Non-Qualified Stock Option: A Guide to Understanding NSO as Employee Equity

Casey Fenton

|

October 23, 2023

Main Article Image

You’re a startup founder sitting across from your top candidate who is an industry veteran with an incredible track record—the kind of talent that could propel your startup to new heights. As you slide the job offer across the table, they seem excited. But there's a hitch: a well-funded competitor is vying for their attention too, promising a hefty salary you can't match just yet.

Suddenly, the idea of offering stock options becomes incredibly appealing. You've heard of startups leveraging this tool, but what does it mean? How can it benefit your business and potentially tip the scales in your favor?

Enter Non-Qualified Stock Options (NSOs), an integral part of an employee compensation strategy that can be the ace up your sleeve. Understanding NSOs and how to offer them to your employees could be the key to securing and motivating top talent, and aligning their ambitions with the long-term growth of your organization.

Understanding Non-Qualified Stock Option

Non-Qualified Stock Options, or NSOs, are a form of compensation that gives employees the right, but not the obligation, to purchase a certain number of company shares at a preset price, known as the exercise price. These options are 'non-qualified' because they don't meet specific requirements set out by the Internal Revenue Service (IRS) to qualify for tax advantages.

NSOs offer employees the possibility of profit if the company’s stock price rises above the exercise price. They only become valuable when the company’s share price rises above this level, turning the stock options "in the money." This concept is essentially a bet on the future growth of the company, which can motivate employees to contribute to the company’s success.

While NSOs might sound like a relatively recent phenomenon, their roots run deep. The practice of issuing stock options dates back to the 1950s. They emerged as an innovative solution to attract and retain employees during a period when the top marginal tax rate was staggeringly high, and increasing salaries wasn't a viable option. Over time, as tax laws changed, the popularity of NSOs fluctuated.

However, the explosion of startups, particularly in the technology and biotech sectors during the late 20th century, ushered in a renewed interest in NSOs. Many young companies with limited cash flow found NSOs to be invaluable tools to attract high-quality talent without immediately diluting the company's ownership or impacting cash reserves.

Fast forward to today, NSOs remain a popular choice, particularly among startups and high-growth companies. They can act as a powerful magnet to attract talent, fostering a sense of ownership and commitment to the company's success. However, understanding the mechanics, implications, and management of NSOs is crucial for any business considering this form of employee equity.

Why Offer NSOs as Employee Equity

In today's hyper-competitive job market, attracting and retaining talent can be a Herculean task. A robust salary package is often not enough. Employees today are looking for more than just a paycheck; they want to feel invested in their work and see a clear path to personal growth and wealth creation. NSOs can be a strategic tool to meet these expectations.

When your team members hold stock options, they become part-owners of the business. This ownership can instill a greater sense of responsibility and dedication, driving employees to work harder towards the company's success. The rationale is simple: when the company does well, their personal wealth increases as the value of their options rises.

Offering NSOs also demonstrates that you trust and value your employees, which can foster loyalty and reduce turnover. It sends a clear message: "We're in this together." By including them in the company's financial future, you're investing in a partnership that could lead to higher productivity and employee satisfaction.

Moreover, NSOs provide a flexible compensation option, especially for cash-strapped startups. They allow companies to conserve cash while still offering competitive compensation packages. This financial agility can be a lifesaver, especially in the early stages of a company's life when cash flow is a primary concern.

There’s no denying that NSOs can even be a powerful recruitment tool. High potential candidates often receive multiple job offers, and a comprehensive package that includes NSOs can make your company stand out. By offering a slice of the company's future success, you're not only providing a competitive salary but also the prospect of significant wealth if the company performs well.

Tax Implications on Businesses

Navigating the tax landscape of NSOs is a critical aspect for businesses to consider. While the issuance of NSOs does not impose a direct tax liability on the business, there are important implications when employees exercise their options.

The moment an employee chooses to exercise their NSOs, the difference between the exercise price (the price the employee purchases the stock at) and the Fair Market Value (FMV) of the stock (the price the stock is worth on the market) is considered taxable income for the employee.

