This week, we feature another installment in our series of guest blog entries by NASPP Conference speakers. Today’s entry is written by Ellie Kehmeier of Steele Consulting, who will lead a session on Section 162(m) at the NASPP Conference.
If any code section warrants the old adage “the devil is in the details,” it’s got to be Section 162(m), which disallows corporate tax deductions for compensation paid to top executives in excess of $1 million. Complying with the requirements of this section can be devilishly tricky, especially when it comes to trying to preserve tax deductions for equity awards by meeting the exception for performance-based compensation.
My fellow panelists, Danielle Benderly of Perkins Coie and Art Meyers of Choate Hall & Stewart, and I have presented on 162(m) before. We realize that, while it’s an incredibly important topic, it can also be an incredibly dry topic. For our session in New Orleans, we plan to bring 162(m) to life with lively back-and-forth discussion of issues raised in a detailed case study we’re putting together for this session that hits on many of the stumbling blocks that we’ve seen trip up HR, legal, and tax professionals alike.
For example, while most people understand that stock options and SARs generally qualify as performance-based compensation as long as the awards aren’t granted with a discounted exercise price, it’s easy to overlook the additional requirement that the compensation committee that grants equity awards to 162(m) covered employees must be comprised solely of two or more “outside directors”. Easy enough, you might think: if we’re already following the NASDAQ and NYSE listing requirements for independent directors, we should be okay, right? Not so fast! The tax rules are different, and in some respects more stringent, than the exchange listing requirements. For example, if your company pays any amount, no matter how immaterial, to an entity that is more than 50% owned by a director (directly or beneficially)–such as a caterer or florist that happens to be owned by a family member of that director–then you have a problem! If your compensation committee fails to meet these requirements, then all the equity awards granted by the committee similarly fail. That’s a harsh result, and can cause a pretty big hit to your company’s bottom line!
We will also use our case study to explore other outside director challenges, as well as tricks and traps related to when performance goals need to be established, if and how they can be changed, and when and how to get shareholder approval. For example, do your plans explicitly address how your compensation committee can adjust performance goals to reflect the effect on an acquisition? Can your company pay bonuses outside of your performance plan if the established goals are not met? Can you structure compensation for executives hired mid-year to comply with 162(m)? Our case study will also address the transition rules for newly public companies. Finally, we’ll discuss planning opportunities and best practices, and cover recent developments, including proposed 162(m) regulations that may be finalized by the time we meet in New Orleans. We’ll see you there!
Last week, the SEC issued final rules requiring US exchanges to adopt listing standards on the independence of compensation committee members and the use of compensation advisors by said committees.
I don’t have a lot to say about these rules because they don’t directly relate to stock compensation. Sure, the compensation committee typically has authority over the company’s stock plans and changing who sits on the committee and which advisors the committee relies on could have implications for the company’s stock plan, but there’s nothing specific to stock compensation in the rules. And, let’s face it, for purposes of this blog, there are only two categories of stuff: 1) Stock compensation and things that explicity impact it and 2) Things I don’t care about. But, despite that fact that the new rules seem to fall into category #2, it is a current development that, at least peripherally impacts our world, so I figured a blog entry might be in order.
Rules to Create Rules
The final rules issued by the SEC are 124 pages (and no, I haven’t read them all–see #2 above–but I did read a nifty summary by Morrison & Foerster). What strikes me is that here we have 124 pages of rules, but these aren’t actually the real rules yet. These rules just direct the exchanges (Nasdaq, NYSE) to adopt the rules. They don’t even tell Nasdaq and the NYSE what the rules should be, they just suggest things that should be considered in creating the rules. The exchanges now have around 90 days to propose the actual rules, which presumably will be subject to comment (although the SEC rules were already subject to comment) and then eventually the actual, final rules will be adopted. Just an observation, not a criticism of the SEC–they are just doing what they were instructed to do under Dodd-Frank.
