The recent banter around option exchanges is probably not news to you. What might be news, however, and was pointed out in a recent webcast we offered on this topic, The Dark Side of Option Exchanges, is the likelihood that spreadsheets will become the practical interim solution to support the accounting and financial reporting for these option exchange transactions. It’s certainly not unusual for companies to use spreadsheets to manage transactions such as these when their existing accounting applications or stock plan database programs can’t accommodate them. But, there are risks associated with spreadsheet use – an incorrect formula in one cell can throw off the integrity of the entire spreadsheet, and potentially cause a material misstatement in your company’s financial statements.
My blog today is intended to be a refresher on some of the ways to maximize spreadsheet accuracy and reliability and help your organization maintain more comfort when using spreadsheets for financial reporting purposes.
A Few Guidelines for Accurate & Reliable Spreadsheets
A. Version Control: Use standard naming conventions in your spreadsheets, maintain historical files no longer available for update in a segregated drive and lock them as “read only,” use common header information and don’t use automatic headers for information that could change i.e., dates, periods, versions. Do, however, use the automatic footer feature for the file name and location.
B. Security and Integrity of Data: Excel has several options to ensure that data embedded in spreadsheets is current and secure. This can be done by “locking” or protecting cells to prevent inadvertent or unintended changes to standing data.
C. Sheet Protection or Validation: These functions can be used to help prevent accidental errors, but won’t guarantee error free spreadsheets.
Sheet Protection vs. Sheet Validation
Sheet Protection: Is easier to use, quicker to set up and you can choose which functions to allow/lock, but you won’t get any detail/guidance as to why the cell is locked.
Sheet Validation: Is more complicated to use, takes longer to set up, but will provide more detail/guidance for users as to why the cell is locked and will allow certain types of data to be entered in cells.
D. Documentation: As a separate page within your workbook, document the procedures for each spreadsheet including, the spreadsheets purpose, where and how to get input data, which cells to update, what calculations are being made, what kind of analysis is needed and what results are expected. Documentation is vital for people inheriting spreadsheets and those using or reviewing the results.
E. Overall Analytics: Develop a checklist of procedures to perform each time the spreadsheet is completed/updated including, checking that the version used is the most current and up-to-date version, checking that input totals are correct and that formulas were copied to newly inserted rows/columns where appropriate, confirming the logic of formulas, checking all cells that should have formulas do not have values typed in, checking the footing and/or cross footing totals are correct, checking that spreadsheet protection/validation is activated, and finally, checking that the file is named correctly and saved in the proper location.
In Summary
Spreadsheets can be easily changed, may lack certain internal control activities, and are vulnerable to human error. By applying these recommendations and others not mentioned here, organizations can control spreadsheets for accuracy and minimize data mistakes. More important, controlling spreadsheets needs to be an integral part of Section 404 compliance efforts in all public corporations when spreadsheets are used to support and create financial statements. These spreadsheets should receive the same care and maintenance granted to other business applications and associated databases.
A similar topic was covered in the 2008 NASPP Annual Conference session, “Get Your Geek On: A Primer for Non-Techies on Technology and Project Management;” check out the session materials in your Conference books (or order the Conference books and audio if you weren’t able to attend last year).
A couple of weeks ago, I blogged about a tender offer to accelerate vesting on RSUs and discussed some of the accounting ramifications. Since then, I’ve learning that the accounting treatment is less straightforward than I thought. We recently posted a Radford alert on this topic in our Underwater Options Portal; today I discuss what I learned from the alert with respect to the incremental cost for an acceleration of vesting.
Acceleration Vesting Can Be More Expensive Than You Think Up until now, my understanding was that when vesting is accelerated for awards that aren’t subject to imminent forfeiture (i.e., an acceleration that is not in connection with termination of employment), there would be no incremental cost for the modification because the awards were expected to vest before the acceleration occurred. But, this isn’t the case. In fact, a portion of the awards were not expected to vest–the forfeitures that the company estimated would occur for expense attribution purposes. Thus, for this portion of the awards, the vesting acceleration results in incremental cost equal to their current fair value.
