Code Section 409A Code Section 409A, which was adopted as part of the American Jobs Creation Act of 2004, enacted a major overhaul to the tax treatment of deferred compensation, including discount stock options ( stock options with in-the-money exercise prices at their date of grant).Stock options that have been back-dated in order to set an exercise price for the option that is lower than the fair market value of the stock on the actual date of grant will generally run afoul of Code Section 409A to the extent they were (i) granted after October 3, 2004, (ii) granted before October 4, 2004, but not vested as of December 31, 2004, or (iii) materially modified after October 3, 2004. As mentioned above, discount stock options are treated as a form of deferred compensation subject to Code Section 409A.A lawyer for Mc Kelvey wrote in a letter that the former executive refused to meet because he did not have sufficient time to review the facts of what had happened over the course of several years.
"He did not understand that it was improper for the exercise price of stock to be different than the price on the grant dates, nor did he understand there were legal or accounting implications associated with that difference," Reich wrote in the letter.The company's ongoing internal investigation had also delayed the release of its latest quarterly earnings results and led to the suspension of Myron Olesnyckyj, the company's senior vice president, general counsel and secretary.Monster Worldwide, parent of the world's largest job search Web site, announced Mc Kelvey's resignation on Monday. attorney's office in the Southern District of New York over stock options and has said it wants to complete its own investigation by the end of the year. companies have disclosed internal inquiries or government investigations and at least 39 executives and board directors at 19 companies have been fired or resigned. And Securities and Exchange Commission Chairman Christopher Cox said on Monday that he expected more such charges in the coming days.A board committee conducting an internal investigation had sought to interview him further following a meeting in July. Mc Kelvey, who is 71, is the latest company chief to be affected by investigations of the accounting of past options grants. Mc Kelvey's full resignation from the board comes weeks after he stepped down from the posts of chairman and chief executive on Oct. At that time, he retained a spot on the board and was named as a chairman emeritus. "This is very, very serious," said Jerry Reisman, an attorney specializing in corporate fraud at the firm Reisman Peirez & Reisman.Section 409A requires that discount stock options have a fixed exercise date.
As a result, the holder of discount stock options that lack a fixed exercise date will be subject to a 20% penalty tax, in addition to regular income tax, plus possible interest and other penalties.
The date chosen could be one when the company’s stock was at a low, so the options can be in-the-money at the time of granting itself.
The practice is illegal if it is not followed by proper disclosure and related expenses are not recorded in financial statements.
When Mc Kelvey resigned as CEO, he was replaced by William Pastore.
Monster's board also created a three-person executive committee for board matters.
If the exercise price of a discounted option is increased to the fair market value of the stock on the original grant date of the option (see paragraph (1) above), and the company decides to compensate the option holder in 2006 for the lost economic benefit resulting from such increase in the option’s exercise price, the cash or stock bonus must be subjected to a vesting schedule.