Sins of the Past Are Coming Forward
Story:
I saw a piece on the Bloomberg News wire this weekend (Options Probe Could Haunt Silicon Valley)detailing how unsettling a SEC investigation into stock options may become for tech firms.
What really got my attention was the tale of one VP hire of a tech firm. His employment package included:
- $240,000 salary
- $1,000,000 relocation bonus
- options to buy 200,000 shares
This VP was offered the job in January of 2000 and came on board in April. His options, though, were back-dated to early January at a price that made his options worth more than double by the time he started work. Amazingly, those shares were now worth $19 million.
Now, 29 firms are being investigated for option accounting and grant issues.
Analysis:
I remember all sorts of interesting demands being made by job seekers in the wild and crazy tech boom. I had a Marketing exec who expected 4% of the outstanding stock. I had a prima donna corporate attorney who brought in her own perk list to the interview. I had many people ask for home office equipment (and were reasonable about it) and many others who wanted us to furnish them with exquisite offices away from their homes.
Stock option greed was rampant back then and too few companies had a plan for how to dole it out effectively. This SEC review will likely expose a number of bad option grants made at a strange, heady time in tech. Thankfully, the foolishness and hubris of those times is over. I doubt few deals today approach anything like the one described above (If there are some out there, where can I send my resume?!).
The SEC investigations will make great reading but will likely fail to produce big changes in tech companies today. Why? No one's offering absurd options deals anymore.
Just recently, I was involved in the capital financing behind a high tech metals plant. I had a whale of a time explaining these facts of life to some of the parties involved:
- option equity must be earned. It isn't given outright. Even if you possess unique skills or knowledge, your equity will be pro-rated over time. Why? Should something happen to you, the remaining unearned stock would be used to attract your replacement.
- option equity is a type of compensation and can be substituted for salary and bonus in some situations. However, asking for a top market salary, a huge commission and a big options grant while taking no equity risk yourself is just plain greedy. In 1999, I met a lot of very greedy tech sales people.
- not everyone gets options. Sure, companies can choose to give everyone a little taste of equity, but the bigger pieces go to those who really make a difference and take the most risk. If you're getting paid a great salary and can get some nice bonus pay and promotion opportunities, you'll likely get a low options grant.
- option accounting is time consuming and expensive. There will often be RSPA (restricted stock purchase agreement) and ISO arrangements. These will often apply to the common stock (Not the preferred stock that investors get). Attorneys often maintain copies of all completed agreements and this adds to the cost.
- options agreements are generally not negotiable. Sure, an employment candidate can haggle for more options or see if the vesting term can be accelerated but the general terms involved in the grant are not open for discussion. What few seem to realize is that the board, not a management or HR executive, establishes a pool of stock that is eligible for option grants. Smart firms then allocate that amount by functional area and title within each area. Your job position may only warrant a few shares and that amount was established long before you were being considered.
- newer employees get fewer options than founding employees. The founders took more personal risk in launching a company with no sales, no prospects and no capital. If you are the 1000th employee, chances are you're not assuming much risk.
- employees may want to vigorously argue/negotiate the accelerated vesting provisions but the employer isn't really in a position to do much here. If they permit any material change of control to trigger full vesting, few employees would stick around after an acquisition. Acquirors kind of hate when that happens. Employees should expect the new owner to offer sweeteners to encourage the retention of desirable folks or offer a package to those who will be leaving.