered Bank Holding Companies," National Conventions of The ESOP Association
  • Seminar Chair, "ESOPs," Indiana Continuing Legal Education Forum (ICLEF)



  • "Department of Labor Brief in Enron Litigation Holds Lessons for ESOP Fiduciaries," The Journal of Employee Ownership Law and Finance, National Center for Employee Ownership
  • "Plan Drafting Issues in the Wake of Breaux/Ramstad," Insights, Willamette Management Associates
  • "Using an ESOP as an Acquisition Vehicle," Insights, Willamette Management Associates
  • "S Corporation ESOPs and Liberty Check Printers," The Journal of Employee Ownership Law & Finance, National Center for Employee Ownership
  • "S Corporation ESOPs and Liberty Check Printers, Part II," The Journal of Employee Ownership Law & Finance, National Center for Employee Ownership
  • "ESOPs," Thrift Focus, Vol. III, No. 3
  • "Bank Holding Company ESOPs, Tax & Regulatory Considerations," The Banking Law Journal, Vol. 105, Pg. 92
  • "Partial Terminations Present Unique Challenges for ESOP Sponsors," The Journal of Employee Ownership Law & Finance, National Center for Employee Ownership
  • "Chapter 2, Legal and Regulatory Issues," Executive Compensation in ESOP Companies, Third Edition, National Center for Employee Ownership