2018 Global Employee Equity at a glance: United States of America

by White & Case LLP
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Welcome to the United States of America page of our Global Employee Equity at a glance series.

Stock Option Plans: Employment

Labor Concerns

There is a risk of employees claiming that they are entitled to compensation for loss of rights under the Plan where the Plan is amended or discontinued.

It is recommended that Plan provisions be drafted so as to preclude leased and/or temporary employees and independent contractors from claiming entitlements under the Plan (absent a specific intention to include these workers) and to permit unilateral amendment and termination of the Plan.

There are laws that prohibit discrimination against, and/or less favorable treatment of, employees on certain grounds, including, among others, race, color, religion, age, gender, disability, citizenship, national origin and any other status protected by federal, state or local law. Companies should be mindful of this when determining the eligibility of employees to participate in the Plan, the benefits being granted and the exercise of any discretion.

Communications

A disclaimer should be included in the award agreement that acknowledges each employee's receipt of the Plan documents and the discretionary nature of the Plan and confirms that termination of employment will result in the loss of unvested rights.

Government filings are generally required to be made in English.

Electronic execution of award agreements may be acceptable under certain conditions, which are not onerous.

Stock Option Plans: Regulatory

Securities Compliance

Neither the grant nor the exercise of Options is likely to trigger a requirement for a full prospectus, provided that the special exemption and special registration process created by the US Securities and Exchange Commission (the "SEC") have been complied with. Failure to comply with registration or exemption requirements may give employees rescission rights or the right to sue for damages if they no longer own Stock.

(i) Reporting companies. Issuers with a class of securities registered under the Securities Exchange Act of 1934 – which includes companies listed on a US stock exchange – may use a Form S-8 registration statement, which requires less disclosure than other SEC registration forms. The Issuer must deliver to employees a prospectus containing a description of the Plan, together with the most recent annual report.

(ii) Non-reporting companies. Private Issuers cannot use Form S-8, but they are permitted to grant a limited amount of securities under employee benefit plans pursuant to a special exemption contained in Rule 701 under the US Securities Act of 1933. There are no special information requirements for employees unless the value of securities issued in any 12-month period exceeds US$10 million, at which point financial statements and other disclosure must be provided.

While the SEC is responsible for enforcing the US federal securities laws, each individual state has its own securities laws, referred to as "blue sky laws", and its own regulatory agency that administers the law. Blue sky laws are often superseded by federal law, particularly with respect to reporting Issuers, but they do continue to apply to non-reporting Issuers. The laws of each state where any Plan participant resides must be checked prior to undertaking any securities offerings or sales in that state.

Foreign Exchange

There are no foreign exchange restrictions applicable to the Plan.

Data Protection

The US has no omnibus data protection law that reaches all personnel data, but a variety of sector-specific state and federal laws regulate certain classes of data, particularly involving health care and background checks data. It is a best practice to build into the Plan enrollment forms a written employee consent for the processing and transfer of personal data for all Plan purposes. Plan administrators must also comply with any applicable privacy policy and with document-retention laws that mandate retaining tax-related information for certain periods.

Stock Option Plans: Tax

Employee Tax Treatment

For nonqualified Options (i.e., Options not treated as an Internal Revenue Code Section 422 incentive stock option ("ISO")), an employee is generally subject to income tax upon exercise of the Option on the gain on exercise (i.e., the excess of the aggregate market value of the Stock acquired over the aggregate exercise price).

Capital gains tax is also payable on any gain upon the net proceeds of sale of the Stock.

Social Security Contributions

For nonqualified Stock Options, social security contributions (e.g. social security taxes, Medicare taxes and federal unemployment taxes) are due from both the Subsidiary and the employee on all income received up to a threshold (which is subject to change on an annual basis), except the employee is not required to pay federal unemployment taxes.

Tax-Favored Program

Favorable tax treatment, in the form of ISOs, may be obtained if the Option and Plan is structured to comply with Section 422 of the Internal Revenue Code. If the conditions for an ISO are satisfied, neither the grant nor the exercise of an ISO with an exercise price at least equal to the fair market value of the underlying Stock as at the date of grant will generally be a taxable event (although a specific liability for "alternative minimum tax" may still apply). An employee will be subject to tax on any gain upon the net proceeds of the sale. The conditions for an ISO include that the:

(i) Option is granted under the Plan approved by shareholders of the Issuer within 12 months (before or after) of adoption of the Plan; and

(ii) underlying Stock must be held until at least the later of: (a) two years from the grant date; and (b) one year from the exercise date.

Withholding and Reporting

The Subsidiary has an obligation in relation to nonqualified Stock Options to withhold the income tax and social security contributions due.

The Subsidiary has no withholding obligation in relation to ISOs. However, if an ISO fails to meet the conditions above, it will be treated as a disqualifying disposition and the Subsidiary will be obligated to report as taxable any income for the year in which the disposition occurs.

