Baker & McKenzie LLP is an English limited liability partnership and is a member of Baker & McKenzie...

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Baker & McKenzie LLP is an English limited liability partnership and is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organisations, reference to a “partner” means a person who is a member, partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of The Devil in the Details: Understanding Compliance Issues in France and the U.K. SF NASPP – November 7, 2007 •Valerie Diamond, Baker & McKenzie LLP •Rita Dickson, Oracle Corporation

Transcript of Baker & McKenzie LLP is an English limited liability partnership and is a member of Baker & McKenzie...

Page 1: Baker & McKenzie LLP is an English limited liability partnership and is a member of Baker & McKenzie International, a Swiss Verein with member law firms.

Baker & McKenzie LLP is an English limited liability partnership and is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organisations, reference to a “partner” means a person who is a member, partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm.

The Devil in the Details: Understanding Compliance Issues in France and the U.K.

SF NASPP – November 7, 2007

•Valerie Diamond, Baker & McKenzie LLP•Rita Dickson, Oracle Corporation

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Agenda

• France Options and RSUs– Tax and Regulatory Issues for Qualified and Non-Qualified

Plans– Administrative Approaches and Tips– Anticipated Changes for Qualified Plans

• United Kingdom Options and RSUs– Tax and Regulatory Issues for Qualified and Non-Qualified

Plans– Administrative Approaches and Tips– A Few Words about Mobile Employees

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French Nonqualified Options / RSUs

• No special grant document required for tax purposes (but include international withholding language)

• Timing of Taxation: – Options – at exercise on spread– RSUs – at vesting/share issuance on FMV of

shares (be careful about deferrals)

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French Nonqualified Options / RSUs – Taxation

– At Exercise / Vesting• Income tax (up to 40%) • Employee social security contributions (up to 23%)• Employer social security contributions (up to 46%)

– At Sale of Shares• Capital gains 27% (16% income, 8.2% CSG, .5%

CRDS, 2% special and .3% add’l tax) if over annual indexed amount (currently EU20,000)

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French Nonqualified Options / RSUs - Withholding and Reporting

• No income tax withholding for French tax residents

• Employee social security withholding and payment of employer social security in month of exercise/vesting

• Income from exercise/vesting must be included in annual declaration of salaries by February 1st of year following exercise/vesting

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French-qualified Options / RSUs

• Requires Written Grant Documentation - French sub-plan and agreement

• Timing of Taxation– For employee:

• No tax at exercise/vesting: deferral until sale of shares

• No social security contributions

– For employer: no social security contributions

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French-qualified Options – Key Requirements

– No grant during “closed periods”– Exercise price > 80% of the average of

FMV during 20 trading days preceding grant date– Employee’s heirs have right to exercise options

no more but also no less than 6 months after death of optionee– Limited adjustments permissible– Corporate officer restrictions

-- Shares must be held for at least 4 years (as of April 27, 2000 – used to be 5 years) as from grant date

– Reporting obligations to be satisfied by local employer and optionees

LEGAL

SOCIAL

TAX

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French-qualified RSUs – Key Requirements

– Mandatory minimum 2-year vesting period before shares can be issued

– Heirs can request issuance of unvested shares within 6 months following death of awardee

– Corporate officer restrictions!– No sale during “closed period”

– Mandatory minimum 2-year holding period after vesting (before sale of shares) unless death/disability under French law

– No sale during closed period– Reporting to social authorities by local employer

LEGAL

SOCIAL

TAX

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French-qualified Awards – Closed Periods• Neither French tax admin or AMF has explained how to

apply to foreign companies

– 10 trading days preceding/following disclosure to public of financial statements of company (10k, 10q, earnings release?) AND

– Date company management is aware of confidential info which if known would materially impact price of shares until 10 trading days after public disclosure

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French-qualified Awards - Corporate Officers

• Covers certain enumerated executives (at local entity• For options

– Prohibit exercise of options until expiration of corporate duties or

– Prohibit sale of certain percentage of shares acquired at exercise until expiration of corporate duties

• For RSUs– Prohibit sale of certain percentage of shares acquired

at vesting until expiration of corporate duties

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French-qualified Awards – Employee Taxation differs for Options / RSUsOptions: • Sale after 4 years of grant but prior to 2 years from exercise

– Under EU20,000 – currently exempt– EU15,000+

• Spread up to EU152,500 – 41% (30%, plus 8.2 CSG, .5% CRDS, 2% special and .3% add’l tax)