Three Independence Standards
The rules require the exchanges to adopt rules requiring compensation committee members to be independent, taking into consideration sources of compensation paid to directors and any relationships directors have with the company or its officers. If you’re thinking that this sounds familiar, you’re right. For purposes of Section 16, most companies maintain a committee of two or more “nonemployee” directors and for purposes of Section 162(m), companies also ensure that the members of that committee are “outside” directors. Now the committee members will also have to be “independent” under the listing standards the exchanges adopt. My guess is that they aren’t going to just adopt the Section 16 or 162(m) definition (which are similar to each other but just different enough to be confusing) and that we’ll have a third standard to comply with.
The rules also stipulate that the exchange listing standards require that compensation committees have sole authority to engage advisors (compensation consultants and/or attorneys) and that company provide funding to the committee to pay the advisors. The rules specify a number of independence factors that the exchanges are to direct compensation committees to consider when engaging advisors. The rules don’t preclude the committee from receiving advise from non-independent counsel or consultants (e.g., the company’s in-house or outside legal counsel).
Compensation committee reliance on independent advisors has been a best practice for many years now; I suspect that many companies already have practices that partially or fully comply with this requirement. Even so, given that the advisors your compensation committee hires are likely to be making recommendations on stock compensation issued to executives, it’s something to be aware of. See topics #1 and #2 in our recent webcast “Ten Equity Compensation Issues That Affect All Stock Plan Professionals (That No One Told You About).”
The final rules also update the disclosures companies are required to make with respect to compensation consultants, expanding the factors that must be considered in evaluating the independence of the consultants.
Let’s face it: we live in an era of information abundance. Yes, I can remember the days when I had to go to the library to research something on a microfilm. If you mention the word “microfilm” to kids today, all you’ll get is a blank, puzzled stare in return (really, try it!). In recent years I’ve started to realize that we have access to so much information, that at times it seems like too much information (“TMI”). I think it hit me when my children’s pediatrician told me to stop googling (yes, googling is officially a verb) every little symptom. Why? Because there is so much information out there it’s hard to validate and assign credibility to what you read online. The term “TMI” isn’t in the Merriam-Webster Dictionary, but I did find it in the Online Slang Dictionary, so it appears that acronym may be here to stay.
What does my rambling have to do with stock compensation? This blog was prompted by an article across my Google alerts last week that referenced ESPPs. The piece in question was published by a reputable news agency, and yet I found misleading and inaccurate information about the mechanics of how ESPPs work. This prompted me to think about what our employee populations must be googling about their benefit plans, and even more concerning, what they are relying on as “truth”. For example, in the article titled “5 Ways to Increase Your Net Worth” and published by U.S. News & World Report, the author says: “ESPPs allow employees to withhold a portion of their paycheck to purchase company stock at a discount. Once purchased, you can usually sell your shares for a guaranteed return.” Last time I checked, there is no “guaranteed” return for an ESPP plan. Now, I think the author probably meant to say that there is a guaranteed formula for the purchase price (in terms of discount applied and/or look back), but that doesn’t solidify a certain dollar return upon sale. We’ve all seen the scenario where an ESPP purchase occurs one day and the stock price drops immediately, before the employee can even sell. It’s misleading to suggest that there is a guaranteed return, even though the publicity for ESPPs is great and the author is trying to highlight the benefits of such a plan. I’m concerned about an employee who reads a statement like this, signs up for the ESPP, and then expects a certain sale price down the road. Yes, the employee should verify the plan mechanics before joining, but we all know that employees often need assistance in getting the facts straight.
What Else is Out There?
A quick web search led me to several other inaccurate statements, and I’m sure there must be more out there. Here are a couple of samples:
– “Most startup employees don’t realize that it’s possible to ask to “forward exercise” their unvested options immediately after receiving their options grant.” This article makes no mention of needing to consult plan/grant documents and company policy to determine if early exercise is, in fact, permitted.
–“…the IRS considers this exercise a taxable event under the Alternative Minimum Tax because they just got something that’s worth more than what they spent on it.” This article does not identify the type of stock options that are being exercised, or explain that only ISOs are considered for AMT purposes (not non-qualified stock options). Imagine if an employee holding NQSOs read this article and assumes their exercise will trigger AMT.
