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Monthly Archives: June 2009

June 30, 2009

Ignore the Romeo & Dye Model Forms At Your Own Risk

An article in the March 2009 issue of Section 16 Updates (and in Alan Dye’s blog) recently caught my eye; I’ve been meaning to blog about it for some time now. The article discusses enforcement proceedings against the former associate general counsel of Enron for an incorrect Section 16 filing.

The Gory Details

The gist of the story is that Enron’s associate general counsel chose to allow Ken Lay (CEO of Enron at the time) to report Form 4 reportable transactions on Form 5. The associate general counsel made this decision in spite of a memo from one of Enron’s paralegals recommending reporting the transactions on Form 4. The memo even included a copy of a model form from Romeo & Dye’s Forms & Filing Handbook illustrating how the transactions should be reported. Incorrectly reported transactions are a violation of Section 16; the SEC’s complaint alleged that the associate general counsel, by allowing the incorrect filings, had aided and abetted Lay’s violations.

The Penalties

As a result of the SEC’s complaint, the associate general counsel was ordered to pay disgorgement of $1, a civil penalty of $25,000, and was barred from practicing before the Commission for two years. (If you are wondering why the SEC bothered with the $1 disgorgement, Alan Dye tells me that it triggers the applicability of the Fair Fund provisions of Sarbanes-Oxley, which then allows any civil penalty imposed later to be added to the disgorged amount and ultimately distributed to defrauded investors.)

The Lesson

The article caught my eye because I don’t generally expect folks preparing Section 16 filings on behalf of company insiders to be subject to penalties for incorrect filings. I’ve always assumed that, because the filings are ultimately the responsibility of the insider, any penalties would be applied to the insider. This is, after all, a service you are performing for your insiders on a voluntary basis; the company isn’t legally required to assist with Section 16 filings. I guess it’s true that no good deed goes unpunished.

This case is certainly the exception, rather than the rule; according to the article in Section 16 Updates, the SEC does normally target the insiders, rather than those preparing the filings. And this is a very high profile case where the incorrect filings proved to be self-serving, enabling Lay to avoid reporting the transactions until after Enron’s stock had collapsed. But even so, it doesn’t hurt to take a few steps to protect yourself:

  • Have your general counsel review any forms before they are filed with the SEC, so that you aren’t solely responsible for deciding how transactions will be reported. If advance review isn’t possible due to time constraints, a post-filing review is better than no review at all.
  • Know the rules and have resources available (such as Romeo & Dye’s Section 16 Forms & Filing Handbook) that you can use to research how transactions should be reported. Do not agree to prepare and submit Section 16 filings without the proper training and resources.
  • If you encounter a transaction for which you aren’t sure of the proper reporting procedures, ask your general counsel or your legal advisors for assistance.
  • If you are asked to report a transaction in a manner that you don’t believe is correct, write a memo to your manager or to the company’s general counsel explaining how you believe the transaction should be reported.

New Model Forms & Filing Handbook Now Available
While we’re on the topic, the 2009 edition of Romeo & Dye’s Forms & Filing Handbook is at the printers, and, if you subscribe to the Section 16 Service, shipping soon to your mailbox. This is an essential resource for anyone who prepares Section 16 filings; don’t submit another form without it!

NASPP Conference Session of the Week
This week’s session is Good Data Gone Bad: Ten Tests to Diagnose Lurking Problems in Stock Plan Data. Even in the most nurturing environments, good data can go bad. This session will explore what makes data go bad, how to spot the early warning signs, and how to get your data back on the “straight and narrow.” The panelists will offer ten tests that can be run on your data to identify errors and explain how to fix any problems you find.

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 blog. 

– Barbara

June 25, 2009

Mobility and Double Taxation

It can take a considerable amount of effort, not to mention legal advice, to correctly report income and withhold taxes on your globally mobile employees. In the spirit of keeping this short, I’m going to talk about some of the issues around double taxation and employee mobility in the context of a U.S. company and a U.S. citizen.

