What’s the difference between an ESS and an ESOP?

When you want to grant equity (or ownership) to an employee or contractor, the best way to do it is often through an employee share scheme (ESS) or an employee share ownership plan (ESOP).

But what is the difference between an ESOP and an ESS? And why would you use an ESOP instead of an ESS?

Below, we provide a simple summary on the key differences between an ESOP and an ESS.

If you are wanting to learn more about ESOPs in general, feel free to check out this blog, and you can also download our comprehensive ESOP Guide here.

Start with the basics – how does an ESOP work?

An ESOP is a type of an employee incentive scheme. It offers ownership to employees and contractors, subject to vesting requirements and ongoing rules.

In short, an ESOP works as follows:

  • the employee or contractor receives options (or rights),
  • to receive ordinary shares,
  • as long as she/he complies with the rules of the ESOP (Plan Rules).

While there are multiple variations of Employee Share Schemes around, ESOPs are the most common form of employee incentivisation for small and start-up businesses. 

What’s the difference between an ESOP and an ESS?

The key difference between an ESOP and an ESS is simply that under an ESS, the employee is issued shares upfront.

Under an ESOP, the employee is only granted options, which can be converted into shares once they have satisfied their vesting conditions.

Why would I do an ESOP instead of an ESS?

ESOPs are the most popular method of granting employee ownership for start-up companies.

Since the 2015 start-up tax concessions were implemented, the vast majority of companies have used ESOPs instead of ESSs. 

The main reason for this is that they are often easier to set up and manage. They require less administration – music to a founder’s ears.

We’ve summarised the reasons for this below.

No need for share buy-backs where vesting is not satisfied

Under an ESS, the employees are issued shares up-front, that are subject to vesting requirements (for example, the employee has to stick around for a certain period of time to earn a certain amount of those shares).

If the employee does not satisfy the vesting requirements for certain shares, then the company is able to buy-back those ‘unvested’ shares at a nominal value (for example, at $1).

However in practice, this can get quite messy.

If, for example, a company offers shares under an ESS to 10+ employees, and only 5 of those employees actually satisfy all of the vesting requirements, then the company would be required to conduct share buy-backs for all of the employees where the vesting criteria was not met. 

While lots of this can be automated in Cake, it can still be a time consuming process, as it will require cap table updates, members resolutions, buy-back agreements, and an ASIC update for each buy-back.

ESOPs can recycle lapsed options – No ASIC updates required

Comparatively, under an ESOP, where an employee does not meet the vesting requirements, the options will simply lapse.

They can then be recycled into the option pool to be used for further offers.

Cake can do this with the click of a button. It is as simple as where the employee has not satisfied her/his vesting criteria, hit ‘lapse options’ and they will be back in your pool and ready to incentivise other staff.

No ASIC update, cap table update, or members resolution is required.

Clearer dilution figures

Under an ESS, as shares are issued up-front, the cap table is updated with the shares issued. When you are doing your capital raise preparation, this can cause some confusion for potential investors.

For example, working out which shareholders have shares subject to vesting criteria and buy-back rights, and which shareholders own their shares outright, may not be immediately clear.

With options, however, they are displayed in a separate ‘option register’ until they are exercised. This provides a clear overview of the ownership structure of the company.

Cake will also automate the dilution calculations of all options issued, and clearly display the vesting timelines of all options granted.

No up-front payment required from employees

Under an ESS, the employee will be required to pay at least 85% of the share’s fair market value up-front (noting that this value is often calculated by the net tangible asset method, so it may not be substantial).

Under an ESOP, the employee is only required to pay the Exercise Price when they exercise (or convert) their options to shares, after they have met their vesting conditions. Often, they won’t actually exercise their options until there is a clear motivation to do so. For example, they will exercise when the company is about to go through an exit event.

Having no up-front payment can really improve the incentivisation when the offers are made. All they have to do is accept it, and get to work.

No voting or dividend rights until options are exercised

Under an ESS, the employee will become a shareholder, just like any other ordinary shareholder, from the start. This means they will get voting rights and rights to dividends (if declared).

Under an ESOP, the employee only gets these rights once their vesting has been satisfied and they have exercised their options. This means they technically need to earn those rights, and only the employees that work hard and stick around will get them. And again, often they won’t exercise their options until an exit event is likely anyway. 

This can make it easier for the company to move quickly. They won’t need to get shareholder approval from the small employee shareholders for ongoing matters. Agility can be key.

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Cake has streamlined the ESOP process, from

  • implementing the option pool,
  • adding your Plan Rules,
  • creating the offers and
  • getting it all signed.

The platform can also automate ESS vesting, where it will track the buy-back rights of the company.

And if you want some friendly assistance, let us know and we will put you in touch with our start-up lawyer partners. They offer free initial consults, and use the Cake platform to guide you through the whole process.

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.