The NASPP Blog

Monthly Archives: April 2012

April 26, 2012

The NASPP in Beantown

Next week I’m going to be spending some time in one of my favorite cities: Boston. Not only is Boston rich in history and culture, but home to Solium’s 2012 Synergy Conference.

If you’re planning to be at Synergy, you’ll want to note that the NASPP will be involved in sessions on three great topics. I’ll highlight them here, so even those who are not attending can catch a glimpse of what will be presented.

Nuts and Bolts: Understanding Equity Compensation from the Other Perspective

Whether you’ve been in stock compensation for decades or just months, you’re likely to have some awareness that there are many parts of the organization that request and depend upon data and information from the stock plan function. I’ve always found this to be a unique aspect of administering equity plans versus other types of benefits. Stock compensation touches so many areas, such as Legal, Payroll, Accounting, Finance, Human Resources, Tax, and so on. Have you ever wondered what those other departments actually do with the information they request from you? Or, how their world works? A panel that includes experts from the “other” parts of the organization will share insight into what they really need and how they use the information. I haven’t often seen much discussion or sharing that originates from this perspective, so I’m really looking forward to interacting with issuers from this angle and helping to forge insight into how internal peers perform their jobs using the outputs from stock administration.

Participant Communications and Best Practices

I also have the pleasure of being a co-facilitator for two great roundtables at Synergy: Employee Communications and U.S. Best Practices. I’m excited about these roundtable discussions, because I want to hear what’s new and exciting on the issuer front in these categories. In a preview of the Best Practices roundtable, we’ll be discussing some trends from the NASPP’s 2011 Domestic Stock Plan Administration Survey and finding out what companies are really doing in these areas. Key topics include increased use of stock ownership guidelines and continued migration towards outsourcing.

If you’re planning to be at the Solium conference, I look forward to seeing you there. For those that aren’t, I’ll be sure to highlight any new information or interesting ideas about best practices and communications in a future blog.


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April 24, 2012

The Newest NASPP Staff Member

Welcome to the Newest NASPP Staff Member
I’m very excited to announce that Jen Baehr has now joined the NASPP as our Programs Director. Jen has over a decade of experience in stock compensation, most recently at OptionEase and, before that, at Solium Transcentive. I’m sure that many of my readers know Jen from her presentations at past NASPP Conferences and other NASPP programs–Robyn Shutak, the NASPP’s Education Director, and I were pleased to present the “Reporting” webcast with her during our online program, “Financial Reporting for Equity Compensation.”

As Programs Director, Jen will be responsible for a variety of NASPP programs, including:

  • The NASPP’s Stock Plan Design and Administration Surveys
  • The NASPP Conference RFP and Proposal Assistance Program
  • Overseeing the speakers for the NASPP Conference
  • The NASPP’s group membership program

Jen started yesterday and has hit the ground running. I hope you will join me in welcoming her to the NASPP.

Global Equity Incentives Survey
I’m also excited to announce that the NASPP has teamed up with PricewaterhouseCoopers to offer the NASPP-PwC 2012 Global Equity Incentives Survey. The joint survey is the industry’s most comprehensive examination of global stock plan design and administration issues and will allow for year over year comparisons of compensation strategy and design, expensing, tax planning and compliance, global coordination, plan administration and employee communications.

Issuers must participate in the survey to receive the full results. NASPP members that have participated in past surveys know just how valuable the results are–easily well worth the cost of NASPP membership. Register to receive your login to the survey today–don’t wait; you only have until May 25 to complete 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 we keep an ongoing “to do” list for you here in our blog. 

– Barbara  


April 19, 2012

Peer to Peer Stock Options

I think it’s safe to generalize that in many companies, the level of compensation decision making made by the rank and file is limited, if they are involved at all. Those of us in stock compensation are used to grant approval processes involving managers, executives and board committees, and this has been a long-standing practice. A handful of companies, however, are taking a different approach to granting stock options, one that allocates decision making to the core of the organization.

