According to recent reports on the Indian startup ecosystem, startups are said to be mushrooming at an annual growth rate of 10-12%. This demands efficient planning of resources, right from getting the right assets and tools to putting together a powerful team in place. 

The fierce competition in the startup fraternity makes onboarding employees and retaining them very important. And this is only possible by rewarding them for their contributions. One such reward that startups give out these days are Employee Stock Options (ESOP).

Understanding ESOPs

Usually, startups roll out this scheme for selected employees, based on their position and ability to impact the company. ESOPs enable employees to buy the company’s shares at a discounted price. 

Typically, this is a part of the retirement and employee benefit plan giving the ownership of interest to employees. This ownership comes in the form of company shares, which is assured upon fulfilling predefined conditions. But most often, ESOPs become a part of their compensation offering in startups, to motivate employees to give their best at work.

ESOPs as per the Company Law

ESOPs are offered as an option to employees, officers and directors of the company or its subsidiary or holding companies. This option gives the right to directors, officers and employees of the company to subscribe to the company share at a future date at a predetermined rate.

Note that the companies registered as private limited can benefit from this by following the Companies Act, 2013 and rules made thereon. This means that the employees and executives of a private limited company can become the company’s shareholders through ESOPs.  For a company whose equity shares are listed, the ESOPs shall be issued as per SEBI regulations.

Usually, the right to buy the company’s shares at a future date price is lower than the anticipated market rates. The option gets converted into the share on any given date in the future after paying the price for it. Employees in the startup prefer to get the portion equivalent to the share price deducted from their salary itself. The ESOP agreement will have all the terms & conditions for that purpose. 

Usually, it is preferred that the company undergo a feasibility study before rolling out the ESOP options. This is to conclude whether or not the ESOP is possible financially. Such an evaluation will involve gauging the financial position that helps establish share prices. And if the feasibility turns out positive, here is what the company should do:

  1. Draft an ESOP scheme and propose the same in a shareholders’ meeting to get approval
  2. If approved, employees should be granted the stock options in a ‘Letter of Grant’. This will have all the written information about the options like several granted options, exercise period, vesting exercise period, etc
  3. After the vesting period is over, the employees can translate this option to shares and thereby becomes the company’s shareholders

Quick tips to follow when opting for ESOP

  1. Carefully read the ESOP agreement and watch out for clauses like extending ownership after a long employment period and regaining partial ownership when the minimum vesting period is over
  2. Key employees can leverage their position and push for negotiations on factors like lower exercise price and faster vesting
  3. It is always recommended to exercise the ESOP by setting the expiry date reminder
  4. It is better to discuss agreement clauses by consulting your financial planner enabling or selling ESOP shares

Also read How To File GST Returns For Your Startup In India

Benefits of ESOP

For employees

  • Employees can be a part of a company’s success by owning the shares directly
  • Can avail wealth benefits by selling profitable shares that were acquired at a lower rate
  • Motivates the employees to give their best

For the company

  • Leverage employee’s morale urging them to perform better in their day-to-day tasks
  • Boosts employee retention and thereby lowers turnover rate
  • Savings on director remuneration for a private limited company as a part of salary by offering a certain portion of ESOPs

Understanding ESOP Taxation for Employees

All the employees who opt to convert the ESOP to shares will have those shares taxable under the Income Tax Act, 1961. The shares allotted under ESOP brings up the tax liability in two different stages:

  1. When exercising an ESOP option: Employees are charged with income tax when they exercise their option to convert ESOPs into equity once the vesting period is over. This tax is charged at the perquisite value under ‘Income from salary’.

The company can calculate the perquisite ESOP value offered to the employee and can deduct the tax from that amount. The onus of showing the ESOP value and deducting tax is on the employer. The information on tax deducted from ESOP is mentioned in Form 16.

The computation of taxable value is as follows:

  • The fair market value of shares (on the date of exercise of the option)
  • Less: Amount recovered from employees for such shares (exercise price)
  1. When the employee sells the shares: When the employees sell the shares allotted to them under ESOP at a higher price, then it leads to capital gains. Selling such shares at higher prices is calculated either as short-term or long-term capital gains. The tax rate varies depending on the type of capital gain.

The computation of capital gain is as follows:

  • The sale price of shares
  • Less: Fair Market Value of Shares (on the date of exercise of the option)

In conclusion 

Making ESOP a part of offerings to employees is the best way to get the team working better and longer. There is a subtle sense of pride that employees may feel when you make them a part of business success. Also, it is a great way to retain worthy personnel by offering them a higher stake.

Recommended Read

Government Benefits For Startups In India 

Startup Funding In India: An Overview 

 

Shrijay Sheth
Author

Shrijay is an entrepreneur with more than ten years of experience in working with hyper-growing digital commerce companies across the globe. A data-savvy leader and a people’s person, he is the founder of India’s premier LegalTech startup.

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