Why Liquidation Preferences Can Make Your Startup Worse

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Contract clauses and financial models illustrating how proceeds are distributed among different shareholders at exit are frequently referred to as waterfalls. They can be very complicated.

It seems that the VC funding market cooled off a little after reaching a peak in 2015. In colder markets, investors have a stronger tendency to get creative on terms, especially if not much competitive pressure is felt around a deal. One of the the things investors like getting creative about is liquidation preferences. In this post I will outline why I think you should try to push back hard on complicated and aggressive liquidation preferences during your financing round.

A lot has been written about liquidation preferences and you can check out this post by Brad Feld for a good intro. In short, the liquidation preference language describes how the proceeds are distributed between shareholders at exit. It describes what the holders of individual preferred share classes are entitled to receive before the rest gets served.

It typically has two components, (1) a minimum multiple or interest relating to the original investment amount and (2) a participation or lack thereof which describes whether the preference represents a minimum return threshold after which everyone gets served pro-rata or whether it comes ‘on top’.

A simple (1x) non-participating liquidation preference ensures that, at an exit event, investors get the money they invested into a company returned to them first, before proceeds are distributed to everyone else according to ownership %-tages. I do believe that a simple 1x non-participating liquidation preference is absolutely the right thing in early stage VC deals. Fred Wilson outlines nicely why in this post. Anything beyond that for the investors, however, is tricky, not always fair and full with potential for unintended consequences.

We believe, and our experience and industry statistics prove it, that in early stage venture investments money is not made with contracts. You typically either make a lot with an investment, lose all or most of it, or make very little. In a bigger picture, even if liquidation preferences at exit come into effect in a way that benefits the investor, this does not increase his or her overall returns materially.

Yet, many investors will ask for liquidation preferences, because, in theory, a liquidation preference sounds great. After all, it reads like a guarantee to lock in returns. An investor might think: let's ask for a participating liquidation preference and I’ll make quite some return even if the valuation does not increase. Or, even better, let’s ask for a participating liquidation preference with an interest. How about 8% per year? After all, this is my hurdle rate (minimum fund return below which no profit participation is paid to fund managers), so I need to make at least that much in every deal.

Sometimes entrepreneurs may be happy to agree to a participating, growing or multiple liquidation preferences, typically in exchange for a higher headline valuation. Here are five reasons why I think that such structures are a bad thing, especially in early stage VC deals (Seed, A, B):

  • By design, every liquidation preference skews the distribution of exit proceeds away from ownership %-tages. I think this works OK in case of 1x non-participating liquidation preferences, which are irrelevant if the exit price is above the entry price of a negotiated funding round. Multiple and / or participating liquidation preferences can skew distributions much more heavily, even at higher outcomes. This leads to sometimes very different financial incentives for investors vs founders or ESOP holders and in consequence is likely to result in conflicts. An example could be a discussion around a  proposed sale of a company at a price that will allow investors to make a nice return, but due to the liquidation preference structure not much would be left on the table for common shareholders. Since we believe that the VC game is all about aligning interests, everything that misaligns them should be avoided.
  • Early deal structures frequently create a precedent for later stage financings. Later stage investors often ask for (at least) the terms that the early investors got...and add some things on top. So if you create a multiple / growing liquidation preference as part of your early financing you can expect that all future money will come-in at these terms, or worse. Thus, if considered long term, aggressive terms are not only disadvantageous to the founders, but can also be disadvantageous to the very early stage investors that ask for them in the first place.
  • The terms around a liquidation preference are frequently a heavily negotiated topic. Entrepreneurs may struggle with understanding the idea when confronted with it for the first time. It just makes negotiations and contracts longer, more complicated and more emotional.
  • Modelling liquidation preference waterfalls :-) in the contracts and later in Excel can become extremely complex, time consuming and very prone to misunderstandings.
  • If too much money goes into a company with aggressive liquidation preferences attached to them, it can become very demotivating to the founders and team members owning stock, thus hurting the company overall or triggering a discussion around increasing or restructuring the ESOP, e.g. through carving it out from the liquidation preference stack (have fun modeling that!).

The above are just some of the issues that come to mind when you think about the impact of aggressive liquidation preferences. In the past we made a few investments where we got participating liquidation preferences ourselves, but because of all these issues we stopped asking for them a few years ago.

If you ended up with an aggressive liquidation preference stack at your company, you might still be able to negotiate it away in your next financing round, if your position is strong enough. Or if you cannot get rid of it, you might manage to introduce a cap or minimum return threshold after which it disappears. We have seen and supported such restructurings in the past - they can sometimes be achieved, frequently to the benefit of everyone involved.

