Demystifying Advisory Shares: A Comprehensive Guide (US Law)

Article research by  Shreyas Nair from WinSavvy’s legal research team. Here’s his LinkedIn bio for more information on him.

What are Advisory Shares

Advisory shares are a sort of stock option that are granted to business consultants rather than workers. They might be given to start-up company advisers instead of cash. Advisors are typically offered options to purchase shares rather than real shares.

Advisory shares can aid in maintaining confidentiality while avoiding conflicts of interest. They may, however, be pricey for a fledgling firm.

Advisory shares, also known as advisor shares, are financial incentives that take the form of stock options. Advisors who are granted advisory shares are often entrepreneurs who have previously served as firm founders or top executives. They trade their knowledge and contacts for shares in a new firm.

These consultants are not the same as accountants or attorneys. Advisors who get advisory shares are unlikely to be expected to provide technical advice on taxes or contracts. Rather, they will be expected to provide strategic insights and access to contact networks.

Who Issues Advisory Shares

The majority of businesses that issue advisory shares are startups or fast-growth small businesses, presumably in the angel stage or a little past that. When the issuer is an active, developing business, it may be at the later seed capital stage or even later.

The amount of equity allocated to advisers might vary greatly. The competence and function of an adviser can influence whether or not they obtain advisory shares. It might also be determined by how long the adviser and corporation anticipate working together.

Advisors might get up to 5% of the company’s total stock.

Individual advisers may get between 0.25 and 1 percent of the company’s stock. The precise number may be determined by how much the adviser contributes to the company’s growth. For example, an adviser who provides insight during monthly meetings would be paid 0.25 percent.

An adviser who refers a prospect who becomes a significant client might earn 1% for this more tangible contribution. The lesser the percentage of equity, advisers may anticipate to get, the more mature the firm.

For example, a startup that distributes 0.25 percent of its shares to advisers attending monthly meetings, might reduce it to 0.15 percent when it is in its growth stage.

Types of Advisor Equity

When it comes to providing equity to advisers, there are two possibilities: issuing shares or granting options. The primary distinction between shares and options is that when someone owns shares, they become an instant stakeholder in the firm. Option holders have the right to acquire shares in the future.

Issue of Advisory Shares

Granting of shares is a simple method to reward an adviser. In most circumstances, advisers choose to receive shares rather than options under the company’s option system. The firm will need to pass board and shareholder resolutions, as well as get relevant waivers and consents under the Articles of Organization and shareholders’ agreement in place, as with any share issuance.

As a result, a firm that intends to offer shares to advisers in the future normally carves this out in its Articles of Organization and shareholders’ agreement in the same manner as an ESOP would.

Granting Options in exchange of Advisory Shares

Options are another way to reward an advisor, and they may be easily awarded if a pool of options (such as an ESOP) has previously been established. However, consultants are frequently brought on board before the ESOP is fully established.

If options are granted to an advisor, and the advisor wishes to exercise their options and convert them into shares, they must pay the ‘exercise price,’ which may be close to the price paid by investors in the previous fundraising round. This implies they’ll have to come up with money to exercise their options.

Who Gets Advisory Shares?

Advisors are compensated with advisory shares from start-up companies. The quantity of equity will vary greatly depending on the circumstances. In general, the advisory board earns around 5% of a company’s total stock, whereas individual advisers receive between 0.25 and 1%. The background and amount of engagement of the adviser will also decide whether or not the individual receives shares.

However, the final amount received by an advisor is determined by how much they are anticipated to give. Younger, riskier start-ups may need to boost their percentages, whilst more experienced start-ups can require lower percentages.

Difference between Regular Shares and Advisory Shares

The major distinction between regular shares and advisory shares is that regular shares are common stock units issued to business owners who contribute capital to the business. Advisory shares, on the other hand, are stock options granted to specialists in return for critical business insights.

Non-qualified stock options, or NSOs, are different from employee incentive stock options, or ISOs.

Process of Acquisition of these shares

The general public obtains regular shares by using a stockbroker – a middleman who buys and sells shares on the stock exchange for a charge.

People have historically worked with human stockbrokers to acquire shares; however online brokers have grown increasingly popular due to the ease of being able to buy instantly upon making an order and at any time.

Advisory shares, on the other hand, cannot be purchased through a stockbroker. They are especially offered to individuals directly by the LLC or corporation in exchange for the knowledge that they bring to a corporation.

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Eligible Individuals who can acquire these shares

Most nations, including the United States, allow people to purchase and sell stocks after they reach the age of 18. Younger people may also conduct stock transactions if they utilise a custodial account established on their behalf by their parents or guardians.

The most usual receivers of advising shares are seasoned executives, senior partners, and important people who have previously ran successful firms, as their prior expertise, practical ideas, and network of contacts may be extremely beneficial to emerging organisations. Their advice is often offered willingly.

It should be noted that not all business consultants are offered advisory shares. These include employees who are already compensated by the corporation for their services, such as accountants, analysts, and attorneys.

Stakeholder Rights

When a person becomes a shareholder of a firm by purchasing normal shares, they get a set of rights. Stakeholders, as collective owners of the firm, may request further information about the company and its performance.

Any big corporate actions, such as purchases and mergers, require their approval through voting. The stakeholders are also required to elect the board of directors, which is principally responsible for debating and enforcing shareholder rights.

