Hiring and retaining good employees is critical to the success of any business enterprise. It

is also important to properly incentivize these key individuals to both help the business grow and

also to retain those individuals long term. This white paper includes general information regarding

three different plans that can be used to compensate and create incentives for key employees,

directors and consultants.

 

STOCK APPRECIATION RIGHTS

 

A stock appreciation right (“SAR”) is a right to receive the appreciation in the value of one

or more shares of stock in a business (the “Company”). The appreciation is usually measured from

the date the SAR is granted to the date it is exercised. The SAR might be payable in cash, in stock,

or in a combination of cash and stock.

 

By exercising a SAR, an executive can receive the appreciation that would be realized by

exercise of a stock option; however, the SAR relieves the executive of the need to raise the funds

(or stock) to pay the option exercise price. In addition, exercise of a SAR may be desirable for an

optionee who would not intend to hold the optioned shares after exercise of the option.

 

Example. An executive is granted a SAR covering 100 shares with a fair market

value of $10 per share. The exercise price is $10. The share value subsequently increases

to $15. If the executive exercises the SAR, the executive would receive the $500.

 

The holder of a SAR does not recognize income upon the grant of a SAR or upon the

appreciation of the underlying shares. Upon exercise, the holder recognizes ordinary income in the

amount of the cash (or fair market value of the stock) acquired. The employer is allowed a deduction

equal to the amount of the income included in the holder’s income on exercise.

 

In order to put together a SAR plan, the Company would need to value the stock on an annual

basis. The SAR plan would outline what happens to the SARs in the event the Company is sold or

the employee dies, becomes disabled, retires, or his/her employment is otherwise terminated.

 

PHANTOM STOCK

 

Phantom stock really is very much like SARs. It generally is an incentive arrangement

whereby an employer contracts to make future payments to an employee in an amount measured by

the value (or increase in value) of the employer’s stock. The employee is not granted actual shares of

stock (and therefore has no voting rights), and normally does not have to pay anything for the

phantom stock. Instead, the employee is credited with units that are valued in terms of actual share

values. Typically, the units are ultimately settled in cash, although they could be settled in stock.

In accordance with the phantom stock plan or agreement, actual payment to the employee in

respect of the phantom units might be made after a specified number of years or following termination

of employment. Alternatively, employees might be given the right to determine when the units will

be settled.

 

Example. An employer enters into an agreement crediting an employee with 1,000

phantom stock units corresponding to 1,000 shares of stock. The agreement provides for cash

settlement of the phantom stock units in 2019. The payment will be equal to the appreciation

in the value of the 1,000 underlying shares of employer stock between the date of grant and

2019.

 

Phantom stock plans are often of interest to closely-held companies that intend to stay

privately held and so prefer not to issue actual shares to employees. The phantom units may be valued

based on the market value or book value of the underlying shares or on a valuation formula specified

in the agreement.

 

In addition to participating in the proceeds of the sale of the Company, often times phantom

stock comes with “dividends” tied to a certain percentage of the net earnings of the Company. These

“dividends” are paid in the form of compensation, so the employee is not taxed on any earnings of

the Company unless he/she actually receives a payment, in which case any amounts paid will be

taxable as compensation income. The employer will be allowed a deduction for the amount and in

the year during which such income is taxable to the employee.

 

Like SARs, a phantom stock plan would need to outline what happens to in the event the

Company is sold or the employee dies, becomes disabled, retires, or his/her employment is otherwise

terminated.

 

LONG-TERM PERFORMANCE PLANS.

 

Performance plans are contractual incentive compensation arrangements providing awards

measured by the achievement of corporate performance objectives other than (or not limited to)

appreciation in the value of company stock.

 

Executives typically are credited with units that are valued based on the growth in earnings

per share, return on equity, sales, or other performance measures, over a three-to-five-year period.

Performance targets can be established at a divisional (rather than Company) level or can be

established based on performance relative to competitors. At the end of the performance cycle, if the

performance target has been achieved, the executive receives cash or stock equal to the value of the

performance units.

 

As an alternative to “performance units,” executives might be credited with a specified

number of “performance shares” of the company’s stock. Depending on the extent to which

performance targets are achieved, at the end of the performance cycle executives would receive

some, all or none of their performance shares in the form of actual shares of stock (or cash of equal

value).

 

Where the executive has no right to payment unless and until performance goals are achieved

at the end of a specified period, neither the grant of performance units or performance shares, nor the

interim achievement of goals prior to completion of the performance cycle, should be a taxable event.

The executive would recognize ordinary income upon receipt (actual or constructive) of the

payment. The employer is allowed a corresponding deduction at the time the executive recognizes

income.

 

Long-Term Performance Plans typically require that the employee is currently employed

when the event(s) outlined in the plan occur.

 

CONCLUSION

 

As you can see there are numerous options available to the Company in structuring a

alternative compensation arrangement with employees. These options help align the interests of the

Company with the interests of the employee as all of them have their best benefit when the Company

grows and prospers.

 

York Howell & Guymon is boutique law firm focused on estate planning, asset protection,

business planning, and real property. York Howell & Guymon has estate planning attorneys

licensed to practice in Alaska, Arizona, California, Idaho, Nevada, Texas, Utah, Washington and

Wyoming.

 

This White Paper is designed to provide general information and is not intended to replace

specific legal advice.

 

IRS CIRCULAR (230) DISCLOSURE: To ensure compliance with requirements imposed

by the IRS, we inform you that any tax advice contained in this communication, unless

expressly stated otherwise, was not intended or written to be used, and cannot be used, for

the purpose of (I) avoiding tax-related penalties under the Internal Revenue Code or (ii)

promoting, marketing or recommending to another party any tax-related matter(s)

addressed herein.