Level 1 Equity Plan Design, Analysis and Administration Flashcards
IRC Section 423 Primarilly Deals with what kind of plan
ESPP- Employee Stock Purchase Program
423 rymes with ESPP
Tax qualified plan under IRC Section 423 - Statutory requirements
- Only employees are eligible to participate
- Plan must be approved by shareholders within 12 months of plan adoption
- Must carry an individual purchase limit of $25,000 per calendar year based on the FMV at the time of grant
- The option price may not be less than 85% of the FMV of the stock on the date of grant or the date of exercise (whichever is lowest = Lookback provision)
Must carry equal rights and privileges and be offered equally to all employees with certain exceptions.
Not transferable so long as the employee is alive and upon the employee’s death may only be transferred to the employee’s heirs or estate
Tax Qualified ESPP Options expire after….
- 5 years if the option price is based on the FMV of the stock on the date of exercise
- 27 months if the option price is based on the lookback period
IRC Section 423 Statutory requires they must/may omit which employees from plan elegibility
Must omit employees that-
* would own 5% or more of the company due to the grant
* Are “highly compensated”
May omit employees that –
* Have less than 2 years tenure
* Customarily work 20 hours or less per week or less that 5 Months per year
* Foreign-based employees
ESPP- Price Determination
ESPPs are unique because they can be offered at a maximum 15% discount from Fair market value and that the discount can be taken from either the grant date FMV or the exercise date FMV. Depending upon the length of the offering period and any interim purchase periods, this ability to look back to the original grant date can represent a significant discount from the exercise date FMV.
ESPP Definition of Option
Refers to the right to buys stock
ESPP Offering Period
The period when rights to purchase stock under ESPP are outstanding.
Begins on the Offering Date and ends on a pre-determined exercise or purchase date.
Offering period could have a single exercise date, or continue for months or years with multiple intervening exercise or purchase period
ESPP Enrollment or Offering Date
first day of Offering Period
ESPP Grant Date
Offering Date for tax purposes ONLY IF the plan includes a share purchase limit for individual participants.
If the maximum number of shares is not determinable (either by a formula or absolute number stated in the plan) then the grant date does not occur until the exercise date when the number of shares is known.
ESPP - Purchase Period or Exercise Period
An Offering Period may have one single purchase period that is the same length as the offering period or have multiple interim purchase or exercise periods.
ESPP • Purchase Date or Exercise Date
Date in which the purchase of the stock is executed. Date the administrator receives both a notice of exercise and the payment price for the option shares. The exercise cannot be executed until both are provided for.
Date could be at the end of the offering period or at the end of each interim Purchase or Exercise Period
ESPP Enrollment Process Requirements
- Subscription/Enrollment agreement prior to offering date of the first offering period
- Payroll deductions (typically capped at 10-15% of participant compensation)
- Eligible Compensation
- Automatic purchase on exercise date
ESPP Eligible Compensation
Generally base pay is the best practice to use for determining source of ESPP contributions. The definition of compensation cannot discriminate against certain employees. The ESPP plan document would define the definition of “Compensation”.
ESPP - Enrollment date
The first day of the offering period NOT the first day the employee enrolls in the plan.
XYZ Corporation ESPP Plan
Tax status:
Tax-qualified under Code Section 423.
XYZ Corporation ESPP Plan-
* Eligible Employees:
Open to employees who work at least 20 hours per week and more than five months a calendar year.
XYZ Corporation ESPP Plan
* Offering periods:
Sequential every six months, starting May 1 and Nov. 1.
XYZ Corporation ESPP Plan-
* Purchase price:
85% of fair market value on enrollment date or exercise
date, whichever is lower.
XYZ Corporation ESPP Plan-
Payroll deductions:
No more than 10% of pay
XYZ Corporation ESPP Plan-
* Eligible Compensation:
ONLY Base Salary and commissions
Excludes payments for overtime, shift premium, incentive compensation, incentive payments, bonuses and other compensation.
XYZ Corporation ESPP Plan-
* Changes during offering periods:
Participants can increase or decrease contributions during offering period or withdraw from offering period.
XYZ Corporation ESPP Plan-
* Offering Period Purchase limit:
No more than 2,500 shares per offering period.
XYZ Corporation ESPP Plan
Share pool:
200,000
If plan runs short of shares, company makes pro rata allocation of remaining shares.
