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Seniority Matters

There is little doubt that activity in the trading of secondary shares of private companies remains robust. Private companies are staying private longer and there seems to be an unlimited demand to buy into the newest “Unicorn” anointed each week. As the market for secondary shares stays strong, valuations seem not to matter much to most buyers. Additionally, many buyers seem to pay little attention to whether they are buying senior preferred stock at the top of the stack, as compared to junior securities, or common stock sold by many former employees. But as we all know, things that can’t go on forever, don’t. And, as Warren Buffet once famously said: only when the tide goes out do you discover who has been swimming naked. 

At some point a number of these Unicorns will become Unicorpses. We have seen this multiple times in various sectors where once high flying companies run out of money. And, when these companies are forced to sell (often in order to survive), where a stockholder stands in the stack is of critical importance. 

In a sale of a company, after the payment of deal expenses and any carve out for management, the senior preferred stockholders receive their money back first. After holders of the senior preferred get paid, then holders of the junior preferred are paid. Lastly, the residual proceeds, if any, are paid to the common shareholders. In many sale situations, particularly if a sale is the only alternative to survival, the common shareholder walks away with zero. The closer you are to the top of the stack, the more likely you will at least receive your money back. The closer you are to common, the greater the chance you will receive back less than your basis. 

In an era where investors are making wild bets on companies that often lack meaningful profit margins or even meaningful revenues, and are doing so relatively blindly without receiving the normal financial information generally available to investors in the public markets, it really does matter that you are as close to the top of the equity stack as possible. For when the market turns just a little bit south, as it inevitably will, you really don’t want to be the one swimming naked.


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Daniel I. DeWolf

Member / Chair, Technology Practice; Co-chair, Venture Capital & Emerging Companies Practice

Daniel I. DeWolf is an authority on growth companies and serves as Chair of Mintz's Technology Practice Group and Co-chair of the firm’s Venture Capital & Emerging Companies Practice. He has worked on pioneering online capital-raising methods. He also teaches venture capital law at NYU Law School.