May 14, 2020

Employee Stock Option Plans (ESOPs)

Employee Stock Option Plans (ESOPs)

ESOPs: What They Are and How They Work
      Henry C. Blackiston III, Linda E. Rappaport, and Lawrence A. Pasini, 45(1): 85–143 (Nov. 1989)
The rapid expansion in the number and size of employee stock ownership plans has put ESOPs under increasing public scrutiny. This Article reviews the legal rules applicable to ESOPs, including tax qualification requirements, ESOP stock allocation rules, tax benefits and incentives, ERISA fiduciary considerations, accounting treatment, and securities law considerations. The Article also explores the current use of ESOPs in financial transactions including leveraged buy-outs and securitized ESOP loans. Finally, the Article identifies and discusses issues of practical importance to practitioners in the ESOP area.

Sixth Annual Review of Developments in Business Financing
      committee on Developments in Business Financing, 45(1): 441–61 (Nov. 1989)
In this sixth annual review, the first such review ever published in The Business Lawyer, the committee reports on developments regarding remarketed securities, leveraged ESOPs, unbundled stock units, and new varieties of preferred stock. Other topics especially noted are "bondholder rights" and hybrid instruments.

International Employee Stock Plans and the Federal Securities Laws
      Subcommittee on Employee Benefits and Executive Compensation of the committee on Federal Regulation of Securities , 49(2): 797–887 (Feb. 1994)
This Report surveys the U.S. federal securities laws applicable to offerings of securities through international employee plans. The Report analyzes both offerings by U.S. corporations to employees abroad and offerings by foreign corporations to employees located in the United States. It also identifies current problems in the operation of the regulatory framework and makes recommendations for action by the SEC. The principal recommendation suggests a new registration form to facilitate offerings by foreign private issuers to employees in the United States.

Financial Innovation and Governance Mechanisms: The Evolution of Decoupling and Transparency
     Henry T. C. Hu; 70(2): 347-406 (Spring 2015)
Financial innovation has fundamental implications for the key substantive and information-based mechanisms of corporate governance. “Decoupling” undermines classic understandings of the allocation of voting rights among shareholders (via, e.g., “empty voting”), the control rights of debtholders (via, e.g., “empty crediting” and “hidden interests”/ “hidden non-interests”), and of takeover practices (via, e.g., “morphable ownership” to avoid section 13(d) disclosure and to avoid triggering certain poison pills). Stock-based compensation, the monitoring of managerial performance, the market for corporate control, and other governance mechanisms dependent on a robust informational predicate and market efficiency are undermined by the transparency challenges posed by financial innovation. The basic approach to information that the SEC has always used—the “descriptive mode,” which relies on “intermediary depictions” of objective reality—is manifestly insufficient to capture highly complex objective realities, such as the realities of major banks heavily involved with derivatives. Ironically, the primary governmental response to such transparency challenges—a new system for public disclosure that became effective in 2013, the first since the establishment of the SEC—also creates difficulties. This new parallel public disclosure system, developed by bank regulators and applicable to major financial institutions, is not directed primarily at the familiar transparency ends of investor protection and market efficiency.

As starting points, this Article offers brief overviews of: (1) the analytical framework developed in 2006−2008 for “decoupling” and its calls for reform; and (2) the analytical framework developed in 2012−2014 reconceptualizing “information” in terms of three “modes” and addressing the two parallel disclosure universes.

As to decoupling, the Article proceeds to analyze some key post- 2008 developments (including the status of efforts at reform) and the road ahead. A detailed analysis is offered as to the landmark December 2012 TELUS opinion in the Supreme Court of British Columbia, involving perhaps the most complicated public example of decoupling to date. The Article discusses recent actions on the part of the Delaware judiciary and legislature, the European Union, and bankruptcy courts—and the pressing need for more action by the SEC. At the time the debt decoupling research was introduced, available evidence as to the phenomenon’s significance was limited. This Article helps address that gap.

As to information, the Article begins by outlining the calls for reform associated with the 2012−2014 analytical framework. With revolutionary advances in computer- and web-related technologies, regulators need no longer rely almost exclusively on the descriptive mode rooted in intermediary depictions. Regulators must also begin to systematically deploy the “transfer mode” rooted in “pure information” and the “hybrid mode” rooted in “moderately pure information.” The Article then shows some of the key ways that the new analytical framework can contribute to the SEC’s comprehensive and long-needed new initiative to address “disclosure effectiveness,” including in “depiction-difficult” contexts completely unrelated to financial innovation (e.g., pension disclosures and high technology companies). The Article concludes with a concise version of the analytical framework’s thesis that the new morphology of public information—consisting of two parallel regulatory universes with divergent ends and means—is unsustainable in the long run and involve certain matters that need statutory resolution. However, certain steps involving coordination among the SEC, the Federal Reserve, and others can be taken in the interim.