Susan P. Serota – Pillsbury Winthrop Shaw Pittman, LLP Pillsbury Winthrop Shaw Pittman LLP GLOBAL EQUITY PROGRAMS

1 | GLOBAL EQUITY PROGRAMS GLOBAL EQUITY PLANS  Domestic and Foreign multi-national employers sponsor Global Stock Plans  Foreign issues must consider US securities and tax laws  Domestic issuers must consider US and foreign securities, tax, exchange control and employment laws

2 | GLOBAL EQUITY PROGRAMS SEC ISSUES  Securities may not be offered or sold to US citizens unless the securities are:  Registered under the Securities Act of 1933 (e.g., through prescribed filings with the SEC and issuance to potential purchasers of an offering prospectus that meets elaborate SEC content requirements), or  Exempt from such requirements

3 | GLOBAL EQUITY PROGRAMS SEC ISSUES  Rule 701 provides an exemption that can be used by foreign companies that do not file reports with the SEC  The Rule is designed specifically for equity compensation plans, but can be used for plans which offer deferred compensation obligations, which are deemed “securities”  If the exemption requirements are satisfied, a company may grant stock, options or other securities to U.S. employees without having to comply with the SEC registration requirements

4 | GLOBAL EQUITY PROGRAMS SEC ISSUES  Key provisions of Rule 701  Each participant in the plan must be provided with a copy of the plan document  Sales of securities in a 12-month period cannot exceed the greatest of:  $1 million  15% of the company’s total assets  15% of the outstanding securities of the class involved  Options are considered sales at the time the options are granted, and dollar limits are calculated by the grant value (i.e., exercise price times number of shares)

5 | GLOBAL EQUITY PROGRAMS SEC ISSUES  Sales in excess of $5 million in any 12-month period will trigger a requirement for additional disclosure requirements  Must disclose (i) the risk factors associated with investment in the securities and (ii) company financial statements, among other items  Effective 3/4/2008 the financial statements may be prepared in accordance with the IASB International Financial Reporting Standards  Previously, reconciliation with U.S. GAAP was required  Disclosures must be furnished a reasonable period before the purchase  Even if expanded disclosure not required, some companies provide additional disclosure to minimize risk of claims under the “anti-fraud” provisions of the Securities Act

6 | GLOBAL EQUITY PROGRAMS SEC ISSUES  Regulation D provides an alternative exemption  Equity awarded to individuals who qualify as “accredited investors” are exempt from registration  An individual with income above $200,000 in each of the last two years (and reasonably expected to maintain that level in the current year) can qualify as an accredited investor  Alternative—an individual with over $1 million in assets (including value of home)

7 | GLOBAL EQUITY PROGRAMS SEC ISSUES  Outright award of shares (e.g., restricted stock, performance shares, an SAR) may avoid reliance on either Rule 701 or Reg. D under the so-called “no-sale” exception from registration  Companies that want to grant equity compensation in the U.S. need to check for compliance with relevant state laws  These are sometimes referred to as “blue sky” laws  Applies to companies whose securities are not listed on a national exchange.

8 | GLOBAL EQUITY PROGRAMS STOCK EXCHANGE RULES  Equity Compensation Plans generally require Shareholder Approval  Exemption for foreign broad-based plans similar to tax qualified plans, 423 stock purchase plans or parallel excess plans, except for differences required by foreign law  FAQ permits insubstantial differences  FAQ permits substantial differences to comply with foreign tax laws  Different local laws considered on a case by case basis  Written disclosure to Exchange required  Material revisions require approval of Compensation Committee of Board

9 | GLOBAL EQUITY PROGRAMS US ISSUER GLOBAL EQUITY PROGRAMS  Compliance with US Securities Laws  1933 ACT – Registration and Prospectus  Local (Foreign Jurisdiction) Tax Consequences  Form S-8  Exemptions  Rule 701  Regulation D  Regulation S

10 | GLOBAL EQUITY PROGRAMS US ISSUER GLOBAL EQUITY PROGRAMS  Regulation S  Limited to Offerings Outside the US  Covers both Sales and Resales  Typically Used by US Grantees of Foreign Company Stock to sell shares on Foreign Exchange

11 | GLOBAL EQUITY PROGRAMS US ISSUER GLOBAL EQUITY PROGRAMS  Regulation S Exempts from Registration with the SEC Offers to non US employees who work outside of the US  All Offers and Sales Outside of US  Issuer does not engage in Offer or Sale inside the US

12 | GLOBAL EQUITY PROGRAMS US ISSUER GLOBAL EQUITY PROGRAMS  Conditions of Regulation S Exemption  Securities Issued for Compensatory Purposes  Services Cannot be Rendered in a Capital Raising Transaction  Interests in Plan Cannot be Transferable Except on Death  Issuer Must Take Reasonable Steps to Preclude Offer or Sale in the US  Documentation must state Securities Not Registered Under US Laws and May Not be Offered or Sold in US unless registered or exempt from Registration