• Spread exceeds EU152,500 – 41% for amount up to EU152,500 and 51% for amounts at and over EU152,500)

• Sale after 4 years of grant AND after 2 years from exercise– Under EU20,000 – currently exempt– EU20,000+ : spread and gain taxed at 27% rate

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French-qualified Awards – Employee Taxation differs for Options / RSUsRSUs• Sale after 2 years vesting AND 2 year from share issuance

– Under EU20,000 – currently exempt– EU20,000+

• FMV of shares at vesting/issuance – Either 41% (30%, plus 8.2 CSG, .5% CRDS, 2% special and .3% add’l tax) or if less, employee’s marginal rate plus 11% social taxes

• Gain from issuance of shares – 27% rateNote: you do not get 27% on all income as with options and

if sale prior to vesting/share holding periods, then entire amounts disqualified

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French-qualified Awards - Withholding and Reporting

• No Withholding for French Residents (tax or social insurance) except for excess discount

• Reporting:– February 15th following year of exercise

• Individual Employee Statements • Duplicate to French entity’s tax office (Direction des

Services Fiscaux)– French entity’s annual shareholder meeting

• Grants and exercise by top 10 employees– Difference between reporting for options and RSUs

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French-qualified Options – Excess Discount Taxation

• If exercise price is less than 95% of average price over 20 trading days prior to grant (i.e., price between 95% and 80%), then “excess discount” is income

• Must report excess discount on pay slip for month of exercise and withhold social security contributions. Also goes on annual report of salary.

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Oracle’s Approach in France

• Oracle has approximately 1,430 employees in France• Oracle grants options to approximately 50% of those

employees in an annual focal grant• Oracle grants French-qualified options, not nonqualified

options or RSUs (but has inherited some of each)• Options vest according to regular vesting schedule but

are subject to restriction on sale of shares to meet 4 year holding period

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French-qualified Option Sub-Plan

• Oracle uses HSBC in France exclusively as its Plan Broker for French approved options

• HSBC keeps track of all holding periods and does all reporting for both the employer and employee

• A block is placed on the employee’s US brokerage account so they can see their vested shares, but cannot exercise them

• Employees cannot sell the shares for a period of 4 years from date of grant in order to qualify for the favorable tax rates

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Pricing of French-qualified Options

• The exercise price can be no less than 95% of the FMV of the previous 20 trading days and the grant cannot be dated 10 trading days before or after an “event”. An “event” would be an SEC filing, earnings release, material public announcement, etc.

• If 20-day average is more than 95%, the avg. FMV is used as exercise price unless it is less than 100% of the FMV on the date of grant, which is the price then used

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Oracle Grant Documents

• We require all French employees who receive options/awards to sign paper grant documents

• Grant docs, including US Plan, French Sub-Plan, tax information, links to HSBC for exercise information and paperwork, grant agreement and grant certificate are uploaded to US brokerage account and employee is instructed to download, print and fax to Stock Services only the signed Grant Agreement

• Oracle doesn’t allow a grant to be exercised until grant docs are accepted

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French Regulatory Issues

• EU Prospectus Directive – No filing required for options/RSUs. AMF does not consider non-transferable employee options or RSUs offerings of securities subject to Directive (not true of ESPP)

• Language - Recent decision of the French supreme court requires that employer show that employees understand English or translate documents into French to enforce against employee. Evidence can be daily exchanges of emails in English. Recommend waiver in English/French

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French Regulatory Issues

• Framework (Age Discrimination) Directive – Age provisions for retirement probably not an issue

• Works Council – “consultation” generally not required, but differs if part of employment agreement or French management involved in implementation process

• Electronic Acceptance – May not be sufficient to satisfy writing requirement in event of dispute absent double click procedures (with refusal option)

• Data privacy – Social security number should not be transferred unless necessary for payment of social contributions which is arguably not the case for French-qualified awards. Processing and transfer of data to US requires declaration to CNIL unless US company adheres to Safe Harbor Program.