I would recommend to any venture funded entrepreneur to try to keep the liquidation preference stack as simple (ideally 1x non-participating) as long as possible. Even if it should be at the cost of a lower valuation. It will pay off in the long term.

If you are not sure you understood the concept of a liquidation preference well enough you might wanna check out the cheatsheet below prepared by Clement. He reviewed a version of this post and thought a cheatsheet will do a better job at explaining the basic concept of the liquidation preference than my text :-) Thanks Clement, and Christoph, for reviewing this post.

Fundraising Advice from a Train Conductor


I recently met an entrepreneur for dinner. He is currently working on his fourth company and thus has a lot of experience in various areas of entrepreneurship and (business) life in general. Among many things, we discussed fundraising for startups. He mentioned to me a metaphor that I would now like to share with you.

He said: startup fundraising is similar to the job of an imaginary train conductor stopping his train by a train station and having the task to depart without delay, but also to take a required minimum number of passengers with him. The hard part is that he cannot depart without passengers who, as is often the case, might be running late or stand on the wrong platform.

Now, imagine a train station where there are a few guys (potential passengers) hanging around and smoking cigarettes. These guys are VCs. They want to get on a train, but are unsure which one brings them toward their destination (a good exit). In fact, they do not care so much about the type of the train or where it comes from as long as they know that the destination is reachable on time. The conductor’s task is to make them want to get on his train quickly, so that he can depart on time.

The job is challenging, because even if the guys smoking cigarettes like your train, they will rarely jump on it quickly, if they believe it will not depart without them or is not departing immediately. They will hang around and smoke a few more cigarettes…until the train starts moving.

So if the conductor wants them to take his train, he has to convince them that the train is about to depart or is already slowly moving. The problem is that you cannot start moving if you don’t know how many, if any, passengers will jump on it. The train cannot depart empty.

The way to solve this paradox is to maximise the number of folks at the train station with whom the conductor chats about the upcoming journey. In that way he can quickly figure out who is convinced that the train will most likely take him to his destination and is therefore most likely to take it. Once that’s done, and some of them start making first steps toward the train, the conductor needs to quickly blow his whistle and shout (very loudly!) that the train is about to leave the station or even slowly start moving the train (this is known as "we are now closing the round"). In most circumstances, those that started walking towards the train will start running, and those still pondering upon their decision will swiftly throw away their cigarettes and try to jump on the train as well (this is known as fomo :-)).

I liked the metaphor. Maybe it will be helpful to you too, fellow train conductors! :-)

Tech M&A update, process and due diligence list

Last week I attended a session on M&A in tech organised by Corum and Greenberg Traurig in Berlin. I never worked with any of the firms, but thought the way they approached the topic was interesting and decided to attend. I think it was a good session - many thanks for the invite!

I do think that M&A can be a viable tool for startups. At the same time, M&A is very tricky, the way the market works is intransparent and the process is a big puzzle, especially for those with little experience. That is why I think that all good education materials about it are helpful to the early stage tech ecosystem.

Below I attach the slides that the Corum folks used during the session. It is long, some 100 pages, but there is a lot of good stuff in it. The presentation starts with some marketing stuff, but the market update starting at slide 26 is interesting. And then, at slide 61, starts the section on the M&A process. Some of the material might not be self explanatory without the story telling, but I think it is still a pretty good read.

I also attach a template for a due dilligence data request list. I have seen such things used in practice and it is not unusual for them to be very long and detailed. If you want to get a flavor of what awaits you when you go into M&A, have a look at it too.

The most interesting stat of the presentation for me can be found on page 28 - average age of an acquired company: 14-15 years. While being aware of how this stat can be distorted, it is still a good indication that building companies is a long term play!

I asked the Corum guys whether the material can be shared, and they agreed.

What Point Nine Invests In

The start of a new year encourages us to look back at what happened and think about what is coming. Having come across this post by Fred Wilson of USV I thought a similar analysis of the development of Point Nine’s portfolio could be an interesting exercise to provide some long term perspective and maybe deliver some interesting insights.

A big part of our investment thesis at Point Nine is to invest in SaaS and marketplaces startups. The chart below illustrates this showing the development of our portfolio, now across three funds, since 2010. It shows, for every year, the number of active companies in our portfolio, split in three categories: SaaS, marketplaces and other. Admittedly, in some cases it was hard to clearly categorise the companies. I tried nevertheless and the result is that currently we have investments in just over 60 companies in our three funds, roughly half of them are SaaS companies, ca. ⅓ are marketplaces and some 15% are outside of the two main categories.

