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As I write this post, I am in the process of helping an early-stage client develop a stock-based compensation plan for a key officer. The principal choice was between a stock option and restricted stock.
A stock option is the right to purchase a specified number of shares at a specified price at some point in the future. The option typically “vests” over a period of years. The longer the individual stays with the company, the greater the portion of the option s/he has the right to exercise. At the end of the vesting period, the individual has the right to purchase all of the shares specified in the option.
With restricted stock, shares are granted to the individual immediately but are subject to “reverse vesting”. If the individual leaves the company, a specified portion of the stock is forfeited to the company, if the individual paid nothing for the shares. Or it is subject to repurchase by the company at the price the individual paid. The portion that is subject to forfeiture or repurchase declines to zero over a specified number of years.
When restricted stock is granted, the recipient signs, in addition to a stock purchase agreement, a Stock Assignment Separate from Certificate. If, when the individual leaves, some shares remain unvested, the company at that time fills in the number of unvested shares, which then are forfeited or repurchased.
Many companies are choosing restricted stock over stock options, and that was the choice my client made.
Whatever form of stock-based compensation is selected, both the company and the individual should consult with their tax advisers before the grant takes place.
Photo credit: Michelle Meiklejohn
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.
1/17/2010 | 3:23 pm Permalink
Hi Dana, I’m curious too about “gifting” stock as a bonus. Setting up the employee rewards program with stocks as a bonus. I’ve working in larger corps – but never had stocks as an option so I don’t know how this works. Now that I’m starting a new company – with the intent to grow to 5 locations – I’m doing a bit of research on this while I’m working on the funding. ( mostly refinancing a property to open the first phase of my culinary marketplace.) Are there other postings that I should be reading?
1/18/2010 | 11:52 am Permalink
From your description, it appears that you will want to implement a tax-qualified stock option plan. If you search the Web for “incentive stock option”, you will find a great deal of information on this topic.
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Dana Shultz is a business-savvy lawyer located in Northern California's San Francisco Bay Area (in the East Bay, near Oakland) who has in-depth knowledge of law, business, technology, and the needs of startup and early-stage companies.
For more information about Dana and his services, please go to the About Dana Shultz page and the Legal Services page.
+1 510 547-0545
dana [at] danashultz [dot] com
This blog does not constitute legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact a lawyer directly.
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