What are the mechanics around working a consulting gig for part salary and part equity?
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Has anyone worked on a consulting gig for part salary and part equity? How does it work? Do you get actual stocks on a monthly basis or just the stock options? How about the cliff? Is the strike price different than what a full time employee gets?
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Answer:
The way we have done this (and what I think is fairly standard) is to agree an amount of equity for the work, vesting monthly with no cliff. The options themselves should be NQSOs, since you are not a full-time employee. Your strike price should be the fair market value of the common stock at the time, the same as any employee hired around that time.
David Kaye at Quora Visit the source
Other answers
I assume that by "consultant" you mean independent contractor, as opposed to an employee. There are no standard terms for equity grants to contractors because the arrangement is somewhat nonstandard, and can be risky and disadvantageous for both sides. You basically have to figure out how much money you are foregoing by working below market / usual rate, and how much stock it would take for you to feel good about the arrangement, keeping in mind a lot of disadvantages of private company stock over money: you will have to hold it a long time before you can sell or transfer it; in all likelihood it will be worthless in the end; even if it is not worthless there is a good chance you will lose it because you are unable to exercise or keep track of it; if they are options, you will have to come up with the funds to pay for the strike price; when you do exercise options, and again when you sell the stock, you may owe significant taxes. If you're being realistic about the risks and rewards, all of these factors usually make the stock relatively less attractive to you as a contractor than they are to an investor or founder who is in the business of taking these risks and receives better tax treatment. Valuing the stock is particularly tricky. You can't just compute the current share price, and say you get options to the amount of stock your foregone pay would buy. That would be like doing $100 of work for a grocery store in exchange for the right to buy $100 worth of apples for $100. The only value is the opportunity that the price of apples (i.e. stock) will rise in the future. So the amount of underlying stock has to be far higher than that. There are some sophisticated financial analysis tools to estimate the current value of possible stock price increases, but they are based on public company models and generally break down for small private company stock. As a guess you might want to double the amount of stock because of the strike price, and double it again because of the risk and time delay. If you do that, the amount of stock may well be more than the company is willing to pay, and you'll find that the amount of stock you need if you're being rational, and the amount the company can afford to offer, do not match... that's the same point as my comment in the paragraph above. A further issue is that if the company is selling preferred stock to investors, it probably sets the valuation of the common stock for employees at 1/4 or 1/5 of that price. Common stock is truly worth less than preferred stock, but the company would balk if you make them put their money with their mouth is and give you 4X to 5X of the stock amount (in addition to the 4X to account for the strike price and risk) because it's common. And if the company is brand new it is selling its stock at a near-zero price to founders, which makes the valuation completely meaningless as far as you're concerned. The bottom line is that you have to eyeball things, with a realistic understanding and expectation about what the stock is worth. None of this can be committed to a paper formula, by the way, because if you formally decide how much of a discount you're offering, any equity you receive for that discount becomes taxable compensation, and also establishes a valuation for the stock price that is higher than the strike price, with bad tax consequences all around. Regarding the form, you will get nonqualified options with a strike price equal to the current fair market value of the stock as established by the most recent funding, or if there is no recent funding, a realistic assessment by the company's board. If the company is brand new or the strike price is very low, I would argue for getting shares instead of options, or else exercise the options immediately in order to hold shares. Vesting should roughly track the expected duration and work curve / value of your services. If you're working at a steady pace for 12 months I would vest monthly over 12 months. A cliff is reasonable if there aren't any early deliverables (with possible acceleration for a termination by them that constitutes a breach), because if things don't work out and you quit before you've done any good, you shouldn't be taking stock with you. If you do get options, I would strongly argue for one of two things to protect you against losing the stock due to your inability to come up with the exercise price - either you should retain your options for a very long period (2+ years, whereas qualified stock options typically expire in 30 or 90 days) after your services are done so you can see whether the company is worth spending the money on, and/or you should have a "net issuance exercise" provision whereby you can turn in some of your option shares with the net value of the shares over the strike price being used to redeem the remainder. Any expiration of the options should be predicated on the company giving you actual notice that there is an expiration clock running - it shouldn't be up to you to guess when that period starts. All of this takes some negotiation, and may require a trip or two to their lawyer. It may not be worth the hassle for them, but without it the options are wroth a lot less to you... yet another argument against the practice. As a lawyer in the field it wouldn't be too hard for me to get it right, but when contractors and companies try to do it without a lawyer they usually get it wrong.I don't mean to be a total downer here. There are some good points of course. Owning stock makes you part of the game and makes you part of their insider team. It can be a good opportunity - I've seen contractors make a lot of money on stock. And if work is slow and you can't get work otherwise, it may be a discount you would have to make anyway... although working for peanuts for a company that can't afford to pay may not be a good idea, even when work is slow.
Gil Silberman
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