Introduction

Traditionally, ESOPs were given to remunerate senior employees and to acknowledge their proven contribution to the company. However, in modern times, ESOPs are used as compensation and motivational tool as startups can’t afford to spend high salaries in the beginning stage. Employee Stock Options in India has gained immense popularity in the recent times with the emergence of a vibrant startup ecosystem in the country.

Stories of how Infosys, one of the earliest companies to offer ESOPs, created millionaires of employees such as drivers, are very well known. Google recently employed an Indian with a Package of 1.2 crore Per Annum, with a catch that half of it was in form of ESOPs.

Meaning of ESOP

Employee Stock Option Plans are the plans in which employees get the right to purchase a number of shares (decided by the employer) in lieu of Salary in the company at a discounted price (less than the market price). The option provided under this scheme confers a right but not an obligation on the employee.

Employees have to wait for a certain time period – known as vesting period – before they can exercise the right to purchase those specified number of shares. Upon vesting of options, employees can exercise the options to get shares by paying the pre-determined exercise price.

ESOPs are generally awarded for performance or tenure of the employee with the company. Thus, it serves a two-fold purpose for both the company and the employees.

1. It acts as a tool of motivation for the employees that once they own a stock they feel responsible for performance of the company, as it determines the value of the stocks of the company.

2. It helps the employer to retain the company and assure a good level of performance in the work.

Step by Step Process for issue of ESOP

1. Preparation of list of eligible employees for ESOP

This is the first step and basic step required for ESOP scheme. Employees should be carefully selected for participation in ESOP scheme after considering his/her experience, roles and responsibility etc.

2. Preparation of ESOP policy

It is the most important step for Companies. Following are essential things that must be kept in mind while drafting ESOP policy:

  • Quantum of ESOP pool;
  • Employees Selection and evaluation criteria for participating in the scheme;
  • Rights of option holders;
  • Rights of shareholders like Tag along, Drag along and pre-emption rights;
  • Exit mechanism;
  • Tax liabilities.

3. Board Approval

After preparation of list of eligible employee, quantum of options, drafting of ESOP scheme, next step is to convene a Board Meeting for final board approval. Board have to approve list of employees participating in the scheme, draft ESOP scheme, notice of general meeting for approval of shareholders.

4. General Meeting

General Meeting of members of the company will have to convene for their approval of ESOP scheme by Special Resolution. However, Only Ordinary Resolution in required for issue ESOP by Private Limited Company.

5. Filing of Form MGT-14

E-form MGT-14 must be filled by all the companies (Except Private Limited Company) attaching Special Resolution for approval of Scheme, Explanatory Statement, Notice of GM, and approved ESOP policy.

6. Preparation & Dispatch of Grant Letter

After approval of shareholders, Company need to send Grant Letter to all the eligible shareholders to participate in the scheme mentioning their entitlement, vesting schedule, date of vesting, last date upto which exercise can be made, exercise price, manner of exercise of options and other terms and conditions.

7. Vesting of ESOPs

There must be minimum 1 year time gap in between granting of option and vesting of option. For e.g: If you grant the option on 01st April, 2019, it can’t be exercised before 01st April, 2020.

8. Exercise of ESOPs

After completion of vesting period, employees can apply for shares or further wait upto the last date on which exercise can be made or not apply for the shares. ESOP grants only right and not obligation to employees for purchase of shares.

9. Allotment of Shares

If shareholders apply for shares, companies need to allot the shares and file e-form PAS-3 for allotment of shares by attaching Special or Ordinary Resolution for approval of ESOP, Resolution for allotment of shares, list of allottees etc.

10. Issue Share Certificate & Payment of Stamp Duty

Company need to issue share certificate to the shareholders within 30 days after allotment. Companies need to pay stamp duty on issue of shares according to the stamp rates prevailing in the state.

ADVANTAGES OF ESOP

  • ESOPs can be treated as a retainership instrument for small businesses as there is a lock in period for exercising the right to purchase the shares. Thus, a business can retain its employees. If an employee opts for this option then he has to serve the lock in period to become eligible to exercise it.
  • Getting shares of the company in which they are working gives employees an ownership feeling. They start feeling that they are not employees of the organisation but owners. Also, they get to share the profits of the company in the form of dividends and are motivated to work for the best of the company.
  • Businesses that needs funds and are not in a position to spend hefty amounts can offer this option to their employees in lieu of salary and motivate them to work for the betterment of the company.
  • It is a non-cash compensation tool to compete for the best human resources.
  • It gives an opportunity to corporate to pay without a reduction in book profits.
  • Boosted Morale of Employees.

DISADVANTAGES OF ESOP

  • When the ESOPs are exercised the founders share holding gets diluted.
  • Since, Company is unlisted Company, there are no marketability or liquidity of shares of private company. Hence, there are chances of disputes between employers and employees when employee leaves the organization.
  • There are also chances of disputes while transfer of shares and the value at which shares should be transferred.

Things to take care by employees when having ESOPS in lieu of salary

Proper Documentation

Employees should ensure that all the documentation is in place. They should also consider the present value and future value of shares.

Proper Exit Mechanism

Ensure there is a proper exit mechanism, like promoter buyback, in case listing of the start-up is delayed.

Taxation

ESOPs are considered as part of an employee’s perks and taxed accordingly. But it is important to understand that if you were to dispose the shares, the difference between the sale price and the fair market value as on date of allotment, will be subjected to personal capital gains in the hands of employees.

CONCLUSION

Thus ESOPs are a really good tool for startups to attract and retain talent, but at the same time it’s a bet for the employees. Employees should be convinced about the growth of company and should see if proper documentation is in place.

IT industry like Infosys was the first to use this ESOP feature in India. Now, almost all the sectors are using this to attract and retain best talents of the industry. Nowadays, Startup companies are actively using ESOP for attracting best human resources and to stop brain drain. Many startups fail just because of non-availability of qualified and experienced employees because startup companies can’t afford to pay higher packages to them like MNCs offer. The only option for startups to retain and attract them is to use ESOP so that employees can feel ownership rights and help startup to grow and foster.

Stocks are never vested immediately – founders want you to stick around for a reasonable amount of time (say, 4 years) for you to be entitled to the benefits. Hence, immediate value of the stocks is just an indicative number. The startup needs to be massively successful before those numbers become meaningful and of any real (cash) value. More than the stocks themselves, you need to do a lot of hard work to find more about the company, founders and their vision. Very few startups go on to become big names. it may sound, but ESOP’s of only such companies makes sense. Rest, as I said earlier, is just as good as a piece of paper.

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Author Bio

Qualification: CS
Company: DVG & Associates
Location: Mumbai, Maharashtra, IN
Member Since: 02 Feb 2018 | Total Posts: 53
CS Dhaval Gusani is a founder of DVG & Associates, Company Secretaries and Corporate Law Professionals. He is a Commerce Graduate and an Associate Member of the Institute of Company Secretaries of India (ICSI). He has cumulative experience of more than 3 years with Listed Company, Chartered Acco View Full Profile

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