This blog post is part one of two
discussing equity incentives and ways for employees to liquidate a portion of
their shares while the company remains private. Most companies are in the middle
of granting 2020 annual equity awards. This granting of equity awards is
happening simultaneously with the COVID-19 outbreak and the larger volatility
on business operations and financial markets. The purpose of this blog is to
highlight some considerations when granting equity awards in light of recent
events.

409A
Valuations

The
threshold consideration is the overall value of the company, which then flows
through to the value of any equity incentives being granted, impacting such
matters as the strike price and the number of incentives being issued to eligible
recipients (such as, e.g., employees, contractors, advisors, and directors).
Although it is not required by law to do so, typically, a company will conduct
a 409A valuation to derive the fair market value of the company and its common
stock, to provide a base for determination of the value of any equity
incentives to be issued (although other factors may be taken into account as
well). A 409A valuation is often (but not always) different from a company’s
post-money valuation following a financing round because investors typically
receive preferred stock. Nonetheless, it is generally good practice to
commission a new 409A valuation every 12 months, before the company issues its
first common stock options, after raising a round of venture financing, and/or
when there is a material event that may impact the value of the company.

Equity
Incentives

Equity
incentive plans are standard features of startups granting an equity interest
in the company to employees and other personnel allowing them to share in the
upside potential of the company. A well-crafted omnibus equity incentive plan
is going to give the company the optionality to issue (a) Incentive Stock
Options (ISO), (b) Non-qualified Stock Options (NQSO), (c) Restricted Stock and
(d) Restricted Stock Units. Within the equity incentive plan, the committee
appointed by the board of directors to administer the plan should have the
authority, among other matters, to determine when the awards are to be granted
under the plan and the applicable grant date; to determine the number of shares
of common stock subject to each award; to determine the instrument to grant the
employee or personnel; and to amend the awards including the time of
vesting. 

So, if
the 409A valuation returns a lower than expected valuation (especially given
the current market) requiring the company to use more shares from the equity
incentive pool than anticipated, the company could consider certain
alternatives, such as, for example:

  • grant restricted stock units (RSUs), which command a higher
    value based on how the RSUs are structured, thereby requiring fewer shares to grant
    to come to an equivalent value;
  • make the equity awards contingent on shareholders approving an
    increase in the size of the equity incentive pool at the annual meeting;
  • delay the grant until the after the annual meeting of
    shareholders, if an increase in the size of the equity incentive pool is
    approved; or
  • provide the option to have the awards cash-settled (which itself
    does come with some tax and accounting downsides).

It
might also be an option to reprice the options if the equity incentive plan
permits or pending shareholder approval. If the repricing involves any change
in the award other than a reduction in the exercise price, such as exchanging
options for RSUs, the company must comply with securities laws and the
corresponding tender offer requirements. If a repricing is not an option, the
company could also consider granting supplemental awards. However, the granting
of supplemental awards does come with accounting difficulties and would adversely
affect the company’s dilution levels.

It is
also worth mentioning that there could be ‘upside’ to a lower than expected
409A valuation, in light of recent events, as it relates to equity incentive
base pricing. With lower base pricing, there is an opportunity for companies to
issue equity incentives that are credibly (and, more importantly, tax
defensibly) less valuable than they were even one month ago. If one
believes that the price of equities and company valuations are, currently,
artificially low as a result of the COVID-19 scare, then, by the time they
return to normality, the previously issued equity incentives will be more
valuable in the hands of key employees and other recipients. Explanation the
company’s theory of the same could be a useful recruiting tool for key employees
in these uncertain times.

Our View

Boards and management teams should consult
with their legal, tax, and accounting advisors before changing their equity
incentive plans as changes can force the company down different paths. As well,
the boards and management teams should make decisions based on potential
reactions from all stakeholders who are dependent on the future of the company.
The next few months are shaping up to be volatile economic times but that also
means time for introspection and internal brand strengthening to come out
stronger on the other side.

Looking past the issuance of equity and
incentive compensation, Part 2 of this blog post is going to cover companies
conducting internal tender offers for those seeking to sell a portion of their
vested options while the company remains private and weathers this financial
volatility.

Dated April 6, 2020

Written by Stan Sater and
Jeff Bekiares

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If you are a business that has questions about equity incentive plans, contact the Founders Legal team.

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