Current Contractual Terms and Market Conditions for Venture Capital

Transcription

1 Dr. Michael Inhester Attorney-at-Law and Partner P+P Pöllath+Partners, Munich Dr. Michael Inhester P+P Pöllath+Partners 11 Current Contractual Terms and Market Conditions for Venture Capital The German venture capital market is undergoing considerable changes due to the continuing effects of the financial crisis. While the statistics on the recorded break in investment volumes since 2009 have shown virtually no signs of a revitalization of the market, paradoxically there is currently a certain spirit of optimism in the Internet sector. A number of trends and structural changes are responsible for this optimism; these are reviving the market and will be discussed in more detail in the following. We will focus on how these developments will affect economically significant contractual terms and conditions in venture capital participation agreements. Implications of the financial crisis The international financial crisis led to a significant break in buyout transactions in the private equity market in The venture capital market was also impacted by the financial crisis in the form of lower fundraising, as well as significant decreases in investments. The total VC investments in Germany in 2009 were reduced by almost half in comparison with the previous year, according to the statistics of the German Private Equity and Venture Capital Association (BVK e.v.) In 2010, a stabilization of the market at approximately the 2009 level was observed, whereas especially the last quarter showed unusually strong investments. This upturn initially seemed to continue in 2011 as, with regard to investment volume, the first quarter significantly exceeded the last quarter of As of the third quarter 2011, however, another reduction in investments followed; the net volume of venture capital investments in Germany in 2011 was slightly less than the already low results of the previous year. Even in the course of FYB 2012

2 Dr. Philipp Diers, LL.M. Attorney-at-Law P+P Pöllath+Partners, Munich Dr. Philipp Diers, LL.M. P+P Pöllath+Partners up to now, no trend reversal can be statistically determined. In the first quarter of 2012, the investment volume obviously fell short of the positive previous quarter and the number of VC-financed companies again decreased. After the apparent upswing at the turn of the year 2010/2011, the current figures reflect a returning instability in the market. Trends and developments in the venture capital market In obvious contrast to these figures, there are numerous announcements and reports on the developing entrepreneurial scene in Germany that is emancipating itself from the American market, particularly in Berlin. A look at the statistics could indeed mislead one to overlook the trends and developments in the German venture capital market that are currently engendering a significant market upturn and positively affecting the situation of capital-seeking startup companies. One should consider that the decrease in investments by institutional venture capital funds could be at least partially compensated by the participation of public or half-public investors (e.g. KfW, the German development banking group, IBB Beteiligungsgesellschaft, High-Tech Gründerfonds, BayernKapital); these companies have participated as co-investors in almost every other new investment by a classic venture capital company. Concurrently, increased activities by the so-called corporate VCs have been ascertained for some time now, i.e. from venture capital companies of major enterprises that primarily execute strategic investments for the parent enterprise. 114 Investment companies from the media (e.g. Burda, Holtzbrinck Ventures, Bertelsmann, Axel Springer), telecommunications (e.g. T-Venture), commerce/e-commerce (e.g. Otto Group, Tengelmann Ventures, Vorwerk Ventures) and technology (e.g. Robert Bosch Venture Capital) sectors have been particularly active. An additional trend concerns the so-called media-for-equity deals, in which advertising

3 Dr. Marco Eickmann, LL.M. Attorney-at-Law P+P Pöllath+Partners, Munich Dr. Marco Eickmann, LL.M. P+P Pöllath+Partners time is exchanged for shares in the company. In particular the broadcasting family ProSiebenSat.1 has in this way participated in many investments in German startups through its subsidiary company SevenVentures. However, the revival of the venture capital markets has chiefly been caused by the continuous progress in professionalization and networking of the German entrepreneurial scene. Thus, Berlin is currently on the point of developing into something of a European start-up stronghold particularly in the Internet sector. This professionalization is reflected not only in the many start-up events and competitions, but especially also in structural changes such as the emergence of business angel networks and incubators (e.g. Rocket Internet, Project A Ventures, Team Europe Ventures, Venture Stars) that provide capital, technological infrastructure and know-how and demonstrate how quickly start-ups can develop and exhibit astonishing growth in such an incubator. Implications for contractual terms and conditions The previously mentioned market developments are not least also reflected in the market conditions for venture capital investments that, from the viewpoint of the entrepreneurs, have not deteriorated but have rather tended to improve, defying all the statistics. This particularly applies to the economically significant contractual terms such as proceeds distribution and liquidation preferences and clauses protecting against dilution. Proceeds distribution and liquidation preferences n Economic context By providing venture capital, the venture capital investor as equity capital provider assumes a significant financial risk, up to a total loss of the invested capital. At the same time, the valuation of young companies, which have not yet bro- 115

