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Feel The Burn? Equity Compensation Plan Amendment to Increase Withholding is Not a Material Amendment

October 20, 2016

The Global Compensation, Benefits & ERISA Practice Group

Many NASDAQ or NYSE listed companies looking for avenues to address depleted share reserves under equity incentive plans without having to seek shareholder approval have a new option.  Recently, both the NYSE and NASDAQ posted equity compensation FAQs stating that an amendment to increase the withholding rate under an equity compensation plan is not a material amendment requiring shareholder approval under NASDAQ Listing Rule 5635 or NYSE Listed Company Manual Section 303A.08.  These actions by the exchanges follow through on FASB’s announcement in April 2016 that equity awards may provide for tax withholding at maximum, rather than minimum, statutory levels without disqualifying the awards from equity classification for financial expense purposes. The two listing agencies will not consider such an amendment to a plan, including an amendment to raise the withholding rate to the maximum allowable, as a material amendment even if the plan allows shares surrendered for withholding to be added back to the share reserve (share recycling).  Companies that are willing to incur the additional cash cost of higher withholding in exchange for slowing down share reserve burn should consider amending their plans to permit the company to withhold up to the maximum withholding rate, provided such an amendment does not require shareholder approval pursuant to plan terms.  Such an amendment will slow share reserve burn by increasing the number of shares returned to the plan through withholding.

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