XYZ Corporation ESPP Plan
Subscription Agreement
- Lets participant chose percentage of payroll to deduct, up to 10% of pay.
- Participant must agree to notify the company within
30 days after selling the shares and to arrange for withholding. - Agreement to be bound by terms of the plan.
Stock Grant
A full value award which gives the recipient the benefit of the underlying stock value from the date of grant, plus the appreciation, if any, thereafter. A stock grant can be offered at no cost to the recipient, at a nominal cost, at a discounted cost, or at the cost of full fair market value to the recipient. The recipient is not taxed on the value of the grant until the stock vests.
Stock Option
The right to purchase a share of stock at a specified price. It’s classified as an appreciation award because the recipient will only receive the value between the strike price on the date of grant and the fair market value on the date of exercise - that’s the appreciation or growth in the value of the stock between grant date and exercise date.
Vesting
The process of earning shares of stock or the right to purchase shares of stock over the term of an instrument (e.g. restricted stock, stock option); the process by which shares first become transferable or not subject to a substantial risk of forfeiture by satisfying continuing service- or performance-based conditions
Exercise
Purchase of stock pursuant to an award. Exercise can occur after vesting, or before vesting (early exercise). If the award is a restricted stock grant that requires a purchase price to be paid, that is an exercise at grant. If the award is an option, the exercise will take place after the option vests. If the option is eligible for early exercise, the purchase may be made before the option vests.
Award Term/Expiration
The time period during which an award is outstanding, after which the right granted under the award expires.
What is needed to Calculate Vesting?
- Number of shares awarded
- Vesting schedule
- Vesting start date
- Calculation date
Performance Awards Characteristics – Vesting
A performance award is an award structured so that it becomes exercisable or vests upon the achievement of a specified company performance goal
* Earnings-per-share
* Revenue target
* Profitability target
* Operations or departmental goals
Performance Awards Characteristics – Exercisability
Like service-based awards
• Can vest in one lump sum after a specified performance goal has been met
• Can vest in cumulative increments as multiple performance goals are met.
Performance Awards Characteristics – Effect on plan share reserve
These awards will provide for a target performance level and often set forth a threshold performance level below which no shares will be earned and a maximum performance level at which the maximum number of shares that may be earned is capped.
Reduce the plan pool 1:1 at the Maximum performance level
• Company must make sure to Reserve enough shares for maximum payout without going overdrawn
Characteristics of Phantom Stock
Is similar to an RSA but doe not grant actual shares
- Full-value award based on value of underlying stock plus appreciation over vesting period
- Usually does not require payment of exercise or purchase price at settlement
- May settle in cash or stock
- Accounting treatment is similar to SAR
- Eligible for employer tax deduction for amount of reported compensation
Phantom Stock Deferred compensation under Section 409A
- A “short term” deferral is exempt from 409A
- must specifically NOT include terms which would allow for a payment after the 2.5 month period.
- Payout taxed as ordinary income if compliant with or exempt from Section 409A; if not, recipient pays 20% penalty plus interest
Restricted Stock Award (RSA) Characteristics
- An award of stock that may or may not require the recipient to pay for the shares received
- Shares are issued at grant and held in escrow until vesting requirements are met
- Unvested stock carries same voting rights and dividends as vested stock
Restricted Stock Units (RSU) Characteristics
- An award of the right to receive the value of a share of stock
- Does not require recipient payment or exercise price
- Does not carry voting rights but may be eligible for dividend equivalents
- Settlement on vest date unless deferred
- Shares are issued upon release (usually vest)
Dividend Equivalent Rights (DER) Characteristics
- The right for an unvested equity award to receive an amount equivalent to dividends declared on company stock
- Usually payable on full-value stock-based awards such as RSUs and phantom stock
- Payable upon declaration in cash or deferred until underlying award vests and settles, in cash or stock
Dividend Equivalent Rights: Declaration date
The date the Board announces a that dividend will be paid, an exchange will be made, or a transaction will occur.
Dividend Equivalent Rights: Record date
The date the company identifies eligible shares and shareholders based on company records. This date is the cutoff for who gets the benefit/right and who does not – only those the date the company identifies which shareholders will be eligible to receive the dividend or equivalent based on the company’s records. The record date is the metaphoric line in the sand, that says, shares owned on or before this date are eligible to participate in whatever action is being contemplated, like voting or receiving a dividend, and shares purchased after this date are not eligible.who are shareholders on this date qualify even though the transaction date is later.