4 Dr. Michael Inhester Dr. Philipp Diers Dr. Marco Eickmann P+P Pöllath+Partners ken even, is associated with significant uncertainty. Dependent upon the agreed upon pre-money valuation, the non-monetary shareholder contributions of the entrepreneurs, who normally participate in their company with a majority shareholding, are preferentially weighted more or less strongly than the financial contribution of the investor. In case of a later exit, absent a special agreement, the investor would only participate in the exit proceeds in accordance with his (minority) shareholding in the company. Thereby, he runs the risk that his share of the proceeds, despite the assumption of significant financing risks, may fall short of his expectations of returns or even of his actual investment. Venture capital investors attempt to rectify this disproportionality between their financing contribution on the one hand and their participation in the economic company valuation and company success on the other hand by way of proceeds distribution and liquidation preferences. n Definition and functionality In contrast to the pro-rata distribution according to the participation quota, liquidation preferences allocate profits in a specific amount to the venture capital investor. Contrary to the suggested meaning of the term liquidation preference, not only the distribution of surpluses from the liquidation of the company is regulated, but also and primarily the profit distribution in case of an exit or economically similar measures. A typical example of this is the distribution of material proceeds (shares) upon contribution or conversion processes. Further, the assessment of profit or dividend distributions to the shareholders is more rare but not unusual. 116 To secure the investment, the investor should normally receive a sum in the amount of his capital contribution, plus a certain yield if applicable, before the other shareholders participate in the distribution of the assessed proceeds. How much the proceeds preference exceeds the amount of the original investment may be negotiated and is, in particular, dependent upon the individual negotiating position of the parties, the situation and prospects of the company, as well as the economic environment. In the cases covered by the liquidation preference

5 Current Contractual Terms and Market Conditions for Venture Capital (sale, conversion processes, liquidation, dividend distribution if applicable), the investor is in a better position than the other shareholders, since initially only he profits from the proceeds and possibly profits in greater proportion to his participation quota. Only if the proceeds exceed his preferred claims, do the other shareholders participate in the surplus proceeds. If there are multiple financing rounds with different investors, normally the principle of last in, first out applies to the different liquidation preferences. The investor who has most recently participated shall take precedence with the respective liquidation preference over the other preferred investors and receive his investment first, including yield. Thereby, with each financing round the older investors move down a step with their liquidation preferences. As a result, proceeds distribution preferences ensure that the preferential weighting of non-monetary shareholder contributions is shifted in the distribution of proceeds in favor of the monetary shareholder contributions of the investors. n Organization, trends and market conditions The organizational latitude for proceeds distribution preferences is conceivably broad and is primarily a negotiating point between the older shareholders and the new investors. A significant economic question is always whether the investor, after receipt of his preferred sum in the first stage, should also be considered in the second stage in the pro-rata distribution of the remaining proceeds. If this is the case, one commonly speaks of a so-called participating liquidation preference, in another case of a non-participating liquidation preference. A true non-participating liquidation preference, in which no participation by the investor occurs in the distribution of the remaining proceeds after receipt of the preference(s), is very rarely seen in VC practice in Germany, if not completely unusual. If in practice, however, one speaks of a non-participating liquidation preference, this usually means provisions that in principle provide for participation of the investor in the pro-rata proceeds distribution in the second stage, but should 117