I’m sure the list could go on and on as we explore the web and the information about there about stock plans. This further highlights that our need to communicate directly with stock plan participants is greater than ever before. It’s not only about informing them about the mechanics of their stock grants/awards. It’s also about being a direct resource to the employee and mitigating against the mis-truths they may find if they go hunting themselves. Make no mistake: if you fail to communicate with employees they will fill in the blanks on their own, and that’s a scary reality when it comes to stock plans and their complex layers. I list a few things you can do to ensure employees are receiving quality information:
Do communicate thoroughly about the terms and conditions of their grants/awards.
Do inform employees about the pitfalls of relying on online information; encourage them to validate information with you or your service provider before taking action based on something they read online. Even if you can’t give them official guidance, you can point them to other resources.
Do highlight reputable resources to obtain further information, such as myStockOptions.com, and/or a knowledgeable tax or financial adviser (emphasis on knowledgeable).
Don’t let random web articles be the sole source of information that your employees use to make sense of their stock plans. Some online content can certainly be a great supplement, especially from a credible source, but it’s in that context you want participants educating themselves online. The first and primary source of information should be the company. If you’re not communicating regularly, hopefully I’ve highlighted a few reasons to start. A great first step would be to visit our Employee Communications portal for sample documents and other valuable information.
Discretion and Long-Term Performance Plans By Brian Frost of Towers Watson
Long-term performance plans are becoming more prevalent every year as companies strive to align executive pay with shareholder returns. However, some compensation committees have become uncomfortable with establishing fixed goals for a three-year period due to the uncertain economic environment or changes happening at the company. To address these challenges, one approach might be for the committee to establish some initial performance goals while reserving the discretion to adjust the payout after taking into account likely outside perceptions and company-specific issues. Maintaining this flexibility comes with some downsides, however, and a particular concern is the potential for significant changes in the timing and amount of compensation reported in the company’s Summary Compensation Table (SCT). This, in turn, can influence the views of shareholders, proxy advisors and the press, which makes the decision to retain and exercise discretion one that requires a full understanding of the implications.
These are among the issues we’ll address in our October 10 session (6.3) at the 20th Annual NASPP Conference entitled “The Better Part of Valor: The Complicated World of Discretion in Performance Plans.” While the accounting rules are fairly straightforward when dealing with mainstream plan designs, more complicated plans, including those involving discretion, often reside in a gray area where accounting guidance is vague and the company and its accountants must use judgment to determine the appropriate accounting treatment. While the accounting interpretation may not have a material impact on the company’s financial statement, it can have a profound impact on the amount and timing of reported pay for NEOs. Participants in our session will gain insights about the plan design considerations that lead companies to use more discretion in determining performance plan payouts, the technical accounting rules that drive proxy reporting and other implications of discretion. Since how equity awards are reported in the SCT is determined under Accounting Standards Codification Topic 718 (ASC 718), we’ll explore the basics of those rules as well as the nuances of when and how discretion can influence the mysterious complexities of “grant date” and “service inception date.”
We also will explore the recent SEC decision in the Verizon case, which received significant publicity and involved his complicated mix of rules. Finally, we’ll review a list of items compensation professionals should know to better understand the decisions that influence the accounting and disclosure of discretionary plan awards so they can anticipate areas of potential concern before they arise.
Jenn’s on vacation, so I’m blogging twice this week. Since I get an extra entry, I thought I’d focus on one of my favorite topics: why the stock plan administration team should be using focus groups.
Is Your Stock Plan Out of Focus?
A focus group is a small group of employees that give you feedback on your stock programs. It provides a structured mechanism by which you can learn a lot about how employees perceive the company’s stock programs and the education around those programs. And it costs virtually nothing to implement–other than a little time from you and the group participants. Focus groups are one of cheapest yet most effective strategies you can use to improve your stock programs.
