Introduction

India has become a booming center for startups, multinational corporations, and businesses. In recent years, there has been a substantial increase in both job opportunities within the country and foreign direct investment.

As a result, new businesses are expected to provide initial compensation to foreign entities and comply with their regulations, taxes, and labor laws. Businesses must determine the worth of common shares to attract talented individuals by offering stock options.

409A valuation method allows private companies to provide tax-free options to their employees. However, the 409A valuation can be complicated and confusing for some people due to its evolution over the years.

Let’s discuss in detail all the things you need to know about 409A valuation.

What is 409A Valuation?

The 409A valuation procedure determines the fair market value of shares and the strike price for stock options and is crucial during important company events like new financing rounds and is typically done by a third-party valuation firm.

Before the implementation of the 409A by the IRS, startups faced difficulties in pricing the stock options they granted. Nowadays, new businesses must assess the value of their company and shares to accurately determine the value of the options given to their employees.

Without a 409A valuation, private businesses cannot rely on publicly available share prices to determine the fair market value of their stock. To accurately determine the value of shares offered to employees, private companies must go through the 409A valuation process.

Carrying out 409A valuations annually or whenever significant company changes occur, such as new financing rounds, is necessary to ensure compliance with IRS regulations and avoid potential fines.

Purpose of a 409A Valuation

A 409A valuation permits Indian entrepreneurs establishing their businesses in the US to comply with US tax regulations and avoid IRS audits, which could lead to legal complications, tax issues, and disruptions in business operations.

Additionally, it can be costly for a startup to hire advisors or lawyers to protect its interests in legal disputes. The employees of the company would be greatly impacted due to their tax responsibilities in such a scenario. It is crucial to consider that an employee stock purchase incentive program should not subject them to IRS penalties or fines.

What is IRS 409A Regulation?

In the United States, there is a law called Section 409A of the Internal Revenue Code that controls the rules for non-qualified deferred compensation. If this law is violated, a 20% excise tax is imposed on the compensation paid by a service recipient to a service provider.

Here, Service recipients can be company employers and independent contractors. Service providers can be executives, general employees, certain independent contractors, board members, or businesses that provide services.

According to 409A, non-qualified deferred compensation must meet specific timing requirements for deferrals and payouts. This rule applies whenever there is a delay in receiving payment for work done, which occurs when an employee has a legally binding claim to be paid in a later year within the same year.

However, some exceptions do not fall under the rules of 409A. Exclusions include pensions, 401(k) plans, and welfare benefits such as vacation, sick leave, disability pay, and death benefits.

When is a 409A Valuation needed for an Indian company?

A company requires a 409A valuation when it is uncertain about the worth of its stock holdings. If you are unsure about the value of an item, you can’t sell it to just anyone. This type of valuation is crucial for determining value when a company plans to assign worth.

As an Indian Company, your shares cannot be sold at an unknown value. Therefore, a 409a valuation is necessary for your business under the following conditions:

1. A US holding company with Indian subsidiaries

A holding company based in the United States with subsidiaries in India has a significant advantage in terms of generating revenue and establishing strong economic ties. The United States benefits from importing inexpensive resources from India, resulting in the establishment of numerous Indian-subsidized industries within its borders.

This has attracted a multitude of financial backers and business firms who are eager to expand their product and service offerings in developed regions like Europe and South America by setting up their organizations in the US.

Starting a business in the United States offers several advantages, including access to angel investors, enhanced international market credibility, and tax benefits. Both Indian and foreign nationals have the opportunity to form a C-Partnership or an LLC, similar to an LLP, in the US.

However, an S-Corporation is a separate legal entity that requires all stockholders to be US citizens. A US corporation or LLC can have an unlimited number of owners, regardless of their nationality.

2. An Indian company with US-citizen employees

Employee stock ownership plans (ESOPs) are recognized globally as a successful way to retain employees. Companies with operations in India or those planning to enter the Indian market should consider cross-border ESOP strategies. Indian businesses can offer ESOPs to international subsidiaries, affiliates, or joint venture employees.

Indian businesses can provide ESOPs (Indian Options) or sweat equity shares to employees and directors of overseas holding companies, joint ventures, or subsidiaries. This must comply with the Indian FDI Policy’s Guidelines.

The Companies Act, 2013, and the FDI Policy’s limits and conditions for foreign direct investment must be adhered to by Indian companies when granting Indian options. A report must be submitted to the central bank within thirty days of issuing the Indian Options.

