Author Topic: Please help. Company forgot my stocks and won't give me the initial strike price  (Read 1005 times)

Danielle R

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Hello everyone, I would greatly appreciate it if you can help me out on this one. I got a message from HR representative of my company saying that they forgot to vest the stocks that were offered to me when I was hired. Since this involves a lot of numbers I'll attach an image to show you what I'm looking at. Initially, I was promised 15,500 options at a  $ 0.23 strike price and now that the stock increased they are saying that they cannot offer me the same price anymore, instead what they are doing is recalculating the number of shares that I should have now in order to have the same amount of gains. The thing is that I'm not sure if I'm being reasonable but I don't think this is fair. The strike price now is around $5.10  and there's no way I could buy these stocks compared to what I would have invested had they given me the $0.23 strike price.

To explain this a little bit more, the image shows on the first highlighted column that I would have invested only  $ 356.50 for the first year, and for the new deal, I'm looking at $11,140.07 to invest (to give me the same gains,  ~$25,249.50)..which is just too much risk for me. I really don't know how this company is going to do in the future and I would much prefer to lose $ 356.50 than $11,140.07 . My initial plan was to hold the stocks for the long term, pay the taxes now and wait and see what happens in the future. I also have the option to buy and sell instantly (cashless exercise) and pay for taxes on the gains, so I'm not sure if I'm making it bigger than it is. I just don't see how someone would change places with me, it doesn't sound like I should be dealing with this since it wasn't my mistake.

In conclusion, the way they are solving this problem is by increasing the number of shares I'll be receiving in order to compensate for how much the stock has grown. Before I was getting 15,500 and now they'll adjust to 21,843 shares. But really, what has me worried is the amount of money I'd have to invest in order the make the same amount of gains.

Let me know your thoughts on this one, maybe I'm being unreasonable and I would much prefer that some of you make me see sense before going to HR and complain x).


JLee

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To make sure I am understanding correctly, they are asking for you to invest $11k in order to get $25,249.50 in gains, when the initial plan was to invest $356 to get $25,249.50 in gains?

If you weren't investing voluntarily when their stock was $0.23, it seems you may not be all that interested in being invested with them; is that correct? If so, can you buy in for the $25k in gains and just immediately sell?

Danielle R

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Hi, Jlee thank you for your reply!

To make sure I am understanding correctly, they are asking for you to invest $11k in order to get $25,249.50 in gains, when the initial plan was to invest $356 to get $25,249.50 in gains?
Yes, that's correct:)

If you weren't investing voluntarily when their stock was $0.23, it seems you may not be all that interested in being invested with them; is that correct? If so, can you buy in for the $25k in gains and just immediately sell?
Yes, I can buy and immediately sell and pay for taxes. The downside is that I'll never have the opportunity to hold for the long term, and even if I do nothing and wait if the stock grows more, I'd have to pay a lot of taxes.:(

What do you think?

Tester

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Do you have the initial offer in a contract?
If yes, and it says: x shares at y price, it is their problem to honor that, you don't care about them saying "we can't do it because we forgot".
If this is the case, do not talk with them, do everything in writing - send a letter to the HR stating: in this contract you say this, now do it.

If that initial thing is not in written then I am afraid you can't do anything legally?
EDIT: Although I read things that even a verbal agreement can be a binding contract... I don't know how this works so someone with better legal knowledge might help better.

sailinlight

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Wouldn't you pay half the amount of tax in their proposed situation since your basis will be $11k higher?

KarefulKactus15

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My reading comprehension must not be good cause I couldnt really process the first post.

However I agree with the above.   If there is a contract that states "X item will be at Y Price" than that is where the conversation would end for me if they forgot on their end. There should be no additional financial burden imposed upon me to correct their mistake.

yachi

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Buy the 21,843 options from them for $11,140.07.
Sell 6,343 options back to them.  You should get $10,783.10 back.
Keep 15,500 options invested with them.

Now you'll have 15,500 options, for which you paid 356.97.  The only problem is, you might owe taxes on the $10,783.10 you got for the 6,343 options you sold back.


yachi

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Wouldn't you pay half the amount of tax in their proposed situation since your basis will be $11k higher?

