Please contact customerservices lexology. While there are many differences between large and small employers when it comes to executive compensation, one common issue confronted by employers of varying sizes is how to set the exercise price of stock options. Having a sound process for setting the price is important because flawed procedures can have far-reaching and costly tax implications for both the employer and the employee.
Stock options with an exercise price no lower than the fair market value of the underlying stock on the grant date generally get favorable tax treatment in that taxation can be deferred beyond the vesting date. All of this potential tax deferral is jeopardized, however, if the exercise price of the option is lower than the fair market value of the subject stock on the grant date.
Employees, members of the Board of Directors and certain consultants are covered by Section A. The issuer of the stock option can be penalized if it does not report the option as having violated Section A and withhold taxes accordingly, or if it does not account for the option as having been granted at a discount.
A recent case, Sutardja v. The company initially used the lower December stock price as the exercise price of the options, but a special committee of the Board later determined that the January ratification was in fact the correct grant date and that the higher stock price should have been used to set the exercise price.
One requirement for options to be exempt from Section A is that the exercise price never be less than the fair market value of the underlying stock on the date the option is granted.
Therefore, there are two key questions: At a minimum, this means that the maximum number of shares that can be purchased and the minimum exercise price must be fixed or determinable, and the class of stock subject to the option must be designated. Typically, the grant date will be the date the Board of Directors or Compensation Committee approves an option award, unless they designate a future grant date.
Note that the grant date can occur before the individual receiving the option is notified, as long as there is not an unreasonable delay between the date of the corporate action and the date on which notice is provided. If an issuer imposes a condition on the granting of an option, generally the grant date will not occur until the condition is fulfilled. However, if the condition is shareholder approval, under A the grant date will be determined as if the option was not subject to shareholder approval.
For publicly traded companies, A permits fair market value to be established by any reasonable method using actual sale prices. For example, all of the following are considered reasonable methods: For privately held companies, A provides less specific guidance.
The independent appraisal provides a high level of comfort and an objective standard, but can be costly. The formulaic safe harbor may be less expensive on an ongoing basis, but it can be challenging initially to find a satisfactory formula for all purposes and that will remain accurate over time. The illiquid start-up safe harbor may also be less costly than the independent appraisal, but it is available only for a relatively narrow class of issuers. If you would like to learn how Lexology can drive your content marketing strategy forward, please email enquiries lexology.
Formulaic Determination of Value. The IRS guidelines require generally that the price of the stock be determined using a formula, such as a formula price based on book value, a reasonable multiple of earnings or a reasonable combination of those inputs.
A valuation method applied to stock of an illiquid start-up company that is evidenced by a written report. This presumptive safe harbor is available for companies that i have no material trade or business that they or any predecessor have conducted for ten or more years, ii do not have any class of equity traded on an established securities market, and iii do not anticipate a change in control within 90 days after the grant date or an initial public offering within days after the grant date.
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