Once you start to think about it, I think you’ll realize that there are many aspects of stock plan administration where a focus group could be very helpful. Here are a few ideas to get you started:
Employee Education: A focus group can give you preliminary feedback on any educational materials you create. Do the materials make sense? Do they raise additional questions that aren’t answered? Do employees respond positively to the message? I think that just about every employee communication you distribute and every presentation you do should be run past your focus group first.
Plan Design: Test out new plan designs with the focus group to find out what works and what doesn’t work–before you’ve made a significant investment.
Put an Ear to the Ground: Your focus group can give you a feel for what employees are saying about the company’s stock plans.
Be Prepared: By testing new programs and educational materials with your focus group, you’ll get a feel for how these strategies will be perceived by employees. You won’t be caught off-guard during the official roll-out and you can be proactive about addressing questions and negative comments.
Turn Naysayers Into Cheerleaders: One effective way to silence your critics is to bring them into the process and make them responsible for helping to improve the program.
Who Should be in the Focus Group?
Probably somewhere around 20 people is about the right for the size of the group, depending on the size and diversity of your overall employee population. You don’t want it to be so large that it is unwieldy but you need it to be large enough that you get a representative sample of employee opinions. Also, remember that not everyone will participate in every opportunity to provide feedback, so you want the group to be a little larger than the number of active participants you hope to have.
Here are few thoughts on who to invite to be a part of the group:
Employees that are particularly outspoken or that have demonstrated a strong interest in and/or understanding of the stock program.
Employees that show leadership and won’t be afraid to speak up. Ask department managers for suggestions.
Make sure a wide range of departments and job levels are represented.
Of course, it goes without saying that you should only invite employees that are eligible to participate in the stock plan. If you have multiple plans with differing eligibility criteria, you may need multiple focus groups (e.g., one focus group for the all-employee ESPP and a different focus group for the RSU program that is only offered to managers and above). It also might make sense to have regional focus groups (e.g., a US group and a separate group for EU employees).
Rotate employees in and out of the group regularly–no one should serve for more than year.
Finally, avoid the temptation to pad the focus group with your friends. For one thing, your friends probably don’t need a special, structured program to help them provide feedback to you; they already know where to find you. But also, your friends may not feel comfortable giving you the open, honest feedback that you need.
In the category of “really, doesn’t the IRS have anything better to do,” the IRS has proposed revisions to existing regulations under Section 83 of the Internal Revenue Code. The proposed changes are designed to clarify when a substantial risk of forfeiture exists with respect to shares that are subject to restrictions on transferability.
Was Anyone Confused About This?
Specifically, the regulations clarify that a substantial risk of forfeiture is established only with a service condition or a condition related to the purposes of the transfer. I have no idea what this means or why the IRS thinks it needs to be clarified. The extent of this change was to add the word “only” to the sentence:
A substantial risk of forfeiture exists [only] where rights in property that are transferred are conditioned, directly or indirectly, upon the future performance (or refraining from performance) of substantial services by any person, or upon the occurrence of a condition related to a purpose of the transfer if the possibility of forfeiture is substantial.
Gosh, that is so much clearer now.
More Changes That Don’t Really Change Anything
The proposed changes are also designed to clarify that the likelihood of forfeiture must be considered when assessing whether a substantial risk of forfeiture exists. The preamble to the proposed regulations cites an example involving shares that are non-transferable and subject to forfeiture if specified performance conditions are not achieved. In the example, it is highly probable that the conditions will be achieved. As a result, the award is not considered to be subject to a substantial risk of forfeiture.
Finally, the proposed changes clarify that transfer restrictions in and of themselves don’t create a risk of forfeiture even if violation of the restriction carries the potential for disgorgement or forfeiture of the stock. The only exception is for stock that must be held to avoid triggering short-swing profits recovery under Section 16(b) (and this is only an exception because it is baked into the tax code). This clarification codifies a prior IRS Rev. Rul. (see the NASPP alert “Section 83 Treatment of Sale Restrictions Imposed for Securities Law Purposes“).