What is harder to read on the above chart is how the dynamics looks like on a year-by-year basis. The next chart (below) does a better job at showing this. What it shows is, among other things, that in the last years we have been consistently making 10 or a few more investments per year and that 2015 was our most active year ever, with 17 new investments (I also included 2 that have not entirely closed yet, so that they will be moved to 2016, if we repeat the analysis in the future).
Interestingly, this growth in the number of new investments in 2015 has primarily been driven by a higher number of new marketplace investments than in the previous years and it did feel like last year we spent more time thinking about marketplaces than previously. The fact that we organized our first marketplaces meetup last year also illustrates this well.

Interesting is also what these charts do not show. Firstly, the category ‘other’ is not really revealing, so I will explain it in a bit more detail. Mainly, it accounts for categories such as Adtech, E-commerce and Mobile Consumer. We do have interest in these categories, and have made investments in them in the past, but they have not been at the core of our activities. There are excellent companies and entrepreneurs operating in these areas, yet we simply chose to put our systematic efforts into SaaS and marketplaces and treat the other business verticals more opportunistically.

Furthermore, what the charts do not show at all is the split of our investments across industries. We are explicitly very focused on SaaS and marketplaces as very powerful Internet-based business models and we generally do not prioritize specific industries. We believe in the power of these two business models to transform many sectors of the global economy and look for opportunities across them.

I believe that our focus on SaaS and marketplaces going forward will remain similar to what it has been in the past and I do not expect major changes to this trend. However, recently our efforts have been focused in some areas more than in others. Developer tools, education, financial technology (incl. bitcoin) and health definitely are among the key industries and themes for us right now. It probably is already visible in the numbers - but this is something for another blog post. Yet, although not yet explicit, I expect our industry focus to strengthen in 2016 and it will be interesting to see whether we really go that route and which sectors will turn out most interesting to us.

Many thanks to Savina for helping me prepare the figures for the charts and to the Point Nine team for feedback.

Friendly And Not So Friendly VCs

A while ago Christoph wrote a post titled Good VCs, Bad VCs which illustrates how we perceive our job as VCs and what we aspire to act like. After a discussion we had around this a few weeks ago I tweeted out the following question: “What actions by VCs do you consider most 'founder friendly' or most 'founder hostile'?’”. Quite a few folks replied (many thanks!) and the results are very interesting. You can review them here (twitter) and here (facebook) and below you can find a summary of what was most frequently mentioned in both camps.

Top unfriendly VC moves

Pre-investment behaviour / terms

1. Lack of transparency in the decision making process

2. “Going dark”, i.e. no response

3. Multiple and/or participating liquidation preferences

After investment

1. Ousting founders

2. Forcing founders to do things/deals they would not want to do

3. Not picking up pro-rata (bad signaling)

Top friendly VC moves

1. Being fast, responsive and transparent, on all fronts, pre and post investment

2. Helping founders grow

3. Offering pro-rata/money in difficult situations

While nothing on the list was totally unexpected, I was surprised by the frequency with which the quality, transparency and speed of the fundraising process and communication with VCs got mentioned versus other aspects of the founder-VC relationship. This tells quite a bit about how founders perceive the responsiveness and quality of VCs in general and also points to the area where VCs can improve the most. It also indicates what being ‘founder friendly’ really means - and it is not necessarily paying crazy prices or being extremely light on terms, but goes more into the direction of being a reliable, transparent and quick partner.

If you want to help us understand the fundraising process from the point of view of an entrepreneur a bit better and hopefully become a better VC as a result, please consider answering a few questions about this in a survey on fundraising that Christoph is currently running.

Top Blog Posts On Why VCs Do Not Sign NDAs

Every now and then an entrepreneur will ask us for an NDA. We do not like signing them and we very rarely do (and never in the beginning of a discussion). We have signed a few in the past and it always had only one effect: it slowed down the discussion between us and the startup. 

Below you will find a very quick summary of why I do not think NDAs between startups and VCs are a good idea. Instead of going into the details of each of the points, I will post a list of good blog posts around these topics, since so much has been written about NDAs already. I will aim to expand this list and add new interesting posts as I come across them. Then, I will just send a link to this post to the next startup founder asking for an NDA.

Why NDAs are not a good idea (summary):

  • impossible to manage for the VC
  • slow down the discussion between startup and VC
  • signal lack of trust in the beginning of a relationship
  • in practice do not provide protection anyway
  • execution of an idea and the team around it is so much more important and defensible than the idea itself

Selected blog posts on the topic of NDAs:

Please let me know if you have any comments or additions to the above lists.