From the business perspective, this difference—referred to as the 'bargain element'—is treated as an expense. Your company can take a tax deduction equal to this amount in the fiscal year when the NSO is exercised. This could potentially reduce your organization's tax liability, providing a fiscal advantage.

However, you need to understand that this tax deduction is contingent on the reporting of the income by the employee. If the employee doesn't report the 'bargain element' as income, then the company cannot claim the tax deduction.

Furthermore, businesses must be aware of the implications associated with the timing of the NSO exercise. The exercise of NSOs can affect the amount and timing of corporate tax deductions, thereby impacting the company's cash flow and financial planning.

In addition, businesses are responsible for withholding and remittance of applicable taxes when employees exercise their NSOs. This includes federal, state, and local income taxes, as well as the employees' portion of Social Security and Medicare taxes.

The Role of Fair Market Value on NSO

Fair Market Value (FMV) is a key concept in the context of NSOs. FMV refers to the price at which the stock can be sold on the grant date, representing a reasonable and unbiased estimate of the potential selling price of a particular equity. Understanding the role of FMV in the issuance and exercise of NSOs is important  to maintain the integrity of the equity compensation plan, mitigate legal risks, and ensure a fair transaction for both the employer and the employee.

1. Setting the Exercise Price

The exercise price of an NSO is often set at the FMV of the company's stock on the grant date. A properly assessed FMV ensures that the exercise price is reasonable and equitable.

2. Calculating the Bargain Element

FMV plays a vital role in calculating the 'bargain element' or 'spread'—the difference between the exercise price and the FMV at the time of exercise. This difference is considered taxable income for the employee and a tax deduction for the company.

3. Assessing the Potential Value

The FMV serves as a benchmark that allows employees to assess the potential value of their NSOs. An accurate FMV provides employees with realistic expectations about the potential financial benefit of their NSOs.

4. Determining the Tax Liability

FMV at the time of exercise determines the tax liability for both the employee and the employer. A higher FMV means a larger bargain element, resulting in higher taxes.

5. Minimizing Legal Risks

Accurate determination of the FMV is essential to prevent legal issues. Misrepresentation or miscalculation of the FMV could potentially lead to disputes or legal action from employees or regulatory authorities.

6. Employee Perception and Motivation

The perceived value of NSOs to employees is directly tied to FMV. If the FMV is seen to be growing, it could serve as a strong motivational factor, driving employees to contribute more towards the organization's success.

You see, FMV's role is multifaceted and extends beyond just setting the exercise price. Proper valuation is key to managing NSOs effectively, ensuring compliance with tax laws, and maintaining employee trust and motivation. Also, don’t forget to always seek professional help for accurate FMV determination to avoid potential pitfalls.

Risks and Challenges Involved in NSOs

While NSOs can be a powerful tool for attracting, retaining, and motivating employees, they come with their own set of risks and challenges. Understanding these pitfalls can help businesses mitigate potential issues and optimize the use of this equity tool.

Valuation Challenges

Accurate determination of Fair Market Value (FMV) is vital for setting the exercise price and tax implications. Any errors or discrepancies can lead to tax complications or legal issues.

Tax Complexity

As discussed earlier, NSOs come with complex tax implications for both the business and the employee. These can create administrative burdens and, if not handled correctly, can lead to financial penalties.

Employee Misunderstanding

NSOs are inherently complex, and employees may not fully understand them. Misunderstandings or misconceptions can lead to dissatisfaction, mistrust, or even legal disputes.

Financial Risk for Employees

NSOs carry a financial risk for employees. If the company's share price falls below the exercise price, the options become "out of the money" and worthless, potentially leading to disappointment or resentment among employees.

Dilution of Ownership

When NSOs are exercised, new shares are typically issued, which can dilute the ownership of existing shareholders. This dilution might upset some shareholders, especially if it's larger than expected.

Market Volatility

The value of NSOs is subject to market volatility. Economic downturns or poor company performance can drastically decrease the value of NSOs, which can affect employee morale and retention.

Regulatory Compliance

Issuing NSOs involves complying with a number of regulations, including securities laws and tax codes. Non-compliance can result in penalties and legal complications.