Peer to Peer Grants

A recent article in the Wall Street Journal profiled companies who are taking new approaches to making determinations in employee compensation. These companies are creating internal programs that allow a broad base of employees to allocate stock options and/or cash to their peers who they feel deserve to be rewarded. The idea behind this concept is that the rank and file often have the most insight into how their peers perform. There are various shapes and flavors to how companies have approached this type of program. One company allocated 1,200 stock options to each of its employees with the idea that each employee would distribute their options to colleagues. Employees had control over who received the stock options – it could be a single allocation to one colleague, or divided among multiple targeted colleagues. There were a few ground rules, including that workers couldn’t reward themselves or company founders (who already presumably have significant grants or shares). It seems the companies are also keeping the details of these decisions confidential, releasing only general statistics and end results to participants. Employees will know they were rewarded, by not by whom.

Other varieties to these programs include internal virtual markets comprised of cash or stock options, where workers can allocate or transfer funds. Some companies have allocated imaginary dollars or shares that employees can use to recognize their colleagues. These programs may not be exchanging actual shares or cash, but management is able to see results, which may reveal some interesting perceptions coming out of the main street of the organization.

Pros and Cons

Supporters of these programs suggest that peer influence over compensation will inspire more accountability and ensure everyone contributes. Management may also gain better visibility into which employees seem to be the best performers, casting a spotlight on stars that may have otherwise flown under the radar. Skeptics warn that too much peer say in pay decisions may create resentment and fuel hard feelings for those who receive little or no rewards. Could it become a popularity contest? Those who have implemented these programs appear to remain firmly in support of them, but caution that this may not be the right approach for every company. As one business professor put it: “You need management that is comfortable giving up some say, and let’s face it, human nature isn’t all programmed that way.”

What do you think? I’d love to capture your reaction in the poll below.


Online Surveys & Market Research

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April 17, 2012

JOBS for Stock Compensation – Part 2

Last week, I highlighted areas of JOBS that impact stock plan administrators.   This week, I take a look at another area of JOBS with relevance to equity compensation–the shareholder threshold that triggers registration under the 1934 Act.

Shareholder Threshold for Required Registration
Private companies with $10 million in assets that have shareholders in excess of a specified amount are required to register with the SEC and then become subject to public reporting requirements. JOBS raises this threshold from 500 to 2,000 shareholders, provided that no more than 499 of the shareholders are nonaccredited investors. (For reasons that I cannot fathom, the nonaccredited investor requirement doesn’t apply to banks–10 points to anyone that knows why this is.  Maybe banks just have better lobbyists.)

Interestingly, some commentators have pointed out (e.g., see the Alston + Bird memo included with the NASPP alert on JOBS) that this enables companies to delay going public, which seems contrary to the purpose of JOBS.

Stock Compensation Exempted

JOBS also exempts shareholders that acquired their stock through company benefit plans from this threshold. SEC regulations and a recently issued no-action letter (see “No Action on RSUs“, February 29, 2012) already exempted options and RSUs from the threshold, but now actual shares of stock acquired through these and other compensatory arrangements are also exempted.

Private companies will now be able to allow their employees to purchase stock before they go public without triggering the registration requirement regardless of how many employees they have. This could be a little dangerous in that employees that don’t have much investing experience sometimes don’t understand the potential pitfalls of investing in high-risk, illiquid stocks. I believe that, in most cases although there are certainly some exceptions, it doesn’t make sense for rank-and-file employees to buy or (incur taxable income on) their employer’s stock before that stock is liquid.

In a series of FAQs issued last week, the SEC clarified that this exemption applies regardless of whether the individual holding stock received through a company stock plan is a current or former employee.  It isn’t clear, however, whether the exemption will continue to apply if the individual sells the stock acquired under a company plan (e.g., on one of the secondary markets) to another investor. 


For non-banks, the threshold for deregistering did not change, so companies that have already been forced to register and are now filing public reports will have to continue to do so until they have fewer than 300 shareholders (or less than $10 million in assets).  For banks, the deregistration threshold did increase, to 1,300 shareholders (again, I have no idea why banks get special treatment). 

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. 

– Barbara  

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April 12, 2012

A Perfect Day in Philadelphia

April 9th was a picture perfect day at Lincoln Financial Field in Philadelphia. Not only is it the home field for an NFL football team, but it was the location for the Philadelphia chapter’s half day event as well.