For example, let’s assume that vesting is accelerated on 1,000,000 restricted stock units when the market value of the underlying stock is $5 per share. Prior to the acceleration, the company expected that 10% of the awards would have been forfeited due to employees terminating before their original vest dates. For the 900,000 awards that were expected to vest anyway (even without the acceleration), there is no incremental cost. But for the 100,000 awards that weren’t expected to vest, the company incurs incremental cost of $500,000. (The fair value of these awards prior to the acceleration is $0; afterwards it is $5 per share.)
If the stock price has declined since the awards were granted, this cost is less than the grant date fair value of that 10% of the awards (which now will not be recognized). But it’s still more than the expense the company would have recognized if vesting hadn’t been accelerated and the awards had been forfeited.
Reason #14 to Renew Your NASPP Membership: Your Local NASPP Chapter When was the last time you attended one of your local NASPP chapter meetings? NASPP chapters are a great way to meet others in the industry and keep up on current developments. Many chapters host top-notch speakers at very well-attended meetings. Learn more about your local NASPP chapter by visiting the chapter pages on Naspp.com. Even better, consider getting involved. Volunteering with your local chapter can greatly expand your professional network (so important during times of economic downturn) and you’ll have the opportunity to help decide meeting topics.
Submit Your Proposal for the 2009 NASPP Conference Now We are accepting speaking proposals for the 2009 NASPP Conference through this Friday, February 27. For more information, visit our Proposal Submission Website. We begin evaluating proposals as soon as the submission period ends, so we can’t make any exceptions to this deadline, no matter how dire the circumstances. So if you feel a cold coming on, plan accordingly!
We have not yet announced where the Conference will be or the exact dates. As soon as we know more, I promise to announce it here in my blog.
NASPP “To Do” List We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blogs.
Are you still providing stock option, or perhaps ESPP, beneficiary forms to your stock plan participants? Say, in an inconspicuous spot tucked toward the back of your stock plan materials, where recipients simply check off a box or two, sign the paperwork, and then hopefully remember to return them to the stock plan department for safekeeping. If so, there’s a good chance you haven’t fully contemplated the number of issues that providing these beneficiary forms to your stock plan participants might cause. In my blog today, I’ll provide some practice pointers to bear in mind as you contemplate whether to continue this process at your company.
Why the big deal?
When a person names a beneficiary, assets can pass directly to whomever the individual designates; they won’t have to go through probate, which can be a lengthy and costly process. This sounds ideal, right? Not so fast! Beneficiary designations override any related wishes made in a will. In other words, a beneficiary made in a will does NOT override a beneficiary designation form.
Practice pointers
1. Out of date beneficiary designations: Employees don’t typically review their beneficiary designations on a regular basis (especially when it comes to equity compensation account data). If Steve completed a stock option or ESPP beneficiary form in 1999 and never updated it, the 1999 beneficiary designation is legally binding. A number of major life events, such as marriage, divorce or the birth of a child (impacting Steve’s original beneficiary objectives), could have occurred between now and the time Steve completed his original stock plan beneficiary designation(s), and these potentially new beneficiary recipients will almost certainly not be reflected in that original beneficiary designation. So, even though Steve’s will might state that he wants his child to inherit his assets, his father will likely be the recipient of his property if he named him as the beneficiary under his company’s stock plan beneficiary form(s) and neglected to update the form after his child was born. Ouch! The alert we just posted on “Supreme Court Holds That Beneficiary is Determined In Accordance With Plan Document” shows what a mess it can be when beneficiary designations aren’t kept up to date.
2. Generic beneficiary forms: Most stock plan departments use a simple, one-page beneficiary form that does not provide for the designation of multiple and contingent beneficiaries or the specification of what percentage of the account holders stock plan assets they’d like distributed to each recipient upon death. As a result, these “plain vanilla” beneficiary type forms probably don’t come close to expressing the true intentions of the account holder.
3. Professional advice: Employees hardly ever seek professional advice prior to completing a company sponsored beneficiary form because the design of these forms is generally very basic. However, account holders don’t realize how the information they have provided in these forms could be interpreted if left without some professional input.
