409A – Fixes, Glitches and Hitches
An inevitable question to ask is “okay, the valuation firm came back and said the FMV of the last option grants should have been $.25 and the grant price was $.10. Now what do we do?” Good question. Unfortunately, we don’t have a good answer until the IRS gives us more guidance. But here is what we know so far.
Despite the fact 409A is not a final regulation and is still subject to the comment period (more on this later), the IRS says that if you have a 409A “problem” you can fix it by December 31, 2005 (enjoy your holiday “break”) by electing one of the following:
- Exercise of Discounted Stock Options. The option holder can exercise (early exercise) the option prior to year end and not be subject to 409A. Where all of these people are going to come up with the money to do this, is beyond us. And why anyone exercises and holds private company securities, is also beyond us (ok, we get the “capital gains argument” or the “I’m no longer with the company but want to own stock” argument – these are both rational reasons vs. 409A compliance.)
- Compensation for Increased Stock Option Price. The company and option holder can elect to increase the exercise price of a problem option and the company can make a cash (or other) payment to the participant to compensate for the lost discount. Uh, sure – not such a good use of company funds, especially in a private company that is losing money.
- Replacement of Discounted Stock Options with Cash or Stock. The parties can replace a discounted stock option with a cash or stock grant that complies with 409A. The cash payout is a non-starter, the replacement might be a good idea, but there are tons of other issues with replacing / repricing options.
Now remember, you need to get all of this done by year end. And again there aren’t enough valuation firms in the world to get the valuations done before year end, so even if these weren’t preposterous “fixes” everyone is still screwed.
So what if you don’t fix problem options by December 31, 2005? It’s unclear to us at this time. The IRS says that one has until the end of 2006 to at a minimum raise the option prices of grants to FMV. Note that if the option price changes it blows ISO status (although we’ll discuss why this doesn’t matter later) and will likely severely piss off option holders. We are also hearing a lot of “noise” ranging from “you’re screwed, there is no tomorrow” to “don’t worry about it, the IRS will never audit any of this despite 409A.”
After 2006, it’s strict compliance and nothing can be fixed, presumably.
So given this, what to do about past option grants? Should you skip the holiday dinner and “fix them?” Our opinion is “no” because the fixes aren’t feasible (plus, holiday dinner is yummy.) You have all of 2006 to decide what/if to go back in time and look at each grant date and re-evaluate the FMV at that time. Given our previous post on what it costs to get a valuation done, this is quite the harrowing thought.
We are still looking out our own portfolio to decide what to do. On a case by case basis, we’ll have to look at the company after getting the first formal valuation done and see how different that number is compared to previous stock grants. If the valuations are radically different, we may indeed have to formally value past option events and make changes where necessary.