I was fortunate to be one of the 75 people in attendance that day. The agenda included two great stock compensation educational sessions, lunch overlooking Lincoln Financial Field, and a behind-the-scenes tour of the stadium. For today’s blog, I share some photos that captured the essence of the day. (Click on thumbnail to see larger image.) Kudos to the chapter board and meeting sponsors who came together to create something unforgettable.

Picture Perfect


The setting for the chapter meeting was Lincoln Financial Field, home to the Philadelphia Eagles.


Chapter board member Scott McCloskey of Lincoln National Corporation and Chapter President Terry Adamson of Aon Hewitt take in the view while preparing to kick off the day’s events.

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Emily Cervino of the Certified Equity Professional Institute, Liz Stoudt of Aon Hewitt, and Mike Palermo of E*TRADE lead attendees through an informative session on the current landscape of offering an Employee Stock Purchase Plan.

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Bill Dunn of PwC talks about election year tax volatility.

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The newest addition to the Philadelphia chapter board, Andrea Kagan of QlikTech, takes time to network.


Session attendees listen intently.

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Lunch, sponsored by E*TRADE, is held in the press box. Attendees network while enjoying the amazing view.

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Did I mention that there was an incredible view from the press box?

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After lunch, attendees were treated to a behind the scenes tour of the stadium, which included a tour of the locker room. I’ve never seen so many cell phone cameras fly out at once!

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This is where many players meet the press after their games.

It was a day filled with education, great networking, and fun for all who participated.


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April 10, 2012

JOBS for Stock Compensation

Last week, on April 5, President Obama signed the Jumpstart Our Business Startups (JOBS) Act into law. Intended to make it easier for startups to raise capital and go public, JOBS has three primary thrusts: 1) making it easier to raise capital (including “crowdfunding” and unregistered offerings), 2) making it easier for companies to go public, and 3) making it easier for newly public companies to be public (e.g., reduced public reporting). Today I begin looking at the provisions of JOBS that are relevant to stock compensation.

Reduced Disclosures for EGCs

JOBS creates a new category of company, an “Emerging Growth Company.” An EGC is essentially a company with less than $1 billion in revenues that is private or has been public for less than five years (I’m simplifying this, there are a couple of other requirements). In addition to provisions designed to encourage investment in EGCS and allow them to explore an IPO without filing a public registration statement, JOBS also reduces the public disclosures and reporting EGCs are subject to.

In the context of compensation, EGCs are allowed to comply with the executive compensation disclosures required for smaller reporting companies (companies with a public float of less than $75 million or, if unable to calculate public float, revenues of less than $50 million).  This results in the following changes to their disclosures:

  • Disclosure for only top three, rather than top five, NEOs
  • No CD&A 
  • Only two years reported in Summary Compensation Table
  • Fewer tabular disclosures: only the SCT, Outstanding Equity Awards at Fiscal Year-End Table, and Director Compensation Table

Dodd-Frank “Light”

EGCs also don’t have to comply with some of the provisions of the Dodd-Frank Act, including:

  • Say-on-Pay, et. al.
  • CEO pay ratio disclosure
  • Disclosure relating executive pay to company financial performance

Of course, right now, there aren’t any companies required to comply with the CEO pay ratio and executive pay for performance disclosures because the SEC hasn’t promulgated rules on these yet. JOBS only adds to the long list of SEC rule-making projects and I’ve read speculation that the SEC won’t make the deadlines under JOBS because of Dodd-Frank and other rulemaking projects that are still outstanding.

Mark Borges of Compensia brought up some good points with respect to this area of the JOBS Act in his Proxy Disclosure Blog on (see “Executive Compensation Disclosure and the JOBS Act,” March 31, 2012):

I also find it ironic that, just 21 months after Congress decided that shareholder advisory votes on executive compensation were a critical component of an effective corporate governance system, that policy has now taken a back seat to other considerations when it comes to recently-public companies.

Finally, I can’t quite get my head around the reasoning for exempting emerging growth companies from the CEO pay ratio requirement. It was my understanding that the complaints of the business community that the provision is too burdensome were falling on deaf ears in Congress. Yet, it appears that Congress has just decided that the provision is too burdensome for newly-public companies – a group that, ostensibly, doesn’t face the same compliance challenges of large, global companies.

Stay tuned; next week I’ll discuss the new shareholder thresholds for required registration.

