How to negotiate your own Change of Control acceleration terms

A bit over two weeks ago, on Friday September 15, 2023, CEOWorld magazine published an article I wrote on “-Fighting the Double Trigger as free labor vs slavery: How to negotiate your own Change of Control acceleration terms..”

The new article is designed for CEOs and C-level executives, who work hard to bring a successful liquidity event, such as in a merger/acquisition, but also face significant risks with a change in control including getting laid off, reduction in compensation and benefits, changes in reporting structure, restrictions in seeking new employment due to non-compete or non-disclosure agreements. Those risks are often offset by the prospect of equity acceleration or a sale closing bonus. But even here there are still more risks. that can diminish or even prevent your receiving the benefits and your fair share of the success event which may be largely the result of your efforts.

This article discusses those additional hurdles placed before you to achieve benefit from a change of control often called the “Double Trigger.” A single trigger would accelerate your equity or pay you your full bonus on closing the change of control/ success event. The double trigger creates a second condition to your change of control /success benefits, that second condition being some level of additional required services over an extended period of time to the acquirer successor. The down-side of the Double Trigger to the C-level executive includes the following:

• Loss of your leverage to negotiate your own retention bonus and full employment, equity and executive compensation terms with the successor.
• Loss of your ability before and after the sale event to freely pursue and negotiate other career opportunities,
• Loss of your ability to immediately move on — to time your new start date and take up your new position right after the closing
• Loss of your chance to share in the liquidity event at the same time the investors receive their benefits from your efforts
• Potential loss of your entire acceleration or bonus you under the second trigger despite having already earned those benefits with the closing of the change of control

At the end, this article suggests a series of strategies for you to resist the Double Trigger, culminating with an invocation of Lincolnian and early Republican arguments from 19th century US history: Free labor vs Enslaved labor. Hence, this article’s title.

The article quotes this portion from the famous Lincoln -Douglas debates –

It is the eternal struggle between these two principles — right and wrong — throughout the world. They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle. The one is the common right of humanity and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, “You work and toil and earn bread, and I’ll eat it.” No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle. “

Abraham Lincoln, at Alton, Illinois, October 15, 1858 https://teachingamericanhistory.org/document/the-lincoln-douglas-debates-7th-debate-part-ii/

https://www.c-span.org/video/?59826-1/lincoln-douglas-alton-debate — at 1:58:11 in this 2 hour 39 minute video.

With the Double Trigger in place, the C-level executive, on many occasions, works, toils and earns the liquidity / change of control event, and often it is only the investors who “…eat it.” — that is, reap the benefit. It is often the case too, that investors enhance that profit, receiving a premium from the acquirer because Double Trigger sale terms effectively delivers you and your full-time services to the successor delaying and perhaps ultimately depriving you of your share of the success event you already earned. True, it is not slavery, but it is still a form of what Lincoln would have called the “theft of labor”.

To see my full CEOWORLD magazine. article, go to LINK: https://ceoworld.biz/2023/09/16/fighting-the-double-trigger-as-free-labor-vs-slavery-how-to-negotiate-your-own-change-of-control-acceleration-terms/

Or on my website at https://www.executiveemploymentattorney.com/fighting-the-double-trigger-as-free-labor-vs-slavery-how-to-negotiate-your-own-change-of-control-acceleration-terms/

This was my 43rd article published in CEOWORLD since 2016. Previously, the editor advised that I can use “Featured in the CEOWORLD magazine” and the CEOWORLD “Logo” on my website and add CEOWORLD magazine in my LinkedIn profile’s “Experience Section” as an “Opinion Columnist.” and authority in the field.

On its own initiative, CEOWORLD magazine created on their website a library of Robert Adelson published articles. You can peruse this library and/or read as many of my 43 published articles as you wish. See https://ceoworld.biz/author/robert-adelson/

With more than 12.4+ million-page views, CEOWORLD magazine is the world’s leading business magazine written strictly for CEOs, CFOs, CIOs, senior management executives, business leaders, and high net worth individuals worldwide. https://www.linkedin.com/company/ceomagazine/

It is my hope that this article will be of benefit to CEOs, C-level and senior executives who are being hired for or are now working toward an acquisition or exit event, that would result in a change of control sought by investors. The article may offer special benefit if you are expecting acceleration, a bonus or other benefits as result of the success in securing the event and may want to review and potentially challenge Double Trigger terms that can shackle you and potentially cause loss of your share of the benefits you earned on closing of the success event. If you or any colleague of yours has a need in this area, please do reach out to me @ 617–875–8665 or [email protected].

On Thursday September 1, 2022, 2022, CEOWorld magazine published an article I wrote on “Stock Rights That Protect the Value of Your Executive Equity Compensation.”

This new article is designed for CEOs, C-level and senior executives, who have recently received a job offer or expect to receive a job offer and will be negotiating terms of executive compensation which will include executive equity. 

In those negotiations, executive equity is often a very significant and often a major part of the executive compensation and a often a driver to accept a job offer.  This is so because executive equity offers the prospect of greater financial upside value than from your fairly fixed and limited cash compensation.  This special upside potential for executive equity arises from three different factors: (a)  Appreciation – with your service the stock price or value might rise significantly, (b) Liquidity Event – a potential acquisition or an IPO  might also significantly increase value, (c) Favorable Taxation – with appropriate structuring, appreciated equity on cash out may be taxed at a much lower rate than cash compensation for much greater take home pay. 

Thus, given the high importance of equity in the CEO’s or C-level executive’s compensation package the focus of my article then moves to discuss these five (5) critical areas of stock rights and terms you want to be sure to give proper attention in your negotiations to give you the best chance to achieve the potential value from the equity you are granted: 

• Meaningful Level of Equity – to be sure that sufficient equity is granted so that if success is achieved, it will be impactful for you,
• Tax Favorable Structure – negotiation over the form of your equity at the outset is quite important because in tax law – “form is substance” – different forms produce very different tax results and you want tax-favored equity if possible,
• Severance Protection – if midway through the buildup you are forced out, you want your severance buy-out to embrace your equity as well as less important cash components of your comp package,
• True Up Adjustment – especially if you are brought in to secure a financing raise, you don’t want to be a victim of your own success and seeking a level anti-dilution protection is a fair ask,
• Cash-out protections – if after a number of years, no liquidity event is on the horizon, it is helpful to have a put option with the company to assure at some point you can tap into the value you achieved.

To see my full CEOWORLD magazine. article, go to LINK: https://ceoworld.biz/2022/09/01/stock-rights-that-protect-the-value-of-your-executive-equity-compensation/

Or on my website at https://www.executiveemploymentattorney.com/stock-rights-that-protect-the-value-of-your-executive-equity-compensation/

This was my 38th article published in CEOWORLD since 2016.  Previously, the editor advised that I can use “Featured in the CEOWORLD magazine” and the CEOWORLD “Logo” on my website and add CEOWORLD magazine in my LinkedIn profile’s “Experience Section” as an “Opinion Columnist.” and authority in the field.  

On its own initiative, CEOWORLD magazine created on their website a library of Robert Adelson published articles.   You can peruse this library and/or read as many of my 38 published articles as you wish.  See https://ceoworld.biz/author/robert-adelson/
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With more than 12.4+ million-page views, CEOWORLD magazine is the world’s leading business magazine written strictly for CEOs, CFOs, CIOs, senior management executives, business leaders, and high net worth individuals worldwide. https://www.linkedin.com/company/ceomagazine/