Double Taxation

All income made by a U.S. citizen is taxable in the U.S., regardless of where the income was earned. Additionally, the company has the withholding and reporting obligations with regards to income and income tax. This means that a conservative approach to withholding on income from equity compensation for your U.S. employees who are working abroad would be to withhold U.S. income tax on the entire amount. The local tax authority in the country in which your mobile employee resides may also require reporting and withholding on that same income, creating double taxation for the employee. This issue was addressed in 2004 by the Organisation for Economic Co-Operation and Development (OECD) in their paper on the taxation of mobile employees. In this paper, the OECD calls for tax treaties that help alleviate the burden of double taxation by sourcing the income based on where it was earned. Although the paper, and other recommendations by the OECD, is non-binding to any country, it has influenced the way equity compensation income is addressed in tax treaties.

Tax Treaties

Fortunately, many countries have treaties in place that provide a protocol for income tax obligations on income that may be sourced to more than one country. In fact, the U.S. has entered into income tax treaties with over 60 countries. You can find them all on the IRS website HERE. These treaties are typically for the individual and do not necessarily relate to your company’s obligation as an employer to report and/or withhold. They often permit the individual to receive a foreign tax credit on income that was earned outside of the U.S. and is also taxed in the other country. Some employers, at the recommendation or approval of their own tax advisors, apply these tax credits proactively to equity compensation income that was “earned” outside the U.S., using a pro-rata arrangement to allocate income that was earned while the employee was still in the U.S.

Totalization Agreements

Income tax is not the only tax that companies need to consider when dealing with globally mobile employees. Social taxes also apply, and may be handled differently than income tax arrangements. Double taxation is also an issue with social taxes like the U.S. social security tax and Medicare; this is called dual coverage since social taxes are typically designed to cover an individual or their families in retirement, illness, disability, or death. The issue of dual coverage is costly for both your mobile employees and your company, since most countries have an employer-paid portion of social taxes. To address this issue, the U.S. has entered into “Totalization agreements”. These agreements allow the individual and the company to source the entire amount of equity income to one country or the other, per the agreement (you can’t choose which country to contribute social taxes to). You can find all the countries with which the U.S. Social Security Administration (SSA) has Totalization agreements on the SSA site HERE. If your company is planning to rely on a Totalization agreement for some or all of your mobile employees, you will need to ensure that each employee has a certificate of coverage issued from the country in which the employee will be paying social taxes. In the U.S., the certificate of coverage can be requested from the SSA by your company on behalf of the employee.

Multiple Sourcing Periods

What all this means is that if your company decided to proactively apply both the income tax treaties and the Totalization agreements, there may be several ways in which income is allocated. Even though this is advantageous to your mobile employees because they will not need to pay now and true-up their tax obligation when they file their income tax returns, it does mean that you will need to communicate very clearly with your employees and your Payroll department. Essentially, your company will need to report a different amount of income in Box 1 of the W-2 than is in Box 3 and Box 5 (see our Tax Withholding and Reporting portal for more on U.S. tax withholding). Additionally, if you are sourcing the income pro-rata, the sourcing may be applied differently in the U.S. than in the other country. In the U.S., it’s generally accepted that the sourcing is from grant to vest for options, but in some countries it may be grant to exercise.

Key Resources

There are, of course, many additional considerations for tax withholding for your mobile employees. You can find additional resources in the NASPP Global Stock Plans portal, in our Document Library, and on the Discussion Forum (search for the keyword “mobile”). You can also see what other companies are doing by reviewing our 2006 and 2008 International Stock Plan Design and Administration Surveys, co-sponsored by Deloitte. Until the full 2008 survey is available on our site, you can catch the highlights in the archive of our recent webcast, Top Trends in Stock Plans for Overseas Employees.

You should already be registered for our 17th Annual NASPP Conference. If you haven’t, act now – the early bird rates end this Friday. If global mobility is a topic you want to hear more about, be sure to sign up for the workshop “Traveling with Equity” at the Conference!

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June 23, 2009

Leap Year and ISOs

Sometimes employees ask the darnedest things!  Questions that those of us that work with stock compensation day-in and day-out never think about.  A different perspective can lead to some surprising inquiries.

