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Date:   Thu, 27 May 1999
From:   Mark

I have incentive stock options. My company is not yet public. We have filed with the SEC. Now is a good time to exercise my ISO's because the spread between my exercise price and the FMV is small. My company, however, says that I cannot exercise until I vest in the shares. I vest at 20% a year. This would mean that after I had been there a year, I would have been able to exercise 20% and wait until the next year to sell, which meets the ISO rules.

Then for the 20% I vest in the second year, I can't really sell them until the end of the third year because I have to held them a year after I exercise. Can they do this? Why can't I exercise all at once and get it over with except the waiting to vest?

Answer

Date:   Wed, 28 Jul 1999

Hello Mark,

Sorry I haven’t written back to you sooner.

Whether you can exercise your options sooner depends on your company’s policies. See your employee benefits department.

Also, the vesting issue raises another potential question about whether the fair market value on the date of exercise is controlling in determining your AMT preference. If you can exercise the shares early, you should consider filing a protective Section 83(b) election within 30 days of exercise.

Good luck!

Mike Gray

For more information about incentive stock options, request our free report, Incentive Stock Options - Executive Tax and Financial Planning Strategies.

IRS Circular 230 Disclosure: As required by U.S. Treasury Regulations, you are hereby advised that any written tax advice contained in this answer was not written or intended to be used (and cannot be used) by any taxpayer for the purpose of avoiding penalties that may be imposed under the U.S. Internal Revenue Code.