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We represent many foreign law firms with "Americanizing" their clients' share incentive plans. This generally involves carefully reading the main plan rules and preparing a US schedule to address US tax code Section 409A and to override certain foreign terms that cannot be lawfully carried over to the US. If there are more than 35 US participants in total and one or more resides in the State of California, we can also prepare the required special schedule applicable to the California residents.

Usually, foreign law firm clients will also ask us to review the form of grant agreement and often invitation letters, brochures, and explanatory booklets. We are happy to do so.

In many cases we also undertake a US federal and state securities analysis. At the federal level this involves determining whether the Rule 701 limits will be exceeded, particularly the USD10M annual limit on equity awards. If exceeded, the company will need to provide additional and burdensome disclosure to participants.

Unlike US public companies, foreign companies listed on non-US stock exchanges and foreign private companies must comply with each individual state's securities registration requirements. Many states have self-executing exemptions but a significant number do not. Even worse, some of those states requiring filings mandate that the filings be made up to 30 days in advance of grant. Some of the forms must be signed by a director or other officer in the presence of a notary.

We are familiar with UK EBTs, Japanese trusts and other share warehousing or hedging arrangements. They raise significant tax issues for US participants and their US employers. There are some workarounds but they depend upon the specific terms of the proposed awards and the warehousing arrangement. 

Our work is not confined to quoted companies. We spend a great deal of time reviewing and advising on the US tax aspects of the offer terms and conditions of plans of private equity-back companies. As part of that task, we can also assist with section 83(b) elections, US promissory note requirements and section 280G golden parachute analysis,

Our founder, Art Meyers, is the author of the US Chapter on Employee Incentives in The Legal 500 2022 Country Comparative Guides.