3. Other conditions for 409A valuation

Suppose the stock was assessed within a year of the important award date and no major changes occurred between the assessment date and the award date. In that case, the 409A valuation is considered reasonable. The IRS must prove that the valuation is grossly unjustified if these conditions are met.

When the nonqualified deferred compensation plan’s time limit ends, events like a change in business management, an emergency, the employee’s disability, death, or separation from the company are all considered Section 409A triggering payment events.

Importance of 409A valuation

Let’s discuss why a 409A valuation is important:

1. Determining the worth of shares

The 409A valuation is different from the post-money valuation, which is based on what investors pay for their stake after fundraising.

The 409A valuation is based on the price of common stock and helps us determine the worth of a share. While the post-money valuation is based on the price of preferred stock. Preferred stock usually has a higher value than regular stock due to its unique characteristics.

2. The fair market value of the business

A 409A valuation is used to determine the fair market value (FMV) of a business’s common stock and is done by valuation firms. It helps determine the strike price for options given to employees, contractors, advisors, and other recipients of common stock.

3. Secure landing level

As a company grows, conducting a 409A valuation becomes more complex and time-consuming. While organizations often use their initial financial analysis to estimate fair market value (FMV), valuations require greater expertise and effort as the company evolves.

Why is a 409A Valuation necessary for incorporating the business in the USA?

The 409A valuation serves as a protection for employees against potential tax issues with the IRS in the future. It also safeguards the startup and its founders by minimizing legal and tax responsibilities.

What are the consequences of not conducting a 409A valuation?

The impact of not conducting a 409A valuation can be substantial on employees’ taxes. The IRS might require you to pay extra taxes if options are given at a price lower than the fair market value.

For instance, if you set the share price at $10, but the IRS determines that they are worth $20, the difference will be considered as taxable income. Early-stage businesses have a one-year safe harbor unless they reach a significant milestone, like a new financing round, which would require a new 409A valuation.

As later-stage businesses prepare for a possible IPO in the next 12 to 18 months, they should consult auditors and legal advisors regarding the frequency of valuations, which may change from annual to semiannual or quarterly assessments.

It is important to note that employees can face significant financial consequences. They are responsible for paying taxes and penalties on the options granted in a specific year, as well as on all previous options granted at the Fair Market Value.

The IRS can impose a penalty on top of these charges, which can accumulate over time. Even if employees do not exercise their options, they still have to pay the associated taxes and penalties in cash.

Additionally, it is crucial to understand that valuations are interconnected. Previous valuations affect new valuations, and the assumptions used must be consistent. If there is an error in one valuation, likely, that the error could also impact previous valuations.

This has consequences for the currently issued options and the potential for future options. If an error is discovered or a valuation is not approved, the valuation process must be revisited and revised. Such errors can have far-reaching effects, particularly in 409A valuation.

What do I need for a 409A valuation?

For 409A Valuation, Your valuation firm will closely collaborate with you to collect additional information about your company and any unique circumstances you may have. The information required for your 409A provider is relatively simple.

You will need to provide the following specific documents and data as follows:

• Your industry.
• The most recent revisions to the articles of incorporation, also known as the corporate charter or certificate of incorporation. If you don’t have them, your outside counsel will.
• The latest cap table. You will also find it from your outside counsel.
• Board show and ongoing pitch deck, if you have recently completed a fundraising campaign. Company history and 3-year profit and loss (P&L), cash balance, and debt projections. Note that predicting future performance accurately is challenging, so these projections may be the best efforts if your company is in its early stages.
• Estimate the number of options you expect to issue in the next year. Adjust for higher-level hires and multiply your hiring plan by the median number of options per employee to get a rough estimate.
• A list of more than five publicly traded businesses that are similar to yours (known as trading comps). If your company doesn’t fit into a specific category, that’s okay. However, ensure that these comps make sense to you as they will be used in subsequent 409As. The list may change if relevant acquisitions or new companies are going public.
• Timing expectations for potential liquidity events such as an IPO or merger and acquisition.
• Noteworthy incidences that have occurred since your previous 409A.

To obtain an accurate 409A valuation, gather these documents and data points and provide them to your 409A valuation firm.

How to calculate a 409A Valuation?

Here’s the three-step process of calculating a 409A valuation:

1. Determining Enterprise value

The first and most important step is to estimate the value of the company, also known as its enterprise value. This process is relatively simple if it’s done right after a fundraising, but it becomes more uncertain after a year or more.