Reporting requirements apply to both the Subsidiary and the employee.

Employer Tax Treatment

In the case of nonqualified Options, a deduction is available to the Subsidiary equal to the amount of ordinary income reported by the employee. In the case of ISOs, no deduction is available unless a disqualifying disposition occurs.

Restricted Stock and RSUs: Employment

Labor Concerns

There is a risk of employees claiming that they are entitled to compensation for loss of rights under the Plan where the Plan is amended or discontinued.

It is recommended that Plan provisions be drafted so as to preclude leased and/or temporary employees and independent contractors from claiming entitlements under the Plan (absent a specific intention to include these workers) and to permit unilateral amendment and termination of the Plan.

There are laws that prohibit discrimination against, and/or less favorable treatment of, employees on certain grounds, including among others, race, color, religion, age, gender, disability, citizenship, national origin any other status protected by federal, state or local law. Companies should be mindful of this when determining the eligibility of employees to participate in the Plan, the benefits being granted and the exercise of any discretion.

Communications

A disclaimer should be included in the award agreement that acknowledges each employee's receipt of the Plan documents and the discretionary nature of the Plan and confirms that termination of employment will result in the loss of unvested rights.

Government filings are generally required to be made in English.

Electronic execution of award agreements may be acceptable under certain conditions, which are not onerous.

Restricted Stock and RSUs: Regulatory

Securities Compliance

Neither the grant nor the vesting of Restricted Stock or RSUs is likely to trigger the requirement for a full prospectus provided that the special exemption and special registration process created by the US Securities and Exchange Commission (the "SEC") have been complied with. Failure to comply with registration or exemption requirements may give employees rescission rights or the right to sue for damages if they no longer own Stock.

(i) Reporting companies. Issuers with a class of securities registered under the Securities Exchange Act of 1934 – which includes companies listed on a  US stock exchange – may use a Form S-8 registration statement, which requires less disclosure than other SEC registration forms. The Issuer must deliver to employees a prospectus containing a description of the Plan, together with the most recent annual report.

(ii) Non-reporting companies. Private Issuers cannot use Form S-8, but they are permitted to grant a limited amount of securities under employee benefit plans pursuant to a special exemption contained in Rule 701 under the US Securities Act of 1933. There are no special information requirements for employees unless the value of securities issued in any 12-month period exceeds US$10 million, at which point financial statements and other disclosure must be provided.

While the SEC is responsible for enforcing the US federal securities laws, each individual state has its own securities laws, referred to as "blue sky laws", and its own regulatory agency that administers the law. Blue sky laws are often superseded by federal law, particularly with respect to reporting Issuers, but they do continue to apply to non-reporting Issuers. The laws of each state where any Plan participant resides must be checked prior to undertaking any securities offerings or sales in that state.

Foreign Exchange

There are no foreign exchange restrictions applicable to the Plan.

Data Protection

The US has no omnibus data protection law that reaches all personnel data, but a variety of sector-specific state and federal laws regulate certain classes of data, particularly involving health care and background checks data. It is a best practice to build into the Plan enrollment forms a written employee consent for the processing and transfer of personal data for all Plan purposes. Plan administrators must also comply with any applicable privacy policy and with document-retention laws that mandate retaining tax-related information for certain periods.

Restricted Stock and RSUs: Tax

Employee Tax Treatment

For Restricted Stock, an employee is generally subject to income tax on the value of the Stock when it vests, or taxable earlier if the employee elects to be taxed on the grant date under Section 83(b) of the Internal Revenue Code.

For RSUs, an employee is generally subject to income tax on the value of the Stock received on settlement of the award following vesting.

Capital gains tax is also payable on any gain upon the net proceeds of the sale of the Stock.

Social Security Contributions

Social security contributions (e.g. social security taxes, Medicare taxes, and federal unemployment taxes) are due from both the Subsidiary and the employee on all income received up to a threshold (which is subject to change on an annual basis) upon vesting of Restricted Stock (or grant date if the employee makes an Internal Revenue Code Section 83(b) election) or settlement of RSUs, except the employee is not required to pay federal unemployment taxes.

Tax-Favored Program

There are no tax-favored programs applicable to Restricted Stock and RSU awards.

Withholding and Reporting

The Subsidiary has an obligation to withhold the income tax and social security contributions (if the threshold has not been met) upon vesting or settlement, as applicable.

Reporting requirements apply to both the Subsidiary and the employee.

Employer Tax Treatment

For Restricted Stock and RSUs, a deduction is available equal to the amount of ordinary income recognized by an employee.

Employee Stock Purchase Plans: Employment

Labor Concerns

There is a risk of employees claiming that they are entitled to compensation for loss of rights under the Plan where the Plan is amended or discontinued.