The last two clarifications seem to be intended to mitigate the results of a First Circuit Court decision. The case involved an employee who was required to sell stock he acquired upon exercise of an option back to the company at cost if he sold the stock within one year of his exercise. The court ruled that this requirement delayed taxation under Section 83, even though the likelihood that the employee would try to sell the stock during this one-year period was very small. See the Akin Gump memo included with our alert for a great summary of the case and its relevance to the IRS proposal.
And while these changes seem a little more substantive, given the fact that we’ve had a Rev. Rul. on this matter since 2005, I’m not sure this changes how any practitioners interpret Section 83.
Taxation of Clawbacks?
I wonder if the IRS is targeting clawback provisions here. With all the recent hubbub over clawbacks (for example, see last week’s guest blog entry by Mike Melbinger) and the fact that regulations for mandated clawbacks under Dodd-Frank are expected from the SEC this year, I think the IRS might be trying to get out ahead of any ideas anyone might have that clawback provisions somehow delay taxation under Section 83.
More at the NASPP Conference
I’m sure rule change will be discussed during the session “The IRS and Treasury Speak” at the 20th Annual NASPP Conference. It will be interesting to hear what the IRS and Treasury staffers have to say about it.
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.
We all know that life happens, and not in the way we always have planned. When it comes to stock compensation, things don’t always transpire like they are supposed to either. That’s why our stock plans have provisions that cover scenarios such as death, disability, and sometimes even divorce. We know these events might occur in our scope of working as stock administration professionals; yet, are we ready to put our best foot forward if and when the time comes? In today’s blog I’ll highlight some best practices in administering some of these live event scenarios.
It’s not a pleasant topic, but, as one person put it: “nobody leaves this world alive.” So what does happen when a stock plan participant dies? Here are a few practices to minimize the pain of dispersing the stock plan grants/awards to the employee’s estate:
– Consider NOT Using Beneficiary Forms: In a previous blog, I talked about the pitfalls of using beneficiary forms. One main one is that employees often forget they exist, and don’t alter them to reflect their true intentions. In some cases, these forms were filled out years and decades before they were needed, and by then marriages, children and divorces had occurred, altering how the employee preferred to handle his or her estate. Beneficiary forms can override next of kin estate laws, so if you are going to use these forms, be sure to come up with a mechanism to remind employees they exist.
– Ensure Proper Time Frame to Exercise Stock Options: Navigating estate management can be time consuming and tricky. The last thing you want to have happen is a stock option expire unexercised because the estate couldn’t establish itself and execute the exercise in time. If your plan allows less than 6 months to exercise vested stock options post death, this is more than likely too short of a time frame. Consider offering at least 6 months (12 months is even better) in order to ensure enough time for the estate to exercise.
An employee goes out on disability leave – now what? Many companies take the approach of trying to stop vesting awards during long disability periods. While it may sound reasonable on paper, in reality it’s tough to administer. First of all, how do you determine which type of disability results in paused vesting, and which does not? There are many types of short and long term disabilities. Second, how do you track the changes to vesting? Remember, when an employee goes out on leave, most often you do not know the exact return date, and many times it changes. Having to stay on top of open leaves, tracking end dates and adjusting vesting can become a nightmare. Many companies are now moving away from adjusting vesting for leaves of absences, including those related to disability.
Our next Compliance-O-Meter (due out the beginning of July) will address some practices for managing divorce scenarios. One area I suspect many companies struggle with is tax withholding. Here are a few areas to inspect to ensure compliance with tax withholding requirements relative to divorce:
– FICA Withholding Takes into Account Employee’s YTD: Did you know that when a non-employee ex-spouse exercises stock options, the amount of FICA to be withheld (yes, you need to withhold FICA) is calculated based on the employee spouse’s wages and YTD FICA withholding? Even though the employee spouse may have had nothing to do with the exercise, the FICA calculation still is based on their wages/withholding. That means if the non-employee spouse would have owed $2,350 in FICA, but the employee had already paid $2,000 year-to-date in FICA withholding, then the non-employee spouse would only have $350 withheld on their transaction. In addition, the FICA needs to be reported on the employee spouse’s Form W-2.
