[5 minute read]

Employee share plans, including employee share option plans (ESOPs) can be one of the best ways to incentivise and reward your staff.

  • They motivate the key employees to think like a founder;
  • They encourage the employees to stay with the company; and
  • They can provide real value for the employee by letting them share in the success of the company.

However, sometimes a company might hesitate to offer ownership to employees.

Their worries might include:

  • I don’t want ex-employees leaving with ownership, or
  • I don’t want to have to fight about how much the shares are worth if we want to buy them back.

ESOPs are able to protect the company in a number of ways where an employee leaves. ESOPs often provide extra protection, and less administration, than a standard employee share scheme (ESS) in these circumstances.

The process to follow when an employee leaves will depend on a number of factors. Most of the factors should be addressed in the ESOP Plan Rules.

You can create your own standard ESOP Plan Rules on Cake, which include the basic protections discussed. You or your lawyer can also amend those Plan Rules, to make them work specifically for you. We always recommend seeking legal advice where you are unsure.

For a more general overview of ESOPs and how they work, check out our blog here.

Vested vs Unvested Options

Most Plan Rules will explain the process for options when an employee leaves, based on whether the options are ‘vested’ or ‘unvested’ options.

Generally, when an employee leaves, any options that have not ‘vested’ will lapse.

For example:

  • If an employee is granted 600 options; and
  • 200 of those options vest after a 12 month cliff, and the remainder vest quarterly over 2 years; and then
  • the employee leaves right after 12 months from the Start Date;

then the remaining 400 options will lapse when they leave.

This means that those remaining 400 options can be transferred into the option pool, and re-allocated to a new or existing employee offer.

This process is much more straight forward than the equivalent ‘buy-back of unvested shares’ process, under an ESS.

It can be done with the click of a button on Cake, no ASIC updates required.

Vested Options vs Exercised Options

Most Plan Rules will also contain similar terms relating to Vested Options and Exercised Options (or shares).

Generally, the Rules will require an employee to ‘exercise’ their options before they leave the company. Or in other words, the employee will need to convert those options into shares, before they leave.

And if they don’t, then those options will generally lapse.

Buy-back Rights

Some companies worry that an employee (who becomes a shareholder) could block future decisions if they leave with shares. For this reason, the Plan Rules should set out clear and specific buy-back rights on those shares.

The Cake standard Plan Rules allow the company to buy-back any shares from an employee (or ex employee) shareholder, at any time after they leave, for a defined price. They also allow the company to order the transfer of those shares to a third party.

By setting a clear process in the Rules, it avoids disputes relating to how the shares are valued, and what the shareholder can do with them.

This also provides value to the employee, as it allows them with an opportunity to achieve liquidity in their shares when they leave.

Many companies will try to buy-back shares from employees when they leave as much as possible, as it improves the diluted ownership of other investors, and also rewards ex-employees for their hard work. However, under the standard Plan Rules, the company will not be obligated to buy the shares back if it does not want to.

The share price for the buy-back will depend on whether the employee was a Good Leaver or a Bad Leaver.

Good Leaver vs Bad Leaver

The buy-back price will be based on whether the leaver meets the definition of a Good Leaver or a Bad Leaver.

Where the employee is a Bad Leaver (for example, because he/she was terminated), the shares will be set at a lower price (for example, 50% of Fair Market Value).

A company is able to customise these definitions, to decide what they think is required to meet the Good Leaver definition.

The Rules will also set out how the Fair Market Value is determined. Again, this will provide transparency and consistency across all options granted.

POA Provisions for Uncooperative Leavers

Finally, the Plan Rules should include ‘Power of Attorney’ provisions, to further protect the company.

These provisions will allow the company to step in and execute documents on behalf of an employee, where it is in accordance with the Plan Rules.

For example, it would allow the company to sign documents on behalf of an employee, in order to execute a buy-back under the Plan Rules.

The provisions also allows better efficiency for the company in general. For example, it can execute documents on behalf of the employees as part of a transaction (ie, for an IPO).

Its all in the Rules

The key to reducing chances of disputes is to ensure your Plan Rules set out the process, as much as possible.

The Plan Rules should protect the company, but also provide fairness and transparency to the employee.

For an overview of everything ESOPs, you can download our ESOP e-book here, or otherwise, get in touch!

 

 

This blog is designed and intended to provide general information in summary form, for general informational purposes only. The material may not apply to all jurisdictions. The contents do not constitute legal, financial or tax advice. The contents is not intended to be a substitute for such advice and should not be relied upon as such.