ISO/ESPP Holding Period–365 Days or 12 Months?

A stock plan administrator recently emailed me because an employee was challenging the company’s application of the statutory holding period to shares he had acquired under an ISO.  The employee had exercised the ISO on June 13, 2007 and sold the shares on June 13, 2008. The company treated the sale a disqualifying disposition.  The employee argued that the sale was not a disqualifying disposition.  His argument: leap year. 

2008 was a leap year, so February had 29 days instead of the usual 28.  The employee argued that with the extra day in February, his sale occurred a full 366 days (which he considered to be one day longer than a year) after his exercise and thereby met the ISO holding period (the option had been granted several years ago).

What Does the IRS Think?

Both the stock plan administrator and I were pretty sure the employee was wrong, but, to be honest, it wasn’t a question I had ever thought about before.  So I looked it up in the final ISO regs, and wouldn’t you know it, the regs include an example that involves a leap year (§1.422-1(b)(3), Example 1, on pg 45).  The example involves an ISO that is granted on June 1, 2006 and exercised on August 1, 2006.  The regs specifically state that the employee has to hold the stock until June 2, 2008 (two years from the date of grant) to engage in a qualifying disposition.  Thus, the extra day in February doesn’t count.

I wonder if the IRS specifically used that example because it included a leap year?

Got More Surprising Employee Inquiries?

If you have received questions from your employees that you think are especially interesting or bring a new perspective to stock compensation, I’d love to hear about them.  You can email them to me at the address listed in my NASPP Directory Record.

NASPP Conference Session of the Week
The week’s session is The Economy and Your Stock Plans: New Approaches to Granting and Paying Out Equity Awards.  This panel will take a strategic look at how the economy has impacted stock plan design.  The panelists will discuss tax, governance and disclosure considerations relating to the annual grant process; strategies for granting new equity awards with respect to significantly depreciated equity; approaches to establishing performance goals in the current economic environment; considerations relating to the exercise of “positive” discretion to pay awards when performance goals are not achieved; and many other practical issues affecting the compensation committee planning process. 

Last Chance Early-Bird Savings on NASPP Conference
You have just a few days left to take advantage of the early-bird discount on registration for the 17th Annual NASPP Conference (and also our pre-conference sessions, Restricted Stock Essentials and The 4th Annual Proxy Disclosure Conference). Don’t wait any longer–after June 26, the rates go up!

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 blog. 

– Barbara  

June 18, 2009

Short-swing Profit Recovery

In March of this year, we saw two important cases of short-swing profit recovery come to a close. First, the New York Federal Court approved the settlement against two hedge funds for the recovery of short-swing profits resulting from trades of CSX stock (preliminary announcement from the CSX website ). Two unusual aspects of this case are the inclusion of derivative securities in the calculation of shares beneficially owned, and the definition of a “group” for the purposes of determining shares beneficially owned (see Alan Dye’s Blog for more details)

The second final ruling was a denial by the U.S. Supreme Court to allow InfoSpace founder Naveen Jain to sue his stock management company for trades relating to Jain’s 2003 short-swing profit recovery judgment — see “Supreme Court turns down appeal from InfoSpace founder (The Seattle Times, March 9, 2009). In 2003, Jain’s case was one of the largest settlements rulings at the time. The judgment was for $247 million, although he settled for $105 million. Jain’s case is important because it highlights that the courts are not likely to allow insiders to recover losses that were alleged to be the fault of actions by another party.

Both of these cases illustrate the complexities involved with short-swing profit recovery.

On the surface, short-swing transactions may appear to be basically straight forward. Section 16(b) of the Securities Exchange Act of 1934 requires Section 16 insiders to return any profits realized by two non-exempt opposite-way transactions that occur within six months of each other. It isn’t relevant which of these transactions takes place first, or even if the transactions resulted in real profit for the insider.