13 | GLOBAL EQUITY PROGRAMS US ISSUER GLOBAL EQUITY PROGRAMS  EU Prospectus Directive  Applies to All Offers of Securities made to the Public in any Member State which exceeds 2.5 million Euros in a 12 Month Period  One EURO = $1.27 as of November 10, 2008  Employee Share Purchase Schemes Covered  Exception if listed on an EU exchange  Stock Options not deemed to be securities  Exemptions for small grants and “qualified investors  Non EU Companies Must Choose a Home Member State  Non EU Companies Must Use IFRS Accounting Standards

14 | GLOBAL EQUITY PROGRAMS US ISSUER GLOBAL EQUITY PROGRAMS  EU Prospectus Directive  January 2009 proposal to extend “employee share scheme exemption” to all companies making offers under employee share plans to employees resident in the EU as long as a document is made available containing information on:  Number and nature of securities offered  Expected to be implemented in 2011  CESR FAQ (2/09) provides temporary solution to public issuers offering stock under employee share schemes in the EU  Short-form disclosure  Still need approval of Home Member State competent authority

15 | GLOBAL EQUITY PROGRAMS TAX ISSUES  U.S. tax rules apply to determine tax treatment of executives without distinction between foreign and domestic stock  Need to be sensitive to unexpected consequences due to differing foreign design practices (e.g., nil-priced options, “good-leaver” vesting of shares, etc.)  ISO and 423 Plans require 50% ownership of subsidiaries up to parent issuer  Employees of entities taxed as a partnership will not receive favorable tax treatment

16 | GLOBAL EQUITY PROGRAMS US ISSUER GLOBAL EQUITY PLAN ISSUES  Local Tax Consequences  Timing of Event  Measure of income  Ordinary vs capital gain  Social taxes  Employment Issues  UK Age Discrimination Rules

17 | GLOBAL EQUITY PROGRAMS TAX ISSUES  IRC § 409A presents a unique challenge for arrangements funded outside the U.S.  Unfavorable tax consequences arise when assets set aside in an offshore trust in connection with a deferred compensation arrangement  In some locations, it is common for an equity compensation program to use a trust to acquire and hold shares ultimately transferred to plan participants  Examine whether the arrangement involves deferred compensation  If so, need to dissolve the trust or locate it in the U.S. at least for U.S. participants

18 | GLOBAL EQUITY PROGRAMS INTERNATIONAL IMPLICATIONS OF 409A  Extraterritorial application of IRC Section 409A.  Global Workforce  Expatriates  Non-Resident Aliens  Resident Aliens  Third Country Nationals  Section 409A imposes new tax rules – and harsh penalties for failing to comply with these rules – upon “deferred compensation” plans.

19 | GLOBAL EQUITY PROGRAMS INTERNATIONAL IMPLICATIONS OF SECTION 409A  Section 409A  No flat exemption of compensation arrangements made by foreign-owned companies or by U.S. companies with operations abroad.  Final regulations—exceptions permit both U.S. citizens and resident aliens working abroad, and non-resident alien individuals working within the United States, to accrue benefits under foreign plans that do not meet the Section 409A requirements.  Where no exemption applies—necessary to amend the foreign arrangement to comply with Section 409A requirements by 12/31/08.

20 | GLOBAL EQUITY PROGRAMS NEW SECTION 457A  Enacted with the Emergency Economic Stabilization Act of 2008 (bailout legislation)  IRS issued guidance in Notice [Jan 2009]  Taxes “nonqualified deferred compensation” of “nonqualified entities” in the year in which it is no longer subject to a “substantial risk of forfeiture”  Primarily intended to eliminate deferred compensation of hedge fund managers of funds located in jurisdictions with favorable tax regimes, but the law sweeps in many other offshore entities  Plan compliance required as of January 1, 2009, subject to limited relief under Notice

21 | GLOBAL EQUITY PROGRAMS GLOBAL AWARD AGREEMENTS  Usually Governed by Law of Parent Company’s (Issuer’s) Jurisdiction  Award Agreements Often Contain Clawbacks for violations of restrictive Covenants  Non-Solicitation  Non-compete  Required disclosure

22 | GLOBAL EQUITY PROGRAMS GLOBAL AWARD AGREEMENTS  Articles 18 and 20 of Brussels I Regulations provide that employers can sue EU-domiciled employees in relation to “matters relating to individual contracts of employment” only in courts of the country in which employee is domiciled.  Employees can agree to alternative jurisdiction only after a dispute has arisen.  Binding on EU Courts.  Samengo-Turner v. J&H Marsh & McLennan (Services) Ltd.

23 | GLOBAL EQUITY PROGRAMS GLOBAL AWARD AGREEMENTS  Rome Convention-Governing Law will be that chosen by parties, except  Contracts of Employment-Choice of Law cannot deprive employee of mandatory rules of law which would have been applicable if no chosen law.  Applicable mandatory law are those  where employee works, or  if none, where place of business situated  Convention provides that application of rules of law of any country specified in agreement may be refused only if application of such law is manifestly incompatible with the public policy of the forum  Duarte v. Black and Decker