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The Employee Ownership Update

Corey Rosen

March 6, 2006

(Corey Rosen)

South Africa Moves Haphazardly into Employee Ownership

South Africa is taking initial steps to promote broader employee ownership, but in a largely unplanned and haphazard way. Under recent changes to the Black Economic Empowerment Program, companies are given points when black ownership amounts to at least 26% of all shares. The ownership can be by one or more individuals. Companies getting enough points get preferential status for government contracts. Companies also get points by doing business with companies meeting the standards, thus creating an incentive for employers who do not rely on government contracting themselves. Some companies, including some very large ones, are setting up broad-based employee ownership plans to help qualify.

Under the program, employee stock ownership trusts qualify as a black economic investor if they cover at least 90% of all employees in one or more classes of employees. The government can, however, rule that a trust otherwise meeting the standard, but with too few black participants, does not qualify. Most companies using these trusts make all employees eligible. Beyond that, companies can have any rules they like for allocation, vesting, distribution, etc. There are no tax deductions or other tax incentives for contributions to the plan.

NCEO director Corey Rosen recently led a two-day conference on employee ownership in Johannesburg. Plans represented there had an odd pastiche of rules. One large mining company provided a grant of shares to all employee employed the day the plan was initiated, to be paid out 10 years later. But in the interim, no new employees would get shares. Another had a plan that had a five-year term that could be extended, but shares would be paid out only if the company was sold or liquidated, or if the plan was terminated. At that point, living retirees and current employees would get shares, but not anyone who left before retirement and, oddly, not any families of people who otherwise met the rules but died. Both plans could provide significant financial rewards to employees, possibly as much as a year's pay or more.

Companies at the conference were very open to ownership culture concepts and looking at ways to get employees more involved. That's a particular challenge in South Africa, with dozens of languages and several major cultures. For instance, when ideas were circulated about how to communicate the plans, one company suggested industrial theater while another suggested traditional story songs.

IRS Looks Flexible on 409A Valuation Requirements

IRS officials told the Bureau of National Affairs (BNA Pension & Benefits Reporter, Feb. 21, 2006) that they will be issuing more specific guidelines on valuation requirements to meet the rules of Section 409A of the Internal Revenue Code on deferred compensation arrangements. The proposed regulations for this new law require that closely held companies have their stock appraised to make sure stock options and stock appreciation rights (SARs) are issued at fair market value. A third-party appraisal provides a safe harbor to meet these rules, but many companies will not want to do that. The rules also provide that valuations done by any person knowledgeable about business appraisals would qualify, but they do not define what "knowledgeable" is. The officials said that simply designating the board for this purpose would not work, as such a blanket rule could not guarantee that boards included knowledgeable people. But the officials indicated that examples they will provide will give comfort to companies worried that the rules set too difficult a barrier.

Author biography and other columns in this series

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