Can These Options be Saved? An Issue from 2009 (and 2001) Is Timely Again

Economic uncertainty and shifts brought on by COVID-19 have us back to a familiar question from 2009 and even 2001: can you reprice options to take into account falling share prices?

The answer remains yes, though tax, accounting and regulatory changes from these prior decades may have altered the method and decision-making process.

The underlying economic problem has not changed. Falling share prices may leave option holders—both senior management and rank-and-file employees—with severely underwater options. If these options remain underwater for a significant period of time, employee morale and retention could be negatively affected. However, simply dropping the exercise price has the potential to disadvantage shareholders; or at the least cause shareholder concern. For this reason, a value-for-value exchange may be better than a simple exercise price drop.

In some cases, an option can be repriced through a unilateral amendment to the option award agreement, often not requiring employee consent. This is primarily a function of whether the equity incentive plan under which the option was awarded permits such an amendment. If so, the option exercise price can typically be reduced by such means. As with every option question, you need to first go back to the equity incentive plan.

Shareholder Approval May Be Required

If the company is publicly held, however, shareholder approval will likely be required. First, the equity incentive plan itself may require it. Both NYSE or NASDAQ listing rules require it.Only if the equity incentive plan—as previously approved by the shareholders—expressly permits repricing, can approval be forgone. Even in that case, however, companies should expect institutional shareholder scrutiny. For example, Institutional Shareholder Services (ISS) will recommend opposing any repricing within a year of a precipitous stock price drop, even in this COVID-19 environment.¹ Other case-by case review may be applied including (1) whether the repricing is a value-for-value exchange, (2) whether surrendered options are added back to the plan reserve, (3) whether replacement awards have extended vesting (related to the value-for-value point), and (4) whether executive officers and directors are excluded.²

Accounting Rules and Shareholder Preference May Favor Value for Value Option Exchanges

Accounting rules governing repricing of options are nuanced. Therefore, before moving forward with repricing, companies should consult with their accountants to confirm the expected accounting treatment.

Generally, repricing an option will be treated as a modification.³ Companies are required to recognize an incremental expense equal to the difference between the value of the old option immediately before its terms are modified and the value of the repriced option, along with any deferred expense for the old option.

By decreasing the number of shares subject to the repriced option and potentially making other changes to the terms and conditions of the repriced option, though, it may be possible to minimize or eliminate the incremental expense. Further, shareholders, of both public and private companies, are not often favorably disposed to a simple reduction in exercise price of an option because of the dilutive issues and possibility of an employee windfall.

For the accounting and shareholder reasons, then, it has become common to effect an option repricing by means of an option exchange—known as a value-for-value exchange, e.g., canceling outstanding underwater options and issuing replacement options with a lower exercise price and having different vesting terms. By decreasing the number of shares subject to the lower-priced replacement option and potentially adjusting other terms of the replacement option, a company can structure an option exchange so the value of new options for accounting purposes is approximately the same as the value of the canceled options. Shareholders may also take comfort that in exchange for potential gain, they have secured longer retention (through an updated vesting schedule) and reduced dilution (by reducing shares subject to the option).

SEC Tender Offer Rules Implicated for Value-for Value Exchanges

In effecting an option repricing by means of an option exchange, the option holder makes an investment decision implicating tender offer rules under the Securities Exchange Act. The SEC views repricing of options in a manner that requires the consent of option holders, such as in an option exchange, as a self-tender offer by the company. For companies with a class of securities registered under the Securities Exchange Act, a self-tender offer is subject to Rule 13e-4 and related tender offer rules, requiring prescribed filings with the SEC, disclosures to eligible participants and compliance with specified requirements as to the conduct of the offer.

While privately held companies are not subject to Rule 13e-4, they are subject to Regulation 14E under the Securities Exchange Act, which prohibits certain practices in connection with tender offers and requires that a tender offer remain open for at least 20 business days. They may also be well-advised to look to the SEC's tender offer rules for guidance on disclosures to their option holders. Generally, in advising private clients on value-for-value exchanges, we have encouraged a tender offer style process, offering employees adequate information to make an informed decision.

Compensatory Option Exchanges Exempt from Some SEC Tender Offer Rules

SEC staff has implied that an option exchange involving a limited number of senior company officers may be akin to a series of individually negotiated offers, and therefore, may not involve a tender offer. While the facts and circumstances of a particular situation may support such a conclusion, actual or potential shareholder reaction to an option repricing has more commonly caused companies to take the opposite tack—to exclude senior company officers from a more widespread option exchange offer.

In this regard, the SEC has exempted compensatory option exchange programs from the "all holders" and "best price" rules applicable to other tender offers, enabling companies to exclude or treat differently particular categories of option holders (such as officers and directors) in an option exchange.⁴

Maximize Likelihood of Shareholder Approval in a Value-for Value Exchange

Regardless of how an option pricing is effected, public companies will have disclosure obligations to shareholders regarding repricing. These may include proxy statement disclosures when shareholder approval is sought and Form 8-K and proxy statement disclosures after the repricing has been effected.

