Although the requirements to obtain approval for an equity plan from the State Administration of Foreign Exchange (SAFE) in China have relaxed over the past few years and, consequently, the approval process has become more predictable and faster, it still requires significant resources (both financially and from a staffing perspective to administer the ongoing requirements).
Therefore, many companies (especially those with a lower headcount in China) are still looking for strategies to avoid the SAFE requirements. And while there is never a perfect solution, most of these companies choose to grant cash awards. Cash awards can mean different things, so let’s look at the different alternatives.
As I had discussed back in January 2015, changes to the moribund French-qualified RSU regime had been proposed by the French Government which would have made granting French-qualified RSU awards again much more beneficial to both the company and the employees. Alas, the wheels in France turn slowly and we are still waiting for the law to be adopted.
What has happened in the meantime is as follows:
The French Parliament actually adopted the proposed law at the end of February 2015. The law was then sent to the French Senate for further debate. Unfortunately, at the Senate level, the law was amended and the reduced vesting/holding periods now only apply to so-called SMEs. These are small and medium size companies which employ fewer than 250 persons and which have an annual turnover not exceeding € 50 million, and/or an annual balance sheet total not exceeding € 43 million.
For several years, it has been challenging to grant equity awards to employees in Russia. The tax treatment of options and ESPP is uncertain and it is possible that tax is due at grant and at exercise/purchase. The securities requirements are similarly unclear and there is a risk that equity awards are subject to an onerous securities registration requirement, unless all transactions related to the awards take place outside of Russia. And, since 2013, due to changes to the currency control laws, it has been questionable whether shares and cash payments related to equity awards could be issued into non-Russian accounts.
Notwithstanding, with appropriate structuring of grant terms and award administration, many companies have continued to grant equity awards in Russia.
Data Privacy Laws Add Another Level of Difficulty to Equity Awards in Russia
Now comes the latest threat from a somewhat unexpected corner: data privacy laws. On July 21, 2014, Russia enacted a new data privacy law which requires that companies process all personal data related to Russian nationals in Russia. This means that companies which collect and/or process the personal data of Russian nationals would have to ensure that the databases used for such purposes are located in Russia. The effective date of the law was September 1, 2016, but has since been accelerated to September 1, 2015.
Just when we thought French-qualified awards were headed for extinction due to the ever decreasing tax benefits, there is change in the air!
In November, a draft law was presented (the “Loi Macron”) which proposes a number of changes to the requirements and tax treatment of French-qualified RSUs, most of them favorable. The draft law does not propose any changes for French-qualified options.
As currently drafted, the law provides the following:
- Minimum vesting period reduced from two years to one year from the grant date;
- Holding period after vesting (currently minimum of two years for RSUs that vest within four years of grant date) is optional, but shares cannot be sold for a minimum period of two years from the grant date (effectively requiring a minimum one-year holding period for RSUs that vest on the first anniversary of the grant date);
- Employer social tax liability moved to vesting and due at a rate of 20% on the value of the shares issued at vesting (currently 30% on the value of the shares subject to the RSUs at grant – no reimbursement if RSUs forfeited prior to vesting); and
- Gain at vesting taxed as capital gain (currently taxed as salary income).
It is almost the end of the calendar year, and in addition to wrapping up gifts and holiday parties, it is time for multinational companies to consider the necessary tax and regulatory filings for global stock plans triggered by the close of 2014. As you consider the steps your company may need to take to start the new year right, please see our Global Equity Services Year-End / Annual Equity Awards Filing Chart, which contains…
October has been an important month for equity awards in Australia.
New Tax Rules
First, the Australian Government announced on October 14, 2014 that it would revise the tax rules applying to employee share plans. The legislation still needs to be written and will most likely be effective only for grants made on or after July 1, 2015, but it seems clear that the taxable event for stock options will revert back to exercise (as it was the case for options granted before July 1, 2009).
This is great news for companies that had stopped granting options to employees in Australia after tax rules effective July 1, 2009 provided for tax at the time the awards were no longer subject to a substantial risk of forfeiture (typically at vesting). Apparently, the Australian Government finally realized its mistake after many companies aggressively lobbied for changes and pointed out that, by not being able to grant options, they were not able to compete with companies in other countries that are able to use stock options to incentivize employees.
It has been common practice in certain industries to provide favorable equity award treatment to employees who terminate due to retirement. Often, retirement is defined with reference to reaching a certain age, or a certain age plus a certain number of years of service with the company (e.g., 55 years and 10 years of service). Employees who meet the definition of retirement will be allowed to continue to vest in awards after termination, have vesting of their awards be accelerated, or be allowed a longer post-termination exercisability period (for options).
As traditional retirement plans become less common, more and more companies are considering these provisions in order to provide additional benefits to employees who are nearing, or have reached, retirement.
With respect to U.S. employees, it is well understood that allowing retirement-eligible employees to continue to vest in awards after termination can cause accounting and tax issues (i.e., compliance with Section 409A as well as an accelerated social security tax liability).
For non-U.S. employees, the same accounting considerations apply, but in addition, companies also need to consider age discrimination concerns and changes to the taxable event of awards.
I recently moderated a webinar during which my UK colleagues and representatives from Her Majesty’s Revenue and Customs (“HMRC”) explained the new share plan registration requirements in the UK. These requirements apply to any company offering a share plan (whether tax-qualified or not) to employees in the UK. The registration has to be completed by July 6, 2015, but for practical reasons, should be completed well in advance of this date. During our webinar, the…
I recently co-authored an article with my partner Susan Eandi in Bloomberg BNA’s Corporate Counsel Weekly. In the article, we discuss the different employment and compensation considerations when entering new jurisdictions. Topics addressed include how to engage workers in each jurisdiction and the integrated analysis of the employment, tax and corporate consequences of a direct hire versus an indirect hire or contractor for a U.S. company. To read the full article, click here.
An issue that is often neglected when implementing an equity plan on a global basis is the compliance with global privacy regulations. Legislation intended to protect an individual’s right to privacy has existed for many years in the European Union (introduced by an EU Directive in 1995), but data privacy has not been a hot topic in most other countries (including in the U.S.). In the last several years, there has been a flurry of new data privacy laws around the world, especially in Asia Pacific, no doubt brought on by the proliferation of global internet use and the concern about data privacy on the internet.
These laws also affect companies offering global equity incentive plans, as well as their service providers. Typically, data privacy laws restrict the collection, processing and transfer of personal data, which is defined as information which can be used to identify a person. In addition, many data privacy laws require that databases in which personal information is stored be registered with local data privacy authorities.