It is recommended that Plan provisions be drafted so as to preclude leased and/or temporary employees and independent contractors from claiming entitlements under the Plan (absent a specific intention to include these workers) and to permit unilateral amendment and termination of the Plan.

There are laws that prohibit discrimination against, and/or less favorable treatment of, employees on certain grounds, including among others, race, color, religion, age, gender, disability, citizenship, national origin and any other status protected by federal, state or local law. Companies should be mindful of this when determining the eligibility of employees to participate in the Plan and the exercise of any discretion.

Communications

A disclaimer should be included in the award agreement that acknowledges each employee's receipt of the Plan documents and the discretionary nature of the Plan and confirms that termination of employment will result in the loss of unvested rights.

Government filings are generally required to be made in English.

Electronic execution of award agreements may be acceptable under certain conditions, which are not onerous.

Employee Stock Purchase Plans: Regulatory

Securities Compliance

The exercise of a purchase right is unlikely to trigger the requirement for a full prospectus, provided that the special exemption and special registration process created by the US Securities and Exchange Commission (the "SEC") has been complied with:

(i) Reporting companies. Issuers with a class of securities registered under the Securities Exchange Act of 1934 – which includes companies listed on a US stock exchange – may use a Form S-8 registration statement, which requires less disclosure than other SEC registration forms. The Issuer must deliver to employees a prospectus containing a description of the Plan, together with the most recent annual report.

(ii) Non-reporting companies. Private Issuers cannot use Form S-8, but they are permitted to grant a limited amount of securities under employee benefit plans pursuant to a special exemption contained in Rule 701 under the US Securities Act of 1933. There are no special information requirements for employees unless the value of securities issued in any 12-month period exceeds US$10 million, at which point financial statements and other disclosure must be provided.

While the SEC is responsible for enforcing the US federal securities laws, each individual state has its own securities laws, referred to as "blue sky laws", and its own regulatory agency that administers the law. Blue sky laws are often superseded by federal law, particularly with respect to reporting Issuers, but they do apply to non-reporting Issuers. The laws of each state where any Plan participant resides must be checked prior to undertaking any securities offerings or sales in that state.

Foreign Exchange

There are no foreign exchange restrictions applicable to the Plan.

Data Protection

The US has no omnibus data protection law that reaches all personnel data, but a variety of sector-specific state and federal laws regulate certain classes of data, particularly involving health care and background checks data. It is a best practice to build into the Plan enrollment forms a written employee consent for the processing and transfer of personal data for all Plan purposes. Plan administrators must also comply with any applicable privacy policy and with document-retention laws that mandate retaining tax-related information for certain periods.

Employee Stock Purchase Plans: Tax

Employee Tax Treatment

Employee stock purchase plans that do not comply with Section 423 of the Internal Revenue Code have the same tax consequences as nonqualified Stock Options, as described in the "Stock Option Plans" section, i.e., the employee will recognize taxable income equal to the excess of the value of the Stock received over the purchase price when the employee exercises the right. Capital gains tax is also payable on any gain upon the net proceeds of sale of the Stock.

Social Security Contributions

Social security contributions are not due from either the Subsidiary or the employee under a tax-qualified Plan.

Tax-Favored Program

Favorable tax treatment may be obtained if the Plan is structured to comply with Section 423 of the Internal Revenue Code. If the requirements of Section 423 are satisfied (see below), no tax is payable upon the grant or exercise of a purchase right. On sale of the Stock, an employee is generally subject to capital gains tax on the excess of the sale price over the purchase price of the Stock.

Qualified employee stock purchase plans must, (i) be maintained only for employees, (ii) be approved by shareholders, (iii) offer securities with a purchase price not less than the lesser of 85 percent of the fair market value of the Stock  at the beginning of the offering period and the end of the offering period, and (iv) not permit an employee to purchase more than $25,000 worth of Stock (determined as of the grant date) for each calendar year in which the offering period is in effect.

Favorable tax treatment upon exercise of the purchase right can be lost under two circumstances. Firstly, a "disqualifying disposition", occurs, meaning the employee sells the Stock received upon the exercise of the right within two years after the date the right was granted or within one year after the date the right was exercised. In that circumstance, the employee recognizes the spread as taxable compensation income at the time of the disqualifying disposition. The second occurs if the employee was not employed by the employer at all times during the period beginning on the date the right was granted and ending on the date three months before the right is exercised. In that circumstance, the employee recognizes the spread as taxable compensation income at the time the  employee exercises the right.

Withholding and Reporting

The Subsidiary generally has no obligation to withhold the income tax and social security contributions due, but income tax payable upon a disqualifying disposition is reportable by the employer on Form W-2.

Employer Tax Treatment

In the case of a nonqualified plan, a deduction is available to the Subsidiary equal to the amount of ordinary income reported by the employee. In the case of a tax-qualified plan, no deduction is available unless a disqualifying disposition occurs.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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