Raise Your Seed And Series A In Berlin

I strongly believe that Berlin is a great startup hub for European tech founders. This has been true for some time, even though relatively little VC / startup capital has been available from sources based in the city, especially compared to other startup hubs out there. London, for example, has an order of magnitude more capital available that sits on the ground (like 10x more?), but the number of startups that get created and funded in London is not that much higher than the number of startups in Berlin. For example, according to CBInsights, there were 150 funding rounds at London based startups in 2014, vs. 91 in Berlin.

Berlin has become a startup hub despite not having a startup financing infrastructure in place. People have been coming to Berlin for many reasons, but startup funding availability has not been one of them. Founders wanted to build their companies in Berlin, but largely relied on funding from sources outside of it. 

Times are changing and capital is following the talent, so that there are more and more local financing sources available on the ground in Berlin. I would argue that you can now raise a good Seed (a few hundred thousand to million-ish) or a smaller Series A round (up to 2-3 million) entirely in Berlin and this from people who really know what they are doing and can be helpful.

This is important for Berlin as a hub, because I think this will give an additional boost to the scene, as founders from all around Europe, especially from the east and south of it, will be able to add 'financing' to the list of reasons to come to Berlin.

Here is a quick list of Berlin-based folks to talk to re startup financing on your next fundraising trip to Berlin. I think all of them have at least one person in Berlin on a (nearly) full-time basis. I am sorry if I forgot someone.

On top of that, as has been the case over last years, VCs from other parts of Germany and Europe continue to visit Berlin frequently. It feels like every significant European VC (incl. the three biggest European VC brands, i.e. Accel, Index and Balderton) has at least one investment in Berlin and is coming by on a regular basis. Also, as exits are slowly but surely happening in Berlin, the number of business angels actively investing is continually increasing. I crowdsourced this list of Seed investors interested to invest in Berlin some time ago and whereas it is not entirely up to date, you might still find it interesting.

On the Series B side of things and later (aka growth financing) you will still have to travel to London or other places, but the good news is that later stage capital tends to be more mobile and international than early stage capital and it will travel to the other end of the world (literally) to meet with a good company. The fact that US investors are quite active in European late stage financings, but much less so in Seed and A, illustrates this point well.

I am not trying to say that early stage fundraising in Berlin is a walk in a park and everyone will be successful - this is nowhere the case and raising money is hard in general. Nor do I mean that there is enough capital available - there are not very many 'classic' VC funds on the ground that can write multi-million Euro checks (Point Nine does up to 1m in the first step). But it is increasingly possible to fundraise in Berlin, especially for Seed and A, without having to fly to London, other European cities or the US. I am sure this trend will persist and the financing landscape in Berlin will continue improving. 

I look forward to having coffee with you on your next fundraising trip to Berlin!

On Raising More Money Than You Need For Your Startup

Conventional wisdom suggests that companies should try to raise as much as they can as soon as they can in bull markets like the one we are witnessing now. The theory goes that a good market has to end, maybe very soon, which will worsen fundraising conditions for a bunch of years to come.

This seems a logical thing to do and we find ourselves giving this advice to companies too. Even if you do not need it yet, go out and get it now - it has not been so "easy" for a while and it might end as soon as next year.

The flip side of this is the following: if companies raise more than they need, they will start burning more than they would otherwise do. And if everyone follows this advice we will end up with an overfunded and "over-burning" startup landscape that is even more dependent on future financings to sustain the burn-rates and thus very vulnerable to market hiccups.

So I had this thought that this type of behaviour (raising because you can) might be what ultimately leads to trouble and that it is not smart advice after all. The smart advice seems to be: try to secure the money you need, or a bit more, but not much more, just because you can.

If You Have Nothing Good To Say (Say Nothing?)

The tech and VC scene is not a big industry. It is, however, a very gossipy one and people talk a lot about what others are up to. Folks try to reference one another all the time, be it by talking to people who had worked or done business with a potential new employee, business partner or an investor.

I am generally positive towards other people in the field and we really like working with others, share deals and the like. And if you do not work together you may compete, lose or win, and that is OK. But sometimes people do things that I feel should not be happening, that are wrong and unfair. Be it investors leveraging their position in an extremely aggressive way or folks being totally unreliable or lying outright. These situations bother me when I witness them, even though I am fully aware that fairness is in the eye of the beholder and every story has two sides.

Here is where it gets challenging. Sometimes I am still not sure what the right level of disclosure is when it comes down to sharing these bad experiences with others. On the one hand, I strongly dislike and feel uncomfortable when I have to report bad stuff about others. Being positive is much better. But on the other hand, I do not want to lie or hide facts when being asked about my previous experience in dealing with someone, especially if it was very negative. I also feel obliged to warn people I trust and value about wrongful behaviour of others.

I would be curious to find out how you handle these situations, so feel encouraged to share your views and practices.