The Stock Options Book

Transcription

1 The Stock Options Book 18th Edition Alison Wright Alisa J. Baker Pam Chernoff Title page and table of contents 2017 by the authors and NCEO. See for more information or to order. The National Center for Employee Ownership Oakland, California

2 This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Legal, accounting, and other rules affecting business often change. Before making decisions based on the information you find here or in any publication from any publisher, you should ascertain what changes might have occurred and what changes might be forthcoming. The NCEO s website (including the members-only area) and newsletter for members provide regular updates on these changes. If you have any questions or concerns about a particular issue, check with your professional advisor or, if you are an NCEO member, call or us. The Stock Options Book 18th Edition Alison Wright, Alisa J. Baker, and Pam Chernoff Edited by Pam Chernoff Indexed by Achaessa James Book design by Scott Rodrick Copyright 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017 by the authors and The National Center for Employee Ownership (NCEO). All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without prior written permission from the publisher. The National Center for Employee Ownership 1629 Telegraph Ave., Suite 200 Oakland, CA (510) (510) (fax) Web: First printed May 1997; reprinted with revisions, January 1998, June Second edition, February Third edition, July 1999; reprinted with revisions, December Fourth edition, June Fifth edition, October Sixth edition, January Seventh edition, January Eighth edition, January Ninth edition, February Tenth edition, February Eleventh edition, February Twelfth edition, February Thirteenth edition, February Fourteenth edition, February Fifteenth edition, February Sixteenth edition, March Seventeenth edition, February Eighteenth edition, February ISBN:

3 Contents Preface xi Introduction 1 Part I: Overview of Stock Options and Related Plans Chapter 1: The Basics of Stock Options What Is a Stock Option? Legal and Regulatory Framework Tax Law Securities Law Accounting Rules Miscellaneous Laws 11 Chapter 2: Tax Treatment of Nonstatutory Stock Options Grant and Exercise Price General Tax Rule Application of Section 83 of the Code Section 83(b) Election Application of Section 409A of the Code Employer Deduction Accounting Treatment 22 Chapter 3: Tax Treatment of Incentive Stock Options Statutory Requirements for ISOs Analysis of Statutory Requirements ISO Plan Must Be Properly Adopted Amendment of ISO Plan Must Be Properly Approved Options Must Be Granted Properly ISOs Are Only for Employees 29 v

4 vi THE STOCK OPTIONS BOOK Option Exercise Price for ISOs Limitation on Size of Option Limitation on Term of Option Payment for Option Shares Taxation of ISO Stock Alternative Minimum Tax Issues Effect of AMT on ISOs Effect of Disqualifying Dispositions on AMT When to File a Section 83(b) Election for ISO AMT Background on the AMT Modifying Statutory Options 43 Chapter 4: Plan Design and Administration General Considerations for the Company Plan Perspective Grant Perspective Grant Acceptance ISOs or NSOs? Plan-Level Shareholder Approval Considerations When Is Shareholder Approval Required? Stock Exchange Rules Shareholder Approval of Plans Independence of Compensation Committee and Advisors Proxy Advisor Influence Say-on-Pay Votes A Note on Plan Amendments International Planning Considerations Grant Timing What Is Option Backdating? Grant Timing: Spring-Loading, Forward-Dating, and Bullet- Dodging Consequences of Backdating Tax Consequences Accounting Consequences Securities Law Consequences Suggestions for Avoiding Backdating in the Future 77

5 Contents vii Chapter 5: Employee Stock Purchase Plans Statutory Requirements for Section 423 Plans ESPP Design ESPP Design Vocabulary Statutory Design Limits for Section 423 Plans Typical Structure of an ESPP: Payroll Deduction Plans Enrollment Procedures/Participation Level Offering Period Structure Participating in a Section 423 Plan After Termination Tax Consequences Employee Income Taxes Employer Taxes Quirky Tax Outcomes for Section 423 Plans in Down Markets International Planning Considerations 102 Chapter 6: Trends in Equity Compensation: An Overview Aligning Equity Compensation with Shareholder Interests: Some Trends Stock Transaction Policies Clawbacks Performance-Contingent Long-Term Incentives Restricted Stock Awards (RSAs) Restricted Stock Units (RSUs) Stock Appreciation Rights (SARs) Tax Issues: Employees Tax Issues: Employers Tandem SARs Phantom Stock 117 Part II: Technical Issues Chapter 7: Financing the Purchase of Stock Options Broker-Assisted Cashless Transactions Tax Issues Insider Issues Net Exercise Stock Swaps Using Nonqualified Shares to Exercise an NSO 128