6 Dr. Michael Inhester Dr. Philipp Diers Dr. Marco Eickmann P+P Pöllath+Partners avoid the resulting unjustified favoritism of the investor from the viewpoint of the entrepreneur. As of a certain amount of exit proceeds, the participation of the investor in the proceeds according to his participation quota would already cover the investment, including returns, to be secured by the proceeds distribution preference. In these cases whether and to what extent double-dipping by the investor shall be excluded contractually can be negotiated by providing that the proceeds distribution preference e.g. crediting proceeds received in a preferential stage to the proceeds amount of the investor, which is due him based on the pro rata distribution of the proceeds remaining after distribution of the preferential amounts. In the current market environment which, contrary to all statistics, is not at all bad from the viewpoint of the entrepreneurs, severe participating liquidation preferences without crediting provisions are not unusual but are, however, found in the minority of participation agreements. In most cases, a form of crediting is provided for; this is often done by using clauses that provide for the cancellation of proceeds distribution preferences when exit proceeds in a certain amount are achieved. This threshold value shall thereby equal the amount as of which the investor would already get back his investment (plus a certain yield or multiplied by a certain factor, if applicable) in the course of a pro-rata distribution of the total proceeds. However, severe non-participating liquidation preferences are not observed. Even in an optimal market environment from the entrepreneur s viewpoint, these could hardly be enforced against an investor, as they would contradict the intent of a liquidation preference that should only protect the investor from a bad exit, without at the same time taking away the chances of a successful company development. 118 It can further be observed that multiple liquidation preferences, according to which the investor should receive a multiple of his investment at his respective preferential stage (e.g. two or three times), have become less common. Within the scope of the common simple liquidation preference, however, minimum yield expectations are often secured by providing for a certain interest return often between 5% and 20% on the preferential amount. In conclusion, it can be said

7 Current Contractual Terms and Market Conditions for Venture Capital that securing the investment itself (return of investment) is currently of primary importance in stipulating liquidation preferences and the investor is less concerned with maximizing yields (return on investment). Dilution protection clauses n Economic context Financing requirements and the valuation of young companies until they break even or an exit takes place often encounter significant uncertainties and prognosis difficulties. New companies often need additional financial resources after the first seed financing in order to finance further growth or also to bridge liquidity shortages. Without effective access to borrowed capital, these resources are often provided in the form of additional equity capital in subsequent financing rounds. Within an investment term of five to seven years, venture capital investors therefore often take part in multiple financing rounds after their initial investment. If the pre-money valuation based on an additional financing round is below the post-money valuation of the previous financing round (so-called down round ), this means for the older investors that the new investor shall receive a relatively greater participation in the company for the same investment sum than he would have received in the previous financing round. The reason for a lower valuation could be, for example, an unsatisfactory development of the company since the last financing round. It is also possible and not rare considering the uncertainty in the valuation of young companies that the valuation of the previous round was estimated too high due to unrealistic planning. The following financing round at a lower (but realistic) issue price does not thereby lead to an economic loss in value of the participation of the older investors. However, they would have received a greater number of shares for their investment. In order to protect the participation of the investors against this form of dilution, participation agreements often provide for dilution protection clauses. 119

8 Dr. Michael Inhester Dr. Philipp Diers Dr. Marco Eickmann P+P Pöllath+Partners n Definition and functionality The term dilution protection can have a number of meanings and should therefore be defined. If, within the scope of a financing round, shares are issued to a new investor, the value of the participation of the older shareholders in the assets of the company are not necessarily reduced thereby (only in case of unreasonably low valuation); however, it does lower the percentage of participation in the original capital. The shareholders are already sufficiently protected against a reduction of their participation quota by their statutory subscription right that bestows on them a claim to participation in a capital increase in relation to their previous participation. Preservation of the participation quota can only be legitimately requested, if a respective percentage of the new investment is also assumed. In principle, the dilution protection clauses implemented in a participation agreement pursue a different goal than the statutory subscription right. They do not serve the preservation of the participation quota, but the protection of the older investors from a lower company valuation in a later financing round. The older investor takes the risk that other investors may participate in the target company in subsequent financing rounds on more economically favorable terms and thereby dilute their existing participation. In order to counteract this form of capital loss, dilution protection clauses are tied in with the issue of new shares in a down round at a lower price as in the previous financing round. If the clause takes effect, the older investor has a unilateral subscription right to newly issued shares at their nominal value, without paying further premiums and, respectively, another additional payment in the capital reserves of the company. By assuming these so-called anti-dilution shares at their nominal value, the valuation difference from the previous financing round is moderated or, depending on the number of the assumed anti-dilution shares, possibly completely eliminated. How many anti-dilution shares the investor may assume depends on which respective calculation method has been agreed. 120 Often, dilution protection clauses are misunderstood, with the effect that, at the expense of the entrepreneurs, investors receive a general safeguard against future negative value developments of the target company. However, poor market acceptance falls under the original scope of risk of the venture capital investors;