4. Legal conflicts: Many states have laws regarding who can be designated as a beneficiary. For example, in some states, employees can’t designate a beneficiary other than their spouse without the spouse’s consent. The laws are even more complex for employees outside the US. Company sponsored beneficiary forms rarely consider all of these legal restrictions and stock plan administration rarely has the resources to monitor them, yet it can be a significant problem when beneficiary designations violate local laws. The alert I mention above gives you an idea of just how complicated the laws that apply to beneficiary designations can be.
In conclusion
The death of an employee is a pretty rare event, so why go through the trouble of trying to track and maintain current beneficiary forms for your stock plan participants and potentially expose the heirs of your stock plan recipients to some of the above issues. Instead, consider stipulating in your stock plan agreements that options are to be exercised by a legal representative of the estate and be sure to include a reasonable post termination exercise period in your stock plan agreements for termination as a result of death. This will ensure the estate will have had enough time to settle all matters related to the account holders assets and can then exercise any outstanding options.
For more information on this topic, be sure to check out the archive or transcript from the webcast we offered last summer, Death and Divorce: The Lighter Side of Equity Compensation. This topic was also covered in the 2008 NASPP Annual Conference session, “The End is Near: Termination and Retirement Provisions for Options and Awards;” check out the session materials in your Conference books (or order the Conference books and audio if you weren’t able to attend last year). If you are a subscriber to CompensationStandards.com, you can also check out Ed Burmeister’s July 23 blog “Beware of Beneficiary Provisions.”
You will recall, from the NASPP alert “IRS Proposes Regs for ISO and ESPP Information Returns,” that, last July, that the IRS proposed regulations on the Section 6039 returns companies are required to file with the Service for ISO and ESPP transactions. Those regulations indicated that the returns would be filed on Forms 3921 (for ISOs) and 3922 (for ESPPs) and that drafts of the forms were forthcoming. We seem to be one step closer to seeing those drafts–last week the IRS updated the general instructions for Form 1099 to also include Forms 3921 and 3922.
General Instructions to Forms 3921 and 3922 The update provides general instructions only. The IRS notes that the final regulations and separate instructions to Forms 3921 and 3922 are not yet available.
No Need to Panic These general instructions are for the 2009 forms, which companies won’t be filing until 2010, so you don’t need to make these filings this year and there’s still plenty of time to prepare for them in time for next year.
Beginning with transactions in 2009, Forms 3921 and 3922 filed on paper will be due by March 1 of the following year (this is a change from the deadline stated in the proposed regs, which would have required the returns to be filed by January 31). The general instructions also allow for electronic filing; companies that use this filing method get even a little more time–until March 31, to file their returns. The deadline for the corresponding information statements that must be provided to employees is still January 31.
Electronic Filing Required for Some Companies If you have more than 250 returns to file for either form, you must file that form electronically. I suspect this means that most of you will be filing electronically. Publication 1220 explains how to file returns electronically with the IRS, but I further suspect that most of you will outsource this function and hopefully won’t have to read this thrilling 130-page publication.
Companies with fewer than 250 returns to file can voluntarily file electronically (and still benefit from the extended deadline for electronic filers).
Companies can also request a waiver from the requirement to file electronically up to 45 days in advance of the deadline.
Electronic Statements to Employees If you’ve been considering furnishing Section 6039 statements electronically to your employees, the general instructions contain a concise summary of the requirements you must comply with to do so.
Another Service Provider to Add to Your Team In researching this blog entry, I discovered that there are service providers that specialize in making IRS filings on your behalf and that they appear to already be gearing up to handle Form 3921 and 3922 filings (you probably already knew this, but I thought this was just something the payroll proviers did–I didn’t realize it was a specialized industry). The good news is that if your existing service providers can’t help with these filings, there may be others that specialize in IRS filings that can. The bad news is that you have one more service provider to manage (and pay).
If you are trying to estimate the resources you might need to make these filings yourself, the IRS estimates that it will take 11 minutes to complete Form 3921 (presumably for one transaction) and 12 minutes to complete Form 3922.
Kudos Thanks to Barb Richley at E*TRADE Financial for bringing the updated instructions to my attention.