Additionally, the transactions covered include any non-exempt transactions in the company’s shares that are even beneficially owned by the Section 16 insider. This includes transactions by family members or entities in which the insider is a controlling member. For example, if a Section 16 insider sells 1,000 shares of company stock at $10 a share and the insider’s spouse later within the six-month period purchases 1,000 shares at $5 per share, these two transactions could be matched for short-swing profit recovery. The company should recover the difference of $5 per share, or $5,000.

Short-swing profit recovery is designed to discourage insiders from taking advantage of inside information about the company to realize short-term profits. However, the intent behind transactions isn’t relevant; only the outcome. Unlike insider trading, there are no fines or criminal charges that are associated with short-swing profits (although the repayment to the company of the calculated profits can be a very serious loss for the insider).

If the company fails to uncover short-swing profit or does not require the insider to repay the profit, then a shareholder may bring the transactions to the attention of the company. In most cases, that shareholder is entitled to an “attorney’s fee”, which is taken from any profits recovered by the company. This fee is negotiated in a private settlement, and could be a significant amount of money. Because of this, there are attorneys who monitor insider transactions hoping to find short-swing transactions that resulted in a calculated profit.

Your company should include information about Section 16(b) and short-swing profit recovery in the insider trading policy. It is important that your Section 16 insiders understand:

  1. Which transactions may be matched for the purposes of short-swing profit recovery,
    how ‘profit’ is calculated,
  2. who at the company is available to discuss transactions with the insider (the compliance officer, for example),
  3. that the insider is ultimately responsible for any Section 16(b) liability,
  4. and to stress that any shareholder may sue the insider for profit recovery if the company does not require the insider to disgorge profits on short-swing transactions.


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June 16, 2009

SEC Issues New CDIs; Final Interim Rule for TARP Companies

SEC Issues New CDIs on Executive Compensation Disclosures
On May 29, the SEC updated its Compliance and Disclosure Interpretations (CDIs); the update includes the following new guidance on disclosure of stock compensation:

  • For performance awards reported in the Grants of Plan-Based Awards Table, the grant date value disclosed should be based on the maximum payout.
  • If outstanding awards are modified during the year, the incremental fair value attributable to the modification must be reported in the Grants of Plan-Based Awards Table.
  • Where shares earned pursuant to achievement of a performance target continue to be subject to an ongoing service requirement, the number of shares reported in the Outstanding Equity Awards at Fiscal Year-End Table should be the actual number of shares earned, but they should be reported as subject to service-based vesting.

The CDIs also provide guidance on how awards with multiple performance periods should be reported in the Grants of Plan-Based Awards Table and on a number of other matters not related to stock compensation.

For more information on the new CDIs, see the memos from Frederic W. Cook & Co.McDermott Will & Emery, and Pearl Meyer & Partners that we’ve posted in the NASPP’s Executive Compensation Disclosures Portal.

Interim Final Rule on Compensation and Corporate Governance Standards for TARP Companies
Treasury has issued an interim final rule on standards for compensation and corporate governance for companies receiving TARP funds.

The rule implements the following requirements for TARP companies:

  • Imposes limits on bonuses to executives and highly compensated employees and curtails golden parachute payments and imposes clawback provisions on bonuses paid to these same individuals.
  • Requires risk analysis of compensation for all employees.
  • Requires luxury expenditure polices.
  • Institutes “Say on Pay” requirements.
  • Prohibits tax gross-ups.
  • Requires additional perk disclosures and disclosure of compensation consultants.

In addition, the rule appoints a Special Master to review compensation plans at firms receiving exceptional assistance.

For more information on the rule, see Treasury’s press release and the memos we’ve posted from McDermott Will & Emery, McGuireWoods, and WilmerHale.

NASPP Conference Session of the Week
This week’s session is “After the Hype: The Real World Impact of RSUs vs. Stock Options.” This session will examine a cost benefit analysis of options and restricted stock units to determine if full value awards are really all they have been cracked up to be.

Last Chance Early-Bird Savings on NASPP Conference
You have just a little over one week left to take advantage of the early-bird discount on registration for the 17th Annual NASPP Conference. Don’t wait any longer–after June 26, the rate goes up!

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 blog. 