– Medicare: Medicare is withheld from the non-employee spouse, but is also reported on the employee spouse’s W-2.
– Form 1099-MISC: The company needs to issue a 1099-MISC to the non-employee spouse, reflecting the transaction and income taxes withheld.
For more on death and disability, check out our current Compliance-O-Meter. For more on divorce, be sure to watch for our next Compliance-O-Meter.
Final Words (no pun intended)
Lastly, while some events are more uncommon than others (death), other events will occur over and over again during your stock plan reign (divorce). If you lack a formal policy on these events, it’s best to sit down with your internal business partners and develop a guidelines that will dictate how you will proceed. Particularly in divorce situations, where a variety of creative ways may be explored to divide up stock compensation, you’ll want to have a consistent approach. You’ll also want to know up front what the company can and can’t do to support these scenarios. I highly recommend a divorce checklist that outlines company policy; it can be made available to employees so that they will know in advance how to approach the division of their stock plan benefits.
Whatever the scenario, it’s best to put some parameters in place up front. This will save hours of heartache and headaches for all involved.
For the past few years, in the months leading up to the NASPP Conference, we have featured guest blog entries from some of our Conference speakers. This week we feature our first guest blog entry for the 20th Annual NASPP Conference, by Michael Melbinger of Winston and Strawn, who will lead the session “Issues and Answers on Clawback Provisions.”
A couple of weeks ago the subject of compensation clawbacks burst onto the front pages and into lead stories at newspapers and TV stations all over the country, as a result of JP Morgan Chase’s difficulties. Our scheduled presentation on “Issues and Answers on Clawback Provisions” at the 20th Annual NASPP Conference in New Orleans suddenly got a whole lot more interesting and we are glad to be starting this blog to track thoughts and developments in the meantime.
Compensation clawback provisions have a long history and were developing nicely as a best practice for compensation committees before Dodd-Frank Act Section 954 made them the law of the land (pending the issuance of final rules by the SEC and revised listing standards by the stock exchanges). Reasonable minds, regulators, and courts are differing about how best to handle the design, taxation, and enforcement of clawback provisions.
Mark Poerio, Amylynn Flood, and I will focus our NASPP presentation on the many difficult legal and practical issues raised by a compensation clawback policy, including:
Documentation and drafting requirements,
Legal enforceability issues under state and foreign law,
Establishing procedures for applying the clawback policy,
The accounting consequences of a clawback to the company,
Problematic real-life scenarios for the board and the employees,
The continued applicability of Sarbanes Oxley Act to clawback provisions,
What forms of incentive compensation should be affected by the clawback,
The availability of D&O insurance and indemnification for clawback targets,
Deciding which employees the compensation clawback policy should cover,
The impact of the Dodd-Frank whistleblower bounties on future restatements and clawbacks,
The tax consequences of a clawback to the employee and the company (Code Sections 1341 and 409A),
Possible unintended consequences from the Dodd-Frank clawback provisions and their implementation,
The use of “holdbacks” and deferrals to implement and enforce a clawback policy (see also, Dodd-Frank Act Section 956),
The types of shareholder and employee litigation that are certain to result from a compensation clawback–or the lack of one, and
Balancing the interests of the employees and the company in designing a clawback policy, including protecting employees against an unjust clawback (complete with examples of unjust potential clawback scenarios).
If, as expected, the SEC has proposed rules under Dodd-Frank Section 954 by the time of the NASPP Conference, we will examine those rules in detail–as well as the open issues that are sure to remain under the rules.
Last Change for Early-Bird Rate on M&A Course The early-bird rate for our online program “Tackling Equity Compensation Issues Related to Mergers & Acquisitions” ends this Friday, June 8. We’ve already extended this rate once; we won’t extend it again. Don’t miss out–the next time your company is involved in a deal, you’ll be glad you took this course.
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.