Comp expert calls WeWork CEO's compensation plan 'unsettling'

WeWork restructured twice in 2019, and each time it changed a big portion of its compensation plan for its cofounder Adam Neumann.

Neumann single-handedly controls the company. As such, WeWork's S-1 filing says the company doesn't conform to typical good governance practices, such as having independent board members craft executive compensation plans.

A compensation expert says the cancellation of his stock-option plan, replaced by something called “profits interests,” is a source of concern and indication of “self-dealing” by the CEO.

The company flat out warns investors that if they don't like the way Neumann is paying himself or running the company, there will be little they can do about it.

Coworking giant WeWork, now doing business as We, plans to become a publicly traded company.

One of the most bizarre parts, of many bizarre things in We's S-1 form, is the compensation disclosure for WeWork founder and CEO Adam Neumann.

“It certainly raises concerns. It is one of many aspects of this S-1 that raises concerns,” Rosanna Landis Weaver, a corporate-governance and compensation expert from the nonprofit shareholder-advocacy group As You Sow, said. She called all the disclosures about We's loans, payments, and compensation to Neumann “unsettling.”

We's S-1 filing says Neumann has “an irrevocable proxy to vote” nearly all of super-voting rights shares in the company, which carry 20 votes per share. (Most super-voting shares at tech companies carry 10 votes per share.)

He also controls the voting rights over shares he doesn't even own, such as the super voting rights shares owned by his cofounder Miguel McKelvey.

This means that he will control the vast majority of votes regardless of how many Class A shares the company sells to the public, at one vote per share.

That kind of control means that Neumann can dispense with typical corporate governance standards, the S-1 explains.

He can, for instance, approve any kind of compensation plan for himself that he wants to. The S-1 says (emphasis ours):

“Because Adam will control a majority of our outstanding voting power, we will be a 'controlled company' under the corporate governance rules for listed companies. Therefore, we may elect not to comply with certain corporate governance standards, such as the requirement that our board of directors have a compensation committee and nominating and corporate governance committee composed entirely of independent directors. For at least some period following completion of this offering, we intend to take advantage of these exemptions.”

And one of the things he's done with that power is to grant himself 42.5 million shares of the soon-to-be public company. But even that wasn't straightforward because, no sooner did he get this giant package, he found a way to make it even better.

More to the story

In April, 2019, WeWork created the entity called We and promptly issued to Neumann 42.5 million stock options, each with an undisclosed strike price. We then loaned Neumann $362.1 million in order to buy those shares. It carried an interest rate of 2.89% and he had about 10 years to pay the loan back.

But in June, about two months later, We changed its mind about its corporate structure and reorganized again. This time, it became an “Up-C” corporation, a collection of LLCs. We became a holding company that owned some portion of those LLCs. When We goes public, it will be shares in this holding company that it sells.

So the board, controlled by Neumann, cancelled all of his stock options and replaced them with something called “profits interests.”

Profits interests are typically used as ownership shares in LLCs. Neumann's new profits interests were also grants, not options, meaning Neumann doesn't have to buy them. There's no risk to him if the company's stock price doesn't rise.

And the company tied a bow on it all by allowing him to give back all the options and canceling its $362.1 million loan to him.

We has actually stopped offering all employees options and now just offers them grants. Again, that's nice for the employee since they don't have to pay for the shares or worry about the stock price.

The structure could let Neumann receive cash payouts

Neumann's “profits interest” shares carried the same performance restrictions as the stock options, the S-1 points out.

That is, about one-third of them, nearly 19 million, vest over five years after the IPO, provided Neumann remains at the company. (He'll get half of them over five years even if the IPO never happens). He also gets another 7.1 million over three years if the company hits a market cap of $50 billion, another 7.1 million over three years if it hits $72 billion and another 7.1 million over three years if it his $90 billion.

But, as Landis Weaver points out, such compensation plans are typically non-binding, meaning the board, controlled by Neumann, can change its mind and the conditions of these stock awards.

So if We doesn't hit those valuation numbers, it may find another reason to reward him.

On top of that, the S-1 says that “Holders of vested profits interests may also be entitled to limited catch-up distributions.”

So from time to time, the company may offer these holders cash in some form. In some partnerships, distributions are made only when the partnership sells assets. In other organizations they are more akin to a dividend. (We asked We for more information about it but the company declined comment.)

The S-1 doesn't clarify under what circumstances We would be handing over cash to the people that own these profits shares, which also includes, to a much lessor extent, the company's two other named officers.

But Landis Weaver calls the whole situation an area of concern.

“There are so many indications that this is outside the norm of accepted corporate governance,” she says. “In the context of all of that, how can a shareholder have faith and confidence that any component of this is not self-dealing？”

Meanwhile, We has also warned would-be investors that if they don't like how Neumann is paying himself, or any other aspect of how he's running the company, they won't be able to do anything about it.

“Even if Adam were to sell a significant number of his shares of our voting stock, the voting power of our outstanding capital stock may continue to be significantly concentrated and the ability of others to influence our corporate matters may continue to be significantly limited,” it says.

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