Chronicle Journal: Finance

Punitive liquidation preferences return to VC — don’t do it

Boards of directors considering these types of financings need to understand that they are creating misalignments and raising serious fiduciary duty issues.
Pascal Levensohn Contributor Pascal Levensohn is a San Francisco-based venture capitalist with over 22 years of VC experience through Levensohn Venture Partners and Dolby Family Ventures. He is a former director of the National Venture Capital Association.

As silently and swiftly as it has devastated families and communities around the world, COVID-19 has also left many startups gasping for air. Emerging companies with strong 2020 revenue forecasts have seen their high-confidence plans reduced by 60%-80% in a matter of days. Even in the best of times, startups must reach value-unlocking milestones to successfully raise new capital. But today, a globally synchronized halt to business activity has made irrelevant normal benchmarks for financing rounds.

Obtaining payroll support from the recently enacted special government programs for small businesses will not resolve the cascading problems startups are grappling with, regardless of whether or not they are VC-backed.

Product development roadmaps in many innovation-driven industries are changing in ways that may permanently alter a company’s future strategic direction. Merger and acquisition discussions are being shelved. Normal financing rounds, in process and contemplated, are contracting or being abandoned altogether. Many venture funds, including corporate venture programs, have unilaterally “taken a pause” to reevaluate the radically changing landscape for their early-stage company portfolios.

I last experienced this phenomenon in the aftermath of the Great Technology Bubble: 2002-2003. And all signs show that we are at the beginning of a new round of punitive “incentives” for venture investors to keep their companies alive.

Several of my current portfolio companies have recently proposed “emergency bridge” convertible note financings of between $5 million and $15 million, each featuring a painful feature for non-participants: multiple liquidation preferences benefiting only the new money above 3x, with discounts greater than 20% on conversion in a new equity financing. Of course, these financings are open to both existing and new investors. But the likelihood of another round is actually diminished by this type of structure.

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