Offering NSOs is not a decision to be taken lightly. Businesses should carefully weigh these risks and challenges against the potential benefits. Having a well-designed NSO plan, offering clear and comprehensive communication to employees, and obtaining advice from financial and legal professionals can help mitigate these risks.

Strategies to Ensure A Win-Win Situation

The goal of offering NSOs should be to create a win-win situation, where both the business and its employees reap substantial benefits. Here are some strategies that can help achieve this:

  1. Transparent Communication: Ensure employees fully understand the concept, terms, and potential benefits and risks of NSOs. Offer educational resources or training sessions to make them comfortable with this form of equity compensation.

  1. Professional Valuation: Employ the services of valuation experts to accurately determine the Fair Market Value of your company’s stock. This helps set a fair exercise price and ensures compliance with tax laws.

  1. Proper Timing: Consider the timing of the NSO grants. It might be beneficial to offer NSOs during a capital-raising event or just before a predicted upswing in business to give employees the chance to see rapid growth in their options' value.

  1. Equitable Distribution: Make sure NSOs are distributed fairly among employees. An equitable distribution can promote a sense of fairness and unity within the organization, enhancing the motivational impact of NSOs.

  1. Regular Updates: Keep employees updated on the company's financial performance and its impact on their NSOs. Regular updates can keep employees engaged and motivated.

  1. Vesting Schedule: Implement a well-thought-out vesting schedule. This can help retain top performers and align their interests with the company's long-term goals.

  1. Robust Legal Framework: Work with legal professionals to ensure your NSO plan is compliant with all relevant regulations. This helps avoid legal issues and reinforces the credibility of your NSO plan.

  1. Tax Guidance: Provide employees with guidance on the tax implications of exercising their options. This can help them make informed decisions and prevent unexpected tax liabilities.

Why RSU Can Be a Good Alternative

As you explore equity compensation options, you might also consider Restricted Stock Units (RSUs) as a good alternative to NSOs. RSUs are company shares that are promised to an employee through an employment contract, but they come with a 'restriction', which means the shares are not fully transferable until certain vesting criteria are met.

Unlike NSOs, RSUs have intrinsic value from the start—you're giving away actual shares, not just the option to buy. This means that even if the company’s stock price declines, RSUs still retain some value, which is not the case with NSOs.

From a tax perspective, RSUs can provide more predictability. While NSOs can create a significant tax bill at the time of exercise, RSUs are typically taxed at the time of vesting, when the restriction is lifted. This can allow for more accurate tax planning.

RSUs can also be easier for employees to understand than NSOs. There are no exercise prices or option periods to worry about. Once the RSUs vest, the employee owns the shares outright.

NSO Might Still Be A Good Choice

NSOs are a powerful tool that can align the interests of your company and its employees, fostering a sense of ownership that can drive performance and growth. They allow you to attract and retain top talent while providing a pathway for your employees to share in the company's success. However, navigating the complexities of NSOs—from valuation to tax implications—requires careful planning and professional advice. As with any strategic decision, understanding your options and weighing them against your company's unique needs and goals will be key to your success.

If you want a better understanding of RSU plans and how they stack up against other equity options, book a demo with Upstock today.

Retain your key employees

Ensure your team is awarded based on contributions and results with Upstock’s KPI inegration feature.

Learn More
ABOUT THE AUTHOR

Casey Fenton

Founder, Upstock & Couchsurfing, AI and Equity Innovator

Casey Fenton, the founder of Upstock & Couchsurfing and an AI and equity innovator, has revolutionized how we perceive and implement equity in the workplace. His foresight in creating platforms that not only connect people but also align their interests towards communal and corporate prosperity has established him as a pivotal figure in technology and community building. Casey speaks worldwide on topics including ownership mindset, worker equity, With Upstock and Couchsurfing, he has demonstrated an unparalleled expertise in harnessing technology for the betterment of community interaction and organizational benefits.

Previous: Next-Level Growth: Leveraging Series B Funding for Startups Next: Nurturing a Culture of Innovation: Unleashing Creative Potential‍