I thought so for a moment, but no because the sale price is increasing.  In the original scenario, she sells $26,350 for a profit of $25,993.50, in the new scenario she sells $37,133.50 for the same profit of $25,993.50. 

yachi

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Buy the 21,843 options from them for $11,140.07.
Sell 6,343 options back to them.  You should get $10,783.10 back.
Keep 15,500 options invested with them.

Now you'll have 15,500 options, for which you paid 356.97.  The only problem is, you might owe taxes on the $10,783.10 you got for the 6,343 options you sold back.

Or for that matter, adjust how much you sell back to them until you're comfortable with the amount of money you want invested in the company.

dandarc

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I'm confused by the spreadsheet - why is the "preferred price" different in the two scenarios? If you can sell these shares for $17 to day, why not exercise and sell, thank them for  the somewhat higher basis and call it a day?
« Last Edit: October 27, 2021, 01:19:08 PM by dandarc »

AccidentialMustache

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Agree with if you have the initial documentation, lawyer up. Sounds like breach of contract and the lawyer should smell blood in the water. They are probably trying to get an offer the can con you into accepting, no matter if it is actually to your benefit or not, in order to get you to sign new documentation so that they can cure the breach of contract. I wouldn't sign anything (nor agree verbally) before running it by a lawyer.

Given it involves stock, the SEC could also potentially be interested.

reeshau

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Your company is going to be limited / prohibited from back-dating an options grant, or choosing lower than market price.  This was a common practice in the past, and also a prior market scandal:

https://en.m.wikipedia.org/wiki/Options_backdating

Offering you an equivalent net value in options seems to be a reasonable alternative.  The most common way options are exercised, through the company, would be on a net basis, so there is no cash involved.  You exercise the options, and are handed a check for the difference between the strike price and the then-market price.  If you want to keep your shares after exercising the options, then yes you need some money up front, but could sell the (22,843 - 15,500) extra shares to make that back.  That would be in line with a pretty standard emergency fund, or you could even do it as a short-term loan.

lutorm

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I think reeshau is right and the problem is that the company is not free to grant options at any price. I'm pretty sure that, for an ISO, the strike price when the grant is awarded must not be less than the current FMV. Since they seem to be willing to offer you a different strike price that's still below the current FMV, are these grants not ISOs?

There are a few tax things to consider here, if the options are ISOs.

First, if you do what reeshau suggested and do a no-cash exercise, the gains are taxed as income. I'm also pretty sure this will convert the entire grant from ISO to NQSO. This means you no longer have the option of getting any gains taxed as long term capital gains.

Second, exercises of ISOs are treated as a realization event under the AMT, so when you exercise an ISO, you will pay AMT on the difference between the strike price and the FMV. While you get an AMT credit for this when you subsequently sell the resulting shares, the AMT can often be a much larger cost than the cost of exercising the shares themselves.

In your example, exercising 15,500 options at a  $ 0.23 strike price will cost you $3565. Sounds like a good deal. BUT, if the FMV is $5.10, you will incur an AMT of 15,500*(5.10-0.23) = $75485 when doing that. Make sure you keep this is mind so you can afford to pay it when tax time comes around.

As for whether this was a bad deal, I guess that depends on your risk tolerance and whether the stock is liquid or nor. While a higher strike price means you have to spend more to exercise, they're also offering you more shares. If you want to cash out immediately, the fact that the gain is the same means that you get the same gain while risking more funds to do it.

However, if you plan to exercise and hold with the hope of the stock going up, it's a different situation. As the value of the shares goes up, having more of them means that the gains will go up more. At some point, the extra cost to exercise the options becomes outweighed by the extra gains.

I know all about the situation of not being able to afford to exercise (not just the strike price but the resulting AMT as well) or be willing to risk the cash. What I did was to bootstrap the process by initially exercising a few shares, like a few grand's worth, and hold them. After > 1yr, when I could sell them for LTCG, I did so, using the proceeds to exercise more shares (and putting some of it away to pay the AMT next year). By doing this repeatedly, I exercised my entire grant without risking more than a few grand of my other savings. This only works if the shares are at least somewhat liquid and the share price goes up. (Obviously, if the share price doesn't go up, there's no point in exercising the options anyway.) You get less gains this way, since you're selling some of the shares at lower price, but the reduction in downside was more than worth it for me.