This article will help you navigate the decision about what form of stock plan is the best fit for a closely held company. For an overview of how the different plans work, see our article Stock Options, Restricted Stock, Phantom Stock, Stock Appreciation Rights (SARs), and Employee Stock Purchase Plans (ESPPs).
The first question to ask when choosing a form of stock plan is: What are your goals for employee ownership? We see a few common answers:
- We are a closely held company and would like to use employee ownership to purchase shares from one or more owners.
- We are not looking to sell shares right now, but we would like to provide employee ownership as a reward for most or all of our employees.
- We are a relatively new company and want to provide an equity stake in the company for key employees.
If business transition is the goal, then an employee stock ownership plan (ESOP) is usually the best choice because it has such favorable tax treatment. An ESOP is not to be confused with stock options or a generic way to share ownership. It is a specific plan set up by federal law that provides substantial tax benefits to owners, companies, and employees. ESOPs are almost always funded by the company, not the employees.
For some very small businesses, an ESOP is too costly to set up, while for others its rules may not be acceptable. In that case, employees can buy the shares directly. This can be very difficult to do and has unfavorable tax consequences, but it can work in some cases.
If you want to provide ownership broadly but are not looking to sell, an ESOP may still be the best choice. You can fund the plan by making tax-deductible contributions of new or unissued stock to the ESOP trust. The tax advantages of ESOPs come with rules about who gets shares and in what way, and if these do not work for you, or the costs of setting up the plan are too high, then another choice is to provide individual equity awards to employees through stock options, restricted stock, stock appreciation rights, or “phantom” stock. These generally have no special tax benefits, but they are very flexible in terms of who gets how much with what rules.
Using an ESOP for Business Transition
To explore the suitability of an ESOP, please visit our ESOP prefeasibility toolkit.
Sharing Ownership Broadly with Employees
If your goal is not to sell but to share ownership widely with employees, an ESOP may still be a good choice. The rules are the same, but the plan would be financed by tax-deductible contributions of shares to the trust. Unlike many other forms of equity plans, the shares would not be taxable to employees on vesting but rather when they are distributed to them and can be sold.
But some other companies are not comfortable with the rules for ESOPs. For these companies, individual equity grants are a better choice. These grants, which are described below, are most commonly given to a select group of people, but they can be given broadly and often are in entrepreneurial companies as well as most publicly traded technology companies and some other companies, such as Starbucks and Southwest Airlines.
For more information on choosing an equity plan, see our book The Decision-Maker’s Guide to Equity Compensation.
Sharing Equity with Select Employees
Many companies, especially relatively new companies, want to share equity with select key employees as a way to attract, retain, and/or motivate them. In some cases, they want them to buy shares, but this is not usually a practical option because employees generally do not have either the disposable income, the risk tolerance, or both.
There are a number of ways to provide these grants:
- Stock options: Stock options provide an employee with the right to purchase a certain number shares at a set price (usually the current value of the shares) for some number of years into the future, usually five to ten. The award is subject to vesting rules, either based on service, performance, or both. With a nonqualified stock option, when the employee exercises the right to buy the shares, the spread between the price at which they were granted and the exercise price is taxed as ordinary income to the employee and is deductible to the company. In an incentive stock option plan, if the employee holds on to the shares for at least one year after exercise and two years after grant, then the employee does not have to pay any tax until the shares are sold, and then they are taxed as a capital gain.
- Restricted stock is a grant of shares to an employee with the requirement that the employee can get them only if a vesting requirement is met (again, it can be service-based or performance-based or both). The employees can choose whether to pay ordinary income tax when their award is first granted and then pay capital gains tax on the gain only when they are sold or can choose not to pay tax until the award vests (not when the shares are sold) and then pay ordinary income tax on the value at vesting.
- Restricted stock units delay giving the employee the right to the shares until they fully vest, when they are taxed as ordinary income.
In closely held companies, a major issue is that all of these awards can be taxed before the shares are liquid, such as when the company is sold or the company agrees to buy them back. So companies must have some kind of realistic liquidity plan or these awards can end up being seen as more a punishment than a benefit.
If a company is just going to buy back the shares when they become taxable to employees or some other point, then the shares themselves have no significance. Largely because of this, many companies choose to provide not actual shares but the right to the value these shares would have. Called “synthetic equity,” these grants are essentially bonuses paid out based on share value or the increase in share value, usually once an award vests.
These plans include phantom stock (an award based on the full value of a number of shares) or stock appreciation rights (SARs) (an award based on the increase in the company's stock value). Employees may receive stock instead of cash, often with the company paying the tax for the employee, and the employee getting the remaining value in shares.
Synthetic equity plans are relatively easy to create and maintain, and they are generally not subject to securities laws.
For more details on choosing an equity plan, see our articles Stock Options, Restricted Stock, Phantom Stock, Stock Appreciation Rights (SARs), and Employee Stock Purchase Plans (ESPPs) and our book The Decision-Makers Guide to Equity Compensation.
A Note on LLCs
Limited liability companies can also provide equity grants, but in an LLC, employees do not have actual shares but rather membership interests. There are parallel awards in LLCs to the equity grants described above. A major wrinkle is that if an employee gets the equivalent of a stock option (called a profits interest in an LLC) or restricted stock award (called a capital interest), they may be treated as partners, not employees, for tax purposes.
For details on equity awards in LLCs, see our page Equity Compensation for LLCs or our book Equity Compensation for Limited Liability Companies.