Employee options are an important tool for recruiting and rewarding employees as well as retention of employees - the company provides a cheap salary replacement for a company that prefers to use its resources for growth (and in a growth company, the options will be worth much more than cash payment) and at the same time, it is a very powerful tool for retention of employees and creating personal commitment by identifying with the interests of the company (the employee will lose the options or part thereof if he leaves and he has an interest in working better because he benefits from the company's growth). However, in many cases the option plan (ESOP) is not built correctly (or is copied from another company with the person who copied it does not know how to read it correctly) or is not managed optimally and the company loses an important and effective tool.
Options (and for the more advanced also RSUs and the Phantom Shares) are a tool that allows an employee to share in the proceeds from the company's growth, coupled with a vesting mechanism according to which the options cannot be exercised immediately but only over time (e.g. 6.25% of the allocated options vest at the end of each quarter of work) and/or meeting goals (goals of the company or personal goals of the employee), where sometimes a "cliff" mechanism is also established - a minimum period of work before vesting of the options that would otherwise vest during the period. Options usually also have an expiration date, and they usually expire (if not exercised) several months after the end of employment (or immediately, if the employee terminated his position in circumstances of breach of agreement).
The granting of options is a benefit that should be taxed on three dates: upon allocation, upon exercise into shares and upon sale of the shares. Israeli law sets a number of routes under which it is possible to avoid paying tax at the time of allocation and postpone the payment until the date of exercise or even the date of sale. Thus, for example, the route set in §102(b)(2) of the Israeli Income Tax Ordinance (capital gains route with a trustee) would, under proper construction of the options, allow employees and officers of the company, who are not deemed control holders, to deposit the options with a trustee for two years and in return receive a tax deferral until the date of the sale of the shares and pay capital gains tax at a rate of 25% (instead of a labor tax that can reach 50%). Those who do not meet these conditions will be able to benefit from the route set in § 3(9) of the Ordinance, under which the tax will be deferred only until the date of exercise of the options, but the tax will be labor tax not capital gains tax).
Granting options to employees requires approval of an option plan by a company resolution, approval of the plan by the Tax Authority, appointment of a trustee, a specific board of directors resolution for each allocation and a grant agreement with each employee or officer. It is important to ensure that a situation does not arise under which the grant creates tax liabilities that the parties did not intend or an obligation to employ the employee for a period of time or a liability in the event that the employee did not exercise on time. Thus, for example, in a matter discussed at the Tel Aviv Labor Court in July 2019, it was found that an employee may be terminated even shortly before the option vesting date if this is not done to prevent vesting.
To summarize, employee options are a complex and important issue that a lawyer knowledgeable in documents of this type should be involved in their drafting, both during the construction of the plan, in its approval procedures and certainly during the drafting of the board of directors resolutions, the process of signing the agreements with the employees and the dealings with the trustee. An incorrect action may create tax accidents and damage the company's relationship with the employees instead of enjoying the benefit of this important tool.