– Barbara 

June 11, 2009

Drawing the Line

On April 1, 2009, a federal judge ruled in favor of former Broadcom CFO, William Ruehle — see “Separate Representation Is Best for Corporate Officers and Directors” (West Virginia Business Litigation, April 8, 2009). In the ruling, the court ruled that statements made by Ruehle while he was CFO of Broadcom during an internal investigation into stock granting practices are inadmissible in the ongoing case against Broadcom and several officers and directors.

The issue centers on the law firm that Broadcom retained to not only represent the company in the lawsuit, but also to conduct an internal investigation into Broadcom’s historical granting practices. The same firm simultaneously represented both Broadcom and Ruele . Broadcom wanted to disclose certain statements made by Ruele during the course of that investigation. Ruele claims, and the court agrees, that his statements should be covered by attorney-client privilege and should not be disclosed to a third party. This ruling could have serious repercussions for the law firm; it also means that Broadcom may not fully cooperate with the investigation.

This ruling highlights the issues of dual representation and conflict of interest. This particular case deals with issues that may arise when companies and key individuals retain the same legal representation. But, companies should keep in mind that this type of situation could come up inadvertently. For example, if you have a law firm that helps the company with Section 16 filings, which are actually on behalf of the individual Section 16 insiders, then both the individual and the company could be seeking counsel from the same firm. Or, companies often have a designated broker to whom it outsources stock plan administration functions. If that broker also administers Rule 10b5-1 plans for executives and offers financial advice to some employees, then there is a working relationship for both the company and the individual. The company can’t know when or if any of these circumstances could lead to or become a part of litigation, so it must be careful to draw the line between the relationships involved.

The risk of not being able to disclose information in an investigation (to garner leniency from the judge) is one tangible potential consequence of dual representation. However, the general risk of a conflict of interest for a company’s outside advisers exists in other ways as well. Companies often leverage their existing relationships to extend benefits to their executives or other key employees. Whether it is a broker, accounting firm, lawyer, or even a financial advisor that the company has brought in to offer assistance to employees, it is important for all parties to be clear on the relationships involved.

Many of these services are an advantage to both employees and companies; the solution isn’t necessarily to eliminate any situation where both the company and the individual engage the same third party (although there are certainly situations where this is highly advisable). The solution is that both the company and the third party should make clear distinctions between when the company is being represented and when the individual is being represented. One way to contribute to this distinction is to ensure that the company will have a working relationship with a different representative or group within the third party entity. Additionally, companies should be careful not to appear to recommend or require employees to act on advice from a broker, financial advisor, or lawyer.

If the situation Broadcom finds itself in now sounds like a nightmare to you, and you are looking for ways to avoid other stock plan administration misfortunes, check out the session “Night of the Living Dead: Equity Compensation Horror Stories” at our 17th Annual NASPP Conference.


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June 9, 2009

Deducting Costs for Stock Compensation for Overseas Employees

Appeals Court Reverses Decision on Tax Deductions for Stock Options Held by Overseas Employees

A recent federal appeals court decision on how US companies can allocate tax deductions for stock options granted to overseas employees could have broad implications.

The case involves Xilinx and goes all the way back to the company’s 1996-1999 fiscal years. During those years, Xilinx claimed tax deductions on its US tax return for options held by employees in its Irish subsidiary. Xilinx’s decision to do so was in the context of a broader research and development cost-sharing arrangement with the subsidiary. Although other R&D costs (and, presumably, tax deductions) were shared between the two entities, the full extent of the tax deductions for stock options held by the Irish employees were claimed in the US–where corporate tax rates are higher, making the tax deductions more valuable.

The IRS challenged this arrangement and lost in 2005–see “Court Sides with Xilinx in Tax Dispute” (, September 2, 2005). But what you never hear about on TV is that there’s always an appeal. In this case, the IRS has won the appeal–see “Chip Maker Xilinx Loses Tax Ruling” (Wall Street Journal, May 29, 2009). Under the new ruling, Xilinx should have shared the tax deductions with the Irish subsidiary, rather than claiming them all in the US.  This will increase Xilinx’s taxable US income during the years in question and will reduce the taxable income for its Irish subsidiary.  With corporate tax rates higher here in the US, this means that Xilinx pays more tax in the US and overall.  It also means more tax revenue in for the US government during a time when every penny counts–causing speculation that we may see the IRS pursuing more cases of this nature.  No word yet on whether Xilinx will try to appeal the appeal.

