Last Thursday, September 20, Robyn Shutak (the NASPP’s Education Director) and I presented at an Orange County NASPP Chapter meeting. Here are a few pictures from the meeting (click on the thumbnails to see the full pictures).
The Orange County NASPP Chapter Board: Brian Holmen of Jones Day, Diane Coon of Bank of America Merrill Lynch, Michelle May of Questcor Pharmaceuticals, Jeannette Wheeler of OptionEase, and Stacey Lombardi of Allergan. Congratulations to the board for hosting a great meeting (and for being so perfectly color-coordinated)!
Meeting attendees chat before the meeting begins. By the time the meeting started, it was standing room only, with about 30 attendees.
Isabel Zavala of Allergan, Eric Aguirre of Bank of America Merrill Lynch, and Jeanette Mungcal of Corvel.
Bryan Wells of OptionEase with Alma Gonzolez-Monarrez of Watson Pharmceuticals.
I brought jars of homemade apricot jam, guava jelly, and zucchini pickles (all made from fruit and veggies grown in my own garden) to give out as prizes to attendees that answered the “challenge questions” correctly.
Visit the NASPP’s Facebook page to see more pictures of the meeting.
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 we keep an ongoing “to do” list for you here in our blog.
Just 12 more days until the 20th Annual NASPP Conference! Don’t wait any longer to register–the hotel is already sold out (but don’t worry, we’re still accepting registrations and there are rooms available at our overflow hotels).
Complete the Compliance-O-Meter quiz on Retirement.
This week, we feature another installment in our series of guest blog entries by NASPP Conference speakers. Today’s entry is written by Doreen Lilienfeld of Shearman & Sterling, who will lead the session “Deliverance: How to Make Sure You Can Deliver Shares under Your Plan in Compliance with the Securities Act.”
Deliverance: How to Make Sure You Can Deliver Shares under Your Plan in Compliance with the Securities Act By Doreen Lilienfeld of Shearman & Sterling
Equity compensation offerings are rolled out every day, but too often securities law requirements and other compliance issues applicable to these plans are overlooked. Grants of stock options, RSUs and similar awards generally constitute a “sale” of securities under the 1933 Act and must be registered with the Securities and Exchange Commission unless an exemption from registration is available. Each state also has its own securities law regime that must be reviewed, particularly for private companies and foreign entities relying on an exemption from registration.
While compliance is generally simple, the consequences for failure to comply can be grave. At our session “Deliverance: How to Make Sure You Can Deliver Shares under Your Plan in Compliance with the Securities Act” (Session 10.1), we will walk you through the basics of the Securities Act of 1933 and how they interact with the implementation of equity plans. This includes:
When an offer of securities is made that triggers registration obligations;
Available federal exemptions from registration;
Compliance with state “blue sky” securities laws;
Filing requirements and mechanics for registration statements on Form S-8, including prospectus delivery requirements and ongoing compliance issues;
Consequences of a failure to file required reports with the SEC on an outstanding Form S-8 (such as Forms 8-K, 10-Q and 10-K);
Annual reporting obligations on Form 11-K;
Requirements with respect to “restricted securities” under Rule 144;
Issues for non-US companies; and
Recission rights and other consequences of noncompliance.
Our panel will help you spot securities law issues before grants are made, provide tips on how to ensure compliance and make suggestions on what to do if something went wrong.
DC/VA/MD: Terry Adamson and Daniel Kapinos of Aon Hewitt present “Value and Valuations: Making Sense of Long-Term Incentive Data.” (Tuesday, September 25, 8:15 AM)
Denver: Jack McArthur and Jon Burg of Radford present “Best Practices and Trends in Equity Valuation .” (Tuesday, September 25)
Sacramento: Jim Vincent of E*TRADE Financial, Nathan O’Connor of Equity Methods, and Erik Beucler of Compensia will present “A Plethora of Performance Perplexities.” (Tuesday, September 25, 11:00 AM, via Webex)
Seattle: The chapter hosts an evening social in appreciation of its members. (Wednesday, September 26, 6:00 PM)
Wisconsin: Paula Woodman of Charles Schwab presents “Communicating Equity Compensation Successfully.” (Wednesday, September 26, 4:00 PM)
Carolinas: Barbara Klementz and June Anne Burke from Baker & McKenzie present to the chapter. (Thursday, September 27)
Houston: The chapter presents “Making the Grade: Tips & Best Practices to Prepare for the CEP Exam.” (Thursday, September 27, 11:30 AM)
Over the years, as I have contemplated my own career moves in the stock compensation industry, there have been a few resources I knew I had to access if I wanted to find a comprehensive pool of quality opportunities. At the top of the list was the NASPP’s job bank (best known as the “Job Listing” feature on our web site). I can credit some of my significant career “moves” to opportunities I found via the NASPP. Now that I work here, it’s even more apparent to me how much employers and candidates rely on the NASPP Job Listings to address their needs. That’s why I’m bursting with some exciting news this week: the launch of our new NASPP Career Center.
Career Center Highlights
Are you an employer trying to fill an open position in the stock compensation industry? Are you a stock plan professional contemplating a job change? Are you thinking about steps you can take to broaden your career horizons? The Career Center brings the process of matching industry employers and stock professionals to an entirely new level. Some of the highlights include:
• Free Job Bank: Any employer (NASPP member or not) can post an industry-related position.
• Resume Bank: Active NASPP members can post a resume profile for visibility to employers looking to fill job openings; resumes are searchable by those with access to the Career Center.*
• Self Service: Update and activate/deactivate your postings real-time.
