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Monthly Archives: April 2013

April 11, 2013

Global Equity Questions? There’s an App for that…

“There’s an app for that…” has become such a mainstream phrase in our society, it’s hard to remember that it’s only been a handful of years since “app” emerged as a word. As technology and apps have sprouted at light speed, it’s nice to see the trend carry over into our world of equity compensation. The more tools, the better. In today’s blog, I’ll highlight the features of a cool new app that just launched – the Baker & McKenzie Global Equity Matrix app (kudos to anyone who can accurately count how many times I use the word “app” in this blog today.)

Get in the Know

Global Equity Matrix app

I’m an iPhone user, so I downloaded the app as soon as it was available last week, excited to test drive global stock plan information with a screen touch. By my count, you can presently access select tax and legal information for equity types in 40 different countries. The app is very simple to use – just choose your country, and decide whether you want to see “all” information, or filter the information for stock options, restricted stock/units, or ESPP. Voila, information on things like taxation, subsidiary deductions, exchange controls, securities restrictions, withholding and reporting, plan entitlement and data privacy all appear. Pretty nifty. One thing I really liked was that you can filter by country, equity type, and topic. That means if you only want to see information on data privacy for RSUs in Colombia, you can narrow the field of information and don’t have to scroll through a myriad of other data.

Some key highlights of the app include:

  • Available for iPhone, iPad and Android. Just search for “Global Equity Matrix”.
  • It’s Free. It’s a FREE app, which makes it easily available to all of us.
  • It’s regularly updated. I’m guessing this is similar to the hard copy matrix that Baker & McKenzie publishes with country updates. They indicate that this app will be regularly updated as well, so that should help to keep up with new developments.
  • Get updates to important developments. As things happen, updates will be sent right to your device.

I can completely see the value of an app like this one. We all bring our smartphones to meetings anyhow – wouldn’t it be great to tap into the considerations for a jurisdiction right there in the meeting, via an app at your fingertips? Technology keeps evolving, and I love these tools that are emerging to empower us with knowledge and help us to be even more efficient in our work.

The Global Equity Matrix app is available via your smartphone. You can also find the link in our Global Stock Plans portal. I can’t wait to see what someone thinks of next.

-Jennifer

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April 10, 2013

NASPP To Do List

10 Points to Terry Adamson of Radford

Terry Adamson of Radford gets 10 points for answering my “think fast” challenge on two times when the Black-Scholes value is not significantly higher than intrinsic value (“Realizable Pay,” April 2, 2013).  Terry’s answers:

  1. When there is a significant dividend yield, then Black-Scholes will be less than intrinsic value. 
  2. When an option is well “in-the-money”, then Black-Scholes would be very close to the intrinsic value (i.e., the time value shrinks to nothing with options that are well in the money).

Also, when an options is close to expiring it has very little time value, so the Black-Scholes value would not be much higher than intrinsic value.  Hmmm, I think this might show up in the Question of the Week Challenge soon.

Survey Deadline Extended

We’ve extended the deadline to participate in the NASPP’s 2013 Domestic Stock Plan Design Survey (co-sponsored by Deloitte). Don’t dilly dally; we can’t extend the deadline again. 

NASPP “To Do” List

Here’s your NASPP “to do” list for this week.

– Barbara

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April 9, 2013

409A in the Courts

A court (Sutardja v. United States) recently confirmed that discounted stock options are subject to Section 409A. You probably didn’t even know that there was any question about this. But I guess when someone is slapped with the penalty tax under 409A, they are willing to try just about any argument. It certainly would have been big news if the plaintiff had prevailed.

As it stands, you probably think it’s hardly news worth blogging about. That’s because you don’t write a blog. If you had to come up with something pithy and timely to say every week, you’d know that anything is on the table. Which brings us to today’s blog entry…

Don’t Do That!

First, there are a couple of important lessons here:

Lesson 1) If you are thinking of taking the IRS on with regards to whether stock options are subject to 409A, the fact that a court has now backed the IRS on this matter makes it a lot less likely that you’ll succeed. It might be better to just cut your losses and deal with those discounted stock options that you granted accidentally.

Lesson 2) This issue arose out of a backdating investigation. The option in question was approved by the company’s compensation committee at one meeting and then later, at a subsequent meeting, the compensation committee ratified their earlier decision. When the company later conducted an investigation of its grant procedures, it decided that the grant date was when the decision was ratified at the second meeting. The FMV of the stock was higher on this date than at the earlier meeting, but the option price had been set based on the earlier FMV. As a result, the investigation deemed the option to have been discounted.

I’m not sure why the comp committee would approve the grant at one meeting and then ratify the decision at a second meeting (perhaps there was something wrong with the initial approval). Don’t do that! Approve options just once.

What About the Corrections Program?

Another interesting point in this case is that when the company’s internal investigation concluded that the options were discounted, they required the executive to pay the amount of the discount back to the company. If you’re keeping score, that means this guy has been dinged twice. He’s paid the higher (non-discounted) exercise price for the stock yet has also paid the 409A 20% penalty tax plus interest.