NASPP Conference Early-Bird Rate Ends on Friday
The early-bird rate for the 20th Annual NASPP Conference ends this Friday, April 13.  This rate will not be extended, so don’t wait any longer to register.

Online Fundamentals Starts on Thursday
The NASPP’s acclaimed online program, Stock Plan Fundamentals, starts this Thursday, April 12.  This is a great program for anyone new to the industry.  Register today so you don’t miss the first webcast.

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. 

– Barbara 

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April 5, 2012

Feeling Taxed During Tax Season?

It’s April already, and in spite of the sneezing and wheezing of spring allergies in full force all around me, I couldn’t help but notice that we’re less than two weeks away from tax filing deadline day. April 17th is just around the corner. (Yes, if you’re late in starting your tax return, it is due on April 17th this year; April 15th falls on a Sunday and April 16th is a holiday in Washington, D.C., so that gives filers until April 17th to file their returns.) I’ve been wondering how stock plan administrators are faring this tax season. With the new Schedule D, 1099-B cost-basis reporting, and additional new IRS forms, I’ve felt certain there would be volumes of employee questions.

Do People Really Procrastinate?

There is an abundance of statistics on taxpayer filing habits; many land near a 40% figure as the number of taxpayers who file their tax returns during the last two weeks before the deadline. When I worked on the issuer side of the industry, I recall planning for those first two weeks in April to be filled with last minute participant questions. So I ask: are the questions pouring in this year? If so, I offer some last minute survival strategies for making it through one of our more complex tax seasons (from an equity compensation perspective, of course!) in recent years.

Have Resources Available to Answer the Phone/Email

Even if you’re sure you’re not going to pass out tax advice; even if you’re certain that the broker can answer all of their 1099-B questions, if you had significant transaction activity resultant from your stock plans in 2011, expect that a fair number of those participants have not yet filed their tax returns and they will emerge at the last minute. There’s an expression that I’ve heard often: “Failure to Plan on Your Part Does Not Constitute an Emergency on My Part.” Well, yes, that’s a fair argument. Yet in reality, we know participants are going to have questions. Rather than taking a stand against procrastination, sometimes it’s better to just accept that these things are going to happen and plan accordingly. Look at your volume of activity during 2011, and if it was minimally significant or more, make sure you have a plan in place for someone to answer that participant call. When up against a deadline, nothing is worse than getting voice mail or sending an unanswered email.

Anticipate, Anticipate, Anticipate!

We’re nearing the end of tax season, so hopefully you’ve already gained some flavor for what participants are asking about this year. It’s been a complex tax reporting season from a stock plan perspective, so anticipating hot button questions and having a ready response will help both sides: you with managing the inquiries, and participants with getting what they need quickly. One great trick I heard about (and tested myself once upon a time) can be applied to your email inbox. You can come up with a list of the top 10 questions that you think participants will email about, and then prepare an “auto reply” that lists the top 10 questions and answers. When the participant emails in a question, they will automatically receive the auto-reply. In many cases, the participant may find their answer in the auto-reply and won’t have to wait for you to respond individually to their email. I would suggest that you still respond, but knowing that in many cases the employee could potentially get the information even faster via the auto reply can go yards in assisting employees during peak periods. Keep in mind you don’t have to necessarily answer “tax” questions; sometimes the employee is just looking for a next step or other resources. Something as simple as a question/answer that addresses where they can find more information on a particular topic can be helpful.

I wish you all smooth sailing through the last couple weeks of tax season.


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April 3, 2012

FATCA: A Four-Letter Word?

For stock plan administrators that work for US companies, the lives of their counterparts at non-US multinationals must seem glamorous–the multi-cultural environment, cool accents of overseas co-workers, early-morning and late-night meetings to accomodate worldwide time zones, and overseas travel. But now, stock plan administrators at US companies have something to be thankful for–they don’t have to worry about FATCA.

What the Heck is FATCA?
Despite the acronym, FATCA has nothing to do with overweight Californians.  And, even though you might be tempted to think so, none of the letters in the acronym stand for a four-letter word. It refers to the Foreign Account Tax Compliance Act that was enacted as part of the 2010 HIRE Act. The purpose of FATCA is to prevent US tax payers from avoiding paying tax on foreign securities by holding them at non-US financial institutions. So if some US billionaire holds a bunch of stock of some European company in an offshore account in the Cayman Islands, he still pays tax on his gains. I think most of us can get behind that.