Reason #13 to Renew Your NASPP Membership: The NASPP Bookstore The NCEO has just released 2009 editions of most of their publications on stock compensation. Did you know that you can purchase NCEO publications at a discount through the NASPP Bookstore (did you even know we had a bookstore)? These are some excellent resources (I refer to my copies quite frequently) and your NASPP membership makes the NCEO’s prices even more affordable.
Early-Bird Rate Ends Friday for NASPP Online Course on M&A
The early-bird rate for the NASPP’s newest online educational program, Tackling Equity Compensation Issues Related to Mergers & Acquisitions, is only available until this Friday, February 20. At only $495, this course is a true bargain–and members that register by Friday qualify for yet another $100 off this price. We’ve already extended this deadline once; we won’t be able to extend it again.
NASPP “To Do” List
We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blogs.
Last week I discussed the importance of including your ESPP in the communications to employees on how their stock compensation is impacted by a merger or acquisition. This week I take a look at how to ensure that your communications to employees are effective.
First, how will you deliver your communications? Be sure you consider your audience; the same communication method may not work for all employees at your organization.
Small group meetings (my favorite): Face-to-face communication is the most effective way to reach employees. Smaller groups help create closer bonds and put employees at ease to speak their minds. Consider using posters placed in highly visible areas of your company, such as the cafeteria or near walkways and elevators, to spread the word about these informative meetings and ask managers to encourage their teams to attend.
Frequently asked questions (FAQ’s):Written communications are very effective because they are permanent and you can be sure that your message won’t change as it goes out. As a participant in our M&A program, you will have access to a bank of common M&A FAQ type equity questions together with sample responses.
Intranet site: Making use of your company’s intranet can enable you to put invaluable information online and regularly update it. This can be especially important if your employees are geographically dispersed. An intranet site can be useful, for example, to publish recorded presentations.
Leverage your managers: Consider communicating important information to your managers before other employees. Managers can help you relay messages to their team.
Second, determine whether you need to allot additional resources to communicate some of the considerable changes happening at your organization.
Third, don’t forget that even positive change can backfire if it’s poorly communicated to employees. Avoid withholding information from employees to the extent possible.
Fourth, timing is critical. Your communications need to arrive in time to make a difference.
Fifth, send regular updates informing people about any changes to your prior communications, but only send information when you have something new to say.
I can’t say it enough, effective internal communications during a business combination is vital. The communication strategy you follow during this time can mean the difference between an employee who decides to ride out the upcoming days and months of uncertainty or not. An effective communication strategy also decreases your own workload by proactively addressing employee questions and reducing the inquiries you need to respond to.
There is the strong possibility that mergers and acquisitions will increase later in the year; it is a mistake to assume you are immune to this trend. You don’t want to wait until you are in the middle of a deal before finding out how your stock plans are impacted. Your participation in our program, Tackling Equity Compensation Issues Related to Mergers & Acquisitions, will ensure you are poised to address the issues that come up when this time arrives. Early bird registration for this program was extended to Friday, February 20th; register now so you don’t miss your last opportunity to save $100 on this program.
Ok, it isn’t really a repricing, but I was surprised to see a tender offer filing last week for restricted stock units. Option exchange programs are happening quite frequently these days, but an exchange program for restricted stock units is unusual enough to be worthy of a blog entry.
RSU Tender Offer
Diamond Management & Technology Consultants is offering to allow employees to exchange unvested restricted stock units for fully vested shares of stock (see their Form SC TO-I filing on February 5). This sounds like a pretty good deal, so why is tender offer compliance even required? Because employees have to agree to forfeit 20% of their RSUs in exchange for the stock. In addition, although the stock they receive will be fully vested (i.e., not subject to forfeiture), employees will be required to hold it for at least six months and up to four years, depending the employee’s position with Diamond.
Why Bother?
I tossed the idea around with a few folks and we came up with the following potential reasons to offer an exchange like this:
To add shares back into the plan.
To get voting shares into the hands of employees (e.g., if there was some sort of proxy challenge anticipated).
To recognize the remaining expense on awards that are now worth significantly less and move forward with a clean slate (a “rip the band-aid off” approach).