9 Current Contractual Terms and Market Conditions for Venture Capital compensation by the entrepreneurs would contradict the participation model of risk capital. The clauses should only protect against the uncertainties in the valuation of the company at the point in time of the investment. n Organization, trends and market conditions The number of anti-dilution shares to which the older investor is entitled is based on the respective calculation method agreed upon. The full ratchet method (complete compensation) represents the most desirable form of dilution protection for the investor. In this case, the investor is entitled to assume as many new antidilution shares at nominal value, until he has the same result as if he had acquired his existing shares at the same lower valuation as the down round. The weighted average (weighted average price) and the average methods are not so far-reaching. The price of the shares of the (initial) investor is effectively only reduced to the average price of both financing rounds. The weighted average method, contrary to the average method, also considers the volume of both financing rounds and thereby determines a weighted average price. The calculation method that is most friendly to entrepreneurs is the broad-based weighted average method (weighted average price on a wider calculation basis). In simple terms, here the calculation basis for the calculation of the average price is broadened by taking into account the shares of the entrepreneurs or e.g. virtual shares that were issued as part of an employee participation program. Hereby the number of anti-dilution shares is even further reduced and thereby also the protection of the investors. Traditionally, investors protect themselves either through full ratchet or weighted average clauses. None of these methods would allow the assertion that they represent the exclusive market standard. Recently, however, a clear trend of weighted average clauses has been observed. Full ratchet clauses remain quite common, but they are increasingly replaced by provisions that apply to the weighted average price. This is also a sign that the initial position of entrepreneurs seeking capital in Germany has not fundamentally deteriorated. The broad-based weighted average method, the most advantageous from the viewpoint of the entrepreneurs, was almost non-existent until recently but 121

10 Dr. Michael Inhester Dr. Philipp Diers Dr. Marco Eickmann P+P Pöllath+Partners seems to be on the rise. Whether this is due to a market environment that is more advantageous for entrepreneurs is difficult to determine. At a closer look, one might get the impression that this calculation method is primarily acceptable to US investors because it was much more widespread in their territory in the past. An additional trend that has been observed is the use of so-called pay-to-play clauses. These provide that the investor may only exercise his dilution protection right if he himself participates to a certain extent within the scope of the new financing round (usually the amount of his existing participation quota). Through such pay-to-play clauses, the entrepreneurs acceptance of dilution protection clauses can usually be significantly increased. Conclusions Despite the statistically documented decrease in investments of institutional venture capital funds, the German venture capital market has again proved itself to be vigorous. The increasing networking and professionalization of the entrepreneurial scene, the creation of incubators and business angel networks, the participation of public and half-public investors, as well as the increasing activities of corporate VCs have prevented a breakdown in the financing of young companies. Even if the investment volumes have significantly decreased since 2008, the initial position for entrepreneurs seeking capital has not fundamentally deteriorated due to the mentioned structural changes. Signs of this can also be seen in the developments of contractual terms and conditions in venture capital participation agreements. Hence, we are able to observe in the economically important contractual terms, such as liquidation preferences and dilution protection clauses, a tendency toward more advantageous provisions for entrepreneurs. 122 Michael.Inhester@pplaw.com Philipp.Diers@pplaw.com Marco.Eickmann@pplaw.com