If your company has cost-sharing arrangements in place with foreign subsidiaries and these arrangements govern the allocation of tax deductions for stock compensation to the various corporate entities, now might be a good time to review these arrangements with your tax advisors.

Catch up on all the developments impacting stock compensation held by non-US employees at the 17th Annual NASPP Conference, including the sessions “Key International Developments and Action Plans” and “The Economic Meltdown–The Impact on Global Stock Plans“.

17th Annual NASPP Conference Program Announced!
I’m excited to announce the full program of the 17th Annual NASPP Conference. I think we’ve put together one of our strongest programs ever, with numerous sessions reflecting current economic realities and the impact on your stock plans. Last chance early bird pricing until June 26–don’t wait, this pricing won’t be extended.

NASPP Conference Session of the Week
To help you decide which of the myriad of Conference sessions you should attend, each week I will highlight a session I think will be particularly valuable. This week’s session is “What To Do When the Well Runs Dry: Grant Guidelines in a Volatile Market.” The market decline has caused burn rates to spiral out of control and plan share reserves to quickly dry up. This session will discuss key strategies for keeping grant values meaningful while managing your burn rate and making sure you still have shares left to grant next year.

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 blog. 

– Barbara 

June 4, 2009

Outgoing Section 16 Insiders

A new Section 16 insider (officer, director, or 10% shareholder) must file a Form 3 within 10 calendar days to report all equity securities of the company that he or she beneficially owns. But, what must be done when that person terminates their insider status?

Form 4 and Form 5

Both Form 4 and Form 5 have a box that, when checked, indicates that the filer is no longer subject to Section 16 at the time of filing. Although this “exit box” should be checked for all required post-termination filings, the SEC does not actually require the insider to report his or her change in status. However, if the insider feels that it is important to make a public declaration that he or she is no longer subject to Section 16, the SEC will accept a blank Form 4 or Form 5 with the exit box checked.

Post-Termination Transactions

It is important to be sure that the transaction is actually post-termination. If the termination triggers a transaction (like an acceleration of vesting for restricted stock), then the transaction may be deemed to have occured pre-termination. Only officers and directors are subject to the post-termination filing requirements of Rule 16a-2(b). So, if a 10% shareholder ceases to hold 10% of the outstanding shares, then no further filing is required. Officers and directors may need to report certain transactions for up to six months from the termination of their insider status.

In order for a post-termination transaction to be reportable, it must be subject to Section 16(b) and take place within six months of a pre-termination opposite-way transaction that is also subject to Section 16(b). If the officer or director did not engage in any non-exempt transactions in the six months leading up to his or her termination, then post-termination transactions will not need to be reported on an Form 4 or Form 5. This does mean, however, that if the post-termination transaction is reportable, it is also potentially subject to short-swing profit recovery. Two post-termination transactions should not be matched against each other.

Delinquent Filings

Of course, if there are any reportable transactions prior to the termination date that the insider failed to report, the obligation to report the missed transactions still stands after termination. If the insider did not engage in any transactions in the six months leading up to his or her termination, the company should obtain a statement from the insider upon termination that all reportable transactions have been reported. Otherwise, the company should obtain a “no filing due” certification from the former insider at the end of the fiscal year to ensure that no Form 5 is required.


When directors, and certain officers of the company, leave their position, the company is required to report their departure by filing a Form 8-K under Item 5.02.

Important NASPP Resources

The NASPP Section 16 portal is a great resource for source documents, memos, and sample documents regarding Section 16. You can also catch up on the latest Section 16 developments on Alan Dye’s February webcast. Finally, don’t miss out on the “Section 16 and Rule 144 Considerations in a Difficult Market” workshop in the NASPP’s upcoming 17th Annual Conference in San Francisco. There is still time to catch the early bird rate. Even better, registration for this year’s NASPP conference includes a complementary bonus registration to the “6th Annual Executive Compensation Conference”!