Because the company is considering a change in compensation strategies (e.g., moving to a more cash-based compensation approach).
According to Diamond’s earnings release, reason #4 was their primary motivation for the program.
No Accounting Benefits
From an accounting standpoint, a company doesn’t do itself any favors by offering an exchange like this. When vesting is accelerated at a time when the award recipient’s termination isn’t expected or imminent, there is no incremental cost for the modification but the company will have to immediately recognize all remaining unamortized expense for the awards (see the discussion of non-price related modifications in chapter 8 of my book “Accounting for Equity Compensation Under FAS 123(R)“. The expense recognized is the remaining unamortized expense on the full amount of the original awards, not just 80% of that amount. The company doesn’t get any credit or reduction in expense for the 20% of the awards that employees agree to forfeit (see my January 20 blog on “Options for Nothing“–the same concept applies here).
If, however, vesting weren’t accelerated and employees inevitably terminated before the original vest dates, the company would not recognize expense for the forfeited RSUs. Thus, by accelerating vesting, Diamond could end up recognizing more expense, even though employees forfeit 20% of their awards to participate in the program.
Reason #12 to Renew Your NASPP Membership: Sample Communications for Option Exchange Programs
While I’m on the topic of option exchange programs, if your company is in the process of implementing one, the sample employee communications in our Underwater Options Portal could be a real time saver.
Early-Bird Rate Extended for NASPP Online Course on M&A
Due to overwhelming demand, the early-bird rate for the NASPP’s newest online educational program, Tackling Equity Compensation Issues Related to Mergers & Acquisitions, has been extended to Friday, February 20. At only $495, this course is a true bargain–and members that register by February 20 qualify for yet another $100 off this price. Stock plan professionals involved in any aspect of the M&A process won’t want to miss this valuable program.
NASPP “To Do” List
We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blogs.
Have you heard the latest news generating a buzz in the industry? We recently rolled out our newest educational offering, Tackling Equity Compensation Issues Related to Mergers & Acquisitions. I thought I’d use my blog today to highlight one of the topics I will be covering during the administrative part of this offering to give you a hint of what you can expect from this part of the program.
Communicating with Employees About How the Deal Impacts Stock Compensation
Communication is a topic that is important to me in every area of this job, and business combinations are no exception! In times of change, internal communications are paramount; clearly this is no time to neglect your employee communications. There are many topics related to the company’s equity programs that will need to be contemplated in your communications during a business combination. One topic, however, that is typically imminent and generates a lot of interest (because it involves the use of income earned by employees) is the employee stock purchase plan (ESPP). Employees of the target company participating in the ESPP will be very anxious to learn what will happen to the company’s existing ESPP and their current offering. These employees will be equally interested to know about the ESPP of the new parent company (we hope there is one!).
Key Details to Address
Some of the more common topics you’ll want to cover in your communications to address these ESPP concerns include:
Details about the final purchase under the plan: Will the purchase take place on a date different than the pre-arranged purchase dates under the plan, what payroll periods will be covered under this final purchase, and where will the shares purchased be deposited under this final purchase (if shares are being issued).
6039 reporting: What party will be responsible for delivering year-end tax reporting obligations and who should employees contact regarding subsequent sales of target company ESPP shares (if shares are being assumed/converted).
Action Items: Specifics of any action items employees need to follow to continue their participation in the existing offering or become enrolled in the acquiring company’s ESPP, i.e., enrollment deadlines or opening accounts at the acquiring company’s designated broker.
Information about the new parent company’s ESPP: Highlight what’s the same and what’s different under the target and acquiring companies’ ESPPs, describe where shares purchased under the acquiring company’s plan will be deposited, how soon the shares purchased under the plan will be available for sale following the purchase date and what type of brokerage fees employees can expect to pay for sales of their ESPP stock.
Stay Tuned
Now that I’ve covered the topics you want to address in your internal communications, tune in next week when I discuss strategies for effectively delivering this information to employees.
There is the strong possibility that mergers and acquisitions will increase later in the year; it is a mistake to assume you are immune to this trend. You don’t want to wait until you are in the middle of a deal before finding out how your stock plans are impacted. Your participation in our program, Tacklling Equity Compensation Issues Related to Mergers & Acquisitions, will ensure you are poised to address the issues that come up when this time arrives. Early bird registration for this program ends tomorrow; register now and save $100.