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Changes to French-qualified Awards – Expected end of November 2007• Oct. 2007 - French National Assembly approved amendment to social security

treatment of French-qualified options and RSUs (non French Nonqualified Awards)• Proposed amendments may be modified before put into effect • New Social Security Charges

– Employer: • Due at Grant• 10% of either 25 percent of the value of the underlying shares (i.e. a rate of

2.5 percent) or the fair market value of the option under IFRS 2 principles (i.e., 10 percent of the fair market value of the options)

• Same for Options and RSUs – Employee:

• Tax of 2.5% of value of shares at vesting (RSUs)/spread at exercise (options)

• Not clear when due. Maybe at exercise/vesting or at sale

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UK Unapproved Options and RSUs

• No special grant document required for tax purposes (but include international withholding language)

• Timing of Taxation (assuming resident and ordinarily resident UK): – Options: at exercise on spread– RSUs: at vesting/issuance on FMV of shares

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UK Unapproved Options / RSUs – Taxation• At Exercise / Vesting

– Income tax (up to 40%)

– Employee NICs at exercise/vesting (earnings between £100-670 per week 11%; over £670 per week 1%)

– Employer NICs at exercise/vesting (12.8% - not capped)

• At Sale of Shares

– Capital gains subject to taper relief

• 1-2 years – 50% taxable so rate effectively 20%)

• 2+ years – 25% taxable so rate effectively 10%)

• annual exemption – now £9,200 per annum

– Change to 18% flat rate in April 2008 tax year

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UK Unapproved Options / RSUs - Withholding• Duty to account to the Revenue for income tax

and NICs within 14 days of the end of each tax month (ends on 5th, so by 19th) if shares are readily convertible assets (i.e., public co.)

• Need to recover amounts due from employee within 90 days of taxable event to prevent grossing up charge (deemed tax on the tax)

• Withholding at employee’s marginal rate

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UK Unapproved Options / RSUs - Reporting• Onerous reporting requirements include

– PAYE Returns – Forms P14 and P35 – May 19th following end of tax year (April 5)

– Return of Benefits Form – P11D – report stock transfer to employees – July 6th following end of tax year (April 5)

– Annual Share Scheme Return Form – Form 42

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UK Unapproved Options / RSUs - Reporting• Form 42 Requirement seems to be giving US companies the

biggest headache– Filing by July 6th each year to report grants and exercises. – Detailed entries – 16 columns of details for each option

exercise – Revenue is pursuing companies and threatening

proceedings before Revenue Commissioners– Penalty for failure to deliver on time of up to £300 per

reportable entry event up to Revenue Commissioner hearing and penalties not exceeding £60 per entry per day thereafter

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UK Unapproved Options - NICs

• Can pass or transfer liability for employer NICs (currently at 12.8%) to employees for option grants on or after April 6, 1999

• Employees may deduct the amount of employer NICs paid from taxable income arising from option exercise

• If joint election form used, form must be approved by Revenue

• Possible to use electronic acceptance if prescribed language used

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New Anti-Avoidance Legislation

• 2006 anti-avoidance legislation extended to options – “Legislation will ensure that any reward of employment obtained by employees from avoidance schemes using options over shares and securities will be fully subject to tax through PAYE and National Insurance Contributions”

• Joint election form for employer NICs pass through must include anti-avoidance language on on or after April 6, 2007

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UK Employee TaxationRestricted Stock Units• RSUs compulsorily settled in shares can be analyzed

as options (rights to acquire shares). Hence, there is an ability to transfer employer NIC liability to employees if the RSU award can only be settled in shares (may need to specify in award agreement)

• But need to be especially careful in structuring RSUs for internationally mobile employees.

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UK Approved Options

• Requires Written Grant Documentation – UK sub-plan and agreement

• Timing of Taxation– For employee:

• No income tax or NICs at exercise: deferral until sale of shares if exercise more than 3 years from grant or “good leaver”

• Capital gains tax on sale – For employer: no NICs contributions if exercise more than 3

years from grant or good leaver• Does not affect ability to obtain automatic corporate tax

deduction

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UK Approved Options – Key Requirements• Revenue approval process and need to set up plan in

accordance with Revenue rules

• Ongoing compliance – most changes need to be approved by the Revenue, including option adjustments

• £30,000 (based on exercise price) individual limit and monitoring limit

• Additional reporting

• Limited ability to adjust options upon corporate transaction

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UK Approved Options – Good Leaver

• Tax free exercise if “good leaver” (even if not 3 years from grant date) when exercise occurs within 6 months of termination of employment due to:– Injury– Disability– Redundancy– Retirement after an age specified in the plan which is 55 or greater– Death (if exercised by personal representative within 12 months of

death)

• Can build in pass through of employer NICs if employee exercises early and not as good leaver

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UK Approved Options – Additional Reporting• No income tax or NICs withholding if exercise after 3 years of grant

or as good leaver. However, if early exercise, then withholding as with unapproved options

• Return of Benefits Form – No reporting if exercise after 3 years of grant or as good leaver. However, if early exercise, then reporting as with unapproved options

• Annual Share Scheme Return – Form 35 (for approved options only):– Must report grant, exercise, lapse, cancellation and replacement of

options by July 6 following end of tax year (April 5)– Any amendments to the plan must be reported as well

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Oracle’s Approach in U.K.