2. Allocating Fair market value

The second step is to allocate the enterprise value among different share classes, including common shares, warrant holders, and preferred shares. The fair market value (FMV) of the common shares is calculated based on this allocation.

During this step, all financial aspects related to each share class, such as liquidation preference, conversion rights, dividends, and interest, are taken into consideration.

3. Finalizing Discount for lack of marketability

The finishing step works on calculated FMV for the common shares and a discount to modify in a way that the company is yet to trade publicly —in other words, none of your employees could go and sell their shares at that price because there is no liquid market for them.

409A Calculation Methodology

Financial professionals, like M&A experts, equity analysts, and VC firms, have different ways to evaluate the worth of a company in a 409A valuation. The most common methods are market, income, and asset-based approaches.

These methods can be used alone or together, and the choice may vary as the business expands. Startups usually use a market-based approach, while established businesses prefer an income-based approach.

Learn more about the 409A Calculation Methodology ahead:

1. Market approach

This is useful for startups with uncertain long-term financial performance. The market approach compares the company to similar publicly traded businesses to calculate the enterprise value. Profitable businesses often use EBITDA multiples, while unprofitable businesses, especially those in their early stages, prefer revenue multiples.

This method is known as the Guideline Public Company method. It is beneficial for easily calculating multiples for publicly traded companies but can be challenging when unique characteristics make finding an accurate comparison group difficult.

This is particularly tough for startups trying to break into new markets or industries. Adjustments are necessary to address differences and make a fair comparison. One way to determine a company’s enterprise value is by looking at recent fundraising activities. The back-solve method, using the valuation from the funding round, is commonly used.

This method is frequently the first encounter with a 409A valuation for many founders, occurring after securing funding and being able to hire employees. The back-solve method is considered the market approach for determining enterprise value.

It involves deriving the business’s implied total equity value based on share classes and their rights and preferences, using the valuation from the funding round as a reference point, rather than relying on public comparables or multiples.

The assumption is that new preferred investors, like venture capital firms, are knowledgeable, and the transaction is conducted at arm’s length, allowing the 409A provider to trust the fundraising round valuation. Both the seller and the buyer act independently and in their own best interests.

2. Income approach

Businesses that use the income approach typically have a large scale, high financial performance visibility, and a clear idea of when they will become profitable. This method assumes that a company’s value is based on future revenue streams. The discounted cash flow (DCF) method is another term for the income approach.

One advantage of this method is that it is influenced by expected company profits. However, a drawback is that it requires accurate long-term forecasts.

The income approach requires the most audit effort due to the complex assumptions involved. Companies may struggle with auditors if they lack a sophisticated financial planning and analysis (FP&A) function.

3. Asset approach

Startups funded by venture capital firms rarely use the asset approach, especially in the early stages before formal financing.

For instance, a life sciences company funded solely through academic grants is a suitable prospect for this method. The asset approach considers all assets and liabilities when calculating a company’s enterprise value based on replacement cost.

The advantage is that forecasting is not necessary since potential growth is not taken into account. However, this can also be a drawback. Moreover, assessing specific assets and liabilities, particularly intangible ones like intellectual property, can be costly, making this method impractical for startups.

In a 409A valuation, the next step involves allocating fair shares of equity classes, considering economic rights such as participation rights, liquidation preferences, and conversion ratios. This step comes after determining the enterprise value.

Why should I consider consulting with a 409A valuation firm?

It’s important to establish the fair market value of your common stock to structure tax-free stock option grants for employees, referred to as safe harbor.

Hiring a qualified valuation provider is the simplest and most common method to ensure compliance with Section 409A. Just like home loan lenders rely on appraisers for property values, you need an unbiased professional for stock valuations.

Remember, hiring an expert doesn’t automatically guarantee safe harbor under 409A. As CEO or founder, it’s your responsibility to ensure the valuation is justifiable and reasonable, as it could be challenged by the IRS or SEC.

How to Hire a 409A Valuation Firm

Ask these four most important questions before hiring a 409A valuation firm:

1. What stage of the process are valuations currently being conducted?

Conducting valuations at earlier stages means they are less complex and focus more on the specific needs of the clients.

When valuing later-stage businesses or those in sectors like life sciences with significant funding events at the early stage, there is usually increased audit scrutiny and attention from the SEC. Firms that have dealt with complex valuation requirements tend to have a wider range of valuable experience.