6 viii THE STOCK OPTIONS BOOK Using Tax-Qualified Shares to Exercise an NSO Using Nonqualified Shares to Exercise an ISO Using Tax-Qualified Shares to Exercise an ISO Using Tax-Qualified Shares for Which the Holding Period Has Been Met Using Tax-Qualified Shares for Which the Holding Period Has Not Been Met Procedure for Stock Swaps Employer Loans Recourse Notes Collateral Authorization in ISO Plans Providing Adequate Interest Loan Forgiveness Recommendations 138 Chapter 8: Overview of Securities Law Issues State Blue Sky Laws Classification of Companies Federal Securities Rules: Rules 144 and Rule 144 Generally Rule 144 Decision Tree Rule Federal Securities Rules: Section Securities Law Information and Reporting Requirements Act: S-8 Prospectus Exchange Act: Section 16(a) Filings Exchange Act: Equity Compensation Disclosure Rules Executives Covered by Reporting Requirements Compensation Discussion and Analysis NEO Executive Compensation Disclosure Tables and Related Narrative Disclosures Special Disclosure Regarding Stock Options Form 8-K Reporting Requirements ESPP Securities Law Considerations Securities Act of Securities Exchange Act of International Securities Law Issues 162

7 Contents ix Chapter 9: Tax Law Compliance Issues Tax Withholding for Stock Options Tax Reporting for Stock Options Nonstatutory Options: Form W-2 or Form Statutory Options, Code Sections 422 and 423: Form W Form 1099-B FATCA Reporting Section 6039 Information Reporting for Statutory Options Information Required to Be Reported to Optionee Tracking ESPP Qualifying Dispositions Penalties for Noncompliance Procedure for Withholding with Stock Internal Revenue Code Section 409A General Application Specific Application of the Rules to Equity Awards NSOs and SARs Restricted Stock and RSUs Limit on Deductions: $1 Million Cap (Code Section 162(m)) Limit on Deductions: Golden Parachute Rules When Are Options Treated as Parachute Payments? How Are Options Valued for Purposes of Section 280G? Domestic Mobile Employees 187 Chapter 10: Basic Accounting Issues 189 Pam Chernoff and Elizabeth Dodge 10.1 Fair Value and Measurement Date Option-Pricing Models Definition of Employee Recognition of Expense and Application of Estimated Forfeiture Rate Equity Compensation Vehicles Stock Options and Stock-Settled SARs with Time-Based Vesting Stock Options with Performance Vesting Section 423 ESPPs Restricted Stock Awards and Restricted Stock Units Cash-Settled SARs 204

8 x THE STOCK OPTIONS BOOK Phantom Stock Tax Accounting Earnings Per Share: Diluted and Basic 207 Chapter 11: Tax Treatment of Options on Death and Divorce Death Divorce Option Transfers Tax Treatment on Option Exercise Transfers of Optioned Stock Securities Law Issues Practical Issues 215 Chapter 12: Post-Termination Option Issues Using Equity as Severance Acceleration Consulting Agreements Extension of Exercise Period Limitations in the Document Tax Deductions Inadvertent ERISA Severance Plans Related Change-in-Status Issues Forfeiture Clauses: A Note of Caution to Companies That Do Business in California 223 Part III: Current Issues Chapter 13: Legislative and Regulatory Initiatives Related to Stock Options: History and Status Legislative History: Stock Option Initiatives Recent Legislation Affecting Stock Options Sarbanes-Oxley Act of Loans to Executive Officers and Directors Are Prohibited Forfeiture of Compensation American Jobs Creation Act of Emergency Economic Stabilization Act of Dodd-Frank Act of Pay Ratio Disclosure 236

9 Contents xi Clawback Policies Pay vs. Performance Requirements Specific to Financial Institutions Disclosure of Hedging by Employees, Officers, and Directors Jumpstart Our Business Startups Act of Chapter 14: Cases Affecting Equity Compensation Tax Cases and Rulings Tax Decisions in the Courts IRS Rulings and Announcements Corporate Matters Individual Matters Stock Plan Administration Securities-Related Matters Contract Cases Related to Stock Options Waiver, Oral Modification, and Related Claims Inconsistent Documents and Ambiguous Language Equity Issues Related to Employment Disputes Effects of Termination Equity as Wages Noncompete Agreements, Recaptures, and Stock Option Forfeitures Treatment of Equity in Corporate Transactions 268 Chapter 15: Transferable Options Why the Interest in TSOs? Limits on TSOs Regulations on Option Transfers to Related Parties Recommendations 276 Chapter 16: Reloads, Evergreens, Repricings, and Exchanges Reloads Evergreen Provisions Tax Limitations Nonapproved v. Approved Plans Repricing Programs Corporate Considerations Tax Considerations 283

10 xii THE STOCK OPTIONS BOOK Securities Law Issues Accounting Issues Stock Exchange Listing Requirements Proxy Advisory Guidelines 286 Appendixes Appendix 1: Designing a Broad-Based Stock Option Plan 291 Corey Rosen Appendix 2: Primary Sources 311 Section 83 of the Internal Revenue Code 312 Section 162 of the Internal Revenue Code 314 Section 280G of the Internal Revenue Code 321 Section 421 of the Internal Revenue Code 325 Section 422 of the Internal Revenue Code 327 Section 423 of the Internal Revenue Code 329 Section 424 of the Internal Revenue Code 332 Section 1041 of the Internal Revenue Code 335 Section 4999 of the Internal Revenue Code 336 Section 6039 of the Internal Revenue Code 336 Section 16 of the Securities Exchange Act of SEC Rule SEC Rule Glossary 359 Bibliography 369 Index 371 About the Authors 389 About the NCEO 392