Afternoon Fact Finder,
Don't suppose you have heard back from Tony Dawe regarding Emmanuel Hernandez & the non disclosure of his options in the last Appendix 3Z.
Regards ,
Esq.
Hi Esq
Yes I have received an answer but only this afternoon and my wife was using the PC so had to wait which is not a bad thing as there is some additional information which I need to add not perhaps for you but for others.
I know that the vast majority of retail believe that Directors and Key Management get these things called free options. Well the options are free except when it comes to the question of what the Internal Revenue Service (IRS) believes free means in the USA where Manny is resident and is subject to US taxation law.
Making it as simple as I possibly can this is the situation as I understand it and I am not a tax lawyer in Australia let alone the US:
1. The Director, Key Management person or an employee receives options as part of his or her employment package. These options are given a strike price in Manny's case it was 12.5 cents. This does not trigger a tax event as far as the IRS is concerned.
2. At some point those options will vest and they will have a right to exercise the vested options and buy them for the exercise price. The vesting does not give rise to a tax event as far as the IRS is concerned.
3. When the Director, Key Management person or employee does exercise the options that have vested this however does given rise to a tax event as far as the IRS is concerned and tax becomes payable at their normal tax rate on the difference between the exercise price and the price of the share on market on that day. This means on the date of 1 March, 22 when Manny resigned if he exercised his 8 million vested options he would have been liable to pay tax at his ordinary rate on the difference between AU12.5 cents and the price on that day which if I have got it right was $AU1.21 so he would have been liable to pay tax on $AU8,680,000. I believe the tax rate would have been 37% so Manny would have had to pay $AU3,211,600 in tax. Ideally you would borrow the funds to exercise the options being $1million and the $3,211,600 to cover the tax in Manny's case and take this opportunity and then pay out the borrowings by selling sufficient of your shares to cover this debt and hold onto the remaining shares or sell them which ever took your fancy at the time.
On the 1 March, 2022 we were in a falling market thanks to Puto and crew and so it is my opinion that Manny took the sensible option available to him under the terms of his agreement with Brainchip and elected to not exercise the options and allow them to lapse. At that point no one knew where the share price was going to end up and it could have been that the bottom would have have required virtually all the shares to be sold to cover the $4,211,600 borrowed and the interest. Into this equation Manny being in the US and selling on the ASX would have exchange rate issues to consider in these uncertain times which adds another dimension to his financial risk. So no golden handshake for Manny.
see -
https://www.investopedia.com/terms/e/eso.asp
So here is Tony Dawe's reply and my further question and his final reply.
My opinion only DYOR
FF
AKIDA BALLISTA
Hi Fact Finder
Apologies for the delay in responding. I hope you and your loved ones are “high and dry” and haven’t been too badly affected by the flooding across NSW.
I’m up to my ears in engagement meetings with institutional analysts and potential investors. The days are too short. The level of interest in BRN hasn’t waned. If anything, its increasing.
In regards to Mr Hernandez’ retirement, the Appendix 3Z announcement “Final Director’s Interest Notice” confirms that upon his retirement from the position of Chairman all of his options lapsed.
Regards
Tony Dawe
Manager, Investor Relations
Brainchip Holdings Ltd. (ASX: BRN, OTCQX: BRHPY)
Level 29, 221 St. George’s Terrace
Perth, 6000, Western Australia
Hi Tony
Yes we are what might be described as high and dry. The amount of rain though has not been overstated despite our good fortune. It is fine here today but apparently back to rain tomorrow for another week.
Great to hear about the interest continuing.
I do not understand the fact that they lapsed as the annual report just released said the 8 million options had vested and had an exercise date out in 2024 with an exercise price of 12.5 cents so they were certainly well and truly in the money.
Did he have a clause in his contract that required he surrender the options even where they were vested if he resigned?
Regards
Fact Finder
In short, yes.