One of the common remuneration mechanisms in startups and technology companies is the granting of options to employees in addition to or, sometimes, in lieu of, the traditional remuneration component – the cash salary.
The practical meaning of granting options is that employees are granted a right to purchase shares of the company at a fixed price at some time in the future.
Options enable startups to compensate for their inability to offer attractive salaries and recruit a top-tier workforce (due to the lack of available funds in the initial stages of a start-up’s lifecycle) and, at the same time, the grant of options serves as an effective tool to align the interests of the employees with those of the company.
Recently, we have been seeing an increasing number of cases in which successful startups that succeeded in securing investments from more than one investor in at least two investment rounds, find themselves in a complicated situation, whereby the company’s capitalization table following the above investment rounds does not enable the company to effectively incentivize its employees.
How does this situation occur?
When a company raises capital from strategic investors (for the most part, venture capital funds), it grants preferred stock to those investors against their investment. One of the key rights attached to preferred stock is the right to receive a certain portion of any future proceeds distributed upon the sale of the company, prior to the remaining shareholders (liquidation preference rights).
Since every strategic investor seeks to ensure a pre-determined return on investment, a company with several strategic investors may find itself in a situation whereby, upon the occurrence of a sale event, the distribution waterfall of the proceeds dries up before it reaches the company’s ordinary shareholders, which, ordinarily, are comprised of the company’s founders and employees.
This situation poses a major challenge to the company to retain and recruit the “best and brightest” employees, especially since in this era employees in the field of high-tech are well informed regarding equity incentive mechanisms and they are looking to join a company that offers a substantive equity incentive – and not just one on paper.
This situation is also disturbing for the company’s current and potential investors, as every investor appreciates that the best way to guarantee that its investment will eventually reap profits is to ensure that the company’s employees are fully committed to the company’s success.
In order to create that incentive for the company’s employees, companies facing the above predicament may amend their equity incentive plan and adopt what is known as a carve-out plan. A carve-out plan essentially “carves out” a fixed percentage of any future sale event and designates such percentage of the founders or employees of the company.
The adoption of a carve-out plan requires full coordination with the company’s current investors, since they are the ones who will be relinquishing a certain portion of the proceeds to which they are entitled, to the benefit of the founders or employees.
The adoption of a carve-out plan also raises significant legal considerations, such as the need to amend the company’s existing articles of association in order to create a new class of shares which is specifically designed to provide the grantees under the carve-out plan with the exact rights which are required to implement the plan, without disturbing the existing relationships between the company’s shareholders. Additionally, the adoption and implementation of a carve-out plan raises issues in the field of taxation, due to the need to seek the Israeli Tax Authority’s prior approval to the carve-out plan before it can be implemented.
How can companies avoid this situation?
Founders of startups need to devote considerable thought and planning prior to raising investments regarding exactly how much funds they require for the purpose of carrying out their business plan, and at what company valuation.
Often, accepting a lower investment amount than the amount that the company could raise in a particular investment round, or holding off on raising capital until the company reaches a more mature stage, thus enabling the company to raise capital at a higher valuation, will minimize the dilution of the ordinary shareholders of the company.
Of course, it is far easier to write about refusing available funds than actually turning such funds down in reality. However, adopting this kind of long-term thinking on the part of the founders of startups, and taking the issue of incentivizing employees as a dominant consideration from the company’s inception, may assist in avoiding having to face a problematic ownership structure which ultimately requires adopting a carve-out plan.
Source: barlaw.co.il