SEC Issues Staff Accounting Bulletin on “Spring-Loaded” Awards
Background
On November 29, 2021, the SEC issued Staff
Accounting Bulletin (SAB) No. 120. SAB 120:
- Provides the SEC staff’s views on the measurement and disclosure of certain share-based payment awards granted when entities possess material nonpublic information (i.e., “spring-loaded” awards).
- Revises SAB Topic 141 to conform references to guidance from ASC 7182 to the current wording in ASC 718, and to rescind guidance that no longer applies.
Spring-Loaded Awards
In SAB 120, the SEC staff describes a spring-loaded award as follows:
A
share-based payment award granted when a company is in possession of material
nonpublic information to which the market is likely to react positively when the
information is announced is sometimes referred to as being “spring-loaded.”
The new SAB amends SAB Topic 14.D3 to add considerations related to spring-loaded awards. Under SAB 120, an
entity that grants a share-based payment award while in possession of positive
material nonpublic information should consider whether adjustments to the following
are appropriate when determining the fair-value-based measure of the award: (1) the
current price of the underlying share or (2) the expected volatility of the price of
the underlying share for the expected term of the share-based payment award.
Current Price of the Underlying Share
Accounting Considerations
Before the amendments in SAB 120, the guidance in SAB Topic 14.D helped
public entities develop assumptions related to (1) expected volatility and
(2) expected term in connection with meeting the fair value measurement
objective in ASC 718. SAB 120 adds guidance to SAB Topic 14.D on a third
assumption: current price of the underlying share (including considerations
for spring-loaded awards). An entity would use this guidance to determine
when an adjustment to the observable market price of the underlying share is
necessary.
In accordance with ASC 718-10-55-27, companies typically adopt an accounting
policy for determining the current share price of a share-based payment
award. That guidance indicates that “an entity might use the closing share
price or the share price at another specified time as the current share
price on the grant date in estimating fair value, but whichever method is
selected, it shall be used consistently.”
SAB 120 acknowledges that entities should use significant judgment when
determining whether an adjustment to the observable market price is
necessary. It notes that it is not uncommon for entities to possess
nonpublic information when entering into share-based payment transactions,
and that an observable market price on the grant date is “generally a
reasonable and supportable estimate of the current price of the underlying
share in a share-based payment transaction, for example, when estimating the
grant-date fair value of a routine annual grant to employees that is not
designed to be spring-loaded.” The SAB goes on to note that “companies
should carefully consider whether an adjustment to the observable market
price is required, for example, when share-based payments arrangements are
entered into in contemplation of or shortly before a planned release of
material non-public information, and such information is expected to result
in a material increase in share price.” The SEC staff observes that to
identify such awards, entities should look to the change in the market price
of the company’s shares after the release of the material nonpublic
information. If there is a material increase in the share price, such
increase would indicate that a market participant would have considered
adjusting the market price to reflect that information.
To illustrate how to apply the amended guidance, SAB 120 adds the following
example to SAB Topic 14.D:
Facts: Company D is a public company that entered into a
material contract with a customer after market close. Subsequent to
entering into the contract but before the market opens the next
trading day, Company D awards share options to its executives. The
share option award is non-routine, and the award is approved by the
Board of Directors in contemplation of the material contract.
Company D expects the share price to increase significantly once the
announcement of the contract is made the next day. Company D’s
accounting policy is to consistently use the closing share price on
the day of the grant as the current share price in estimating the
grant-date fair value of share options.
Question 1: Should Company D make an adjustment to the closing
share price to determine the current price of shares underlying
share options?
Interpretive Response: Prior to awarding share options in this
fact pattern, the staff expects Company D to consider whether such
awards are consistent with its policies and procedures, including
the terms of the compensation plan approved by shareholders, other
governance policies, and legal requirements. The staff reminds
companies of the importance of strong corporate governance and
controls in granting share options, as well as the requirements to
maintain effective internal control over financial reporting and
disclosure controls and procedures.