A corporation that has advisory shares in its advisers and specialists may also form its own advisory board. It is assumed that advising shareholders have the same rights as normal shareholders, with the additional duty of offering professional advice to the corporation.

Side Note – Often businesses with poor communication lose out on taking action on outside advice. Read this post on how to correct it.

ISOs vs. NSOs – The Difference between Advisory Shares and Employee Incentive Shares

ISOs are employee stock options, whereas NSOs (non-qualified stock options) reward consultants, partners, advisers, directors, and others. When stockholders exercise their stock options, the Internal Revenue Service (IRS) taxes NSOs as normal income. ISOs are not subject to taxation at the time of exercise.

Employees are typically given incentive stock options, which allow them to purchase shares at a discounted price. Employees holding ISOs are typically deemed more tax-advantaged than NSOs since they do not have to pay taxes immediately upon exercising their options.

Only when you sell your shares do you have to pay taxes. If the shares are held for a set amount of time (at least one year after exercising and two years after your options were granted), they will qualify as capital gains rather than ordinary income and will be taxed at a significantly reduced capital gains rate.

Non-qualified stock options may be granted to consultants, company partners, directors, or anyone who are not employed by the firm.

NSOs vary from ISOs in that you must pay taxes on the spread (the difference between the grant and exercise price) at your ordinary-income tax rate whether you keep or sell your stock options. Furthermore, the income is subject to payroll taxes, such as Social Security and Medicare. NSOs, on the other hand, have their taxes withheld at the time of exercise.

Exercising a stock option entail acquiring the company’s available shares at the price specified in the option (grant price), regardless of the stock’s value at the time of exercise.

How are Advisory Shares and Regular Shares similar? 

Because they are both stock options, advisory shares and equity shares are comparable in many ways.

As investment vehicles, these stocks can be profitable to shareholders. Depending on the firm and its performance, both advisory and normal stocks have the potential to increase in value over time, resulting in large profits when it comes time to sell them.

They may also pay dividends, providing their shareholders with a constant source of passive income that may rise in value.

Vesting schedules

A vesting schedule is an employer-instituted incentive scheme that grants workers the right to particular asset classes. It is used to encourage employees to stay with the organisation for a longer period of time.

A vesting schedule allows employees to gradually achieve full ownership of employer-provided assets. Employees can also be given earnings, ownership, and stock options. Employees must forfeit their unvested shares if they depart before they are fully vested.

Vesting schedule for advisory shares 

Vesting does not apply to advisers in the same manner that it applies to normal employees. Furthermore, because fledgling firms can undergo rapid change, the advisers required at the seed stage will most likely differ from those required later in the company’s history.

Vesting timelines for common advisory shares are frequently two years with no cliff. As a result, advisory shares vest or are given in monthly increments over a two-year period. The corporation, on the other hand, will not owe an adviser the whole vesting schedule if they cease delivering advisory services in accordance with the advisory agreement.

Side Note – Cliffs in vesting schedules

Cliffs are periods without stock vestments that typically last one year. This vesting schedule is often required for employee stock options and is not included in the vesting schedule for advisory shares.

Pros of Issuing Advisory Shares

  • You get to connect with HNIs with elaborate contacts and have the benefit of motivating your adviser to devote more time to the organization. Shares are a tremendous motivator, but only if your advisers already believe in your concept.
  • You get to keep your financial outflow to a minimum when bringing in outside consultants or external advice.
  • There is the benefit of secrecy. Bringing on share-owning advisers allows you to request non-disclosure agreements from them. Although it may appear to be a small advantage, non-disclosure is essential when your advisers discover your product development and marketing functions. (Related Read: How Trade Secrets are Legally Protected in the US)

Cons of Issuing Advisory Shares 

  • It is important to remember, however, that advisers may work with many startups and businesses. Startups that offer advisory shares may not have the authority to prevent advisers from collaborating with competitors. As a result, it is critical to determine in advance whether advisers have pre-existing agreements that may impair their capacity to provide unbiased advice. This can severely impair startups in the long run.
  • Companies commonly over-compensate advisors with stock options. In a start-up with little assets, management may be willing to give away fractional share amounts. With the company’s expansion, those cuts might become much more visible.
  • Advisors are generally objective, but this may be an issue if they possess stock in your company. Because they now have a stake in the game, their impartiality may be jeopardised.
  • Another concern is that, while giving out fractional shares of your firm may not appear to be a major matter at first, it might present complications later on if your company grows. Remember that stock options include transferring some amount of ownership. As such, your voting rights and control can get severely diluted in the long run.

Wrapping Up this Article on Advisory Shares

Advisor shares can help new startups take the aid of individuals with sufficient contacts and expertise to help them expand – individuals that they can’t hire or pay out of their own finances. Although, these shares are not suitable for all advisers or businesses, they can, however, enable start-up owners to get crucial knowledge and contacts without foregoing limited funds.

If you’re a business owner prepared to trade firm ownership for knowledge and experience, do your homework beforehand. Cheap counsel in the early stages of your business’s planning phases can quickly add up. It’s simple to give away 1% of nothing, but it’s far more difficult to give away 1% of a multimillion-dollar business.

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Adhip Ray
Adhip Ray is the founder of WinSavvy. He has a legal, finance and data analytics background and has provided marketing consultancy to startups for over 5 years. He has been featured at multiple publications in multiple niches including HubSpot, Addicted2Success, Manta, FitSmallBusiness, Databox, IndiaCorpLaw, Bar and Bench and more!

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