SEC Liberalizes Rules for Private Company Equity Compensation
Equity compensation (including options to purchase stock or LLC units, restricted stock or units, and sales of equity to employees) is frequently used by publicly traded and privately held businesses to recruit and retain employees, directors, and other service providers. Businesses using these compensation techniques or equity-based nonqualified compensation deferral programs need to be concerned about compliance with federal and state securities laws for these programs.
For companies not subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 (generally, non-publicly traded companies), Rule 701 under the Securities Act of 1933 (the “Securities Act”) provides an exemption from the registration requirements for offers and sales of securities under certain compensatory benefit plans or written agreements relating to compensation. The exemption covers securities offered and sold by a business under a plan or agreement with the business’ current employees, officers, directors, and certain other service providers. The maximum number of shares that may be sold under the Rule 701 exemption by a business in any 12-month period is the greatest of (a) shares valued at $1 million, (b) shares equal in value to 15% of the business’ total assets or (c) 15% of the business’ issued equity shares or units.
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J. Christopher Coffman is a member of FBT focused on civil and criminal tax controversies. He has experience representing clients subject to IRS audits and federal criminal investigations before local and state taxing authorities and the U.S. Tax Court.