Posted on April 9, 2009 by Joseph M. Wallin

What's Better For An Equity Incentive--Restricted Stock or A Stock Option?

Early stage companies frequently want to bring on key hires and incentivize them with equity, but do not know what type of equity award is the best from a tax perspective to both the employee and the company.  There are in general two types of equity awards most commonly used (assuming that the company is operating in the corporate form and not as a limited liability company):

  • stock options; and
  • stock awards or stock grants.

In general, for a private company with limited cash reserves, and whose key hires also desire to preserve their cash (and not pay it to the IRS), stock options are usually going to be a preferable alternative to stock grants (unless the current value of the stock is so low that the immediate tax impact is nominal).  

The reason?  Stock grants will be taxable either (1) upon grant, if fully vested, or if a Section 83(b) election is made (in which case the taxes must be paid immediately upon grant, and will have to be withheld from the employee--i.e., the employee will have to write a check to the company for the taxes), or (2) upon vesting, when the value may be considerably higher than the value on the date of grant (and the taxes must then be paid at that time, and the employee will have to write a check to the company at that time for the taxes).  

The primary benefit of a stock option as opposed to a stock grant is that if the stock option is priced at fair market value on the date of grant, the receipt of the option is not taxable to the optionee, and the option will not be taxable at all until exercise--the timing of which the optionee controls (as opposed to a vesting date for a restricted stock award).

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Posted on February 22, 2009 by Joseph M. Wallin

On What Date Do I Price Stock Options Granted To My Employees?

It is very common for a company to hire an employee on a specific date and in the employee's offer letter state that "subject to board of directors approval, the employee will be granted a stock option" to acquire a certain number of shares, "with an exercise price equal to the fair market value of the company's stock on the date of grant."  

What happens if the stock rises in value between the hire date and the grant date?

The option must be priced at the fair market value on the grant date--meaning, the date the board of directors grants the options, in order to avoid potentially adverse tax consequences to the optionee under Section 409A of the Internal Revenue Code.  The hire date is not the relevant date for avoiding potential Section 409A tax problems.

For most private companies the risk of the fair market value of their stock increasing between a hire date and the next board meeting is not too great of a concern, but it can happen.  What is recommended?  Managing new hire expectations with regard to the timing of the grant.  Among other things, include the language above in your offer letters--"subject to board of director's approval, .... with an exercise price equal to the fair market value of the company's common stock on the date of grant."

 

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