But wait–isn’t there some sort of corrections program for discounted stock options? If the exec has made up the difference in the exercise price, why wouldn’t the option be exempt under the corrections program? Why yes, Virginia, there is a 409A corrections program for discounted stock options–I even blogged about it back in 2009 (“Recent 409A Developments,” Jan. 13, 2009). I think there are several reasons why this option doesn’t qualify for the corrections program, however:

  1. The events in this drama unfolded from 2003 to 2006, long before the corrections program–announced in late 2008–existed.
  2. To be eligible for correction, the option can’t have been exercised yet.  The executive in this case didn’t pay the additional cost to make up for the discounted option price until after he had already exercised the option.
  3. Options granted to Section 16 insiders have to be corrected by the end of the calendar year in which they are granted. The options in this case were granted in 2003 but not corrected until 2006.
  4. The grant documentation has to indicate that the option was intended to have price equal to FMV. I have no idea if this is an issue in this case, but it’s a good thing to make sure is specified in your own grant documentation. If you are ever in a situation where you need to rely on the 409A corrections program, you’ll be glad you did.

At this point, the case is not yet resolved. While the judge did agree that discounted stock options are subject to 409A, this decision was a partial summary judgment (meaning the judge thought that the IRS’s case was so obviously right that it wasn’t necessary to go to trial over this issue–something else to keep in mind if you were thinking of taking the IRS on). But the remaining question, which is whether or not the option was actually discounted, remains to be decided.

Is This Up to a Jury?

Coincidentally, I just got a jury duty summons, which got me thinking: are these sorts of tax law questions decided by a jury of my peers?  Nothing against my peers, but most of ’em (except, of course, for my colleagues in stock compensation) don’t know beans about stock compensation or tax law. So if that’s the case, that’s a little scary.  Also, how come when I’m called for jury duty, it’s never for cases that involve stock compensation?  I think I’d have a lot to add as a juror for a case like this. Heck, I could probably even count it as “work.” You know, research for the blog… 

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April 4, 2013

SEC No Action on SOX 402

Sometimes a blurb on an equity compensation “happening” crosses our desks, and it’s hard to know whether it’s the start of a new trend, or just an isolated occurrence. This was the case when I recently came across an SEC no-action letter on Sarbanes-Oxley 402 (the provision of the Act that covers loans to officers and directors). I hesitated to blog about it, but then decided that it could be a useful and interesting clarification in an area where the SEC has long remained silent. I realized I wasn’t alone, because Broc Romanek expressed the same sentiments in a recent CorporateCounsel.net blog.

Innovation Breeds a No-Action Letter

As far as I can tell, the circumstances leading to the no-action letter represent a one-off scenario. However, the interesting part to me was the creative approach to equity compensation that was the intent behind the request to the SEC. The company involved, RingsEnd Partners LLC, created a program for restricted stock award shares that they believed would encourage executives to hold on to award shares that they might otherwise consider selling upon vest (when taxes are typically due). As more fully described in the detailed version of the incoming letter to the SEC, participation would be voluntary, and those electing participation in the program would allow their shares to be initially taxed at grant (I’m guessing via agreement from the participant to make an 83(b) election). Underlying shares from new awards would be transferred to a trust at the time of grant. The trust would then go to a bank to obtain a loan to pay the taxes on the shares (based on the spread at the award date). The shares would be held by the trust as collateral for the loan. Once vested, no additional taxes would be due (any appreciation would later be taxed at sale), and a portion of the shares would be sold to cover the loan amount from the bank. The remaining shares (and any residual cash proceeds) would then be released to the participant. With shares free and clear, and no further amounts due until sale, RingsEnd Partners believes that participating executives will be encouraged to hold the shares, further aligning with shareholder interests. The company would have no participation in the program, other than “ministerial” tasks. Believing their arrangement would not violate SOX 402’s provisions regarding making loans to officers and directors, they sought a no-action letter from the SEC.

The Legal Details

The firm leading the charge to the SEC on behalf of the company was BakerHostetler, and they released their own summary of the events that led to the no-action letter. This is one of those times when they can articulate it much better than I can, so I will extract some of the pertinent sections:

In BakerHostetler’s Feb. 28 letter to the SEC staff, Messrs. Oxley, Gallagher and Reich sought guidance on Section 402 with regard to an innovative equity-based incentive compensation (EBIC) program that their client, financial services firm RingsEnd Partners LLC, developed with global financial institution BNP Paribas. The EBIC program contemplates that participating employees will receive company stock as incentive compensation and thereafter transfer those shares to an independently managed Delaware statutory trust. The trust could then obtain term loans from an independent banking institution, using some or all of the shares transferred to the trust as collateral. The letter notes that, in the absence of interpretive guidance on SOX 402, public companies have been reluctant to permit directors and officers to participate in the proposed program.