2. How many of the firm’s clients have gone public through an IPO?

Knowing the number of the firm’s clients that have gone public through an IPO not only gives an idea of the volume of valuations they have performed but also provides insights into the types and complexity of valuations they have undertaken. This includes detailed SEC reviews of 409A valuation histories for startups entering the IPO process.

3. What types of companies have they collaborated with?

Valuation firms collaborate with various types of companies, such as consumer-focused businesses in the Midwest or high-tech ventures in Silicon Valley. These startups may receive funding from friends, family, angels, or venture capital investors.

Depending on the specialization of the valuation firm, they will have expertise in different types of startups across various industries. It is important to choose a valuation firm that has experience in your industry and understands your unique funding circumstances.

4. What is their audit process and how it is connected?

Having auditors with a background in the Big Four or extensive experience in the audit industry is beneficial for the 409A valuation process. Interestingly, auditing the 409A valuation can be more expensive than the initial valuation work for our clients in later stages.

Reviewers often involve valuation specialists to reexamine the examination, essentially reviewing the work done by the 409A valuation provider and delving into specific areas in detail. During the valuation audit, the experience brought in by individuals who have been on the other side is crucial as they can answer questions and identify important areas.

Without proper preparation, the audit process can become time-consuming and burdensome. Your choice of a 409A provider will be influenced by your familiarity with your auditor and their requirements.

How frequently do companies need to get a 409A valuation?

When a company receives its first round of funding or other types of financing, like convertible debt, it usually conducts its initial 409A valuation. It’s recommended to update the 409A valuation after each subsequent fundraising round. Early-stage businesses have a 12-month safe harbor period to grant options based on their 409A valuation.

However, a new valuation is needed if there’s a significant change in value, such as securing new financing. This would be an exception to the annual schedule, for example, if you recently completed a 409A valuation for your startup and then closed a new funding round shortly after. The frequency of valuations becomes more subjective after this point.

Auditors and legal counsel should be part of the decision-making process for later-stage businesses. If there are plans for an exit event like an IPO within the next 12 to 18 months, they might consider switching from an annual to a semi-annual or quarterly cadence. In such cases, valuations often occur quarterly, increasing in frequency.

Myths of 409A Valuation

Companies benefit from keeping the fair market value (FMV) of their common stock low to make stock options more attractive to employees and potential hires. However, focusing solely on the lowest FMV can have negative consequences. Despite the well-established 409A valuation framework, some myths of 409A valuation persist, such as:

1. FMV of common stock is always 20%

One common myth is that the FMV of common stock is always 20% of the most recent preferred round price. While this rule of thumb was once widely used, it is no longer applicable in many cases, especially for early-stage companies.

The FMV of common stock in a private company typically ranges from 10 to 20% of the preferred stock’s FMV. Therefore, relying on outdated advice that suggests a certain percentage of the preferred stock for 409A valuation is inaccurate.

The percentage of preferred metrics is typically misunderstood and not suitable as a benchmark for all businesses. Each company’s FMV must be determined through a proper 409A valuation analysis, as there is no one-size-fits-all approach.

Some valuations may seem low initially but are justified due to financial preferences, while others may appear too high.

2. You can not deviate from the forecast shared with your board for the 409A valuation

Even though it might seem tempting to keep the actual company forecast hidden and give lower projections to keep the common stock value down, the company’s forecast is a crucial piece of information that will be scrutinized. This is one of the initial checks to ensure the analysis is grounded on solid assumptions.

Any disparities between the valuation provider’s forecast and the one utilized for business operations could jeopardize the 409A safe harbor protection, putting your employees at risk.

3. Strive for the lowest strike price at all costs

During a significant liquidation event, making small adjustments to your 409A valuation in terms of strike price will not greatly affect your employees’ earnings. As your company grows, the value of your common stock will increase.

However, it is important to be cautious because engaging in activities that could jeopardize the validity of your 409A safe harbor may result in substantial taxes and penalties for your employees, ultimately reducing their net gains from stock options.

If you find that the fair market value (FMV) evaluation is becoming expensive in terms of attracting recruits, you may consider implementing a stock split to lower the strike price and appear more competitive.

4. The strike price must match the 409A FMV

It is not allowed to set a strike price lower than the calculated FMV of the 409A valuation, but it is possible to set a higher strike price. The regulatory and tax authorities are most concerned when the strike price is set below the supported 409A valuation.