In estimating the grant-date fair value of share
options in this fact pattern, absent an adjustment to the closing
share price to reflect the impact of Company D’s new material
contract with a customer, the staff believes the closing share price
would not be a reasonable and supportable estimate and, without an
adjustment the valuation of the award would not meet the fair value
measurement objective of FASB ASC Topic 718 because the closing
share price would not reflect a price that is unbiased for
marketplace participants at the time of the grant. [Footnote
omitted]
Throughout SAB 120, the SEC staff reminds registrants of “their corporate
governance obligations and disclosure obligations under U.S. GAAP with
respect to share-based payment transactions, as well as the need to maintain
effective internal control over financial reporting.”
Connecting the Dots
Companies may find it necessary to implement more robust or make
changes to existing processes and controls related to identifying
material nonpublic information and accounting for spring-loaded
awards.
Disclosure Considerations
The staff also provides the following disclosure expectations regarding
spring-loaded awards:
- How the entity determined the share price when calculating the awards’ grant-date fair-value-based measure.
- The entity’s accounting policy for determining an adjustment to the market price and how it determines that amount (including significant assumptions made), if material.
- Information about spring-loaded awards may need to be disclosed separately from other share-based payment arrangements.4
- An entity “should consider the applicability of MD&A and other disclosure requirements, including those related to liquidity and capital resources, results of operations, critical accounting estimates, executive compensation, and transactions with related persons.”
Expected Volatility
Accounting Considerations
SAB 120 notes that “careful consideration is required to determine whether
material non-public information is currently available (or would be
available) to the issuer that would be considered by a marketplace
participant in estimating the expected volatility.” Accordingly, when
valuing spring-loaded awards, an entity needs to determine whether a
marketplace participant would consider the material nonpublic information
when estimating expected volatility.
When performing this valuation, an entity should also consider whether (1)
the existence of such material nonpublic information affects the extent of
reliance on implied volatility and (2) the material nonpublic information
should be factored into the determination of implied and historical
volatility when estimating expected volatility.
Disclosure Considerations
SAB 120 states that the SEC staff expects a registrant that grants a
spring-loaded award to disclose “how it determined any significant
adjustments to historical volatility.”
Connecting the Dots
Determining the fair-value-based measure of a share-based payment
award can be complex, and estimating the fair-value-based measure of
spring-loaded awards introduces additional complexity. Although SAB
120 discusses circumstances in which a registrant may be required to
make adjustments to expected volatility and the current share price,
it does not provide guidance on how to determine the amount of such
adjustments. Accordingly, when making these determinations, a
registrant should assess the specific facts and circumstances that
led to the adjustment and consider consulting with its valuation
specialists and accounting advisers.
Conforming Changes and Rescission
SAB 120 amends SAB Topics 55 and 14 to conform references to guidance from ASC 718 to the current language
used in ASC 718. The amendments rescind SAB Topic 14.A6 as a result of amendments in ASU 2018-077 that make the guidance in SAB Topic 14.A irrelevant. The rescission and
conforming changes bring existing guidance into conformity with ASC 718, as updated
by ASUs 2019-08,8 2018-07, and 2016-09.9
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Footnotes
1
SEC Staff Accounting Bulletin Topic No. 14, “Share-Based
Payment.”
2
FASB Accounting Standards Codification (ASC)
Topic 718, Compensation — Stock Compensation.
3
SEC Staff Accounting Bulletin Topic No. 14.D, “Certain Assumptions Used in
Valuation Methods.”
4
See ASC 718-10-50-1 and ASC
718-10-50-2(g).
5
SEC Staff Accounting Bulletin Topic No. 5, “Miscellaneous Accounting.”
6
SEC Staff Accounting Bulletin Topic No. 14.A, “Share-Based Payment
Transactions With Nonemployees.”
7
FASB Accounting Standards Update No. 2018-07,
Improvements to Nonemployee Share-Based Payment Accounting.
8
FASB Accounting Standards Update No. 2019-08,
Codification Improvements — Share-Based Consideration Payable to a
Customer.
9
FASB Accounting Standards Update No. 2016-09,
Improvements to Employee Share-Based Payment Accounting.