To maximize likelihood that shareholders will approve an option exchange program, companies should consider features such as:

• Excluding directors and officers from the program (or allowing their participation on less favorable terms)
• Adding performance conditions to the vesting and exercisability of the replacement options
• Limiting the exchange program to options that are significantly underwater

Tax Considerations

Incentive stock options. If the options to be repriced are incentive stock options (ISOs), a repricing will be considered the grant of a new ISO, and the rules governing the grant of any ISO will apply. The strike price of the repriced ISOs must not be less than the shares' fair market value at the repricing date (see discussion below on NQSOs). The application of the $100,000 per year first exercisable limitation will also be determined as of the repricing date—again under the theory the repriced option is a new option.

The disqualifying disposition period will begin on the date the option is repriced. If an employee exercises ISOs, and the shares are disposed of within the later of two years from the date the ISO was repriced or one year from the date on which the shares were transferred to the employee, there will be a disqualifying disposition—and at least a portion of any gain will be taxed as ordinary income instead of capital gain.

Companies should be alert to situations in which a repricing program could end up offering alternative rights, thus tainting ISOs that are not repriced. An option will fail to qualify as an ISO if the employee is given an alternative right that effectively avoids the usual ISO requirements. If an ISO holder has a right to elect a lower option price for an existing ISO by participating in a repricing program, he may have alternative rights.

The IRS has taken the position that an offer to exchange an option that is open less than 30-days is not, in itself, a modification of an option. Voluntary repricing programs should, then, run less than 30-days to avoid tainting the ISO status of any non-participating options.⁵

Non-qualified stock options. Repricing a non-qualified stock option (NQSO) should also be treated as a grant of a new NQSO. Because they do not have the same tax-favorable attributes as ISOs, the consequences are not as significant. That is, there are no real adverse tax consequences to receiving new NQSOs as long as the strike price is not less than the then fair market value of the shares. Companies would be advised, as always when pricing options, to look carefully at recent independent valuations (and value-indicating activity such as share sales and redemptions) to make sure that the repricing does not cause further problems because the reduced price is less than fair market value. Future buyers of the company will be especially attuned to this type of activity and expect to see material support for the reduced price.

Section 409A. While Internal Revenue Code Section 409A should always be considered on a case-by-case basis, a one-time repricing of ISOs or NQSOs should not implicate Section 409A as long as the new strike price is not less than the fair market value of the shares at the time of repricing and options meet the other requirements to be exempt from 409A (i.e. the option is for service recipient stock, a fixed number of shares, and the options do not include any other compensation deferral feature). If, however, a company were to engage in a series of repricings, it is possible the IRS would view the options as part of a nonqualified deferred compensation plan. Companies should keep this in mind and be cautious about repricing too early.

Section 162(m). IRC Section 162(m), as amended by the Tax Cuts and Jobs Act, caps the deduction of certain executive compensation to $1 million. Before amendment, certain performance-based compensation, including options if they were granted pursuant to a shareholder-approved plan, was not subject to the limit. Certain grandfathered arrangements are exempt from the $1 million limit, as long as they were in place on November 2, 2017, and not modified after that date. Given a repricing is a grant of a new option, there will not be room to reprice pre-November 2, 2017 options and keep the 162(m) deductibility upon exercise. Of course, this may not matter—companies in this situation may not prioritize deductions at the Tax Cuts and Jobs Act’s new, lower, corporate rate.

Other Forms of Option Exchange

When a company can't—or chooses not to—reprice options, other forms of exchange may be possible. Each of the following will have its own tax, securities and accounting consequences.

Replacing options with restricted stock or restricted stock units. Employees are not taxed on restricted stock until the restrictions lapse or on restricted stock units until the underlying shares are issued. At such time, the employer is entitled to a deduction and the employee has compensation income. For publicly held companies, this course of action will ordinarily require compliance with the tender offer rules described earlier and shareholder approval under NYSE and NASDAQ rules (unless the equity incentive plan specifically permits the exchange).

Cashing out options. Employees could receive a nominal cash value for underwater options, which would then be canceled. Future grants could be in the form of options (perhaps granted once the stock price stabilizes) or restricted stock. There are no tax consequences to the employee or employer upon cancellation of the option. The employee would have compensation income equal to the cash payment, and the employer would have a corresponding deduction at that time. For public companies this course of action will require compliance with the tender offer rules described earlier (and perhaps for private companies too), but not shareholder approval under NYSE or NASDAQ rules. This method seems to lend itself to larger-scale “do overs” of entire compensation strategies.

Reprinted with permission from the November/December 2020 issue of Employee Benefit Plan Review.