Survey on Stock Compensation Practices
Stock & Options Solutions is conducting market research on stock compensation practices. Take a moment to complete their survey today; it should only take five or ten minutes and all respondents will receive a copy of the results.
Did you know that you can contact the SEC for answers to your Section 16 reporting questions (not too mention other securities law matters)? Now the SEC even has an electronic form that you can use to submit your questions.
Electronically Submitting Questions to the SEC
In the past, you had to call the SEC and leave a message briefly explaining your inquiry and then wait for someone to get back to you, who invariably asked you to re-explain yourself and then had to research the matter and get back to you again. Now, with the electronic inquiry submission form, the SEC will have your explanation in writing, which should hopefully make things a little easier.
More good news is that the SEC has indicated that it will try to respond to all electronic inquires within 24 hours. So if an insider engages in a transaction you have a question about and you submit your inquiry right away, you might have a response from the SEC in time to still file a Form 4 for the transaction on time.
The SEC will even try to call during the time period you specify, making it more likely that you’ll actually be at your desk when they call (although, your choices here are limited to morning, afternoon, or anytime–you can’t tell the SEC to call at exactly 10:00 AM or even specify, say, a two-hour window). And by “morning” or “afternoon,” the SEC is referring to Eastern time–“morning” on the east coast is really early in the morning out here in the west and “afternoon” on the east coast is morning out here.
Types of Questions You Can Submit
In terms of Section 16, you can use the form to submit questions related to how to report specific transactions, the exemptions available under Section 16, filing procedures, and other interpretational matters. Questions on how to use the EDGAR system should still be directed to the SEC Branches of Filer Support and Filer Technical Support at (202) 551-8900.
The electronic form requires you to indicate which Division Office your request should be directed to. Section 16-related questions are typically addressed by the Office of Chief Counsel.
Don’t Get Too Clever For Your Own Good
I know that some of you are thinking that you’ll call the SEC and submit your question electronically, just to see which way you get a faster answer. The SEC discourages this, so it would be better to just submit your question in whichever manner you are more comfortable with and wait patiently for the SEC to respond.
How to Find the Electronic Inquiry Submission Form
Probably the easiest way to find the new electronic inquiry submission form is to click the links I’ve provided in this blog. If you want to find it on the SEC’s website, here’s how:
Click the link for “Corporation Finance” (all the way on the right of the page, under “Divisions/Offices”).
On the next page, click the link for “General Information.”
On the next page, click the link for “Submit an Electronic Request for Interpretive Advice and Other Assistance” and you’re there.
NASPP In the News
I’m excited to report that I was quoted yesterday in the Wall Street Journal. The article discusses companies running out of shares in their stock plans as a result of declining stock prices–a problem I suspect many of you are familiar with (“Market Leaves Firms Running Out of Stock Options,” Phred Dvorak, February 2, 2009).
Reason #11 to Renew Your NASPP Membership: Alan Dye
All NASPP members have an opportunity to get answers to their Section 16-related questions from the foremost authority on Section 16 during Alan Dye’s popular annual Q&A webcast. Tune in later today as Alan answers the questions you submitted in advance.
Early-Bird Rate Ends Friday for NASPP Online Course on M&A
The early-bird rate for the NASPP’s newest online educational program, Tackling Equity Compensation Issues Related to Mergers & Acquisitions, is only available until this Friday, February 6. At only $495, this course is a true bargain–and members that register by Friday qualify for yet another $100 off this price. Stock plan professionals involved in any aspect of the M&A process won’t want to miss this valuable program.
Exequity Quick Take Survey: 2009 LTI Grant Practices
Exequity is conducting a short survey on 2009 LTI grant practices to assess changes as a result of the recent economic turmoil. The survey asks 11 questions, which a person knowledgeable about a company’s recent and current LTI grant practices can answer in five minutes or less. Participants will receive a summary of the survey results. Today is your last chance to participate in the survey.
NASPP “To Do” List
We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blogs.