The part of FATCA that you aren’t going to like is a requirement for US taxpayers (whether they live in the US or not and whether they are US citizens or not–basically, anyone paying US tax) to report any securities of non-US companies that they own that they don’t hold at a US financial institution. And, well, you can guess what is coming next because we’ve all been down this path before–stock options, SARs, RSUs, etc., as well as any stock acquired under stock compensation programs are all considered securities. So where US taxpaying employees have the right to acquire stock of a non-US company (e.g., via an option, SAR, or RSU) or have acquired stock of a non-US parent, they have to report that right, and underlying stock acquired pursuant to the right, to the IRS if they don’t hold these securities at a US financial institution.

It’s fairly clear that the reporting requirement applies to stock held in certificate form, book entry, in DRS accounts, or at non-US brokerages firms or financial institutions (e.g., an Israeli trustee). Likewise, it could apply to restricted stock held in an escrow arrangement or at a transfer agent. Restricted stock held in a restricted account at a US brokerage firm would be exempt from the reporting requirement.

In the case of options, SARs, and RSUs, application of the reporting requirement is less clear. Even if employees log onto an online website hosted by a US brokerage firm to view their option and RSU holdings, those holdings really aren’t held at the brokerage firm. The grants are issued in the employee’s name and are held by the employee; it is only when the grants are paid out that the underlying shares will likely be issued into an account at the broker (and held in the broker’s name). So technically, the grants could be considered to be subject to this reporting requirement, even though once they are paid out, the underlying shares probably won’t have to be reported.

I cornered Valerie Diamond of Baker & McKenzie on this at the CEP Symposium last week, who offered a glimmer of sanity on this. Valerie told me that despite the technical requirements here, based on conversations she’s had with an IRS staffer, it might be reasonable to take the position that outstanding grants under a program that is administered by a US broker are exempt from the reporting requirement. The operative word here is “might”–how much of a risk are your employees prepared to take? The penalty to the taxpayer for failing to comply starts at $10,000, enough to make a taxpayer think twice.

Reporting Thresholds

Another glimmer of sanity is that the US taxpayer’s holdings have to exceed specified thresholds for the reporting to be required. But immediately, we’re back to insanity because the thresholds are too complicated for me to explain here in the blog (we have some great memos that provide a table illustrating the thresholds–e.g., see the Baker & McKenzie and PwC memos). They vary based on filing status and whether the taxpayer lives in the United States and are also based in part on whether the value of the securities exceeded the stated threshold at any point during the year (yep, you read that right, if the value of the securities exceeded the threshold for a mere five minutes of trading on one day during the year, that could trigger the filing requirement). Good luck to your employees on calculating that amount.

Unvested options and RSUs don’t count towards the thresholds, but if the thresholds are exceeded, must be reported (at a value of $0). Restricted stock does count towards the thresholds.

How Clever Is Your CEO?

Since execs often aren’t required to hold their stock at the company’s designated broker, it bears mentioning that if they are acquiring non-US securities through your company stock plans and, say, your CEO is one of those billionaires that will take the acquired shares and squirrel them away in an account in the Cayman Islands, he’d better report those shares to the IRS. Maybe it would be best to ask your general counsel to break this news to him.  Just sayin…

Is an Extension Necessary?

The report is completed on Form 8939, which is included with the taxpayer’s tax return. This is in effect for last year’s tax return, due to the IRS in just a couple of weeks.

There are a lot of unknowns here, particularly with regards to how the requirements apply to stock compensation. If this isn’t something you’ve been paying attention to and you have employees that might be required to file Form 8939, you may want to suggest that they file for an extension on their tax return, so that both you and they have some additional time to figure out the reporting requirements.

For more information, check out the NASPP’s alert “New IRS Reporting Requirements for Employees Holding Non-US Securities,” which includes several memos on the Act.

Spoof S-1
If you missed it on Sunday, the Motley Fool announced they were going public as an April Fools joke and included a spoof S-1 statement.  It’s definitely worth ten minutes of your day to read through it; I laughed out loud several times (although some parts are a little too close to the truth for comfort).

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. 

– Barbara 

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