• Message Center: Central messaging area for communication between resume posters and employers, as well as email updates about new job openings or candidates that match your search criteria.
*Great care has been taken to ensure confidentiality of resume posters, should they desire to keep their identity initially private.
Broaden Your Horizons
In addition to offering stock compensation career matchmaking, the Career Center also has a variety of information on steps stock professionals can take to further guide their careers. If you’re contemplating a job change, be sure to check out the white paper on “Changing Jobs Gracefully“, written by our own Robyn Shutak.
Where to Begin?
The Career Center is already live and accessible; simply click here to browse or get started today; there are already many active jobs and resumes posted. Note that the Career Center officially replaces the Job Listings page on our web site, so you’ll want to head directly to the Career Center to check out jobs or resumes.
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 we keep an ongoing “to do” list for you here in our blog.
For today’s blog entry, I feature pictures from the San Francisco NASPP chapter all-day symposium. The event was held last Wednesday, September 12, at Wente Winery in bucolic Livermore. It’s a phenomenal event; if you’ve never attended, you should think about joining us next year.
This is the only event I attend that has an outdoor exhibit hall. The E*TRADE folks have lots of interesting giveaways at their table.
Congratulations to the San Francisco chapter board for hosting a fantastic event. Pictured here are board members Wendy Jennings of Riverbed (Director), Donna Spinola of McKesson (Vice President), Joe Thatcher of Computershare (President), and Barbara Klementz of Baker & McKenzie (Secretary). Board members not pictured are Christine Zwerling (Treasurer), Ingrid Freire (Program Committee), Paz Dizon (Program Committee), Sara Spengler (Director), Lauren Downs (Program Committee), and Jeff Graham (Director).
Here’s what’s going on at your local NASPP chapter this week:
Connecticut: Lawrence Wagman of Golden Parachute Tax Solutions and David Schmidt of James F. Reda & Associates present “Beware of the Golden Parachute Excise Tax.” (Wednesday, September 19, noon)
Dallas: Ben Delancy and Tim Verrall of Ogletree, Deakins, Nash, Smoak & Stewart present “Current Trends in Equity Comp: Who Is Doing What & Why.” (Thursday, September 20, noon).
Ohio: Speakers from Ernst & Young, Fidelity, and Buck Consultants present on clawback provisions, cost basis legislation, and performance plans. (Thursday, September 20, 9:30 AM)
Orange County: Barbara Baksa and Robyn Shutak of the NASPP present “10 Ways To Breathe New Life Into Your Stock Plan Education Program.” (Thursday, September 20, 11:30 AM)
Whether you’re new to the industry or have been involved in stock compensation for a while, chances are you’ve run into some retirement provisions as part of managing equity programs. What makes these provisions a bit different and often more tricky to administer compared to other situations, such as termination, is that some plans treat the mere act of becoming eligible for retirement as an event, regardless of whether or not retirement actually occurs. In today’s blog I examine some of the more challenging aspects of managing retirement provisions.
Timing is Everything
Ah, it would be so easy if people became eligible for retirement and then retired on the same day. Somehow I think the forces of the universe would think that’s letting us off the hook way too easy. So, instead, many companies increase or guarantee benefits once someone becomes eligible to retire, even if it’s months or years before the actual retirement will occur. Stock compensation is certainly one of those “benefits” that can be affected upon retirement eligibility.
Restricted Stock and Restricted Stock Units are two award types that are often affected by retirement eligibility provisions. Two common scenarios include acceleration of vesting upon retirement eligibility, or simply removal of the “substantial risk of forfeiture” conditions on the award. An example of the latter would be a provision that says that although no acceleration of vesting will occur upon retirement eligibility, the employee will be guaranteed to continue to vest in their shares until retirement.
One tricky aspect of administering the above provisions is tax withholding. Both RSAs and RSUs are subject to FICA taxes once the risk of forfeiture no longer exists. If the shares are not released to the employee at that time (let’s say that vesting will occur in the future, after the retirement eligible date, even though the risk of forfeiture no longer exists), then selling or withholding shares to pay for the FICA withholding is not an option. Many companies do rely on the IRS’s “rule of administrative convenience”, which allows FICA withholding to occur by 12/31 of the year of the triggering event. This means that companies can delay the mechanics of actually withholding until the end of the year, when many employees may have already met their annual FICA limit. In this case, no additional FICA withholding would be necessary and the company is off the hook in terms of having to figure out how to collect FICA on the shares. However, if the employee hasn’t met their FICA limit as year end approaches, then an appropriate amount of FICA will still need to be withheld. As such, the stock plan administrator needs to work with Payroll to ensure close coordination and monitoring of FICA status.
We’ve talked about FICA, but other taxes cannot be forgotten as well. Depending on award type (RSA or RSU) and the type of retirement eligibility event (accelerated vesting? guaranteed vesting in the future?), the timing of withholding for federal, state and medicare taxes may be different than the timing of FICA withholding.
Don’t Forget 409A
For companies with RSUs that vest upon retirement eligibility, the RSU will be considered “deferred compensation” under 409A if the shares will be released within a year of the retirement eligible (vest) date. In that event, 409A payout rules and deadlines need to be followed.
Evaluate Your Practices
I’ve highlighted a few of the considerations around retirement eligibility provisions and have just scratched the surface. Our newest Compliance-O-Meter on Retirement Practices gives you an opportunity to rate your retirement practices and see how other companies are handling these situations.
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 we keep an ongoing “to do” list for you here in our blog.
Complete the Compliance-O-Meter quiz on Retirement.