• Oracle has approximately 3,200 employees in the U.K.

• Oracle grants options to approximately 50% of those employees in an annual focal grant

• Oracle grants U.K. approved options, not nonqualified options or RSUs (but has inherited some of each, as well as EMI options)

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Oracle’s UK Approved Sub-Plan

• Sub-Plan must be submitted to and approved by UK Inland Revenue before options/awards can be granted under the approved scheme

• Employee cannot hold more than 30K£ in outstanding options/awards at time of grant in order to qualify for an approved option grant

• Employee must hold shares for a minimum of 3 years before exercising/selling to receive favorable tax treatment – no social insurance taxes on exercise

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Calculation of Approved Option or Portion of Option

• US Exercise Price divided by GBP closing price on grant date = Grant Price in £

• Calculate GBP value of all other “approved” options outstanding each time a new UK option is granted. The difference between the total £ value in options outstanding and 30K£ can be granted as an approved option. If over 30K£, the option must be grant as an “unapproved” option. Often times the option must be split between approved (GA) and unapproved (GU). We use the same grant number with the GA/GU prefix to tie the grants together to total on option on the grant date

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Coding and Taxation of Approved Options• Oracle codes UK Grants with a GA/GU prefix at time of

grant for easy distinction at time of grant and exercise for calculation of limit and taxes due

• 0% tax withheld on approved options if exercised 3 or more years from the date of grant

• 40% - 48.68% taxes withheld if option is exercised prior to 3 yr. holding period

• In addition, tax rates differ for Leavers (“good leavers”, “bad leavers”, etc.)

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Oracle’s Grant Documents

• We require all UK employees who receive options/awards to electronically accept grant documents, including a NIC Election Form

• Grant docs, including US Plan, UK Sub-Plan, tax information, grant agreement and grant certificate are uploaded to US brokerage account and employee is instructed to electronically review and accept

• Oracle doesn’t allow a grant to be exercised until grant docs are accepted and NIC Election Form is returned transferring ER-NIC responsibility to EE

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UK Regulatory Issues

• EU Prospectus Directive – No filing required for options/RSUs. FSA informal view is non-transferable employee options or RSUs likely are not offerings of securities subject to Directive. Case-by-case analysis.

• Framework (Age Discrimination) Directive – Provisions that give additional benefits to grantee based on age (and/or years of service) (such as retirement provisions based on age 55) likely discriminatory and should be removed

• Electronic Acceptance – Note that Revenue must approve electronic acceptance and cashless exercise procedures if UK approved options

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Increasing Scrutiny of Internationally Mobile Employees by Revenue• Companies should determine at grant whether

employee is:– Resident and Ordinarily Resident UK– Resident but not Ordinarily Resident UK– Neither Resident Nor Ordinarily Resident UK

• Note that NICs pass through available when employee resident and ordinarily resident UK, not otherwise

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Options – Resident but Not Ordinarily Resident UK3 potential tax charges

1. taxed at the time of grant award if discounted exercise price

2. taxed from exercise of option to disposal of shares on amount equal to 5% of the spread (deemed notional loan)

3. taxed on full spread when shares are disposed of

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RSUs – Resident but Not Ordinarily Resident UK

• There could be income tax and NICs due on the grant if RSU can only be settled in shares.

• For these individuals, consider putting election for company to settled in cash (then not an option)

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Questions?

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Contact Details• Valerie H. Diamond, Esq.

Baker & McKenzie LLPTwo Embarcadero Center, 10th FloorSan Francisco, CA 94111Direct Number: (415) 576-3086E-mail: [email protected]

• Rita DicksonOracle CorporationDelphi Asset Management Corp.6005 Plumas Street, Suite 100Reno, NV 89509Direct Number: (775) 689-3414E-mail: [email protected]