“We are an investment firm interested in structuring liquidity for current or former [company name redacted] employees. If you or anyone you know is interested in help exercising options […] or is making a major life purchase, we may be able to help.”
Not exactly your average spam message. Addressed by name and referring specifically to a particular start-up, this email contained an offer for an unusual type of financial transaction: loan to help offset the cost of exercising options. Welcome to the Silicon Valley version of predatory lending.
To make sense of the connection between high-risk loans and technology IPOs, we need to revisit the history of equity-based compensation. While employee ownership is by no means new phenomenon, starting with 1990s it became a significant if not primary component of employee compensation for technology startups. Leaving established companies to join startups often involved exchanging predictable salaries for higher-risk, higher-reward structure conferred by equities. In many ways, the original success story for equity in technology was a blue-chip company predating that first dot-com bubble: Microsoft. “Never touch your options” was the advice offered to new employees, urging them to hold out on exercising as long as possible— because the price of MSFT much like tulip bulbs (and later real-estate) could only go up, the argument went.
Equity rewards come in two main flavors: stock grants or stock options. (Strictly speaking there are also important distinctions within each category, such as incentive-stock options versus non-qualifying stock options which we will put aside here.) Stock grants are straightforward. Employees are rewarded a number of shares as part of employment offer, subject to a vesting schedule. Typically there is a “cliff” at one-year for starting to vest some fraction—employees who don’t last that long end up with nothing. This is followed by incremental additions monthly or quarterly until the end of the vesting schedule. It is also not uncommon to issue refresher grants yearly or based on performance milestones.
Options, or more precisely call-options, represent the right to buy shares of stock at a predetermined price. For example, employee Alice joins Acme Inc when company stock is trading at $100. That would be her “strike price.” She is given a grant, which represents some number of option, also subject to a vesting schedule. Fast forward a year later when vesting starts, let’s say Acme stock is trading at $120— representing a remarkable 20% yearly increase, which was not uncommon for technology companies in their early growth phase. These options allow Alice to still purchase her shares at the original $100 price and if she chooses to, turn around and sell at prevailing market price.
Due to vagaries of accounting, options were far more favorable to a company than outright grant of stock. Downside is they transfer significant risk downstream to employees. Notwithstanding the irrational exuberance of asset bubbles, it turns out there is no iron-clad rule guaranteeing a sustained increase in stock prices, not even for technology companies. Even if the company itself is relatively healthy, stock price can be dragged down by overall economic trends— such as recession— such that current market price may well be below the strike price at any given time, rendering the options worthless. There is also a great element of volatility. Employees with start dates only weeks apart may observe very different outcomes if there were wild price swings determining the initial price— not at all uncommon for small growth stocks. It is not even guaranteed that an earlier start is necessarily an advantage. If the strike price happens to be set right before a major correction, employees may find their options underwater for a long time. (After Microsoft experienced a steep decline following its ill-advised adventure with DOJ anti-trust trial and dot-com crash of 2000, some employees observed that quitting and re-applying for their current job would be the rational course of action.) Such volatility runs deep; small fluctuations in price can make a significant difference. Consider an employee whose strike price was $100, when it is trading at $110 currently. So far, so good. Another 10% increase in price would roughly doubles the value of those options. 10% decrease by contrast renders them completely worthless. Stock grants on the other hand are far more stable against such perturbations. A 10% movement in the underlying stock represents exactly 10% change in either direction in the value of the grant.
No wonder then that options have historically invited foul-play. There has been more than one scandal including at the mighty Apple for backdating. Executives have faced criminal charges for these shenanigans. Even Microsoft, the original pioneer of option-based compensation, eventually threw in the towel and switched to stock grants after years of stubborn persistence. Of course for MSFT there was a more compelling reason: the stock price plateaued, or even slightly declined in inflation adjusted terms rendering the options worthless for most employees. (Interestingly, Google also switched from options to RSU stock grants around 2010, even when the core business was still experiencing robust growth, unlike its mismanaged counterpart in Redmond. But Google also created a one-time opportunity for employees to exchange underwater options for new ones priced at post-2008 collapse valuation.)
So what does all this have to do with questionable loans for startup employees? Our scenario involving the hypothetical employee made one assumption: she can sell the stock after exercising the option. Recall that the option by itself is a right to buy the stock. In other words, using the option involves spending money and ending up in possession of actual stock. After that initial outlay, one can turn around immediately and sell those shares on the market to realize the difference as profit. This process is common enough to have its own designation: exercise-and-sell. Most employee stock-option plans allow employees to execute it without fronting the funds for initial purchase of stock. Similarly there is exercise-and-sell-to-cover, where some fraction is sold at market price to offset exercise costs while holding on to remaining shares. In neither case does the employee have to provide any funds upfront for the purchase of stock at the strike price.
Therein lies a critical assumption: that there exists a market for trading the shares. That holds for publicly traded companies but gets murky in pre-IPO situations. Facebook shares were traded on Second Market prior to the IPO. Next generation of startups took that lesson to heart and incorporated clauses into their employee agreements to remove that liquidity avenue. Typically the equity rewards have been structured such that shares are not transferrable and can not be used as collateral.
Suppose employee Alice is leaving her pre-IPO company to take another opportunity. If the equity plan involved outright grants, the picture is simple: Alice retains what she has vested until her final day of employment and leaves on the table the unvested portion. In the case of stock options, the picture gets more complicated. Option plans are typically contingent on employment. Not only does vesting end, but unexercised options are forfeited unless they are exercised before departure or within short time-window afterwards. That means if Alice wants to retain her investment in future success of the company, she must buy the stock outright at its current valuation (typically set based on private financing rounds, at artificially low 409A valuations) and pay tax on “gains” depending on the type of option involved. Of course such gains exist purely on paper at that point, since there is no way for Alice to capture the difference until there is a liquidity event to enable selling her equity. In other words, Alice is forced to take on additional risk to protect the value of options. Alice must come up with cash to cover both the purchase of an asset that has presently zero liquidity— and may well turn out to have zero value, if the company flames out before IPO— and income tax on the profits IRS believes have resulted from this transaction.
This is where the shady lenders enter the picture. Targeting employees at start-ups who have recently changed jobs on LinkedIn, these enterprising folks offer to lend money for covering the value of the options. While this blogger can not comment on the legality of such services, it is clear that both sides are taking on significant risk. Recall that agreements signed by the employee preclude transfer of unexercised options— more precisely, the company will not recognize the new “owner.” Such assets can’t be used as meaningful collateral for the loan, leaving the lender with no recourse if he/she were to default. They could report the default to credit bureaus or forgive the loan— in which case it becomes “income” as far as IRS is concerned, triggering additional tax obligations— but none of that reduces the lender exposure.
Meanwhile the employee is taking a gamble on the same outcome, namely that the executed future value of these options will be realized. If the company does not IPO or market valuation ends up significantly lower than the projections used for purposes of calculating exercise costs, they will end up in the red against the loan. That is materially worse than ending up with underwater options. Recall that an option is a right but not an obligation to purchase stock at previously agreed upon (and one hopes, lower than current market value) price. There is no requirement to exercise an option that is underwater; the rational strategy is to walk away from it. But once options are exercised and shares owned outright, the employee is fully exposed to risk of future price swings. They have effectively “bought” those options on margin, except that instead of a traditional brokerage house extending margin with full control over the account, it is a new breed of opportunistic predatory lenders.