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June 2, 2009

Dilution, Overhang, and Repricings

Option Exchange Programs Reduce Overhang and Dilution–Not So Fast!
I often hear reducing overhang and stock plan dilution cited as a reason for option exchange programs; I’ve even seen companies state this in their Schedule TO filing. But, in my opinion, this isn’t the case; exchange programs don’t reduce overhang or dilution.

Overhang Remains the Same

While there’s no legally defined formula for computing overhang, the typical computation is:

( options/awards outstanding + shares available for grant ) / common stock outstanding = overhang

This is essentially the computation we used in the 2007 Domestic Stock Plan Design and Administration Survey and it’s the computation I see most often in other industry surveys and resources.

In a one-for-one exchange program (e.g., Google), the transaction has no impact whatsoever on overhang. All of the cancelled options are immediately regranted, so that the total options outstanding and the total shares available for grant remain the same. And the transaction clearly has no impact on the denominator, so stock plan overhang doesn’t change.

Even in the more typical less than one-for-one exchange, there often is no impact on overhang. With a few rare exceptions (e.g., Intel and eBay), in most of the option exchange programs I see, the shares underlying the cancelled options return to the plan and are again available for grant. Even though the company has reduced its options outstanding, the shares available for grant have increased by the same amount, keeping the numerator the same. So once again, stock plan overhang remains unchanged.

Only when the cancelled shares are not added back to the plan (which we recommend) does the option exchange program truly reduce overhang.

Dilution Increased, Not Decreased

In the case of dilution, not only is it not reduced, it could actually increase as a result of the option exchange. Dilution is the impact a company’s stock plans have on earnings-per-share. This is computed using the Treasury Stock Method, which is a little more complicated than we have time to discuss today (see Chapter 10 of “Accounting for Equity Compensation Under FAS 123(R)” in the NASPP’s Stock Plan Expensing Portal for an explanation of the Treasury Stock Method).

Under the Treasury Stock Method, options that are underwater are excluded from the calculation altogether. But, once the options are regranted with a lower price, they are likely to be in-the-money quite a bit sooner and once again diluting EPS. If the options are replaced with full value awards, they are likely to be immediately dilutive to EPS. And, in both cases, there will be fewer exercise proceeds available to repurchase shares to offset that dilutive impact. Thus, even in an exchange at a less than one-for-one ratio, the options/awards are likely to be more dilutive afterwards than they were before the exchange.

The only way to be 100% sure that an option exchange program will reduce plan dilution is if the options are exchanged for cash (e.g., Nvidia)–a rarity in this cash-strapped economy.

The Long-Term View

You might argue that by reducing the exercise price (or eliminating it altogether in the case of exchanges for full value awards), the likelihood that the shares will be issued is increased. This would, in fact reduce overhang–once the shares underlying the options or awards are issued, they move from the numerator of the overhang formula to the denominator. But I’m not sure this is quite what your shareholders had in mind in terms of reducing plan overhang. And it doesn’t help at all with dilution; unless the company has a repurchase program in place (for which it will have fewer funds available thanks to the reduced option price), issued shares are even more dilutive than shares underlying stock awards.

Reason #27 to Renew Your NASPP Membership: Our Section 409A Portal
The NASPP’s Section 409A Portal includes everything you need to know about how Section 409A impacts your stock compensation arrangements.  We’ve just reorganized the portal to make it easier to navigate–you’ll find numerous articles and memos along with the text of relevant IRS regulations, notices, and other pronouncements.  The portal also clarifies which pronouncements supersede which, so you know which rules are currently in effect. 

“Last-Chance Early-Bird Savings” on the NASPP Annual Conference
The 2009 NASPP Annual Conference will be held in San Francisco from November 9-12. NASPP members that register by June 26 save $100 and then receive half-off all subsequent registrations from the same company/location. We haven’t offered the Conference at this price for a long time and it will be a long time before we offer a price like this again, so make this the year you attend!

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 blog. 

– Barbara