BakerHostetler contended that an issuer allowing its employees to participate in the EBIC program would not be extending or maintaining credit, or arranging for the extension of credit, in the form of a personal loan to employees subject to SOX 402. The lawyers noted that although a company would “need to perform certain ministerial tasks in order to allow its employees to participate in the EBIC program,” the company would “neither encourage nor discourage employee participation,” nor would the company “directly or indirectly make or guarantee the loans, or provide any extension of credit or other financial support” to the trust, its trustee, or trust beneficiaries (the employees). BakerHostetler argued that the legislative history suggests that under the final version of SOX 402, the phrase prohibiting a company from “arrang{ing} for the extension of credit” should be read no more broadly than prohibiting the company from providing a “loan guarantee or similar arrangement,” language found in earlier versions of SOX 402.

In the new guidance issued by the SEC, the agency’s staff wrote that an issuer that permits its directors and officers to participate in the plan “would not be deemed thereby, directly or indirectly, to be extending or maintaining credit, in the form of a personal loan to or for such individuals for purposes of Section 13(k) of the Securities Exchange Act of 1934” {SOX Section 402}. The SEC also wrote that an issuer that undertakes certain ministerial or administrative activities to permit its directors and officers to participate in the EBIC Program would similarly not be deemed, directly or indirectly, to be extending … or arranging for the extension of credit in the form of a personal loan to or for such individuals within the meaning of SOX 402.

Is this just a one-off scenario? Or, will this no-action letter spark a trend of creative arrangements that allow for funding of equity compensation awards in a manner that won’t evoke action from the SEC for a SOX 402 violation? Only time will tell, but it was certainly interesting to intercept.

-Jennifer

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April 3, 2013

NASPP To Do List

Last Chance to Participate in the 2013 Domestic Stock Plan Design Survey

This is your last chance to participate in the NASPP’s 2013 Domestic Stock Plan Design Survey (co-sponsored by Deloitte). This is the most comprehensive survey on stock plan design–compensation consultants charge more than $1,000 for surveys that include less data and fewer respondents. You’re going to want this data, but you’d better get cracking.  Issuers have to participate to have access to the full survey results and you must complete the survey by this Friday, April 5–no exceptions!

 

NASPP “To Do” List

Here’s your NASPP “to do” list for this week.

– Barbara

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April 2, 2013

Realizable Pay

Realizable pay has quickly emerged as a hot topic for this proxy season. In today’s blog, I offer a few thoughts on realizable pay as it relates to stock compensation.

Why Realizable Pay?

Realizable pay has emerged as a method for evaluating whether executive pay aligns with company performance.  It’s an alternative to comparing company performance to total pay as disclosed in the Summary Compensation Table.  For equity awards, pay is disclosed in the SCT at grant and is based on the grant date fair value. Arguably, the pay disclosed in this table is for future performance, not current performance.  Also, the grant date fair value is not necessarily a predictor of how much compensation execs will actually receive under the arrangement.

Realizable pay, however, is based not on grant date fair value but on the current value of the company’s stock.  Thus, where equity awards are a significant component of executive pay, realizable pay can make for a more compelling story for shareholders:  high levels of realizable pay are likely the result of an elevated stock price, which in turn probably means that the company is performing well. On the other hand, poorly performing companies have lower stock prices, resulting in underwater stock options and low levels of realizable pay.

What Is Realizable Pay?

Realizable pay is not a mandated disclosure, so there is no standard definition for it. Generally, it can be expected to include cash compensation paid during the year, plus the intrinsic value of options and awards held by the executive.  But, of course, it’s more complicated than that. 

  • Which awards/options?  Awards typically vest and pay out in three to four years, but options can be outstanding for up to ten years.  The standard that is emerging seems to be to include only options and awards granted within a specified period (e.g., three years).  The idea is that the grants that are generating the company’s current performance are the ones made in recent years; grants made earlier generated performance in an earlier time frame. 
  • Vested and Unvested? Technically, executives can really only realize the value of options and awards that are vested.  Most companies, however, seem to include both vested and unvested options and awards in realizable pay. 
  • Performance Awards? Where execs hold performance awards, a decision also need to be made as to whether to include these awards at threshold, target, or maximum.  These awards could also be included at the level at which they are currently expected to pay out, but companies may be uncomfortable with this approach as it potentially signals management’s expectations as to future company performance. 

When Is Realizable Pay Not Realizable?

When ISS calculates it, of course.  ISS includes the current Black-Scholes value of options in realizable pay, rather than just their intrinsic value (see “Proxy Advisor Policies for 2013,” November 27, 2012).  The Black-Scholes value is generally always going to be higher than the intrinsic value (think fast:  ten points if you can name two situations where the Black-Scholes value would not be significantly higher than intrinsic value), so this has the effect of increasing the pressure to outperform peers. 

– Barbara

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April 1, 2013

NASPP Chapter Meetings

No foolin’! Here’s what’s happening at your local NASPP chapter this week:

Denver: Valerie Diamond and Denise Glagau of Baker & McKenzie will present on how to operate an ESPP on a global basis without risking the tax qualified status. (Thursday, April 4, Noon)

Boston: Barbara Klementz and June Anne Burke will present Baker & McKenzie’s Global Equity Training Series. (Friday, April 5, 10:00 AM to 3:00 PM)

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