This would result in employees receiving stock options at a discounted rate, which would be taxed by the IRS at the time of grant. It would also suggest to the SEC that the business was artificially inflating its profitability by understating the cost of stock compensation.

However, there are situations where setting the strike price higher than the 409A FMV can be advantageous. This is especially important when the enterprise value of the company has decreased since the most recent 409A valuation.

5. It’s a principle for Deciding the Normal Worth In light of the Improvement Stage

In the early days of the industry, the common value was assigned randomly due to the lack of regulations. However, this method led to the creation of 409A guidelines as it became clear that a thorough analysis is needed to establish a value.

The valuation is influenced by various factors, including company-specific factors. If the amount of capital raised, the terms of a financing event, the equity taken by investors, and the total amount raised significantly impact the valuation. Each startup’s unique path to success also affects its valuation.

Additionally, the company’s performance and the sector it operates in play a role in determining the valuation. It is a common misconception that a company’s common value should be 20% of its preferred value in the stage.

Since this percentage was arbitrarily chosen, the potential inaccuracy of your estimate, conducting a valuation is essential to determine its accuracy.

6. Stocks do not have to be issued at the final price

The IRS aims to prevent companies from issuing profitable shares, based on the 409A valuation. Stocks should be issued at their fair market value to be considered non-taxable income. The 409A valuation conveys a message to employees, impacting their confidence in the company.

It’s important to assess whether a decline in value is temporary or permanent when discussing options repricing. If the 409A valuation is expected to rebound, it may be wise to continue issuing options at the previous price to boost morale and show confidence in the business.

This also affects recruitment, as offering potential upside and an accurate view of the company’s performance is crucial. The 409A valuation is a starting point for option issuance, not a price limit.

Consequences of having an overly-aggressive 409A valuation

1. Impacts employee confidence

In comparison to larger, more established companies, early-stage businesses that are more than two years away from an audit face a lower risk of facing an aggressive 409A valuation.

However, as the company grows and becomes successful, there will come a time when this advantage disappears. The company will then need to undergo a fair valuation, causing the fair market value (FMV) to increase significantly as it moves away from the aggressive 409A valuation.

Unfortunately, this leads to an unintended consequence where one group of employees has options at very low prices while another group has options at much higher prices, even if they recently joined the company.

Despite no significant changes in the business’s fundamental nature, there is a disparity in share prices. It creates a divide within the company between those who have low-priced options and those who have high-priced options.

This can lead to employee dissatisfaction as they compare their compensation with each other, causing tension within the company.

2. Penalties on your employee taxes

Failure to comply with 409A guidelines can result in serious financial consequences for your employees. If the IRS determines that your 409A valuation does not meet safe harbor requirements, all stock given to employees at fair market value will be considered part of their gross income for the year.

This can lead to additional taxes for the current year, previous years, and any interest owed. The IRS also has the authority to impose penalties of up to 20% on vested investment opportunities from past fiscal years.

To avoid these issues and protect your employees, it is crucial to hire a reputable and independent 409A valuation firm.

3. Negative impact during an acquisition or IPO

The buyer will carefully review your 409A valuations as part of M&A due diligence. Poor 409A practices will not help create a positive atmosphere for negotiations and can give the impression of negligence.

If the buyer is not contented with the 409A valuation, they may alter the terms of the deal to avoid financial liabilities associated with incorrect decisions, seek reimbursement for the risk, or require you (or your employees) to pay any penalties and taxes related to the affected stock options.

In the context of an IPO, the SEC will scrutinize stock options granted in the 12 to 18 months leading up to the IPO. If there is a significant difference between the proposed IPO price and the option strike price, the SEC may determine that the options were granted below their actual fair market value.

Consequently, the company may need to make an accounting adjustment due to undervalued stock. This is not favorable information to disclose to potential investors as it could undermine confidence in management. The value you bring to the company and its shareholders is reflected in your 409A valuation.

While it is important to work with your 409A valuation firm to enhance the valuation, it is crucial to avoid using questionable valuation methods and assumptions as they can have serious and unintended consequences, as previously discussed.

Conclusion

Thus, you can understand the importance of the 409A valuation and also consider the methodology to use to determine the company’s 409A valuation. Considering 409A valuation as a component of the company’s progress, you should go from thorough research before finalizing a 409A valuation firm.

At My Valuation, our team of experts with years of experience in various valuations such as business valuation,start-up valuation, ESOP valuation, etc. can help you to guide in 409A valuation. Get in touch with us for comprehensive solutions related to business valuation.