United States: ESOPS: A Tax-Efficient Way To Reward Employees And Provide Liquidity For Shareholders And Are A Path To Personal And Business Security That Deserve Your Serious Consideration

Published in the New Hampshire Business Review

We are in the midst of what may be the biggest transition of business ownership in history.

Many business owners become frustrated with the process of marketing and selling their business, often feeling that the challenges of finding a buyer who will understand their business and continue the corporate culture insurmountable. An employee stock ownership plan, or ESOP, can provide a solution.

An ESOP can be a valuable mechanism to reward employees, provide liquidity for shareholders and promote productivity and employee loyalty in your company. And this can be done in a tax-efficient manner.

An ESOP is a retirement plan that invests primarily in the shares of your company. A trust holds the shares for the benefit of the employees. The ESOP operates through a written plan and is administered through a trust. The plan governs the terms of participation, vesting, benefits and other matters.

The trust, through its trustees and agents, holds plan assets and administers the plan. The formation and administration of an ESOP can be complicated, but with proper guidance from professionals, the uses and benefits can far outweigh these complexities.

Studies have shown that ESOP companies provide greater retirement benefits than non-ESOP companies, have greater sales and sales per employee and are more likely to stay in business.

An ESOP can create a market for the shares of your company where one might not already exist, or when the outside market may not be palatable to the current shareholders.

There is some latitude in how an ESOP transaction can be structured, as opposed to more traditional transactions. In particular, the transaction can be structured to provide a gradual transition of the business from current owners to the ESOP trust.

In many traditional transactions, third parties have little interest in acquiring a minority position in a company. As a result, an ESOP can be an excellent tool for succession planning, both for liquidity and transition reasons.

A proper ESOP implementation can also encourage a culture within a company of participation and ownership. An ESOP can reward employees with company ownership whose value ties to company performance. Employees see the benefits of their work through increases in the value of their ESOP accounts as the value of the company shares increase. Owning stock through an ESOP allows employees to share in the growth of their company. This sense of participation and partial ownership promotes productivity and loyalty at all levels of employees.

Not for everyone

In addition to the liquidity and employee-related benefits, an ESOP can have significant tax benefits to the company, selling shareholders and the employee-participants.

An ESOP can use tax-deductible corporate earnings to buy shares from owners. When combined with a leveraged transaction, both interest and principal payments on the loan may be tax-deductible. This ability to partially offset the cost of funding a transaction with tax dollars is not available in most other forms of succession planning and business acquisitions.

In some instances, the selling shareholders may be able to defer taxes on the sale of shares by completing a tax-free exchange of the sale proceeds into other assets.

Because an ESOP is a defined contribution plan, the employee-participants do not recognize any gain on the value of their allocated stock until their employment terminates and they cash out. Even then, they may be able to roll over the account balance into another tax-deferred retirement account.

Moreover, an employee does not pay anything out of his or her pocket to get this benefit.

If an ESOP has all these great benefits and advantages, why do not all closely held companies implement one? The simple answer is that an ESOP is not ideal for all companies.

Because the ESOP will have future obligations to repurchase shares when employees terminate employment for any reason, an ESOP works best for a company with enough free cash flow or a relatively steady or predictable revenue stream to help plan for these future obligations. Businesses with a high degree of employee turnover may not benefit from the pro-employee aspects of an ESOP. The costs to implement and administer an ESOP can also be a factor to consider.

Notwithstanding those concerns, many small and medium-sized businesses, and even some publicly traded companies, have found ESOPs to be a valuable tool. The same may hold true for your company.

But an ESOP should be a consideration for any closely held company considering succession planning or transition of its management and control to executive-level employees, ways to reward employees for their contributions to the company over time, or measures for increasing productivity and loyalty of its workforce.

Studies have shown that ESOP companies provide greater retirement benefits than non-ESOP companies, have greater sales and sales per employee and are more likely to stay in business. ESOPs are a path to personal and business security that deserve your serious consideration.

Steve Burke, Beth Fowler and John Bentas are in the Tax Department of the McLane Law Firm.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions