Preferred Llc Interests Ppm

Document Sample
Preferred Llc Interests Ppm Powered By Docstoc
					                             UCLA SCHOOL OF LAW
                     Law & Economics Working Paper Series
                            Working Paper No. ___




                 THE MISSING PREFERRED RETURN

                                  VICTOR FLEISCHER


                          Acting Professor, UCLA School of Law
                                  fleischer@law.ucla.edu

                                    Draft of Jan. 17, 2005


NOTE TO MICHIGAN READERS: This draft is still pretty rough, so I apologize in
advance for a few repetitive passages a few sections that may be less-than-crystal-clear.
Fuzzy writing probably reflects fuzzy thinking, so please don’t hesitate to point out where
you think I’m misguided or where I need to make things easier to understand. I very
much look forward to hearing your comments and advice. VF




                                                1
                  C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                   Last printed 7/11/2011 2:53 PM
                                        ABSTRACT

       Managers of buyout funds and other private equity funds give their investors an 8%
preferred return on their investment before they take a share of any additional profits.
Venture capitalists, on the other hand, offer no preferred return. Instead, VCs take their
cut from the first dollar of nominal profits. This disparity between venture funds and
buyout funds is especially striking because the contracts that determine fund organization
and compensation are otherwise very similar. Are VCs receiving pay without
performance? Is the missing preferred return evidence that VCs are camouflaging rent
extraction from investors?

       This Article argues that the missing preferred return reflects an inefficiency in
venture capital compensation practices. Making VC pay subject to a preferred return
would help investors screen out bad VCs and would better align the incentives of VCs
with their investors when VCs are courting and negotiating with portfolio companies.
The screening effect may be less important for VCs with strong reputations. Even for
elite VCs, however, the status quo still appears to be inefficient, albeit in a different way.
If a fund declines in value in its early years, as is usually the case, the option-like feature
of the carried interest distorts VC incentives. Compensating VCs with a percentage of
the fund, rather than just a percentage of profits, would eliminate this distortion of
incentives. Thus, the current industry practice is puzzling. None of the usual suspects
like bargaining power, boardroom culture, camouflaging rent extraction or cognitive bias
offers an entirely satisfactory explanation. Only by peering into a dark corner of the tax
law can we fully understand the status quo.

       The tax law encourages venture capital funds to adopt a compensation design that
misaligns incentives but still maximizes after-tax income for all parties. Specifically, by
not recognizing the receipt of a profits interest in a partnership as compensation, and by
treating management fees as ordinary income but treating distributions from the carried
interest as capital gain, the tax law encourages funds to maximize the amount of
compensation paid in the form of carry. One way to do this is to eliminate the preferred
return, thereby increasing the present value of the carried interest, which in turn allows
investors to pay lower tax-inefficient management fees.




                                               2
                C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                 Last printed 7/11/2011 2:53 PM
                                    THE MISSING PREFERRED RETURN
                                                           VICTOR FLEISCHER



I. INTRODUCTION.................................................................................................................................... 4
II. THE PUZZLE ........................................................................................................................................ 8
    A. VENTURE CAPITAL FUNDS VS. LEVERAGED BUYOUT FUNDS ............................................................... 9
       1. The carry in leveraged buyout funds ...............................................................................................11
       2. The carry in venture capital funds: the missing preferred return ..................................................14
    B. HOW IT MATTERS ................................................................................................................................15
       1. Nominally profitable funds..............................................................................................................15
       2. Clawbacks in profitable funds.........................................................................................................16
    C. HOW OFTEN IT MATTERS: EMPIRICAL EVIDENCE ...............................................................................17
III. CONVENTIONAL WISDOM ............................................................................................................20
    A.   BARGAINING POWER ............................................................................................................................20
    B.   HISTORICAL EXPLANATIONS AND CONTRACT STICKINESS ...................................................................21
    C.   LACK OF CASH FLOW ...........................................................................................................................22
    D.   HORIZONTAL EQUITY WITH PUBLIC COMPANY EXECUTIVES ...............................................................23
    E.   DISTORTING INCENTIVES ......................................................................................................................25
IV. THE EFFICIENCY (AND INEFFICIENCY) OF THE PREFERRED RETURN ........................27
    A. ALIGNING INCENTIVES .........................................................................................................................27
       1. Fiduciary duties ..............................................................................................................................27
       2. Management fee ..............................................................................................................................28
       3. Reputation and social norms ...........................................................................................................28
       4. Carry ...............................................................................................................................................29
    B. THE OPTION ANALOGY ........................................................................................................................30
    C. THE EFFICIENCY AND INEFFICIENCY OF THE PREFERRED RETURN .......................................................32
       1. Assumptions ....................................................................................................................................33
       2. Deal Flow Incentives ......................................................................................................................34
       3. Deal Harvesting Incentives .............................................................................................................40
       4. Summary .........................................................................................................................................42
V. A TAX EXPLANATION FOR THE MISSING PREFERRED RETURN.......................................43
    A. THE TAX TREATMENT OF CARRY.........................................................................................................44
       1. Timing .............................................................................................................................................44
       2. Character ........................................................................................................................................46
    B. THE IMPACT OF TAX ON CARRIED INTEREST DESIGN ...........................................................................48
       1. Carried interest vs. Capital Interest ................................................................................................49
       2. Straight Carry vs. Carry Subject to True Preferred Return ............................................................50
       3. Risky and riskless compensation .....................................................................................................50


 Acting Professor, UCLA School of Law. I am indebted to Iman Anabtawi, Steve Bank, Mark Greenberg,
Bill Klein, Kate Litvak, Kathy Smalley, Kirk Stark, Kathy Zeiler, Eric Zolt [add others], for their very
useful comments and suggestions. I am also indebted to the numerous venture capitalists, investors, and
practicing lawyers who spoke to me about their funds. I thank Kevin Gerson and Steven Hurdle for
valuable research assistance.

                                                                               3
                               C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                                Last printed 7/11/2011 2:53 PM
    C. TURNING THE PUZZLE AROUND ............................................................................................................51
VI. CONCLUSION.....................................................................................................................................53
APPENDIX A ..............................................................................................................................................54
APPENDIX B ...............................................................................................................................................57
APPENDIX C ..............................................................................................................................................60



                                                               I. Introduction

        Managers of leveraged buyout funds, real estate funds, hedge funds, and other
private equity funds usually give their investors an 8% preferred return on their
investment before they take a share of any additional profits. Venture capitalists, on the
other hand, offer no preferred return. Instead, VCs take their cut from the first dollar of
nominal profits. They offer investors no feature to account for investors’ cost of capital,
nor do they index their compensation to an industry benchmark. This disparity between
venture capital funds and other private equity funds is especially striking because the
contracts that determine fund organization and compensation are otherwise very similar.
This Article examines the mystery of this missing preferred return.

         The missing preferred return is troubling because it suggests that agency costs
may pose a greater problem in venture capital than academics generally assume. In the
public equities market, regulators strive to protect small investors, and there is reason to
believe that more needs to be done to rein in executive pay.1 In venture capital and
private equity, regulators generally take a hands-off approach: the typical investor in
private equity is a large, sophisticated, institutional investor and is presumed to be fully
competent to fend for itself.2 The missing preferred return poses a challenge to this view.
Are fund managers camouflaging the true value of their compensation? If not, then why
would such sophisticated investors allow managers to receive compensation that rewards
mediocre performance? Unlike the children of Lake Wobegon, not every venture fund is
above average.3 Over a recent 20-year period, nearly one out of five venture funds in
which the University of California invested gave fund managers a share of the profits
even though investment returns missed the industry-standard hurdle rate of 8%. By
failing to make the VCs’ profits interest subject to a preferred return, VC fund
agreements, it seems, reward mediocrity and fail to screen out bad managers. Are VCs
using compensation design to sneakily extract rents from their investors, as CEOs are
said to do?4

        The agency costs story feels a little thin, however, if one considers the presence of
the preferred return in other private equity funds, like hedge funds and buyout funds.
Sophisticated investors in venture capital fail to ask for a preferred return term that is
commonplace in other areas of private equity, where these very same investors routinely

1
  See Bebchuk & Fried, Pay Without Performance; Jensen & Murphy. But see Thomas et al.; Baindbridge.
2
  Describe SEC rules, accredited investor, etc.
3
  Cites to Lake Wobegon effect in Rational Exuberance, Bebchuk & Fried.
4
  See, e.g. Lucian Bebchuk & Jesse Fried, Pay Without Performance. Compare Bainbridge, Anabtawi.
                                                                            4
                               C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                                Last printed 7/11/2011 2:53 PM
demand it. With billions of dollars in fees at stake, the missing preferred return cannot be
the product of sloppy drafting or inattention. Something else must be going on.

         Compensation practices in private equity are a mystery worth investigating.
Private equity fund managers, recently dubbed ―Capitalism’s New Kings‖ by the
Economist magazine, draw hefty management fees from investors, and they cash in on
even greater amounts by taking a share of the profits of their funds.5 The fund manager’s
share of the profits is known as the ―carry‖ or ―carried interest.‖ In contrast to the
considerable research into public company executive compensation, legal academics have
paid little attention to private equity compensation.6 We know a lot about executive
stock options, but very little about the carried interest. This Article uses the mystery of
the missing preferred return to take the first hard look at the compensation of private
equity fund managers.

        I argue in this Article that institutional differences between venture capital and
private equity, combined with the peculiar workings of the tax law, best explain the
missing preferred return. The chief reason that VC funds leave out a preferred return is
that venture capital fund investors can rely on the reputation of elite VCs, along with
some contractual restraints, to ensure that VCs find and invest in high-quality portfolio
companies. Institutional differences make the preferred return more valuable in other
areas of private equity, and thus it is employed more widely. I show that the preferred
return is tax-inefficient; one might expect the preferred return to be used more widely in
venture capital if the tax rules were changed. If I am right about the influence of tax, the
implications are somewhat troubling. The gap between the economics of a partnership
equity interest and its treatment for tax purposes distorts incentives by encouraging fund
managers to receive more compensation in the form of risky equity rather than cash
salary, which in turn may distort the operation of the venture capital markets. The main
goal of this Article, however, is descriptive rather than normative. Before we can make
informed policy judgments, we must first understand how the kings of capitalism are
paid, and why.

        The Article proceeds as follows. In Part II, I explain the basic mechanics of
private equity compensation. I then frame the puzzle of the missing preferred return by
looking at recent returns in venture capital and considering the importance of the
preferred return. In Part III, I report explanations offered by venture capitalists,
investors, and lawyers who draft these agreements. Bargaining power was the most
common explanation; other explanations include historical reasons, contract stickiness,
and horizontal equity with public company executives. None of these explanations
withstands close scrutiny.

        The most promising line of inquiry offered by practitioners suggests that the
missing preferred return has something to do with aligning the incentives of VCs and
their investors. VCs typically receive a carried interest in the fund – a straight percentage

5
 See The Economist, Kings of Capitalism: A Survey of Private Equity, Nov. 27, 2004 (special section).
6
 Executive compensation grew five0fold in the 1990s. The number of academic papers about executive
compensation grew even faster. Cite.
                                                   5
                    C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                     Last printed 7/11/2011 2:53 PM
of the profits, with no accounting for the investors’ cost of capital. In Part IV, I argue
that if the goal of compensation structure is to align the interests of VCs with those of
their investors, the usual compensation structure is flawed. I focus on two aspects of
what VCs provide to their investors: deal flow and deal harvesting. Deal flow refers to
the VC’s ability to locate promising entrepreneurs with strong business plans in
potentially lucrative markets and its ability to negotiate favorable terms of investment.
Deal harvesting is the VC’s managing of the portfolio investments to a successful exit.
Designing a compensation scheme surfaces a tension between the two goals. For deal
flow, a preferred return is more efficient than a straight carried interest; it screens out bad
VCs and encourages VCs to source investments that will achieve a return that is higher
than the investors’ cost of capital. Using a preferred return, however, exacerbates a
distortion when it comes to deal harvesting. The distortion is shared by all option-like
compensation schemes. When the carried interest is ―out of the money,‖ VCs have an
incentive to take larger risks that their investors would like. Thus, to align deal
harvesting incentives, VCs should have something to lose on the downside as well as
something to gain on the upside. For deal harvesting, giving VCs a straight percentage of
the fund, or ―capital interest in the partnership,‖ would appear to be more efficient than a
carried interest.

        The efficiency of a given compensation scheme may depend on the reputation of
the VC. For VCs with strong reputations, providing strong deal harvesting incentives
should be the paramount concern, as the screening effect of the preferred return is less
valuable to investors. One might thus expect elite VCs to receive a capital interest in a
partnership. For VCs with weaker reputations, deal flow should be the paramount
concern, and one might expect such VCs to receive a profits interest subject to a preferred
return. In neither case, however, would we observe the current market practice of paying
VCs with a straight percentage of the profits of the fund. It is possible that the market
practice of providing a straight carried interest represents a balancing act between the
competing goals of providing proper deal flow and deal harvesting incentives. But it’s
unlikely that these incentives alone can explain why we never observe VCs receiving a
capital interest in the fund, or why preferred returns, when they are employed, are
designed as ―hurdle rates‖ rather than a measure that truly reflects the investors’ cost of
capital. The missing preferred return thus still poses a bit of a puzzle.

        The final piece of the puzzle lurks in a dark corner of the tax law: an IRS
administrative pronouncement concerning the taxation of a profits interest in a
partnership. Part V shows how the tax law distorts the optimal contract design. The
administrative pronouncement, Rev. Proc. 93-27, encourages venture capital funds to
adopt a compensation design that misaligns incentives but still maximizes after-tax
income for all parties. VCs receive two forms of compensation: (1) management fees,
which are ordinary income and taxable upon receipt, and (2) the carried interest, which
by virtue of Rev. Proc. 93-27 is not taxable upon receipt and is taxed at lower capital
gains rates when profits are ultimately realized. The tax law distorts the optimal design
by encouraging investors to maximize the present value of the tax-efficient carried
interest by eliminating the preferred return.


                                                6
                  C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                   Last printed 7/11/2011 2:53 PM
         For high reputation VCs, a capital interest would align incentives better than a
profits interest. But a VC who received a capital interest would have to pay tax on that
amount immediately, and at ordinary income rates. If, on the other hand, the VC receives
a carried interest, the tax is deferred and will be paid at capital gains rates. Giving a VC a
carried interest rather than a capital interest slightly distorts its deal harvesting incentives,
but the tax trade-off is worth it.

        For low reputation VCs, a true preferred return efficiently screens out bad
managers. A hurdle rate also accomplishes this goal but introduces a new distortion.
Again, tax can help explain the apparent inefficiency. Compared to a true preferred
return, a hurdle rate maximizes the tax-advantaged form of compensation. Including a
true preferred return, on the other hand, would force investors to pay more tax-
unfavorable management fees.

        Part V also returns to the original question – the disparity between venture funds
and buyout funds. Given the tax reasons for avoiding preferred returns, one must
consider why they are used at all. Leveraged buyout (LBO) funds and other private
equity funds also strive to be tax-efficient and would mimic VC funds if they could. But
LBO funds must include a preferred return to protect against a moral hazard risk not
present in venture funds. Specifically, in the absence of a preferred return requirement,
LBO managers might adopt a low-risk, low-return investment strategy, aiming for a
positive if unspectacular return and a sure path to profits. VCs cannot employ this
strategy, as the partnership agreement between VCs and their investors limits the scope of
possible investments to eliminate low-risk, low-return investments. Finally, I argue that
LBO funds do maximize the amount of compensation paid in tax-efficient form, if one
accepts as a given this restriction imposed by non-tax business considerations. They do
so by including a ―catch-up‖ provision that allocates a disproportionately large amount of
tax-efficient compensation to the managers immediately after they have cleared the 8%
hurdle. Tax thus helps explain both the complete absence of the preferred return in the
VC context and the peculiar form it takes in the LBO context. Tax may not be the full
story, but it is surely a character in the play.

        My goal here is to begin serious consideration of the design of compensation in
the private equity context. Academics often point to private equity as providing better
incentives than public companies, and yet we actually know little about the optimal
contract design, let alone whether the status quo approaches the ideal. Part VI concludes
that while private equity funds may address agency costs more effectively than public
companies, they cannot escape the distorting influence of tax. Tax punishes funds that
compensate executives with more management fees, and rewards those who receive more
equity. Venture capital funds have been able to rely on reputation as a non-contractual
mitigation of agency costs. As the professionalization of private equity progresses, and
the markets grow, the tax distortion may become more troublesome.


                                         II. The Puzzle


                                                 7
                   C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                    Last printed 7/11/2011 2:53 PM
        I begin with a prediction: the 21st century will be the golden age of private equity.
The 20th century marked the rise of the modern public corporation and with it, the
stubborn problem of the separation of ownership and control.7 In the 1980s, the
leveraged buyout (LBO) model of firm organization led some scholars to predict the
eclipse of the public corporation.8 Public firms responded by improving efficiency;
among other things, they now routinely link pay to performance.9 But, as the Enron-era
accounting scandals showed, pay-for-performance creates troubling incentives to mislead
public investors and artificially inflate short-term stock prices. More firms are again
opting to go private.10 Legal academics, meanwhile, myopically focus attention on the
problem of agency costs in public companies. When academics do refer to private
equity, most praise the powerful financial incentives provided to managers and note how
this tends to lead to superior performance.11 But surely there is more to it.

        While we have some reason to believe that agency costs pose less of a problem in
the private equity context, we have done little to actually prove the claim. Private equity
fund managers, just like public company executives, are playing with other people’s
money. And so, not surprisingly, there is some evidence that the separation of ownership
and control poses a significant problem in private equity, and that contractual solutions
are imperfect. Professors Marcus Cole and Joe Bankman, for example, suspect that
agency costs may have led VCs to make bad investments at the end of the Internet
bubble, when they should have been returning money to investors.12 Paul Gompers and
Josh Lerner identify the problem of ―grandstanding,‖ where VCs take portfolio
companies public prematurely to improve future fundraising efforts.13 [more lit review
from econ]

        Understanding the carried interest is the key to unlocking the problem of agency
costs in private equity. I build here on the work of Professor Ron Gilson, who has stated
that the GP’s compensation structure is the ―front line response to the potential for
agency costs‖ resulting from giving the GP control over the fund’s investments.14 But
Gilson fails to closely examine the details of the compensation structure, noting only that
compensation may sometimes be adjusted after-the-fact to help prevent some abuses.15
Professor Kate Litvak, in a recent empirical study of compensation arrangements in
venture capital fund agreements, has findings that could suggest that agency costs are
more significant than we previously thought. Litvak has found, for example, that default

7
  See Adolph Berle & Gardiner Means, The Modern Corporation and Private Property (1932).
8
  Jensen, Eclipse of the Public Corporation, Harvard Business Review.
9
  Cite to Jensen and Murphy. For pop culture treatments see, e.g., Barbarians at the Gate; Wall Street.
10
   See Ellen Engel, Rachel M. Hayes & Xue Wang, The Sarbanes-Oxley Act and Firms’ Going-Private
Decisions (available on SSRN) (May 6 2004) (finding modest increase in going private decisions as a result
of Sarbanes Oxley).
11
   Cite to Murphy, Gilson, Jensen.
12
   Cite to Cole & Bankman.
13
   See Paul Gompers & Josh Lerner, The Venture Capital Cycle (1999), chap. 12.
14
   See Ronald J. Gilson, Engineering a Venture Capital Market: Lessons From The American Experience,
55 Stanford L. Rev. 1067, 1089 (2003).
15
   This adjustment is known as a ―clawback.‖ See Gilson, cite; Schell.
                                                    8
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
penalties for missing capital calls are lower in funds where agency costs are high, thus
giving investors a valuable option to exit.16 Other developments in private equity fund
contracting that may address agency costs, such as ―no fault‖ divorce clauses that allow
limited partners to fire the general partner, have yet to receive much attention by the
academy.17 Rather than simply assuming, as conventional wisdom and the securities
laws generally assume, that investors in private equity and venture capital can look out
for themselves, it may be useful to test these assumptions by closely examining the
private ordering the market has developed to address agency costs. And while I conclude
in this Article that private ordering fails to properly align incentives, the distortion here is
not caused by collective action problems, high monitoring costs, boardroom culture, the
desire to camouflage compensation, accounting rules, or any of the other problems that
plague corporate governance reform in the public company context. Instead, the villain is
the tax law. The peculiar tax treatment of a profits interest in a partnership encourages
parties to keep the status quo, even though some alternative designs might better align
incentives.

A. Venture Capital Funds vs. Leveraged Buyout Funds

        Like the dog that didn’t bark, the missing preferred return is remarkable only in
context.18 Private equity funds share basic structural qualities even though the underlying
companies they invest in vary widely. The private equity market is made up of distinct
investment partnerships, called funds. Each fund uses a pre-defined investment strategy
that focuses on a particular asset class: investors may choose from leveraged buyout
funds, real estate funds, venture capital funds, hedge funds, Asian funds, mezzanine
funds, and so forth.19 Within each asset class, funds may target particular industries
within a sector, such as Internet companies, software, biotechnology, or health care start-
ups.20 This Article examines a difference in compensation structure in two particular
types of private equity funds, defined by asset class: venture capital funds and leveraged
buyout (LBO) funds. Although I focus on the preferred return in LBO funds, what is true
for LBO funds is also generally true for real estate funds, mezzanine funds, funds of
funds, and other private equity investments. When it comes to the preferred return, only
venture is different.

16
   Cite to Litvak, Understanding Compensation Arrangements; Kate Litvak, The Price of Stability: Default
Penalties in Venture Capital Partnership Agreements, [vol] Willamette L. Rev. [pin] (2004). But see
Victor Fleischer, Fickle Investors, Reputation, and Clientele Effect in Venture Capital Funds, [vol]
Willamette L. Rev. [pin] (2004) (questioning whether default penalties are an effective governance device).
17
   Cite to Mercer Report; Asset Alternatives Report.
18
   See Arthur Conan Doyle, Silver Blaze.
          ―Is there any other point to which you wish to draw my attention?‖
          ―To the curious incident of the dog in the night-time.‖
          ―The dog did nothing in the night-time.‖
          ―That was the curious incident,‖ remarked Holmes.
19
   The type of fund, in other words, refers to the type of investment rather than who the investors are.
20
   For example, in 2002 venture investments were divided into the following sectors: Communications
(including Internet) 24%, Computer Software 20%, Biotechnology 13%, Healthcare Related 11%,
Computer Hardware and Services, 9%, Semiconductors and Electronics, 7%, Retailing and Media, 7%,
Business/Financial, 4%, and Industrial/Energy, 4%. See 2003 National Venture Capital Association
Yearbook (Thomson Venture Economics), at 28.
                                                     9
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
         Basic fund organization                                Fund Organization
is the same for venture funds and
LBO funds. Funds are organized                Investment Professionals

as limited partnerships or limited                                                      LP        LP LP   LP      LP
                                                         GP
liability companies (LLCs) under
state law.21 Investors become
limited partners (LPs) in the                  Carried Interest
                                                                       Private Equity Fund I, L.P.      Capital
                                                                                                        Interests
partnerships and commit capital
to the fund.22 A general partner
                                          Convertible Preferred Stock
(GP) manages the partnership in
exchange for an annual
management fee, usually
between 1.5 and 3 percent of the                                          Portfolio Companies

fund’s committed capital. The
GP also receives a share of any
profits; this profit-sharing right is often called the ―carry‖ or ―carried interest.‖ The
carried interest aligns the incentives of the GP with those of the LPs: because the GP can
earn significant compensation if the fund performs well, the fund managers are driven to
work harder and earn profits for the partnership as a whole. The GP also contributes
about 1% of the capital to the fund, although this amount is usually so small in
comparison to the carry that its effect on incentives is negligible.23

        After formation, the GP deploys the capital in the fund by investing in companies,
known as portfolio companies. After making the initial investment, the GP becomes a
formal or informal advisor to the companies. In most venture funds, the portfolio
companies are high-tech start-ups, and the GP’s ultimate goal is to take the portfolio
companies public or sell the companies’ stock or assets to another company. In
leveraged buyout funds, the fund makes sizeable investments in mature companies. The
fund then might reorganize the company, change its corporate strategy, or make
aggressive changes in management to improve its operations. LBO funds then eventually
sell each portfolio company to a trade buyer, break it up and sell off the assets, or take the

21
   The persistence of limited partnerships is puzzling at first glance. LLCs, after all, are more flexible and
are pass-through entities for tax purposes. Given the heavily negotiated nature of limited partnership
agreements, however, the persistence is less surprising; LPs prefer the devil they know. LLCs may be able
to achieve all the governance goals of limited partnerships, but the added flexibility is trivial, and there may
be some additional uncertainty involved. See [ ]; Fleischer, Rational Exuberance, at [x]. Moreover, in
some states LLCs are subject to an small entity-level state tax [check California, New York, Massachusetts,
Texas]. The combination of path dependence and the real additional costs of state level taxes is more than
sufficient to explain the persistence. For a discussion of path dependence, see Klausner.
22
   GPs commonly contribute 1% of the capital to the fund. Except as otherwise noted, I ignore this fact, as
it is generally insufficient – at least compared to the 20% profits interest – to affect the GP’s incentives.
GPs have much to gain and little to lose. Including the 1% unnecessarily complicates calculations without
adding much to the analysis. There is some evidence that GPs are contributing more to funds, like 2 or 3%.
If this trend continues, it may reach a point where the option-like incentives of the carried interest must be
reconsidered, as GPs would have more to lose.
23
   Some LPs are pushing for increase to 2 or 3%, which may reflect some of the concerns discussed infra in
the section on deal harvesting incentives.
                                                         10
                       C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                        Last printed 7/11/2011 2:53 PM
portfolio company public again, selling shares back to public shareholders at a profit.
Lately, with IPO markets cold, LBO funds have increasingly looked to sell to other LBO
funds as an exit strategy.

        In both venture capital funds and LBO funds, the partnership agreement uses the
carried interest to create powerful economic incentives for the GP. The GP is itself a
partnership or LLC with a small number of professionals as members. The GP receives a
management fee that covers administrative overhead and pays the managers’ salaries.
The management fee is fixed and does not depend on the performance of the fund. The
carry, on the other hand, is performance-based. Because private equity funds are leanly
staffed, a carried interest worth millions of dollars may be split among just a handful of
managers. For successful fund managers, private equity is a very lucrative business.

1. The carry in leveraged buyout funds

        In buyout funds, the carried interest is subject to a preferred return requirement
that works as follows. Before the GP receives any carry, the LPs first receive a preferred
return on their investment, often 8%. The preferred return ensures that LPs receive at
least as much as they would have made on safer market investments before the GP takes
a share of the profits. The carried interest in a buyout fund is a true performance-based
reward: the preferred return represents the LP’s cost of capital, and only profits above
and beyond this benchmark are treated as superior performance by the GP.

        The mechanics of allocation and distribution of profit and loss in partnership
agreements are famously intricate and difficult to follow. While the general structure of
fund agreements is largely standardized, details in drafting vary, and certain terms, like
those pertaining to the timing of distributions, are often heavily negotiated.24 Without
spelunking too deep into partnership agreement drafting issues, it is worth highlighting
the basic mechanics of partnership allocation and distribution as they pertain to the
preferred return.

        Capital accounts track the economic arrangements of partnerships. Allocation
provisions increase and decrease capital accounts of individual partners as the partnership
realizes gains or losses. Thus, when a fund sells an investment at a profit, each partner
receives an allocation of profit and its capital account is increased according to the terms
of the agreement. Distribution provisions then determine the order each partner receives
actual distributions of cash or securities. When there is a gap between allocation and
distributions, the difference is made up when the fund is liquidated.25 Capital accounts
thus define the true economic arrangement amongst the partners; timing and credit risk
issues aside, a partner’s take will ultimately match its capital account. The partnership
agreement may be drafted so that the key economic terms are stated in either the


24
   One practitioner explained that it often took three months to negotiate … Sean Caplice, Gunderson.
25
   Sometimes, there is not enough cash remaining in the partnership to square off the accounts at
liquidation. In that case, a clawback provision will be used to ensure that the economics of the partnership
ultimately match up with the capital accounts. See infra text accompanying notes [xx].
                                                     11
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
allocation or distribution provisions; for simplicity here I assume that the allocation
provisions do the heavy lifting, and that the distributions then follow the allocations.

       An allocation provision with a preferred return could say that as gains are realized
from partnership investments, allocations will occur as follows:

        First, 100% to the LPs until such time as the LPs have received back their initial
         contribution of capital,

        second, 100% to the LPs until they have received an amount equal to 8% return,
         compounded annually, on their initial investment, and

        thereafter, 80% to the LPs and 20% to the GPs.

A brief numerical example may help.

         True preferred return example. The LPs contribute $100 to the
         partnership, which buys stock in a single company, Acme Inc., for $100.
         One year later the partnership sells its Acme stock for $158. The first
         $100 is allocated to the LPs, returning their initial investment in the
         partnership. The LPs are then allocated $8, representing the preferred
         return. $50 remains and is split 80-20, with the LPs receiving an
         allocation of $40 and the GPs receiving an allocation of $10. The LPs will
         have capital accounts totaling $148 ($100 + $8 + $40) and the GP will
         have a capital account of $10. Note that because of the preferred return,
         the GP’s final share of the profits is less than 20% ($10 / $58 = 17.2%).

Such an arrangement is called a ―true‖ preferred return. It is also sometimes
called a ―floor,‖ because the GP receives no carry until reaching the 8% return.

        The phrase ―hurdle rate,‖ often used interchangeably with ―preferred return‖ in
the industry, more accurately describes the actual mechanics of most agreements.26 A
hurdle rate means that once the GP has returned the initial capital plus an 8% return, it
has cleared the hurdle and becomes entitled to take the full 20% carry. To achieve this
goal, the agreement includes a ―catch-up‖ provision. A partnership agreement with a
hurdle rate thus might say that allocations take place as follows:

        first, 100% to the LPs until the LP has received 100% of its initial capital back,

        second, 100% to the LPs until the LPs have received an amount equal to 8%
         return, compounded annually, on their initial investment,

        third, 100% to the GP until the GP has ―caught up‖ and received 20% of the
         amount in excess of the initial investment, and

26
   See Jack S. Levin, Structuring Venture Capital, Private Equity, and Entrepreneurial Transactions (2004)
at 10-10 (noting that ―permanent preferential return‖ is used less commonly).
                                                    12
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
       thereafter, 80% to the LPs and 20% to the GPs.

        Hurdle rate example. The LPs contribute $100 to the partnership, which
        then buys stock in a single company, Acme Inc., for $100. One year later
        the partnership sells its Acme stock for $158. The first $100 is allocated
        to the LPs, returning their initial investment in the partnership. The LPs
        are then allocated $8, representing the preferred return. The GP is then
        allocated $2, representing the catch-up. $48 remains, and is split 80-20,
        with the LPs receiving an allocation of $40.40 and the GP receiving an
        allocation of $9.60. The LPs will have a capital account of $146.40 and
        the GP will have a capital account of $11.60. Note that because of the
        catch up provision, the GP’s final share of the profits, $11.60 / $58, is
        exactly 20%.

In contrast to a true preferred return, the significance of the hurdle rate vanishes after it is
cleared. After the catch-up amount, the GP receives 20% of the total nominal profits of
the fund, erasing any measure of the LP’s cost of capital.

       The compounding of the preferred return rate is what makes it an important
contract term. Private equity funds have a life, defined by contract, of 10 to 12 years. If
an LP invests $100 in a ten-year fund, an 8% preferred return (compounded annually)
means that LP must receive $216 before the GP may take any carry.

         Complicating matters even further is the fact that, in many partnership
agreements, the hurdle must only be cleared once. A fund may invest in as many as ten
or fifteen portfolio companies, each of which is later sold at a different time. Many fund
agreements are structured so that if the GP realizes an investment (i.e. sells a portfolio
company) or series of investments at a cumulative profit that clears the then-applicable
hurdle rate, the catch-up provision kicks in and the GP is thereafter entitled to its 20%
carry, even if—in the long run—the fund’s overall return falls below 8%. Thus, if a fund
has one or two early successes at a large profit, and then equal successes and failures
thereafter, for an overall return of 5%, the GP would receive 1% (20% of the 5%) as
carry.

        Finally, some funds allow GPs to receive carry on a deal-by-deal basis, making a
―clawback‖ provision necessary. A ―clawback‖ provision determines what happens
when the GP has some early successes, which entitles it to receive carry, but then sees
later investments fail to show profits. If the overall return of the fund drops below zero,
then the GP will incur an obligation to return the amount received as carry to the fund.
The clawback ensures that the carry is ultimately determined on an aggregate level, rather
than portfolio company-by-portfolio company.

        Clawback example. The LPs invest $100 in a fund, which invests $50 in Beta Inc.
        and $50 in portfolio company, Gamma Inc. One year later, the Beta stock is sold
        for $85. Under the terms of the partnership agreement, the first $50 is allocated to

                                                 13
                   C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                    Last printed 7/11/2011 2:53 PM
        the LPs, the next $4 (8% * 50) is allocated to the LPs, the next $1 is allocated to
        the GP (the catch up amount) and the remaining $30 is split $24-$6 between the
        LPs and the GP. The GP has thus received $7 in carry from the $35 in profits
        from the sale of Beta stock. The LPs have received a total of $78. Nine years
        later, Gamma Inc. files for bankruptcy, and the fund’s Gamma stock is deemed
        worthless. The fund prepares for liquidation. Under the terms of the partnership
        agreement, the GP must return the $7 of carry to the partnership, since the LPs
        have not received back their initial $100 investment in the fund.

The mechanics of allocation, distribution, and clawback are as important as they are
difficult to draft. These provisions determine how funds divide up profits; as such, they
influence the behavior of the managers.

2. The carry in venture capital funds: the missing preferred return

        Venture capital funds, in contrast to other LBO funds, do not give LPs a preferred
return or hurdle rate. All profits are divided 80-20 between the LPs and the GP. While
obviously simpler than using a preferred return mechanism, this allocation seems to fail
the most basic goal of contingent compensation arrangements: rewarding superior
performance. By failing to use a preferred return, venture funds reward both superior and
mediocre performance.

        A simple example illustrates the problem. Suppose the LPs invest $100 million in
a typical fund with a ten-year life. The fund shows mediocre returns of 4% per year, and
at the end of ten years the portfolio companies are sold for a total of $148 million.
Despite this sub-par performance, the GP will receive nearly $10 million of carry. And
yet the LPs could have achieved a better return on their investment by investing in safer
securities, such as corporate bonds or even ultra-safe Treasury bonds. Given the
sophistication of the institutional investors who make these investments, the
compensation design is puzzling.

        The absence of a preferred return in venture funds is common but not universal.
In a recent detailed empirical study of venture capital partnership agreements, none of the
37 agreements studied contained preferred return provisions.27 Most practitioners I spoke
with reported not using a preferred return. On the other hand, one recent industry study
reported that ―[p]referred returns have become dramatically more popular among venture
funds in the past two years.‖28 That study reported that 35% of venture capital fund
agreements included a preferred return.29 It is useful to know that some venture funds do
include a preferred return; one possibility, discussed briefly below, is that a clientele
effect (differences among LPs) helps account for the disparity in contract design.30

27
   See Litvak, supra note [x]. In an email exchange, Professor Litvak confirmed that none of the
agreements contained preferred return provisions.
28
   Asset Alternatives at 53.
29
   Asset Alternatives at 53.
30
   Specifically, taxable LPs are more likely to bargain for a preferred return. As discussed in part [x]
below, LPs who receive a preferred return are likely to have to pay a higher management fee in exchange.
                                                   14
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
       Similarly, the presence of the preferred return in buyout funds is common but not
universal. In one recent survey, 90% of buyout funds used a preferred return.31

B. How It Matters

        Venture investing is risky business. At first glance, considering the presence or
absence of a preferred return seems like a trivial pursuit. After all, if a venture fund
invests in a series of Internet flame-outs, the GP would not receive any carry at all. If it
funds the next Google, returning the LPs’ initial investment ten-fold, then the GP would
clear any hurdle, making the preferred return irrelevant.32

        In fact, the absence of a preferred return can and does make a difference in the
real world. The compounding effect of the preferred return calculation makes it
significant over the course of a ten or twelve year fund. Moreover, the risky nature of
venture investing is sometimes overstated. It is certainly true that many of the underlying
investments in start-ups will turn out to be worthless. The gamble at the portfolio
company level is moderated, however, by the aggregation of risk at the fund level. A
venture fund might make investments in ten or fifteen portfolio companies. While each
individual portfolio company is very risky, funds are somewhat less so.

        And so it is worth a closer look at when the preferred return really matters. The
preferred return matters when one of two situations arises: funds that make some profits
but never clear the hurdle rate, and profitable funds that clear the hurdle but then fall
back.

1. Nominally profitable funds

        The first and more obvious way that the preferred return can make a difference is
when a fund is profitable but never clears the hurdle rate. Suppose LPs invest $100 in a
fund and ten years later receive back $150. In the absence of a preferred return, even
though the investment has a negative net present value (in hindsight), the GP is able to
take $10 of the $50 ―profit‖ as the carried interest. If the partnership agreement included
a preferred return, the GP receives no carry.


          The following diagram shows the payout scheme for (1) ―straight carry‖: a fund
                                                                       with no preferred
                       Basic GP Payout Diagram                         return (most VC
                                                                       funds), (2)
 GP
                                                                       ―hurdle rate‖: a
 Payout                                                                fund with a

Taxable LPs would enjoy the benefit of a tax deduction for the higher management fees; tax-exempt LPs
      54

                            LPs are                                  more
would not. The majority ofStraight Carry tax-exempt, especially at Rate prestigious funds.
                                                              Hurdle
31
   Asset Alternatives.                                                    True Preferred Return
32
   Cite0 to WSJ on Google venture fund returns.
              No                   Hurdle                   15
                                                        Catch
                                                        Up
                                                                      Full
              Carry                Zone                               Carry
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                                   Zone

                                       Last printed 7/11/2011 2:53 PM
                         100                      216           270

                               Total Fund Value
preferred return and a 100% catch-up provision (most buyout funds) and (3) a true
preferred return. The red line represents the payout for most VC funds and shows
positive returns starting at 100 and increasing with a slope of 0.2. The green line shows
the payout for a true preferred return, starting at 216 and increasing with a slope of 0.2.
The blue line, which represents the payout for most buyout funds, starts at 216 (the
hurdle number) but starts with a slope of 1. This is the catch-up period, where every
additional dollar earned by the fund is allocated to the GP. Once the catch-up point is
reached, additional allocations are 80-20, bringing the payouts back in line with funds
with no preferred return.

        The triangle shaded in yellow represents the possible difference in value between
a fund with and without a hurdle rate. If the fund value falls between 100 and 270, the
value of the preferred return to the LP can be determined by the height of the triangle at
that point. The expected value of the preferred return is more difficult to calculate, of
course, because it depends on the probability that the fund value will end up in that range,
and the effect that the preferred return has on that probability.

2. Clawbacks in profitable funds

        The second, more subtle way that the preferred return makes a difference is in the
calculation of clawbacks. Suppose a fund has some early successes but later failures. At
a minimum, the GP, which received carry on the early successes, has to give back any
carry in excess of 20% of cumulative profits.

        Some partnership agreements go further, however, requiring the GP to give back
any carry in excess of the initial capital investment plus a preferred return.33 Suppose a
fund with an initial value of $100 has some early success, reaping $110 from the sale of
portfolio companies and a total profit of $30. The GP receives $6 of carry. The
remaining portfolio companies fail, and the fun liquidates after three years. The preferred
return now amounts to $126.34 At the time of liquidation, the GP would have to give
back not just the $4 in excess profits, but the full $6, because the fund has returned just
$110; it has not, in the aggregate, cleared the $126 hurdle. Such a clawback provision,
which I call a ―creeping clawback,‖ better reflects the intended economics of a preferred
return by guaranteeing a minimum return to the LPs in any profitable situation. Without
a creeping clawback, a preferred return accomplishes this goal if the fund has failures
before successes but not vice versa.35

         A creeping clawback reduces an important timing benefit GPs enjoy when they
achieve early successes in a fund but later failures. Under a traditional clawback, the GP
must return excess carry to the fund – but without interest. Kate Litvak has noted how
this is equivalent to an interest free loan from the LPs to the GPs.36 In the example

33
   See Schell at 2-24.
34
   The calculation is as follows: $100(1.08)3= $126.
35
   Put another way, a preferred clawback neutralizes the fact that the hurdle rate typically must only be
cleared once before the GPs starts to receive carry.
36
   See Litvak, supra note [x], at pin.
                                                     16
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
above, under a traditional clawback, the GP keeps $2 and returns $4 to the LPs for a net
of 20% ($2 out of $10 total profits). In addition, however, the GP has enjoyed the use of
the $4 in the interim, interest-free. Litvak’s research suggests that this timing benefit is
quite valuable.37 Under a creeping clawback, the GP returns the full $6 of nominal carry
to the LPs. While the GP still enjoys the use of the $6, the overall return to the GP is
obviously much lower than a traditional clawback. Under a traditional clawback, the GP
keeps $2 plus the interest on $6; under the creeping clawback, the GP keeps just the
interest on $6.38

C. How Often It Matters: Empirical Evidence

        What impact would including a preferred return have on real world venture
capital funds? Empirical data, included infra as Appendix A, suggests the term is more
important than many practitioners realize. For the University of California Retirement
System, a prominent institutional investor, 9 out of 44 venture funds from vintage years
1979 through 1998 showed returns below 10%. Of these, 4 were between 8 and 10%,
which would place the fund in the ―catch-up‖ zone. Four others were positive but below
8%.39 Thus, for the University of California, nearly 20% of the time (8 out of 44 funds),
the presence of the preferred return term would have affected the payment of the carried
interest to the GP. In other words, in nearly one out of five venture funds in which the
University of California invested, fund managers received performance-based rewards
despite mediocre performance. Depending on how the preferred return was drafted, as
many as 13 out of 44 funds, or about 30%, would have been impacted by a preferred
return.40


37
   See Litvak, supra note [x], at pin.
38
   One might be troubled by the GP receiving anything in this situation; one could imagine forcing the GP
to pay back interest as well, even if that meant forcing the GP to dip into its own pocketbook beyond
previously received carry. Traditionally, funds have avoided asking GPs to ever pay money into the fund
beyond a 1% capital commitment at the time of initial investment. [One possible explanation is that
requiring the GPs to pay the full 8% preferred return, regardless of the profitability of the fund, would
transform the preferred return into a guaranteed payment under IRC § 707. Guaranteed payments would be
treated as ordinary income rather than as capital gains, which would hurt taxable LPs. On the other hand,
the LPs would effectively get an offsetting deduction.]
39
   See Appendix C. The relevant returns were: 7.2, 8.5, 9.2, 8.4, 4.6, 7.2, 9.5, -15.3, and 1.6. Five
additional funds had returns below 11.5% IRR, which may or may not have brought a preferred return into
play, depending on timing conditions. The preferred return is typically calculated from the inception of the
fund, when capital is committed to the fund. [check this] IRRs, on the other hand, are calculated based on
when the capital is actually contributed to the fund. Also, the IRR is calculated net of the GP’s share of the
carry, so IRRs in excess of 8% might have cleared the hurdle rate.

          On the other hand, the IRRs listed in the Appendix are calculated net of the carry, so an IRR of 8%
means that the fund returned 10%, with 2% of the return going to the GP. So, again depending on timing
issues in the calculation of IRRs, it may well be that only four or five out of 44 funds would have been
affected by a preferred return. Still, this frequency is enough to show that the contract term is not trivial.
40
   For the University of California, leveraged buyout funds performed well, although without any returns in
excess of 33%. Two out of 15 funds had negative returns; none showed positive returns below 8%. In this
small sample, then, of 59 venture and buyout funds, it turns out that the UC negotiated for a preferred
return only in instances when it did not ultimately matter.

                                                     17
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
        And this problem of pay-for-underperformance is likely to get worse in the next
few years. Many venture funds in vintage year 1999, 2000 and 2001 invested heavily in
Internet companies.41 GPs took carry on early successes as Internet companies went
public. Remaining portfolio companies have a slim chance of matching those earlier
successes; many expect the returns for funds from vintage years 1999-2003 to have sub-
par returns.42

        The frequency with which the preferred return would come into play in venture
funds may surprise some investors. One possible explanation for the missing preferred
return, then, is that practitioners are simply unaware of the problem, or that cognitive bias
affects investors’ perceptions of the importance of contract terms.43 The cognitive bias
explanation cannot be dismissed out of hand; the success of certain legendary venture
funds may create a sort of home run effect that masks the historical performance of
venture funds.44 A striking example of a legendary fund is Kleiner Perkins VIII, perhaps
the most successful venture fund in recent years.45 The University of California invested
$20 million in Kleiner VII in 1996. As of March 2003, it had received back $330 million
in cash, for a net IRR of 287%. Kleiner is remarkable but not unique; three other funds in
which UC invested generated IRRs in excess of 100%. The prospect of such returns may
draw attention away from more subtle contract details like the missing preferred return.46

        A possible explanation for the relative lack of attention paid to the missing
preferred return is the difficulty of obtaining good data. Venture capital funds are exempt
from the reporting requirements of the Securities Acts of 1933 and 1934 and the
Investment Company Act of 1940.47 Investors instead bargain for a contractual rights to


         Data from CalPERS, the pension fund for the state employees of California, suggests that the
preferred return term is quite important. Out of 98 funds in vintage years 1992-1998, 40 funds (mostly
buyout funds) have returned less than 8%. 12 out of those 40 had positive returns less than 8%. All 12
[appear to be] buyout funds.


41
   Cite to Bankman & Cole.
42
   To make matters worse, as noted above, VCs who have taken carry on early successes have a strong
incentive to delay liquidation of the fund, as the benefit of holding on to carry without incurring interest has
significant financial impact. See Litvak, supra note [x]. at pin. A creeping clawback would counteract this
incentive to delay by increasing the amount the GP has to pay back to the fund by 8% per year. See supra
text accompanying notes [xx].
43
   Cite to Korobkin, Bankman. Research Larry Garvin on cognitive bias in commercial matters.
44
   Behavioral economists might call this ―salience bias‖ (??) – the tendency to overestimate the likelihood
of unusual, highly salient events, like terrorism, airplane crashes, or winning the lottery. Find cites. And/or
availability bias.
45
   Cite to WSJ article, front page.
46
   On the other hand, based on a simple, back of the envelope calculation using available data, a hurdle rate
of 8% in all funds would have saved UC approximately $2,000,000 (roughly 0.1%). Depending on the
operation of clawback mechanisms and the likely low-to-middling returns of investments from vintage
years 1999-2003, the amount saved might approach $10,000,000. Of course, GPs would not likely give
away the term for free, and so one must consider the likely tradeoffs. I discuss this below in section [x].
47
     Explain 3(c)(1) and 3(c)(7) exemptions.
                                                      18
                       C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                        Last printed 7/11/2011 2:53 PM
observe how their capital is being deployed and calculate returns based on actual cash
received back from the partnership. Because this information is confidential, it is
difficult to find reliable data showing returns for large numbers of funds over time to get
a full sense of the importance of the preferred return.48 Practitioners report that
arguments about the preferred return often devolve into simplistic arguments about what
the ―industry standard‖ is.49

          The fact that the preferred return only comes into play in a subset of cases does
little to explain the puzzle. Given that buyout funds and other private equity funds
routinely include hurdle rates, all else equal one would expect venture funds to follow
suit. More importantly, perhaps, clearing the hurdle rate does not mean that the contract
term was irrelevant. The significance of the preferred return term is more than
distributional; it changes incentives. In the absence of a preferred return term, a GP may
do a mediocre job, performing below the industry average, and still receive a nominally
performance-based reward. Incentives are misaligned. The problem is fairly obvious,
easy to fix, occurs in the real world, and yet remains unaddressed by the lawyers, venture
capitalists, and institutional investors who negotiate these contracts. The puzzle remains,
then: why do venture funds fail to include a preferred return?




                                     III. Conventional Wisdom


        The conventional wisdom about the missing preferred return is grounded in the
―home run‖ mentality of venture investing.50 Most private equity funds – real estate
funds, buyout funds, mezzanine funds, etc. – invest in established companies with
positive cash flows. Venture funds, on the other hand, invest in start-ups with no
immediate possibility of positive cash flow and only an uncertain hope of making money
in the future. Venture funds like to bet on ―disruptive technologies‖ – companies with
products that can change entire product markets.51 Most of these risky bets fail. The
high-risk, high-reward strategy makes it silly (or so say fund managers) to quibble about
preferred returns. Either the gamble pays off and everyone goes home happy, or they
shake it off and look to the next fund.

      The problem with this home-run-mentality explanation is that the underlying
assumption – that venture funds are either enormously successful or complete failures –

48
   More data has become available recently as journalists and investor watchdogs have used state public
records statutes to request information about the investment returns of state pension funds. GPs are not
pleased about this trend, nor are LPs who are being asked to leave some of the most prestigious funds.
[more]
49
   See Joseph W. Bartlett & W. Eric Swan, Private Equity Funds: What Counts and What Doesn’t?, 26 J.
Corp. L. 393, 394 (2001).
50
   See Fleischer, Rational Exuberance, supra note [x], at pin; Bankman, Structure of Silicon Valley Start-
Ups, supra note [x], at pin.
51
   Interview with Geoffrey Smith.
                                                     19
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
simply isn’t true. It is true that portfolio companies are mostly successful or not; only a
few become ―zombies‖ with middling returns.52 But funds, because they aggregate
investments in as many as fifteen or twenty portfolio companies, have less variable
returns. And when funds do moderately well, hurdle rates come into play. Moreover, if
the presence or absence of a preferred return were insignificant, then one might just as
well expect to find the term included rather than excluded, given its nearly universal
presence in other types of private equity funds.

A. Bargaining Power

        Many venture capitalists offered bargaining power as the first (and often only)
explanation for the absence of a preferred return. Venture capital performed very well in
the late 1990s, putting VCs in a favorable bargaining position. The most elite funds have
always had institutional investors begging to hand over their money; this dynamic has
been especially true in recent years.53

        Bargaining power, by itself, cannot explain the puzzle. Bargaining power is
better at explaining the amount of compensation one receives rather than the form of the
compensation.54 Nor does bargaining power explain why VCs would choose to exercise
their power here, on such an arcane contract term, rather than elsewhere in the contract.
After all, the preferred return term only matters in certain circumstances. An optimistic
VC might bargain for a higher carry; a pessimist might bargain for a higher management
fee. Only a deeply ambivalent VC would bargain for the absence of a preferred return
term.

         Moreover, bargaining power has limited explanatory power because VCs have not
always been in the dominant position at the negotiation table. As recently as the mid-
1990s, many venture funds offered attractive deal terms to lure investors. At the peak of
this pro-LP period, the University of California and a group of other prominent
institutional investors retained a consulting firm, Mercer Investment Consulting, to
recommend changes to the design of fund agreements that LPs should press for.55 The
so-called Mercer Report proved to be controversial within the venture industry. The
report recommended some aggressive, pro-LP changes like no-fault divorce clauses,
advisory committees, and suspension-of-capital-call provisions.56 Some changes have
been widely adopted; others have not. What is remarkable is that the midst of this wish
list, the Mercer Report recommended against pressing for a preferred return.57 If
bargaining power were the true explanation, one would expect it to be on this list.


52
   Even this truism – that portfolio companies are either home runs or strikeouts – is an exaggeration.
Compare Marcus Cole, Preference for Preferences (arguing that middle ground is more important) with
Ron Gilson & David Schizer, A Tax Explanation for Convertible Preferred Stock, Harv. L. Rev. (arguing
that middle ground is relatively small and cannot explain use of preferred stock).
53
   Cite to articles on continuing interest in VC; VC overhang problem.
54
   Cite to Schwab and Thomas on CEO bargaining.
55
   Cite to Mercer Report.
56
   Cite to Alternative Assets for current practices.
57
   The Mercer Report’s reasoning is discussed below. See infra at text accompanying notes [xx].
                                                   20
                    C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                     Last printed 7/11/2011 2:53 PM
       Finally, if bargaining power were the primary factor determining the presence or
absence of the preferred return, one would expect preferred returns to be universal among
new venture funds hustling for investors.58 But this is not the case; preferred return terms
are uncommon even for new funds.59 The preferred return is not, by and large, a term
negotiated at the margins. It’s not on the table for most VC funds, despite its
commonplace usage in buyout funds.

        The stark disparity between venture and buyout funds suggests that there must be
something unique about venture capital funds, or the portfolio companies they invest in,
that helps explain the difference.

B. Historical Explanations and Contract Stickiness

        History provides a clue to the puzzle. When venture funds were first formed in
the 1950s and 1960s, returns were calculated on an investment-by-investment basis (i.e.,
portfolio company-by-portfolio company). The volatility of portfolio company returns,
measured individually, indeed makes it rare for returns to fall in the middle range where
the preferred return would come into play. The drafting costs – by which I mean the
costs of negotiating the term, drafting it, and explaining its relevance to clients – may
have even exceeded any increase in efficiency.60

        Practitioners first devised the preferred return when real estate funds and leverage
buyout funds grew in popularity in the 1970s. The expected returns from real estate and
buyout investments were somewhat smaller and less volatile than the boom-or-bust
expectations of high tech venture investments. Also, these funds began to calculate the
carried interest on the aggregate level, further reducing the volatility of returns. With
middling returns more common, investors settled on a hurdle rate as a way of calculating
a true performance-based return. Little has changed since the 1970s: LBO, real estate,
and other funds have a preferred return, while venture does not.

        Nowadays venture funds also calculate profits on an aggregate basis, not deal-by-
deal. History helps explain the initial divergence but does little to justify the status quo.
With billions of dollars at stake, one would expect rational investors and rational VCs,
over time, to gravitate towards a more efficient contractual structure. The stickiness of
contract terms is another possible barrier between the status quo and a more efficient


58
   Find financial contract innovation cite from Gulati and Choi paper on interpretive shock.
59
   Cite to Litvak; another source (SH) at a prominent institutional investor reported that ―all but a handful‖
out of 40 agreements he looked at had no preferred return. Asset Alternatives suggests newer funds are
more likely to have preferred returns.
60
   There are both distributional and efficiency implications for the preferred return; it only makes sense to
add a new term to a contract if the efficiency gains outweigh the drafting costs. If the drafting costs exceed
efficiency gains (i.e. creating a net efficiency loss), then both parties are better off leaving the term out.
          For example, assume the GP is getting paid $100 in management fees and a carried interest
without a preferred return with an expected value of $200. Adding a preferred return would add $5 in
efficiency gains by improving incentives, but would cost $10 in additional drafting costs. The parties are
better off leaving the term out.
                                                     21
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
contract.61 Absent a pressing need to change, lawyers tend to copy language from prior
agreements and may not fully consider other options.62 In this case, however, contract
stickiness is an unlikely explanation. The cost of switching to a preferred return is very
low. The increase in drafting costs is minimal: the same law firms, and often the very
same lawyers, draft fund agreements for both buyout funds and venture funds, and thus
could easily drop in language that works. Moreover, these same lawyers are already
familiar with the mechanics of preferred returns, making the cost of educating clients
relatively low.

        Thus, while history can help explain how the disparity between venture and
buyout developed, it does little to explain its persistence. With large amounts of money
at stake and switching costs relatively low, one would expect the lawyers and investors
who negotiate these contracts to gravitate towards more efficient contract terms.

C. Lack of Cash Flow

        A few practitioners suggested that a preferred return would be inappropriate
because the underlying portfolio companies in venture funds – start-ups – do not have
any available cash flow with which to pay the preferred return. Buyout funds, on the
other hand, invest in established companies that generate cash. The intuition seems to be
that a preferred return only makes sense when a steady stream of cash flow exists.

        The intuition is understandable. Paying a preferred return on a risky investment is
counterintuitive to corporate finance gurus. In most contexts, when an investor is entitled
to a preferred return, the return is actually paid, and not just accrued, on a quarterly or
semi-annual basis from cash flow generated by the business. A holder of preferred stock
in a corporation expects to receive regular dividends.63 Investors, therefore, generally
associate preferential payouts with the availability of cash flow.

        The Mercer Report provides a nice example of this intuition. As noted above, the
Mercer Report advocated aggressive changes in the structuring of fund agreements.64
Given the disparity between venture funds and the rest of private equity, one would have
expected the Mercer Report to recommend including a preferred return. In fact, the
Mercer Report says little about the absence of the preferred return in venture funds; it
notes only that ―[i]t is found less frequently in early stage venture capital funds because
these investments generally do not produce cash early in the life of the partnership.‖65

       Like bargaining power and history, however, cash flow fails to hold up as a robust
explanation. Because LPs lack the power to place the fund in default if the preferred

61
   Cite to Choi & Gulati.
62
   Cite to Claire Hill on legalese? Choi & Gulati point to impact of external ―interpretive shock‖ to trigger
change. Is some kind of shock needed here? Could the sub-par returns of the post-bubble era provide that
shock? Or must it be a court decision??
63
   An even better example is debt: it would make no sense to finance a venture fund entirely with debt, as
the lack of steady cash flow would place the fund in default, triggering a costly bankruptcy.
64
   See supra text accompanying notes [xx].
65
   Mercer Report, supra note [x], at 25.
                                                     22
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
return is not paid, interim cash flow is not relevant; only the ultimate performance of the
fund matters. Fund performance (and manager performance) is measured in the
aggregate over the life of the fund; the performance of the portfolio company in the
interim is irrelevant. The goal of the preference is to benchmark the performance of the
manager by affecting the capital account, not to establish priority of distribution of
available interim cash flow. Preferences perform this role in other areas of corporate
finance and even in the venture context. For example, in the case of convertible preferred
stock investments in start-ups, the dividend preference may accrue, giving the fund a
larger stake in the company over time, and also giving the preferred stockholders priority
in the event of liquidation.66

D. Horizontal Equity with Public Company Executives

        Efficiency may not be the only value that drives compensation practices. Equity –
in the sense of making as much money as one’s peers – might also help explain the
makeup of a compensation package.67 The leading treatise on private equity funds,
James Schell’s Private Equity Funds: Business Structure and Operations, justifies the
missing preferred return by pointing to public company executives.68 Schell suggests that
a preferred return would be inappropriate in venture capital because compensation
practices from public company executives do not have similar requirements. Schell
recognizes that the preferred return can affect the performance of management, noting
that ―a Preferred Return serves the alignment of interest concept by linking the Carried
Interest to superior performance.‖69 Schell explains that ―[i]nvestors sometimes express
this point in negotiations by asking why they should give up 20% of the profits
attributable to their capital if a higher return could have been obtained in a money market
fund or other low risk investment.‖70 Schell thus seems to acknowledge that the carried
interest may not always reflect superior performance, but he remains unconvinced of its
virtue. ―From a purely analytical point of view,‖ he rather dismissively notes, ―it is not
obvious that no Carried Interest should be payable unless investment returns exceed a
specified level.‖71

        Schell addresses this argument by pointing to equity considerations, not
efficiency. He draws an analogy to the compensation of public company executives.
Compensation structures, he explains, do not always impose a requirement that
executives exceed a benchmark.72 For example, he continues, ―corporations frequently
grant stock options to executives and establish the exercise price based on the underlying
stock price on the date the option is granted.‖ Despite the fact that the exercise price is

66
   Cite to Cole, Preference for Preferences; Gilson & Schizer, Tax Explanation for Convertible Preferred.
67
   Cite to research showing that compensation committees often look to what peer CEOs make.
68
   Cite to Schell.
69
   Cite to Schell.
70
    Cite to Schell. The language ―Investors sometimes express …‖ suggests that Schell himself has little
regard for the argument.
           [what does Schell say about using preferred returns in buyout, if it’s contrary to horizontal equity?
Does he identify the moral hazard problem?]
71
   Id. (emphasis added).
72
   Cite to Bebchuk et al.
                                                      23
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
fixed and does not increase over time, ―the interests of the executive are considered
aligned with those of the shareholders in the sense that the stock must appreciate in order
for the option to have value.‖ Schell recognizes that this approach – by far the most
common approach for compensating public company executives – may reward mediocre
performance. But this does not trouble him, as it is the norm, not the exception. He
explains, ―the corporate executive participates in the appreciation of the stock on a first
dollar basis and his or her incentive compensation is not conditioned upon superior
performance.‖73

        The analogy to public company executives is apt in more ways than one. Schell’s
description of the compensation of public company executives is accurate: the exercise
price is usually fixed. And the failure to use a preferred return in venture capital indeed
compensates the GP on a first dollar basis in just the same way that stock options
compensate executives. And so to the extent that the purpose of LP Agreements is
merely to create horizontal equity with public company executives, Schell’s explanation
is correct.

        One problem with Schell’s analogy is that is does little to explain the difference
between venture funds and buyout funds. Both types of funds potentially compete with
public companies for talent, and yet only venture funds exclude a preferred return. On a
deeper level, the problem with Schell’s analogy is that it provides no normative reason
for using public company compensation as a model to justify private equity compensation
practices. To the extent that we expect the LP Agreement to align the incentives of
investor and manager – a goal we should also maintain for public company executives –
Schell’s analogy only removes the puzzle one level higher: is the compensation of public
company executives a good model?

        Most academic commentators agree that that executive stock option practices are
deeply flawed.74 Lucian Bebchuk, Jesse Fried and David Walker argue, for example, that
at-the-money options serve as a rent-extraction device, allowing executives to maximize
pay while minimizing outrage costs.75 Central to their argument is the fixed, at-the-
money strike price of the typical option package. By failing to index the strike price of
the option to industry benchmarks or to account for the time value of the option, options
allow executives to camouflage their compensation and avoid incurring outrage costs by
offended shareholders.76 Saul Levmore, while rejecting the rent extraction argument, has
suggested that norms may explain the indexed options puzzle.77 David Schizer finds tax

73
   Schell, supra note [x], at § 2.03[1]. Schell goes on to note that the analogy to public company executives
may be more compelling ―in case of smaller Funds where the fixed compensation of the Principals derived
from Management Fees may be less than that of executives with comparable levels of experience in more
conventional financial institutions.‖ I am not sure I understand why this should be the case; just because
gross compensation is larger does not make a windfall more efficient.
74
   See Saul Levmore, Puzzling Stock Options and Compensation Norms, 149 U. Pa. L. Rev. 1901, 1906-08
(2001) (identifying problems with traditional option plans); Schizer, Indexed Options; Schizer, Executives
and Hedging
75
   cite to Bebchuk et al.
76
   Cite to Bebchuk et al.
77
   Cite to Levmore on Puzzling Options.
                                                     24
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
law to be a partial explanation. Professors Jensen and Murphy, in a recent Article,
conclude that corporate boards should consider cost-of-capital indexed options to make
executives more sensitive to performance. Because many of the norms and institutional
factors that lead to non-indexed options in the public company context are not present in
the private equity context, this literature has limited direct application to the puzzle of the
missing preferred return. What is clear from this literature, however, is that few
commentators would consider executive stock options to be a suitable model that could
serve as a normative support for private equity practices.

E. Distorting Incentives

         A final explanation sometimes offered by practitioners is that venture funds do
not include a preferred return because a preferred return might distort, rather than align,
the incentives of the GP. Implicitly, these practitioners recognize that the presence or
absence of a preferred return term can affect VCs’ attitude toward risk. But thinking
about the issue is rather muddled. A report by a trade group, Asset Alternatives,
illustrates the confusion. In discussing preferred returns, the Asset Alternatives report
notes that for reasons that are ―quite specific to the dynamics of venture capital
investing,‖ limited partners ―generally have refrained‖ from seeking preferred returns on
venture funds.78 The report thus seems to suggest that LP preferences have led to the
absence of the preferred return term rather than GP bargaining power, status quo bias, or
contract stickiness. The report explains that ―the primary reason for LP restraint here is
the fear of unintentionally distorting the incentives that motivate‖ the VCs.

         The report cites two examples of how a preferred return might distort incentives.
First, the report explains, a preferred return term might make VCs too cautious. ―The
concern is that in order to ensure that they achieve the preferred return goal, a venture
capital group might make conservative investments that have limited upside but also
quite limited downside.‖ Second, the report explains that if the VCs strike out on its first
handful of deals, the added hurdle of a preferred return might lead them to give up hope
prematurely.

         The first example – making GPs overly cautious – is wholly unpersuasive. The
preferred return term has the effect of making the GP less cautious, not more. If the
benchmark is raised, the manager must perform better and take more risk to achieve the
higher goal. Moreover, it is not clear that it is possible for VCs to be both cautious and
yet still confident that they could exceed an 8% return. After all, if safe investments
yielding greater than 8% were readily available, one would not need an intermediary to
invest. Rather, just the opposite is true: a preferred return eliminates the possibility of
GPs sitting back and making safe investments rather than aggressively sourcing
investments as they are supposed to.79

        The second example – the early strike out example – is more plausible. After a
few failures, a GP might become increasingly desperate and make risky, negative net

78
     Asset Alternatives at 79.
79
     See infra [section on moral hazard in LBO funds.]
                                                         25
                       C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                        Last printed 7/11/2011 2:53 PM
present value investments in the slim hope of landing a big fish. A GP might even
abandon a fund with early strikeouts, or at least pay little attention beyond the minimum
needed to justify acceptance of the management fee.

        If the early strike out problem were the driving force behind the absence of a
preferred return, however, one might expect a different solution. The partnership
agreement could calculate carry on a deal-by-deal basis, as was done in the early days of
venture funds. Alternatively, LPs could volunteer to ―re-price‖ the preferred return, just
as public company compensation committees often re-price stock options when the
options are deep out of the money. A consistent practice of re-pricing the preferred
return might distort ex ante incentives; but then again so does failing to include a
preferred return. Eliminating the preferred return distorts incentives in all cases, ex ante,
but improves incentives only in a few (those funds that have some early strikeouts).80
And if the early strike out problem were truly the paramount concern, one might expect
GPs to receive a percentage of the fund, not just a percentage of the profits. Giving GPs
something to lose on the downside as well as something to gain on the upside would
eliminate this distortion of incentives.

          The effect of the preferred return on the incentives of the GP is the most
promising line of inquiry. Bargaining power, history, cash flow, and horizontal equity
offer some superficial support, but do not hold up well to close examination. Incentives
might. The existing literature does little to clarify exactly what incentives the absence of
a preferred return creates. Is it intended to make GPs risk averse or to help them
overcome risk aversion? If it is intended to change risk preferences over time, then why
is it structured with a fixed hurdle rate? I turn to these questions now in Section IV.


              IV. The Efficiency (and Inefficiency) of the Preferred Return


         The partnership agreement guides the behavior of the managers and investors.
Compensation terms are no exception; contractual provisions regarding VC pay are
designed to attract, incentivize, and reward good performance, and to deter and penalize
shirking. To understand whether a preferred return would improve venture capital fund
agreements, I re-examine the incentives that compensation arrangements provide in the
context of how VCs create value over the life of a fund. I argue that the status quo is
inefficient. This is not to say that there is a single optimal compensation design for all
funds. For some funds, particularly those where investors are uncertain about the VCs’
ability to find and choose good portfolio companies, including a true preferred return
would improve incentives. For other funds, where investors can rely on the reputation of
the VCs, a preferred return is unnecessary and is not likely to be efficient. But even for
those elite funds, the status quo remains a puzzle: giving the VCs a capital interest rather

80
  Nor does excluding a preferred return really solve the early strike out problem. All it does is keep an out
of the money carry from becoming deeper out of the money over time. Anytime the carry is out of the
money, the VC will have an incentive to take more risk than is optimal from the investors’ point of view.
A better solution would be to give the VC a capital interest rather than a profits interest in the fund.
                                                     26
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
than an option-like carried interest would appear to make more sense. It is hard to
imagine any circumstances, at least in a world without taxes, where giving VCs a straight
carried interest with no preferred return is efficient. And so I conclude that from the
point of view of aligning incentives, the missing preferred return remains a puzzle. In
section [V] below, I consider the effect of taxes, and find that the status quo may be
efficient after-tax. First, though, it is useful to consider how one might design
compensation for VCs in a world without taxes.

A. Aligning Incentives

        Private equity faces a familiar problem: the separation of ownership and control.
LPs contribute capital to the fund but do not directly control the use of the capital, instead
relying on the GP to invest on their behalf. Several factors create an incentive for the GP
to work hard, find good portfolio companies to invest in, and spend time working with
management of these companies to increase their value. These factors are (1) fiduciary
duties, (2) management fee, (3) reputation, and (4) carried interest.

1. Fiduciary duties

        Fiduciary duties do not provide a strong incentive to work hard. In theory, the
general partner of a partnership has extremely strong fiduciary duties to its partners. In
Meinhard v. Salmon, Justice Cardozo explained that "joint adventurers, like copartners,
owe to one another, while the enterprise continues, the duty of the finest loyalty. . . . Not
honesty alone, but the punctilio of an honor the most sensitive, is then the standard of
behavior." While academics are fond of trotting out Cardozo’s famous dictum, this
exaggerates the state of the law.81 Just as corporate managers are effectively insulated
from duty-of-care liability by the business judgment rule, courts rarely find general
partners of private equity funds to have violated their common law duties to their limited
partners merely because of poor investment decisions.82 [More from Bainbridge.] In a
recent high-profile case, a private equity fund was found to have breached its fiduciary
duties by making poor investments; the jury, however, refused to award damages,
apparently finding that the investors had ratified or acquiesced to the investments.83 The
common law provides incentives not to lie, cheat, or steal, but not much of an incentive
to work especially hard or to be especially talented in the first place.

2. Management fee

        The management fee also fails to provide a strong incentive to work hard. GPs
typically receive an annual management fee of between one and three percent of the
capital committed to the fund.84 The management fee pays for the administrative
expenses of the fund, legal expenses, and pays the handsome salaries of the professionals

81
   Ribstein, Are Partners Fiduciaries?
82
   Bainbridge on BJR as abstention doctrine.
83
   Forstmann Little case in Conn.
84
   This amount sometimes decreases in the later years of the fund, when most of the fund’s capital as been
committed and the expenses of the fund decrease.
                                                    27
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
who work for the GP. The management fee is not contingent on the profitability of the
fund.

        Because the management fee is paid regardless of the performance of the fund, it
creates only a weak financial incentive to work hard. The management fee is payable in
virtually all circumstances; indeed the GP, as general partner of the partnership, controls
the payment out of partnership funds.85 The only recourse for unhappy LPs is to seek the
removal of the GP, a drastic step that is difficult to accomplish under most contracts. If
anything, then, the quasi-guaranteed management fee creates an incentive to be
somewhat tentative and risk averse; a mediocre GP who follows the herd is unlikely to be
ousted absent self-dealing or some other breach that is easier to prove.86

3. Reputation and social norms

         Reputation provides a significant performance incentive for some funds. By the
third or fourth year in the life of a typical fund, the GP has already begun raising money
for its next fund. LPs considering investing in the next fund will conduct considerable
diligence on the prior performance of the GP. Thus, even absent additional financial
incentive, GPs do have some incentive to work hard and perform well.

        Nonetheless, reputation is only a partial solution to the agency costs problem. It
can be difficult to observe and measure performance accurately. Within the group of
professionals that makes up a GP, some individuals may be more talented investors than
others, but performance metrics rarely track the involvement of each manager.
Moreover, as managers leave a GP for a competitor or strike out to raise money for their
own new fund, LPs may not be sure if they are actually enjoying the proven track record
of seasoned veterans, or are instead giving money to rookies free riding on the legendary
performance of their predecessors. Finally, some managers may plan to retire or move
on to another line of work, thereby creating a last period problem that reputational
considerations cannot fully address.

        Reputation may serve as a better check on agency costs in some funds than others.
For VC firms that already have strong reputations and can be expected to act in ways that
will protect that reputation, investors may be more willing to relax contractual checks and
engage in less intense monitoring behavior. For newer firms with weaker reputations,
one would expect contractual provisions to be tighter. Reputation might help explain
certain aspects of the form of compensation, but is unlikely, standing alone, to provide
sufficient incentives to make other contractual provisions unnecessary.

4. Carry

        The carried interest provides the most powerful incentive to work hard. A large
carry is one of the hallmarks of a private equity fund, and it is considered essential to

85
     [check this – or do the LPs make a separate payment]
86
     [research “no fault divorce” mechanisms]
                                                    28
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
attracting talented managers. While private equity managers could live well on their base
salaries alone, they would not be truly rich. Only the massive compensation of the
carried interest of a successful fund can do that, and it is the prodigious carry of
successful private equity funds that lures professionals away from investment banks,
commercial banks and other investment management companies.87

        Professor Ron Gilson has noted that the GP’s compensation structure is the ―front
line response to the potential for agency costs‖ resulting from giving the GP control over
the fund’s investments.88 But Gilson fails to closely examine the details of the
compensation structure, noting only that ―clawback‖ provisions may help prevent some
abuses. [More from Gompers and Lerner]

         Given the powerful effect of the carry on the behavior of GPs, one would expect
the carried interest to be carefully tailored to align the incentives of the GP with the LPs.
And thus one would expect the preferred return, hurdle rate, or absence thereof to reflect
concerns about efficient governance of the fund. But at first glance only one obvious
effect is clear – because the value of the carried interest increases only after clearing 8%,
the GP has an incentive to clear 8%. Without a preferred return, the GP has less
incentive (but still some incentive) to clear 8%. But beyond that the effects of the
preferred return on incentives can be rather confusing. Does a preferred return make the
GP more risk averse, or less? How does it affect the GP’s incentives to hold or sell
portfolio company investments? In other words, does the design of the carried interest
align the incentives of the managers with the goals of the investors?

B. The Option Analogy

        Characterizing the carried interest as an option can help us understand under what
conditions the current design of the carried interest in venture funds properly aligns
incentives.89 The intuition driving this analysis is that a carried interest is a derivative
and can be analyzed as such to understand the preferences, and thus the incentives, of the
derivative holder. A derivative is simply a financial contract that has a value derived
from some underlying security, commodity or fact. A stock option, for example, is a
derivative that has a value determined by reference to the value of an underlying stock.
An interest rate swap is a derivative that rises and falls in value as interest rates go up or
down. Here, the partnership agreement is a financial contract, and the value of the
carried interest provision of the contract depends on the value of the underlying fund.
Thus, it may be useful to think of the carry as a derivative and compare its performance
characteristics to those of other derivatives; this comparison may give us a better sense of
how the financial payouts of the carry affect the holder’s incentives and attitudes towards
risk over time. In this case, the carried interest most closely resembles a call option, a
87
   Some VCs who have already achieved financial independence may be motivated more by the psychic
satisfaction of creating new technologies and finding the next Google or funding a biotech company that
cures cancer. At the margins, though, most VCs remain sensitive to financial considerations. Few, after
all, would do this work for free.
88
   See Ronald J. Gilson, Engineering a Venture Capital Market: Lessons From The American Experience,
55 Stanford L. Rev. 1067, 1089 (2003).
89
   Cite to Sahlman.
                                                   29
                    C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                     Last printed 7/11/2011 2:53 PM
common derivative used in the capital markets.90 A call option gives the holder the right,
but not the obligation, to buy a fixed amount of the underlying for a fixed price and some
point in the future.

        To be precise, a 20% carry is financially equivalent to a call option on 20% of the
value of the fund.91 The holder of the carried interest, like the holder of a call option,
enjoys the possibility of theoretically unlimited upside gain but bears no risk of loss. If
the fund increases in value, the GP shares in the profits, just as would happen when an
option holder exercises an option. If the fund loses value, the GP has neither gain nor
loss, again, just like an option holder who declines to exercise an option.

         A numerical example may help illustrate the analogy. A 20% carried interest is
financially equivalent to a call option on 20% of the value of the fund, with a fixed
exercise price equal to 20% of the initial investment in the fund. Consider a fund with an
initial capital amount of $100. If the fund appreciates to $400, the GP has the right to call
20% of the fund (20% of $400, or $80) at a strike price of 20% of the initial capital
amount (20% of $100, or $20). The difference between the current market value of the
option ($80) and the strike price ($20) represents the GP’s profit ($60). This $60 profit
on the option is equivalent to a carried interest of 20%, as a carry of 20% of the overall
profits of the fund, or $300, is also $60. The analogy holds on the downside: if the value
of the fund declines below its initial value, the carried interest has no current liquidation
value, just like the holder of an out of the money call option.


                         Carried Interest                                                   Call Option

 GP                                                          Option
 Payout                                                      Holder
                                                             Profit

                                                                 54
     54
                  Straight                                                    Call Option
                  Carry


      0                                                          0




                100                      216   270                          100                      216   270

                      Total Fund Value                                            Total Fund Value




        The option analogy is useful because it allows us to tap into the extensive research
on executive compensation in the context of public company executives. Executives of
public companies typically receive a pay package that includes a cash salary and stock
options; the options typically have a strike price at the money and a ten-year term. Few
academics believe that this package is ideal: reform proposals include the use of indexed
options and replacing options with restricted stock.

90
  Cite to Sahlman.
91
  The carried interest is analogous to an American-style call option on common stock. American-style
means that the option holder may exercise the option at any time before the expiration expires, while
European-style options must be exercised only on the fixed expiration date. The carried interest resembles
an American-style option because the GP largely controls when the fund realizes its investments by selling
the stock or assets of portfolio companies.
                                                           30
                             C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                              Last printed 7/11/2011 2:53 PM
         To index an option means to set the strike price according to a formula that
changes over time. For example, one might set the strike price of an option to move
according to a basket of stock prices. An executive at Delta Airlines, for example, might
receive options with a strike price that rises or falls as the stock prices of American,
United, and Continental rise and fall. Thus, if the whole airline industry falls upon hard
times, pushing all airline stocks down, but Delta weathers the storm better than its
competitors, then the strike price of the option drops along with the basket, allowing the
Delta executive to be rewarded for her superior performance relative to her peers at other
airlines. If the whole airline industry does well and airline stocks soar, but Delta falls
behind its competitors, the executive will not be rewarded. Because such options – which
I will refer to as industry-indexed-options – reward performance relative to peer firms,
they are an improvement over traditional fixed options.

        A second type of indexed options, cost-of-capital-indexed-options, moves the
strike price higher over time to reflect the company’s cost-of-capital.92 Thus, if the
company’s cost of capital (the amount of interest or expected return it must pay to raise
additional money in the capital markets) is 10%, then the strike price of the executive’s
option will increase by 10% per year. If the company’s stock price rises slowly, but does
not match the investors’ expected return, then the executive will not be rewarded.

         Options, whether indexed or not, have a significant drawback: when they are out
of the money, they can induce highly risky behavior on the part of the executives.
Imagine an executive with options with a strike price of $100 and one year remaining
until expiration. Now suppose that the stock is currently trading at $50, and the executive
is setting the corporate strategy for the upcoming year. If the company does well but not
spectacularly well, the executive will not be rewarded; only if the company doubles its
stock price will the executive receive anything. The executive may become overly risk-
seeking, then, taking unwise gambles, even if such gambles have a negative net present
value to the shareholders.

         Some critics of stock options have suggested that executives should receive
restricted stock rather than stock options. Restricted stock can improve incentives
between the shareholders and the executive by giving the executive something to lose on
the downside as well as something to gain on the upside, just like shareholders. A
drawback of restricted stock, however, is that it may not work well for risk averse
executives, who may become too focused on preserving value rather than creating
additional value in the firm.

        How does the carried interest compare to executive stock options? The carried
interest is equivalent to a call option with an at-the-money strike price. A carried interest
with a true preferred return is equivalent to a cost-of-capital indexed option. Restricted
stock is not equivalent to any type of carried interest at all, but rather to a capital interest
in the partnership. The analogy is easy; the hard part is figuring out the optimal contract
design. I turn now to this task.
92
     See G. Bennett Stewart, Remaking the Corporation from Within, 68 Harvard Bus. Rev. 12-13 1990
                                                    31
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
C. The Efficiency and Inefficiency of the Preferred Return

        There are tradeoffs, even in a world without taxes. When pay is made contingent
on superior performance, VCs have a stronger incentive to succeed. But the success or
failure of a fund is not entirely within the control of the VC, and so they demand a risk
premium when their pay is contingent. Pay without performance is costly for investors.
Paying for performance is costly in a different way: VCs will demand higher pay when
they are forced to meet a target. Pay should be made contingent on performance if, but
only if, increased pay can be expected to actually increase the overall value of the fund
above and beyond the amount of risk premium paid to the VC.

        To get better traction on this question of efficient compensation design, I focus on
two areas where financial incentives may stimulate better performance: deal flow, and
deal harvesting. Deal flow relates to the VC’s ability to find good portfolio investments.
Deal harvesting relates to the VC’s ability to bring those investments to a successful exit.
Because not all venture firms are the same – VCs have different reputations, abilities, and
risk tolerance – there may not be a single optimal compensation design. But we can
nevertheless draw some conclusions about the relative efficiency and inefficiency of
different compensation schemes through closer examination of the context in which VCs
perform their duties for investors.


1. Assumptions

       It may be useful to spell out my assumptions about what makes a certain
compensation design efficient. I make four assumptions. First, I assume that VCs are
motivated in part by financial incentives. It may be possible that some VCs are rich
enough that they would work for free. But the ubiquity of the carried interest suggests, at
a minimum, that VCs’ decisions about how much effort to expend advising and
monitoring companies -- and which entrepreneurs to back in the first place -- are
influenced by the amount of money they can make from the endeavor.

       Second, I assume that some VCs have better reputations than others, and that
investors can discover these reputations at low cost. Reputation is important in many
business contexts, but perhaps especially so in venture capital. Sand Hill Road is a tight-
knit community, and word gets around quickly.93 Because of the importance of
networking among entrepreneurs, the venture capital community often looks around to
see what others are doing, and this seems to facilitate networking at the fund level as
well.



93
  Dozens of venture capital funds are located on the same road, Sand Hill Road, near Palo Alto. This not
only facilitates networking and allows them to keep a close eye on the portfolio companies they invest in; it
also creates a community where word gets around and monitoring VC behavior is relatively easy for
investors. [move to text?]
                                                     32
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
        Third, I assume that VCs value their reputations and can be expected to try to act
in ways that will preserve their reputations. Reputational constraints are made more
powerful because many investors are repeat players. Institutional investors such as
pension funds, university endowments and insurance companies return to the venture
capital market again and again, and are in a position to punish VCs who misbehave by
refusing to invest in their next fund.94

        Lastly, I assume that VCs are risk averse. Venture capitalists hardly fit the
stereotype of a Nervous Nelly. VCs are stereotyped as free-wheeling innovators who like
risk for its own sake, the cowboys of the investment world. But the cultural stereotype
may be a bit of an exaggeration. VCs take calculated risks, and they do so with other
people’s money. There is little reason to think that when it comes to their own personal
finances, VCs behave all that differently than other executives. Like everyone else, VCs
enjoy decreasing marginal utility from each additional dollar that they earn. For highly
successful VCs, this may just mean that their first private jet is held more dear than their
second. But for most VCs, their salary structure is not that different than a typical
investment banker or Fortune 500 executive. 95 Venture capitalists have high recurring
expenses for mortgage payments, car payments, private school tuition, and the like.
Given a choice between $10 million over the next ten years or a 50-50 shot at $21
million, most VCs would choose the sure thing. VCs cannot diversify away their firm-
specific risk, and so they can be expected to demand a risk premium when offered
compensation contracts that are strictly tied to firm performance.

        [Research by financial economists supports the assumption that VCs are risk
averse. A model by Professors Charles Jones and Matthew Rhodes-Kropf finds that a
straight carried interest best aligns the incentives of the risk averse VC with the
principals.96 A capital interest would encourage VCs to diversify away some firm-
specific risk by investing in too many portfolio companies. A straight carried interest, by
rewarding the VCs for volatility, moderates the risk aversion. A preferred return,
however, would go too far, encouraging too much risk-taking at the cost of returns.97]


2. Deal Flow Incentives



94
   Cite to Gilson, Gompers.
95
   On the surprising stress of maintaining a wealthy lifestyle, see Tom Wolfe, Bonfire of the Vanities.
96
   See Charles M. Jones & Matthew Rhodes-Kropf, The Price of Diversifiable Risk in Venture Capital and
Private Equity, available on SSRN, May 2003 version, at 5.
97
   Id. at 23. The Jones-Rhodes-Kropf model is useful, but fails to fully answer the question at hand, which
is why LBO funds are subject to preferred returns, but VCs are not. Some of their assumptions, moreover,
are questionable as they pertain to the question at hand. For example, they assume that VCs are not limited
in the number of projects they can invest in. Id. at 7, n.12. By contract, however, most VCs cannot invest
in more than [x] projects. It is possible, then, that it may be more efficient to compensate VCs with a
capital interest, and address the over-diversification problem with a contractual restriction. Moreover, the
model fails to reflect the impact of taxes, which may distort the incentive effects considerably, as I discuss
below.
                                                     33
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
         VCs are not passive money managers. They create value for their investors by
locating good portfolio companies, choosing well among possible investments, and
negotiating favorable investment terms. This activity in the early years of a fund’s
existence can all be bracketed as relating to ―deal flow.‖ Deal flow comes easy to elite
VCs. When entrepreneurs seek funding for a new idea, they turn first to the royalty of
Silicon Valley: Kleiner Perkins, Sequoia, Benchmark, and other elite venture funds.
Entrepreneurs know these well-established funds can provide valuable capital,
management expertise, and customer and executive staffing contacts to help the company
grow. With talented entrepreneurs knocking at the door, high-reputation VCs can be
choosier about which deals they fund, and they might be able to negotiate better terms.
Lesser-known VC funds can also achieve good deal flow, but they must work a bit harder
to get it. VCs do this by attending technology conferences, networking with
entrepreneurs and other VCs, studying developing technologies and industries, working
with university researchers, and so on.

        Deal flow sometimes refers only to the rate at which firms receive potential offers
of investment. I use the term more broadly to encompass not just receiving a high
number of potential deals, but also to refer to the quality of the deals, and the VCs’ ability
to turn those potential deals into actual closings with attractive deal terms. After all,
venture capitalists exercise discretion in choosing projects and negotiating the terms of
investment. The due diligence process has become more important in recent years.
Before investing, VCs often interview everyone they reasonably can, including founders,
managers, suppliers, and customers. VCs must research the relevant markets and
competition to assess the portfolio company’s likelihood of success.

        The ability to secure good deal flow is especially important in market
environments where there is ―money chasing deals.‖ VCs today report that not enough
good ideas or good founders exist to support the amount of money that continues to flow
into the venture capital sector. As one practitioner explained it, ―God grades on a
curve.‖98 For VCs who have already successfully raised a fund, a thin market for
entrepreneurs creates a moral hazard risk: VCs will be tempted to invest all of the
committed capital, even if not every investment is a strong one. VCs with weak networks
may have trouble sourcing deals and may accept the first proposals to come along,
regardless of their likelihood of success. Even for VCs with strong deal flow, accepting
proposals quickly might allow the VCs to turn their attention to other tasks, like raising
money for their next fund.

         Equity-based compensation can help align the deal flow incentives of the VC with
the goals of their investors. If compensation is contingent on exceeding a preferred
return, VCs are more likely to invest only in companies that are likely to exceed this
return. To address the parallel concern in the public company context, Professors Jensen
and Murphy argue that companies should consider giving executives cost-of-capital
indexed options. Thus, instead of options with a fixed strike price, executives would
receive options with a strike price that would increase over time, say 6% per year, to
reflect the investors’ cost of capital. A cost-of-capital indexed option addresses the
98
     David Chen, Willamette Conference.
                                                    34
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
opportunity cost when executives invest money in deals that offer subpar returns; it
would be more efficient if they returned the money to the investors to allow them to
invest elsewhere. By raising the strike price over time, cost-of-capital indexed options
make executives aware of the hurdle rate they must achieve to satisfy investors, and it
gives them the financial incentive to do so.

       Extending this model to the venture capital context is tricky. Context matters;
VCs may not face the same choices that public company executives face. To understand
the impact of compensation design on deal flow incentives, I will consider four possible
compensation designs: a true preferred return, a hurdle rate, a straight carried interest
with no preferred return, and a capital interest in the partnership.

         Other compensation designs are possible: one could imagine a tiered carried
interest, where the percentage of the carry increases as the amount of profits increase.
For example, VCs could receive 10% of the first $10 million in profits, 20% of the next
$10 million, and 30% of any additional profits. Or one could imagine a carried interest
that is indexed to the performance of peer funds. For (relative) simplicity, however, it
seems useful to start by considering the efficiency of the most common compensation
schemes – a hurdle rate and a straight carried interest – and two closely related schemes
that seem to improve efficiency – a true preferred return, and a capital interest in the
partnership.

        If encouraging VCs to create good deal flow and to properly exercise discretion in
funding projects is the paramount goal, then a true preferred return appears to be more
efficient than the alternatives.99 A preferred return rewards VCs with a share of the
profits only to the extent they choose projects that exceed the investors’ cost of capital.
When VCs find companies that seem unlikely to meet the necessary return, they will
have an incentive to engage in further networking to find better alternatives. The fact that
venture capital is risky does not change this analysis. Managers who choose ten portfolio
companies knowing that eight will fail should still feel confident that not only will the
remaining two companies return a profit, but that the aggregate return will exceed the
investors’ cost of capital. If aggregate returns do not exceed the investors’ cost of capital,
then the fund managers have not performed well.

        Leveraged buyout funds’ use of an 8% preferred return thus seems to reflect
investors’ concerns about how fund managers choose portfolio companies. At the same
time, if this the goal, then the industry standard hurdle rate of 8% used by many private
equity funds seems rather arbitrary. An investor’s cost of capital might be lower or
higher than this amount, and would be expected to vary as interest rates rise and fall. It
may be, however, that the 8% hurdle reflects the peculiar nature of venture capital and
private equity, where many investors are pension funds. The 8% number may have

99
  Risk aversion makes the optimal design difficult to figure out, even if deal flow incentives are the only
goal and tax consequences are ignored. Because VCs are risk averse, they will value the first dollars of
carry that they receive more than the additional dollars, and thus may work harder to clear the hurdle and
worry less about by how much they clear the hurdle. A preferred return with a tiered carried interest rate
might be more efficient.
                                                     35
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
originated by a demand by pension funds, who often use a discount rate of 8% to
calculate their future liabilities.100 To the extent private equity investments can clear this
discount rate, the pension fund managers are achieving the return necessary to improve
the financial security of their own principals.

        While a preferred return can improve deal flow incentives, this increase in
efficiency comes at a cost. Because the carried interest starts ―later‖, i.e., at a higher
strike price, VCs will demand a higher percentage of carried interest so that if they do
exceed the expected return, they are compensated at least as well as if they had received
the straight carried interest. Investors might have to offer VCs a higher percentage of the
profits – say, 30% instead of 20% -- to get them to accept the true preferred return.




                         20% Straight Carry vs. 30% Carry Subject to
                                   True Preferred Return
       GP
       Payout



           54               20%
                            Carry                                30% Preferred Return

           0




                           100                      216    270

                                 Total Fund Value



If aligning deal flow incentives increases the likely total return by a sufficient amount,
then investors should be willing to pay a higher percentage of carry, as aligning the
incentives will nonetheless increase the net present value of their investment in the fund.

        Risk aversion complicates the analysis further. Risk aversion will lead even VCs
who are confident in their abilities to demand an additional risk premium if their
compensation is subject to a true preferred return. Even superbly talented VCs recognize
that there are uncertainties with any portfolio company, that there are ups and downs in
the market, and that exit strategy for start-ups depends in large part on a vibrant IPO

100
  Interview with Carrie McCabe, McCabe Advisors LLC, at Georgetown University Law Center, Fall
2004. [follow up by email]
                                                      36
                   C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                    Last printed 7/11/2011 2:53 PM
market. Investors might have to offer VCs an even higher percentage of the carry,
perhaps 35%, in order to compensate the managers for the increased risk associated with
the preferred return. Nonetheless, the trade-off may be a good one if the investors need
assurance that the managers they are hiring are competent.

        One recent model in the public company context finds that, after accounting for
executive risk aversion and effort aversion, at-the-money or in-the-money options are
optimal.101 The impact of risk aversion should not be overstated, however. VCs also
receive some compensation in the form of management fees, which are not contingent on
the performance of the fund. Because VCs receive some riskless return, the additional
compensation in the form of carry may not be discounted for risk as steeply as one might
think at first glance.

         A formal model of optimal compensation design for risk averse venture capitalists
is beyond the scope of this Article. For present purposes, it is sufficient to recognize that
because investors must compensate VCs for the increased risk associated with making a
carry subject to a true preferred return, it is a somewhat costly device to screen talent and
manage the agency cost problem. For some funds, then, relying on reputation may be a
more efficient solution. Investors in prestigious funds can be confident that the VCs will
have little trouble finding good deals and choosing the pick of the litter. Because venture
funds will want to preserve their reputation to aid in future fund raising efforts, investor
can have some confidence that VCs with strong reputations will get them into the right
investments. Because the risk aversion of VCs makes a preferred return costly, we would
expect to see it employed only when deal flow incentives are paramount. The
institutional quirks of the venture capital industry, with relatively small networks of
entrepreneurs, VCs, and investors, create a plausible story that investors in funds with
strong reputations have no need to employ a true preferred return.

         Deal flow incentives can thus help us understand why some venture capital funds
might use a preferred return. But the few VC funds that do employ a preferred return use
a hurdle rate, not a true preferred return. Why? Recall that VCs will demand a risk
premium in exchange for giving investors a preferred return. A hurdle rate may be more
efficient than a true preferred return if it properly aligns deal flow incentives but is less
risky for VCs. And a hurdle rate does help align deal flow incentives. Its screening
effect is nearly as strong as a true preferred return: VCs who are not confident that they
can clear 8% will value their compensation less, and will look for other work. And a
hurdle rate, like a true preferred return, encourages VCs to choose investments that in the
aggregate will clear 8%.

        But a hurdle rate is not perfect. Consider the following distortion. Investors
would like managers to choose projects that maximize their expected return. Imagine
that a VC is considering three deals: a low-risk, low-return company that will return
$105 in one year on a $100 investment, a medium-risk, medium-return company that has
a 80% chance of returning $110, but has a 20% risk of returning $105, and a high risk,

101
  See Oded Palmon, Sasson Bar-Yosef, Ren-Raw Chen & Itzhak Venezia, Optimal Strike Prices of Stock
Options for Effort Averse Executives.
                                                 37
                   C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                    Last printed 7/11/2011 2:53 PM
high-return company that has a 20% chance of returning $130, but has an 80% risk of
returning $105. A risk neutral investor would prefer the high-risk, high-return option, as
it maximizes the expected return. A hurdle rate, however, does not lead the VC to choose
this option.

                                        Expected Fund                 Expected GP Payout
                                        Return

           Low-Low                      $5                            0
           Medium-Medium                $9                            $1.60
                                        (10(.8)+5(.2))                (10(.8)(.2)+0(.2))
           High-High                    $10                           $1.20
                                        (5(.8)+30(.2))                (0(.8)+30(.2)(.2))


The hurdle rate screens out the low-risk, low-return, option, but it allows the manager to
receive its full share of carry on either the successful medium or high risk investment.
Because the catch-up provision allows the manager to gain its full share of carry as the
return of the fund moves from 8-10 percent, the manager may concentrate on clearing the
hurdle rather than maximizing total value. VC risk aversion may magnify the distortion.
Assuming a declining marginal utility of wealth, the medium-risk, medium return
strategy will be even more appealing than the high-risk, high-return strategy.102

        What is most important about the hurdle rate is that it screens out the low-risk,
low-return investment strategy, and it still looks imposing for VCs of questionable
quality who may not be able to clear the hurdle. In sum, hurdle rates thus do a good job
of aligning deal flow incentives, albeit a slight distortion compared to a true preferred
return.

        A straight carried interest provides weaker deal flow incentives than a true
preferred return. Returning to the example above, risk-averse managers no longer have
an incentive to reject even the low-risk, low-return investment. A sure thing that
achieves a 6% return will be attractive, even though this is not the sort of bet their
investors have in mind. This moral hazard risk of VCs pursuing low-risk, low-return
investments may be less significant in the real world. One may address this concern in
ways other than compensation design. Venture capital fund agreements routinely limit

102
    But the distortion caused by the catch-up zone may be less important in practice than it appears. It
would be difficult at the outset for VCs to distinguish between medium-risk and high-risk projects. If a VC
cannot distinguish between the two, then it will simply choose the best projects. Moreover, the hurdle rate
is calculated based on aggregate returns to date, so the strategy that maximizes net present value will also
usually maximize the chances of clearing the hurdle.
          It’s also possible, though unlikely, that the investors are not risk-neutral, but share the VC’s risk
aversion. I assume that the investors are risk neutral because they are often large institutions, and venture
capital makes up just one part of a diversified portfolio. It’s possible, however, that the fund managers who
direct the investments are compensated on their ability to clear a hurdle rate. Pension fund managers would
not normally be compensated in this manner, however, as it would run afoul of the plan asset rules under
ERISA.
                                                      38
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
by contract the sorts of companies that the fund may invest in. For example, a fund may
be limited to making investments in early-stage computer software companies. While
one might fund both medium-risk and high-risk companies, one is not likely to find a
low-risk early-stage computer software company to invest in. Thus, a straight carried
interest may be nearly as effective as a true preferred return in encouraging good
investments. A straight carried interest does have a significant weakness, however, when
it comes to screening out bad VCs. Few VCs are unable to achieve a positive return, and
so few will be deterred by a compensation scheme that rewards performance even when
that performance is subpar.

        A capital interest in a partnership provides the weakest deal flow incentives. It
provides no screening effect; even the worst VCs will not destroy the entire value of the
fund. Moreover, a capital interest in a partnership may encourage VCs to shy away from
risky investments. The compensation curve is upward sloping, so there is an incentive to
source and fund companies with a higher expected return. Because VCs are risk averse,
however, at the margins they may shy away from riskier investments. To a risk averse
VC, the bird in the hand is more valuable than the two in the bush. This is the same
concern that boards face when they consider giving restricted stock to corporate
executives: because the executives have something to lose on the downside as well as
something to gain on the upside, they may act to preserve their existing wealth, even if
that means passing on a valuable opportunity.

         In sum, the missing preferred return suggests an inefficiency in venture capital
compensation design. To align the incentives of VCs with those of their investors,
equity-based compensation should offer VCs no reward for investments that do not return
at least the investors’ cost of capital. A true preferred return achieves this goal. A
straight carried interest does not. Reputation effects may mitigate some of the concerns
about deal flow incentives. Opportunity costs may provide a substantial constraint on a
VC’s choice of projects. When an investor makes a capital commitment to a fund, the
commitment is capped at a certain amount. Thus, even a VC who has a capital interest in
a partnership (and thus will make money from any investment) has an incentive to turn
down deals if she is confident that better deals will come along within the funds’
investment time frame.

        Opportunity costs are highest for VCs with better reputations, who have the
strongest deal flow. (I assume that VCs who have a strong reputation with investors also
have a strong reputation among entrepreneurs seeking funding.) Thus, providing strong
deal flow incentives are most important for VCs who have the weakest deal flow and so
might be more inclined to accept whatever deals they can find.


3. Deal Harvesting Incentives

      The work of venture capitalists is not finished after they invest in portfolio
companies. VCs are active investors. They often sit on the board of the portfolio
companies, and sometimes even control the board. Even without board control, VCs

                                               39
                 C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                  Last printed 7/11/2011 2:53 PM
exert power over the portfolio companies by providing (or not providing) financing for
additional rounds of investment. They can provide entrepreneurs with management
consulting advice, tapping into their network of contacts to provide staffing advice, find
relationships with customers, and aid in strategic planning.

        To encourage VCs to maximize the value of the portfolio companies, it may be
important to give them both something to gain on the upside and something to lose on the
downside. The importance of upside is obvious: if VCs earn more by increasing the
value of the portfolio companies, they will work harder and will pay more attention to
harvesting investing deals than to raising money for their next fund. The importance of
having something to lose on the downside is less obvious, but significant. If VCs have
nothing to lose, they may encourage portfolio companies to make risky bets. VCs may
do this by encouraging portfolio companies to go public before they are ready, to roll out
products without sufficient testing, or to spend more money on marketing rather than
R&D.

        This effect is not unique to the carried interest. Any option-like compensation,
including the common stock of a highly leveraged firm, shares this drawback. When an
option is out of the money, the holder has an incentive to take big risks with the
company, even if such risky moves have a negative net present value. The option holder
has something to gain and nothing to lose.

        The problem may be more pronounced in VCs funds than in other contexts. The
value of venture funds is subject to a ―J-curve‖ effect: the value typically declines in the
early years of a fund, and then increases later. If the carry is far enough out of the
money, the VC may simply give up on the fund, instead shifting attention to raising
money for the next fund and letting the existing investments languish.

        A preferred return or hurdle rate can exacerbate the out-of-the-money distortion.
Because the strike price increases over time, VCs will face stronger and stronger
incentives to make risky, negative net present value bets when offering advice to
entrepreneurs.

        A hurdle rate also introduces an additional inefficiency through the catch-up
provision. Suppose a fund has sold off all of its one portfolio companies save one,
Epsilon Corp. The LPs originally contributed $100 to the fund and have received back,
to date, $216. The GP is right at the cusp of clearing the hurdle rate. Now they are
presented with an offer to sell their Epsilon stock for $30; alternatively, they could hold
on to the stock for another year. If they hold on to the stock, they believe there is a 25%
that Epsilon could go public and be sold for $180, and a 75% chance of failure, in which
case they will receive nothing. This should not be a close call. The IPO play has a
present value of $45; the sale would net $30. For the GP, though, the incentives push in
the other direction. Every dollar from the sale would be allocated to the GP; the LPs
would receive nothing. If Epsilon goes public, on the other hand, the first $38 would be
allocated to the GP, but the remaining $142 would be split 80-20 in favor of the LPs,
leaving the GP with an additional $28 and a total of $66. Given the 75% chance of

                                                40
                  C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                   Last printed 7/11/2011 2:53 PM
failure, the present value of the IPO play, to the GP, is $17, far less than the sale. The
GP, then, might opt for the overly safe, negative net present value investment. Of course,
it is possible that this situation rarely comes up in the real world. GPs, moreover, might
enjoy more fund-raising value from a high profile IPO than a quiet sale, implicitly
pushing up the value of the riskier strategy. Still, the use of catch up provisions is
puzzling from a governance perspective, as it misaligns incentives.103

        The ready availability of alternatives makes the use of catch up provisions
especially troubling. Practitioners sometimes say that they do not want to ―slow down‖
the carry beyond the 8% hurdle; a 100% catch up provision certainly speeds up the carry
to 20% as quickly as possible. Nonetheless, a tiered carry could accomplish much the
same goal without distorting incentives as badly.104

        A straight carried interest is somewhat more efficient than a preferred return with
respect to deal harvesting incentives. A straight carried interest will sometimes suffer
from the same distortions that all options share: distorted incentives when the option is
out of the money. Because the straight carry has a lower strike price, however, it is less
likely to fall out of the money, and less likely to be deep out of the money, when the
distortion of incentives is the greatest concern.

        Does deal harvesting solve the puzzle of the missing preferred return? Not quite.
If the paramount goal of investors is to eliminate the possible bad incentives of an out of
the money carry, the logical solution would be to lower the strike price, or to eliminate
the option-like feature of the carry altogether. One would do this by replacing the carried
interest with a capital interest in the partnership.

        A capital interest in the partnership eliminates the distortions of the carried
interest. Because VCs have something to lose on the downside and something to gain on
the upside, incentives between VCs and investors are aligned. Risk averse VCs,
however, may act in too conservative a manner. Investors concerned about risk aversion
might consider increasing the amount of equity-based compensation as returns increase,
for example, by providing an additional 5% of the fund when the IRR exceeds 8%.

4. Summary

        The relative efficiency of the carried interest vs. the preferred return depends
largely on the reputation of the VCs. If investors are confident that the VCs are talented
and will secure good deal flow, then providing good deal harvesting incentives are most
important. The option-like characteristic of the carried interest is troublesome, especially
for the true preferred return and hurdle rate. A straight carried interest still distorts deal

103
    A partial fix is to slow down the catch up provision by allocating 50% of profits to the GP rather than
100% during the catch-up period. This extends the distorted area of return on the graph, but better aligns
incentives during the distortion.
104
    For example, based on an initial investment of $100, the GP could receive 5% of profits from $100 to
$150, 10% of profits from $150 to $200, 15% of profits from $200 to $250, and 20% of profits thereafter.

                                                     41
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
harvesting incentives, but not as frequently, and even less frequently for funds that have
fewer strikeouts. A capital interest aligns deal harvesting incentives best, and thus makes
the most sense for high-quality, high-reputation VCs.

        If investors are less confident about the talent of the VC and its ability to secure
good deal flow, then using a true preferred return may be optimal. Bad managers will
value this contingent compensation less than good managers, and will self-select away.
Furthermore, managers will be more highly motivated to source high quality deals,
knowing that their performance compensation depends on clearing the benchmark. A
hurdle rate also provides good screening effects, but introduces additional deal harvesting
incentives.

        One would expect, then, to see a clientele effect. For established institutional
investors who can get into the most prestigious funds, one would expect VCs to receive a
capital interest in the fund. In less prestigious funds, on the other hand, one would expect
VCs to receive a true preferred return. And yet we see neither of these designs in the real
world. No funds that I know of give VCs a capital interest in the fund beyond the
traditional one percent of the fund that VCs contribute. When a carried interest is used, it
is rarely (in VC) subject to a preferred return. And when a preferred return is used, it is
usually a hurdle rate rather than a true preferred return.

         How can I explain this gap between my theoretical, agency costs predictions and
what we observe in the real world? In the public company context, commentators have
pointed to agency costs and accounting rules as the likely cause of inefficient contract
design. Here, accounting rules are irrelevant, and agency costs seem to pose less of a
problem. Moreover, there is little reason to believe that agency costs would be absent in
private equity, where preferred returns are used, but absent in venture, where they are not.
What is left to explain the puzzle? When optimal contracting theory fails, solutions tend
to fall into two categories: market failures (such as monopolies or excessively high
information costs or agency costs), or legal or regulatory rules that dictate the suboptimal
contract design. Here, it is a set of legal rules – tax – that solves the mystery of the
missing preferred return.


               V. A Tax Explanation for the Missing Preferred Return


        Tax provides the final piece to the puzzle. Assuming the goal of the carried
interest is to align the goals of the VCs with those of their investors, one would expect to
see either a true preferred return or capital interest, depending on the reputation of the
VC. For VCs with mixed or unknown reputations, one would expect to see a true
preferred return. VCs with high reputations should simply receive a capital interest in the
partnership, which properly aligns deal harvesting incentives. Instead, we observe
neither of these designs in the real world. Arguably, a straight carried interest may
represent a balancing act between deal flow incentives and deal harvesting incentives.
But reputation alone cannot account for the complete absence of VCs compensated with a

                                                42
                  C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                   Last printed 7/11/2011 2:53 PM
capital interest, nor can it account for the preference of hurdle rates over true preferred
returns. Either practitioners misunderstand how incentives work, or something else is
going on. Tax, ironically, helps clear up the confusion.

        Tax distorts the efficiency of contract design in two ways. First, management
fees are treated as ordinary income and taxed upon receipt. Carry, on the other hand, is
treated as capital gain and taxed at a lower rate. Tax thus creates an incentive to pay as
much compensation as possible in the form of carry rather than management fee.
Second, the value of the carry is not taxed upon receipt of the contract, but rather only
when the underlying gains have been realized and distributed. The option value of the
carried interest is never taxed. And so in two ways, tax creates a strong incentive to pay
as much compensation as possible in the form of carry, and as little as possible in the
form of management fees or other cash payments.

         The tax law thus subsidizes compensation for venture capitalists, but only when it
comes in the form of carried interest. The subsidy is especially valuable in venture
capital because of the volatility of venture funds. Including a preferred return in venture
capital contracts (or, for that matter, indexing the carry to an industry benchmark or
otherwise increasing firm-specific risk) would reduce the value of the carry, thereby
failing to take full advantage of the subsidy. The lawyers and principals who draft
partnership agreements quite rationally take full advantage of the tax subsidy at the cost
of inferior contract design.

A. The Tax Treatment of Carry

       The tax law creates a gap between the economics of the carried interest and its
treatment for tax purposes.


1. Timing

        The first issue is timing. At the moment a fund agreement is signed, the GP
receives something of economic value. The carried interest has an ―option value‖: the
possibility that the value of the fund will increase, making the carry valuable. To be sure,
the current value is uncertain, contingent as it is on the efforts of the GP and subject to all
sorts of external risks, such as the strength of the IPO market. But it has some economic
value nonetheless. From a purely economic standpoint, then, the GP should recognize
some amount of taxable income at the moment the partnership agreement is signed. But
the calculation of the option value would be very difficult to make, and even harder for
the IRS to evaluate and police.

        Tax practitioners and academics have struggled for years over the problem of the
taxation of the receipt of a partnership interest in exchange for services.105 Partnership

105
   See Martin B. Cowan, Receipt of an Interest in Partnership Profits in Consideration for Services: The
Diamond Case, 27 Tax L. Rev. 161 (1972); McKee, Nelson & Whitmire, Federal Taxation of Partnerships
and Partners, (3d ed. 1997) at ¶ 5.01-5.10; Cowan, Receipt of a Partnership Interest for Services, 32 NYU
                                                   43
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
interests are often analytically divided into two types: capital interests and profits
interests. A profits interest is an interest that gives the partner certain rights in the
partnership (thus distinguishing it from an option to acquire a partnership interest) but
that has no current liquidation value. A capital interest both gives the partner certain
rights in the partnership and also has a current liquidation value. It is well established
under section 83 that when a partner receives a capital interest in a partnership in
exchange for services, the partner has immediate taxable income on the current value of
the interest.106 Determining the proper treatment of a profits interest is more difficult,
however, as its current economic value is difficult to determine. In Diamond vs.
Commissioner, the Tax Court (affirmed by the Seventh Circuit) held that the receipt of a
profits interest ―with determinable market value‖ is taxable income.107

        A profits interest in a partnership rarely has a determinable market value,
however. Practitioners debated how to treat the receipt of profits interests until 1993,
when the IRS settled the issue by conceding that profits interests would not be taxed
currently, and by further establishing that a partnership interest with no current
liquidation value would be the hallmark of a profits interest. In this important
pronouncement, Revenue Procedure 93-27, the IRS announced that the IRS would not
treat the receipt of a profits interest by a person who performs services to a partnership in
a partner capacity as a taxable event for the partner or the partnership.108

        Rev. Proc. 93-27 spelled out the limits of this safe harbor. To qualify, the profits
interest must not relate to a substantially certain and predictable stream of income from
partnership assets, such as income from high-quality debt securities or a high-quality net
lease, must not be disposed of within two years of receipt, and the partnership must not
be publicly traded.109 Rev. Proc. 93-27 defines a capital interest as an interest that would
give the holder a share of the proceeds if the partnership’s assets were sold at fair market
value and then the proceeds were distributed in a complete liquidation of the


Inst. on Fed. Tax’n 1501 (1974); Cunningham, Taxing Partnership Interests Exchanged for Services, 47
Tax L. Rev. 247 (1991); Schmolka, Taxing Partnership Interests Exchanged for Services: Let
Diamond/Campbell Quietly Die, 47 Tax Law Rev. 287 (Fall 1991); Hortenstine & Ford, Receipt of a
Partnership Interest for Services: A Controversy That Will Not Die, 65 Taxes 880 (Dec. 1987); Gehrke,
Section 83 Applied to Partnership Transactions: The Road to Certainty in Planning and Controlling the
Tax Consequences of Exchanges of Partnership Interests for Services, 13 Fla. St. U. L. Rev. 325 (1985);
Banoff, Conversions of Services Into Property Interests: Choice of Form of Business, 61 Taxes 844 (Dec.
1983). [check cites]
106
    See Mark IV Pictures, Inc. v. Commissioner , 60 T.C.M. 1171, 1176 (1990), aff’d, 969 F.2d 669, 674
(8th Cir. 1992); Larson v. Commissioner, 55 T.C.M. 1637 (1988); Hensel Phelps Construction Co. v.
Commissioner, 74 T.C. 939 (1980), aff’d, 103 F.2d 485 (10th Cir. 1983). For cases holding the receipt of
a capital interest taxable under Code §61, see United States v. Frazell, 335 F.2d 487 (5th Cir. 1964); Edgar
v. Commissioner, 56 TC 717 (1971); Johnston v. Commissioner, 69 T.C.M. 2283 (1995) (holding that
receipt of capital interest in a partnership is subject to timing rules of Treas. Reg. §1.721-1(b)(1)). See also
Treas. Reg. §1.721-1(b)(1) and Prop. Treas. Reg. §1.721-1(b)(1)(i). [check cites]
107
    See Diamond v. Commissioner, 492 F.2d 286, 291 (1974); [add cite to tax court case].
108
    See Rev. Proc 93-27, 1993-2 C.B. 343.
109
    See id. See also Rev. Proc. 2001-43, 2001-2 C.B. 191 (holding that a profits interest that is not
substantially vested does trigger a taxable event when restrictions lapse; recipients need not file protective
83(b) elections).
                                                      44
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
partnership.110 A profits interest is defined as a partnership interest other than a capital
interest.111 The determination as to whether an interest is a capital interest generally is
made at the time of receipt of the partnership interest.112

        The typical carried interest in a venture capital fund slips cleanly but snugly into
the 93-27 safe harbor. The interest has no current liquidation value; if the fund were
liquidated immediately, all of the paid-in capital would be returned to the LPs. And
while the carried interest has value, it is not related to a ―substantially certain and
predictable stream of income from partnership assets.‖ On the contrary, the amount of
carry is highly uncertain and unpredictable.

         Rev. Proc. 93-27 draws an arbitrary line between capital interests and profits
interests at whether the interest has a current liquidation value. While the approach has
some intuitive appeal, and certainly has some administrative advantages, commentators
have recognized that there is no economic distinction between a capital interest and a
profits interest that would justify taxing them differently when issued to a partner in
exchange for services rendered.113 By ignoring the option value of partnership interests
with no current liquidation value, 93-27 allows partners to receive tax-free compensation.
Because options are more valuable when volatility increases, 93-27 is especially valuable
for partnerships that make highly risky investments – like venture capital.

         The tax law thus provides a significant timing benefit for venture capitalists by
allowing deferral on their compensation so long as the compensation is structured as a
profits interest and not a capital interest in the partnership.114 But there is more than
timing at issue: tax also distorts the contract design by treating the carried interest as
investment income rather than service income, and thus often allows the character of
realized gains to be treated as capital gain rather than ordinary income.

2. Character


110
    See Rev. Proc. 93-27, 1993-2 C.B. 343.
111
    See id.
112
    See id.
113
    See Cunningham, 47 Tax. L. Rev 247, 252.
114
    The net result is also more advantageous than parallel rules for executive compensation with corporate
stock. See William R. Welke & Olga A. Loy, Compensating the Service Partner with Partnership Equity:
Code § 83 and Other Issues, at 17 (―The treatment of SP’s receipt of a profits interest under Rev. Proc. 93-
27 is significantly better than the treatment of an employee’s receipt of corporate stock. While the
economics of a profits interest can be approximated in the corporate context by giving investors preferred
stock for most of their invested capital and selling investors and the employee "cheap" common stock, the
employee will recognize OI under Code §83 equal to the excess of common stock’s FMV (not liquidation
value) over the amount paid for such stock. In addition, if the common stock layer is too thin, there may be
risk that value could be reallocated from the preferred stock to the common stock, creating additional OI
for the employee. In contrast, in the partnership context, the fact that partners who provide capital are
merely entitled to a return of their capital (but no yield) before SP shares in profits generally does not create
an OI risk for SP. Because the partners providing capital are entitled to a return of their capital before SP is
entitled to anything, SP’s interest is still a profits interest with a zero liquidation value.‖) [Cite to 79 Taxes
94 (2001)]?
                                                       45
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
         Compensation for services is normally treated as ordinary income. Whether in
the form of cash salary, a performance bonus, a trip to Bermuda or a Christmas ham – tax
generally treats all such payments as ordinary income.115 In the partnership context,
deciding whether a distribution is compensation for services or is a share of partnership
income is a difficult issue when the recipient, like the GP here, is a partner in the
partnership. Section 83, enacted in 1969, addresses the receipt of property in exchange
for services, and provides the general rule that property received in connection with the
performance of services is income.116 A simple reading of section 83, then, suggests that
the GP should be taxed immediately on the option value of the carried interest. Section
707 further addresses payments from a partnership to a partner. So long as the payment
is made to the partner in its capacity as a partner (and not as an employee) and is
determined by reference to the income of the partnership (i.e. is not guaranteed), then the
payment will be respected as a payout of a distributable share of partnership income
rather than salary. Arguably, the initial receipt of the carried interest is better
characterized as itself a guaranteed payment (as it is made before the partnership shows
any profit or loss).117 However, Rev. Proc. 93-27 implicitly overrides these possible
interpretations of sections 83 and 707.118 For tax purposes, then, the initial receipt of a
profits interest is not a taxable event, and subsequent distributions will be respected as
payouts of the distributable share of income.

        The tax law therefore treats the character of later distributions of cash or securities
under the terms of the carried interest as it would any other distributable share of income
from a partnership. Because partnerships are pass-through entities, the character of the
income is preserved as it is received by the partnership and distributed to the partners.
Here, the distributable share of income is typically generated by the sale of stock in a
portfolio company, which is normally capital gain. Capital gain is taxed at a lower rate
than ordinary income.119 Moreover, the venture fund’s investment in portfolio companies
sometimes fit into the definition of ―qualified small business stock,‖ reducing the tax rate
even lower.120

         Tax law thus carves a wide gap between the economics of the carried interest and
its treatment for tax purposes. The receipt of carry is economically valuable at the outset
and is received in exchange for services rendered. Under a pure economic concept of

115
    See IRC § 61.
116
    See IRC § 83(a).
117
    See Cunningham, 47 Tax. L. Rev. 247, 267 (―Because the value of a partnership interest received by a
service partner, whether capital or profits, invariably is dependent upon the anticipated income of the
partnership, the mere fact that the right to reversion of the capital has been stripped from the interest does
not convert the property interest represented by the profits interest into a distributive share of partnership
income. Even though the value of a profits interest or capital interest cannot be determined without
reference to partnership income, the property interest itself has a fixed value, and its transger is a payment
of a fixed amount (that is, a guaranteed payment), rather than a mere distributive share of partnership
income. Clearly, subsequent allocations of profits, either under the undivided capital interest or under the
bare profits interest, are distributive shares not subject to § 707, although the one time transfer of the
interest itself is.‖)
118
    Cite to 707(a) and 707(c) and explain more.
119
    See § 1(h).
120
    See §§ 1202, 1045.
                                                      46
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
income, the GP should pay tax upon receipt of the interest, take a basis in the carry, and
recognize further income or loss as the partnership makes or loses money. Instead, the
tax law allows the GP to defer tax by treating the initial receipt of carry as a nonevent for
tax purposes, and then allows the GP to treat the receipt of distributions as capital gains
rather than as ordinary income, notwithstanding the fact that the distributions are related
to the GP’s performance of services for the partnership.121

       Sophisticated readers may note that I have left out a significant piece of the tax
analysis: the treatment of the partnership (and thus the impact of these rules on the other
partners). In general, treating the receipt of a profits interest by the GP as a nonevent for
tax purposes is good for the GP but bad for the LPs, as the partnership may not take a
deduction for the value of the interest paid to the GP, and the LPs lose the benefit of that
deduction. If the GP and LPs have the same marginal rates, then the tax benefit to the GP
of Rev. Proc. 93-27 would be perfectly offset by the tax detriment to the LPs. In fact,
GPs not only typically have a higher marginal rate than LPs; a majority of LPs are tax-
exempt and have a marginal rate of zero.

        Rev. Proc. 93-27 is thus especially important in this context because the majority
of LPs are not harmed by the loss of the tax deduction. Over 50% of investors in venture
capital are tax-exempt pension funds, and other investors, such as private foundations,
university endowments, and others are tax-exempt or have lower rates. Thus, by taking
full advantage of 93-27, tax planners are not merely shifting value between the GP and
the LP, they are shifting value away from the public fisc. Subject only to the limitation
of the distorting effect on contract design, it becomes rational for fund lawyers to take
full advantage of the gap between the economics of the carried interest and its treatment
for tax purposes.122

B. The Impact of Tax on Carried Interest Design

        The tax law thus provides a powerful incentive that affects the design of GP
compensation. By drawing a sharp distinction between a capital interest in a partnership
and a profits interest in a partnership, LPs should strive to pay GP with a profits interest
so long as doing so does not unduly distort incentives. Further, to the extent that the
carried interest is a substitute for other forms of compensation, LPs should strive to pay
as much as possible in the form of carry and as little as possible in the form of cash
salary.

       Venture funds do exactly this. By starting the carry at nominal profits of zero,
venture funds maximize the amount of compensation paid in the form of carried interest,

121
    It’s less clear what happens with an in-the-money carried interest. Outside the safe harbor of 93-27, it’s
possible that a carried interest that was $1 in the money would trigger immediate tax on the full amount.
Levin argues, however, that ―a far more rational reading is that the IRS intends that the taxpayer-favorable
[liquidation value] rule not be available only to the extent the service provider’s partnership interest is in
the money at receipt[.]‖ Levin, supra note xx, at 10-17.
122
    Given that a structure that maximizes benefits for both the GPs and a majority of LPs is probably best
for all; for this and other reasons taxable LPs gravitate away from venture capital, creating a clientele
effect.
                                                     47
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
which maximizes the amount of compensation deferred by the GP. If the fund employs a
preferred return, starting the carry at a higher threshold, then the fund is not maximizing
the amount of compensation paid in the most tax-efficient form. If, in response to the
imposition of a preferred return, the GP demands a higher management fee, that
management fee would be taxed upon receipt, and would be treated as ordinary income
rather than as capital gains.123

        The option analogy may again be useful. The tax law provides a strong incentive
to pay partnership executives with an option-like instrument rather than a forward-like
instrument. It also provides an incentive to establish the strike price of the option as low
as possible without putting the option in the money (which in turn would upset the tax
treatment). By excluding a preferred return, the fund sets the strike price at the money.
By keeping the strike price fixed rather than increasing it over time or indexing it to an
industry benchmark, it further maximizes the option value of the carried interest. Moving
the strike price any higher would lead to other compensation paid in less tax-favorable
form; moving the initial strike price any lower would create immediate tax liability to the
GP.

        Two examples may help illustrate the importance of tax on the design of the
carried interest. To illustrate, this section considers two alternatives: a carried interest
vs. a capital interest, and a carried interest vs. a carry subject to a true preferred return.


1. Carried interest vs. Capital Interest

         First consider the impact of tax on a fund deciding whether to compensate a GP
with a 20% carried interest or a 20% capital interest. Pre-tax, the 20% capital interest is
more valuable to the GP than the 20% carry. From the LP’s perspective (again pre-tax)
the capital interest is also superior, as it better aligns incentives. Pre-tax, then, the choice
is clear: the GP should receive a 20% capital interest.

       Tax reverses the decision. Under a plausible set of assumptions, before taxes the
20% capital interest is worth about 5% more than the profits interest, with a net present
value of $32.9 million vs. $32.7 million. After taxes, however, the profits interest is far
more valuable, with a net present value of $27.3 million vs. $21.8 million. (See
Appendix for a description of the model I use to reach these results.)

        To convince the GP to accept the lower compensation of the capital interest,
further assume that it would receive this replacement compensation in the form of a



123
   Levin reports that some GPs opt to reduce their management fee in exchange for a higher profits
interest, either up front (as I suggest here) or by reserving the right to periodically waive the fee in
exchange for an enhanced profits interest. See Levin, Structuring Venture Capital, supra note xx, at 10-13.
So long as there is some economic risk that further fund appreciation will not occur, periodic waivers will
successfully convert OI into LTCG. See id.
                                                    48
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
higher management fee.124 This management fee increase would itself be taxed at
ordinary income rates, meaning that the LP would have to gross up the payments by 40%
to achieve the intended result. Again, under a plausible set of assumptions, even an
increase in management fee of 1.35% per year would fail to make up the difference. In
other words, to get the better incentive effects of a capital interest versus a profits
interest, LPs would not only have to give away some value on the downside, but they
would also have to increase overall compensation by increasing the management fee from
2% to 3.35% per year. This result is quite striking. Given the choice, after taking taxes
into account, a GP would prefer to receive a 2% management fee and a 20% carried
interest than a 3.35% management fee and a 20% capital interest in the partnership.

        Tax thus makes the use of a capital interest wholly irrational unless the distortion
of incentives created by the use of the carried interest reduces the expected pre-tax
income of the fund by an amount equal to the increase in management fees. While not
impossible, it is highly unlikely that the distortion effect is that great.125

2. Straight Carry vs. Carry Subject to True Preferred Return

         Now consider the impact of tax on a fund deciding whether to compensate a GP
using a straight carried interest or a true preferred return. Under the same set of
assumptions, taking tax into account, the straight carry has a net present value of $27.9
million, vs. $14.1 million for the true preferred return. (See Appendix for a description
of the model I use to find this result.) Most of this disparity is not attributable to tax;
rather, the true preferred return simply has far less economic value to the GP.

        Tax affects the design, however, because imposing a true preferred return would
require compensating the GP with a higher management fee; the management fee would
have to be grossed up by 40%. Under plausible assumptions, the GP’s management fee
would have to be increased by more than 3% annually – more than doubling the usual
fee. Again, whatever the distortion effect of the absence of a true preferred return, it is
unlikely that it could justify this large an increase in management fee.



3. Risky and riskless compensation

       To frame the problem in a slightly different way, consider the design of
compensation from a tax point of view, ignoring incentive effects. To minimize taxes,
the GP should receive as much compensation as possible in the form of capital gains, and

124
    Alternatively, we could assume a higher percentage of capital interest. Need model comparing 20%
carry vs. 25%(?) capital interest.
125
    It should be noted again that this model ignores the tax effects on the limited partners. Compensating
GPs with management fees or other guaranteed payments may be beneficial for certain limited partners, as
the payments generate deductions at the partnership level, which are then allocated to limited partners as set
forth in the partnership agreement. Because many limited partners are tax-exempt, however, the deductions
usually have little value.
                                                     49
                     C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                      Last printed 7/11/2011 2:53 PM
should pay tax on that compensation as late as possible. A tax-efficient scheme, then,
would consist entirely of a profits interest in the partnership, and no management fee
whatsoever.

        The real world makes this difficult, however, as investment professionals do need
steady income to pay fund expenses, receive some salary to make mortgage payments,
car payments, and to live in the manner in which they have become accustomed. In
theory, GPs could borrow this amount from outside lenders using the carried interest as
collateral, but information costs make such borrowings expensive.

        The next best solution, then, is to keep management fees low and maximize the
carried interest. In designing the carried interest, moreover, one would want to include
both firm-specific and non-firm-specific risk, as VCs would have difficulty hedging away
firm-specific risk.126 By excluding the preferred return and not indexing the carried
interest, that is exactly what venture funds do. A preferred return would move the strike
price of the option out of the money. Indexing the carry to an industry benchmark would
amplify firm-specific risk, reducing the value of the carry. In the other direction, setting
the strike price of the option in the money would give it a current liquidation value, thus
upsetting the favorable tax treatment. Although perhaps not consciously, the market for
GP compensation has found its way to the most tax-efficient result.

C. Turning the puzzle around

        The tax explanation for the absence of a preferred return in venture capital
contracts helps to solve one puzzle but creates another. If the tax incentive to pay
compensation in the form of carried interest is so strong, then why don’t buyout funds
and other private equity funds follow suit? Tax has turned our puzzle inside out: venture
funds start the carry on a first dollar basis to pay as much riskless compensation as
possible in a tax-advantaged form. The new challenge is to figure out why LBO funds
and other private equity funds include a preferred return. Why are preferred returns used
at all?

        Deal flow incentives will remain important for some VC funds, and for many
buyout and other private equity funds, and this can explain why the preferred return is
used despite its tax-inefficiency. And outside of the venture context, the preferred return
also protects investors against a moral hazard risk. Specifically, in the absence of a
preferred return, the manager of a buyout fund might choose a low risk, low return
strategy.

        Consider a hedge fund that starts with $1 billion in capital and a ten-year life.
The GP receives a straight carry under the terms of the partnership agreement, just as in a
venture capital fund. A sensible strategy for the GP would be to take the $1 billion in
partnership capital and buy ten year Treasury notes, thus virtually guaranteeing a 6%
return over the next ten years. Each year, the GP will receive 1.2% of the return (20% of


126
      Cf. Schizer, Executives and Hedging.
                                                     50
                       C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                        Last printed 7/11/2011 2:53 PM
the 6%), or $12 million dollars, for doing virtually no work and costing itself nothing
beyond its reputation and ability to raise future funds.

        It is, of course, possible to address this simple abuse by contract, limiting the
types of securities that the partnership may invest in. But it is not always so obvious, to a
passive LP, if the GP is choosing overly safe investments. Consider a more realistic
example: the GP of a buyout fund manager choosing between two troubled companies.
Zeta Corp. and Eta Corp. both manage medical records, and each is poised to expand into
the era of computerized medical records. Zeta Corp has a broader customer base and is
likely, with a new infusion of capital, to generate a solid if unspectacular return, and has a
small chance of a greater return. To use some simple numbers, assume a 80% chance of
a 5% return and a 20% chance of a 20% return. Eta Corp. has a smaller customer base
but stronger technology. Eta has a 50% chance of zero return and a 50% chance of a
20% return. Without a preferred return, at the margins, buyout fund managers may
choose Zeta, the safer bet with a lower net present value. There is more than risk
aversion and the declining marginal utility of wealth at play: the safety of the investment
frees up fund managers will be able to spend time on other activities, like raising money
for their next fund. Reputational costs might constrain the fund manager’s decision to
take the easy way out, but the difference in investment decisions might be more subtle
than in this stylized example, making it difficult and expensive for future investors to
recognize the self-interested decision-making. A preferred return solves this moral
hazard concern by rewarding the fund manager only for investments that include enough
upside potential to clear the hurdle.

        GPs can also lower the riskiness of the portfolio by choosing diverse portfolio
companies, and investing smaller amounts in more deals, than investors would like.127
While some of these concerns may be addressed by contract, it is expensive for LPs to
draft and to monitor compliance with these terms. GPs are in a better position than LPs
to understand the portfolio company business plans. And so addressing this agency cost
indirectly through a preferred return may be more efficient – notwithstanding the tax
inefficiency – than using a straight carried interest and trying to monitor more closely
what the GPs are doing.

        For venture funds, this moral hazard risk is largely absent, as venture fund
managers rarely find investments that are safe and low risk. The terms of the limited
partnership fund agreements typically require the fund managers to invest only in start-up
companies or growth companies in certain carefully defined industries.128 Reputational
constraints are stronger as well, as it is easy for investors to see the difference between a
start-up and an established company, while it may be more difficult to distinguish a safe
mature company from a riskier one.

127
    The moral hazard concern is present even when the choice is between two investments of roughly
equivalent net present value. Institutional investors treat private equity as an ―alternative asset class,‖
meaning that it is valued in large part for its diversification effect. Using a preferred return ensures that
private equity managers, given a choice, will never choose an investment with a likely return below 8%.
The preferred return, in other words, protects the diversification effect of private equity.
128
    Find some actual language – may be in the PPM.
                                                      51
                      C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                       Last printed 7/11/2011 2:53 PM
[Transition]


                                      VI. Conclusion

[tax as creator of agency costs]

[93-27 as subsidy for venture capital]

[revisiting 93-27 – carry would be replaced by option to acquire partnership
interest, and nobody knows how those are taxed]

[peer group indexed carry – threading the needle]

[tiered carry]

[comparison to public company literature]




                                               52
                 C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                  Last printed 7/11/2011 2:53 PM
                                          Appendix A

Capital Interest vs. Profits Interest

Assumptions

1. Probability of different outcomes. I assume the following distributions, loosely based
on UCRS data (Appendix C):

       10% 0.8x return.
       20% 1.5x return.
       30% 2.5x return.
       30% 4x return.
       10% 15x return.

2. Tax Rates. I assume a 40% tax rate on ordinary income and a 15% tax rate on capital
gains. The 40% rate on ordinary income is meant to reflect the top rate on Federal
income, 35%, plus 5% for state and local taxes. Fund agreements typically assume the
maximum Federal, state and local rates, for example, when calculating mandatory tax
distributions. The 15% capital gains rate assumes that it is long term capital gain, 5 year
capital gain under section 1(h), ignores the possibility of additional state taxes, and
ignores the possibility of a lower rate under sections 1202 and 1045.

3. Discount Rate. I assume a relatively high 8% discount rate, as this is the industry
standard for the preferred return. I also calculate net present value using a 6% discount
rate. Kate Litvak, in her empirical work, uses a high discount rate of [12%] to reflect the
risky nature of venture investing. A very high discount rate would magnify the results I
find here.

4. Capital Interest. I assume the GP receives a capital interest of 20% in a $100 fund,
and thus has ordinary income of $20 in year 0. The GP takes an outside basis of $20 in
the partnership interest, and realizes gain or loss in year 10. The year 10 gain or loss is
capital gain or loss.

5. Profits Interest. I assume the GP has no income in year 0 and no basis in the
partnership interest. The year 10 gain is capital gain.

6. GP’s Capital Contribution. For this simple model, I ignore the GP’s initial capital
contribution to the fund, which is normally 1% of total capital.




                                                53
                  C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                   Last printed 7/11/2011 2:53 PM
                                                             GP Payouts

             Year 0   1      2   3   4   5   6   7   8   9    10 Fund NPV using      NPV using   Probability Probability Probability     Total      Total
                                                                 Value 8%            6%          of          adjusted    adjusted        using      using
                                                                       discount      discount    Outcome NPV using NPV using             8%         6%
                                                                       rate          rate                    8%          6%              discount   discount
                                                                                                             discount    discount

Capital interest (pre-tax)

Strikeout         0   0      0   0   0   0   0   0   0   0    16     80     $6.86        $8.43          0.1      $0.69        $0.84
Single            0   0      0   0   0   0   0   0   0   0    30    150    $12.87       $15.80          0.2      $2.57        $3.16
Double            0   0      0   0   0   0   0   0   0   0    50    250    $21.44       $26.34          0.3      $6.43        $7.90
Triple            0   0      0   0   0   0   0   0   0   0    80    400    $34.31       $42.14          0.3     $10.29       $12.64
Home Run          0   0      0   0   0   0   0   0   0   0   300   1500   $128.66      $158.04          0.1     $12.87       $15.80
                                                                                                                                         $32.85     $40.35

Profits Interest (pre-tax)

Strikeout         0   0      0   0   0   0   0   0   0   0     0     80     $0.00        $0.00          0.1      $0.00        $0.00
Single            0   0      0   0   0   0   0   0   0   0    30    150    $12.87       $15.80          0.2      $2.57        $3.16
Double            0   0      0   0   0   0   0   0   0   0    50    250    $21.44       $26.34          0.3      $6.43        $7.90
Triple            0   0      0   0   0   0   0   0   0   0    80    400    $34.31       $42.14          0.3     $10.29       $12.64
Home Run          0   0      0   0   0   0   0   0   0   0   300   1500   $128.66      $158.04          0.1     $12.87       $15.80
                                                                                                                                         $32.17     $39.51

Capital Interest (after-tax)

Strikeout        -8   0      0   0   0   0   0   0   0   0 16.6      80    ($0.29)       $1.20          0.1     ($0.03)       $0.12
Single           -8   0      0   0   0   0   0   0   0   0 28.5     150     $4.82        $7.47          0.2      $0.96        $1.49
Double           -8   0      0   0   0   0   0   0   0   0 45.5     250    $12.11       $16.42          0.3      $3.63        $4.93
Triple           -8   0      0   0   0   0   0   0   0   0   71     400    $23.04       $29.85          0.3      $6.91        $8.96
Homerun          -8   0      0   0   0   0   0   0   0   0 258     1500   $103.24      $128.36          0.1     $10.32       $12.84
                                                                                                                                         $21.80     $28.33

Profits Interest (after-tax)

Strikeout         0   0      0   0   0   0   0   0   0   0    0      80     $0.00        $0.00          0.1      $0.00        $0.00
Single            0   0      0   0   0   0   0   0   0   0 25.5     150    $10.94       $13.43          0.2      $2.19        $2.69
Double            0   0      0   0   0   0   0   0   0   0 42.5     250    $18.23       $22.39          0.3      $5.47        $6.72
Triple            0   0      0   0   0   0   0   0   0   0   68     400    $29.16       $35.82          0.3      $8.75       $10.75
Homerun           0   0      0   0   0   0   0   0   0   0 255     1500   $109.37      $134.33          0.1     $10.94       $13.43
                                                                                                                                         $27.34     $33.58

                                                                                                                          Difference        $5.54      $5.25
                                                                                                                          in value to
                                                                                                                          GP of after-
                                                                                                                          tax prof.
                                                                                                                          int. vs.
                                                                                                                          after-tax
                                                                                                                          cap. int.


                                                                                                                          Difference        $9.23      $8.75
                                                                                                                          in value to
                                                                                                                          GP,
                                                                                                                          grossed up
                                                                                                                          to reflect
                                                                                                                          add'l tax
                                                                                                                          on
                                                                                                                          substitute
                                                                                                                          comp.




Results

Pre-tax. Pre-tax, using an 8% discount rate, the capital interest is worth $32.85, and the
profits interest is worth $32.17. The capital interest is worth slightly more because, in the
unlikely event that the Fund loses money, the GP will still receive some value on
liquidation.

                                                                   54
                             C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                              Last printed 7/11/2011 2:53 PM
After-tax. After-tax, using an 8% discount rate, the capital interest is worth $21.80, and
the profits interest is worth $27.34.

Difference and Gross-Up. The after-tax profits interest is worth $5.54 more to the GP
than the after-tax capital interest. Assuming that the GP would demand substitute
compensation, which would in turn be taxed at 40%, this amount must be grossed up by
40%. The result is $9.23.

Increased Management Fee. An increase of 1.35% ($1.35) per year has a present value
of $9.06 over ten years, again using an 8% discount rate.

Conclusion. A GP would prefer an after-tax profits interest ($27.34) to an after-tax
capital interest ($21.80), even assuming a pre-tax increase of 1.35% in the management
fee.




                                                55
                  C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                   Last printed 7/11/2011 2:53 PM
                                          Appendix B

Preferred Return vs. Straight Carry

Assumptions

1. Probability of different outcomes. I assume the following distributions, loosely based
on UCRS data (Appendix C):

       10% 0.8x return.
       20% 1.5x return.
       30% 2.5x return.
       30% 4x return.
       10% 15x return.

2. Tax Rates. I assume a 40% tax rate on ordinary income and a 15% tax rate on capital
gains. The 40% rate on ordinary income is meant to reflect the top rate on Federal
income, 35%, plus 5% for state and local taxes. Fund agreements typically assume the
maximum Federal, state and local rates, for example, when calculating mandatory tax
distributions. The 15% capital gains rate assumes that it is long term capital gain, 5 year
capital gain under section 1(h), ignores the possibility of additional state taxes, and
ignores the possibility of a lower rate under sections 1202 and 1045.

3. Discount Rate. I assume a relatively high 8% discount rate, as this is the industry
standard for the preferred return, which also reflects the time value of money. I also
calculate net present value using a 6% discount rate.

4. Straight Carry. I assume the GP receives a profits interest of 20% in a $100 fund,
pays no income tax upon receipt and has a zero basis in the partnership interest. It
realizes gain in year 10, and the gain is capital gain.

5. True Preferred Return. I assume the GP receives a profits interest of 20% in a $100
fund, pays no income tax upon receipt and has a zero basis in the partnership interest.
Allocations and distributions are subject to a 8% preferred return. It is not a hurdle rate;
there is no catch-up provision. It realizes gain in year 10, and the gain is capital gain.

6. GP’s Capital Contribution. For this simple model, I ignore the GP’s initial capital
contribution to the fund, which is normally 1% of total capital.




                                                56
                  C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                   Last printed 7/11/2011 2:53 PM
               0    1      2   3    4   5   6   7   8   9     10 Fund      NPV using   NPV using Probability Probability   Probability       Total    Total
                                                                 return    8%          6%        of outcome adjusted NPV   adjusted NPV      using 8% using 6%
                                                                           discount    discount              using 8%      using 6%          discount discount
                                                                           rate        rate                  discount      discount
Straight Carry (pre-tax)

Strikeout      0    0      0   0    0   0   0   0   0   0     16      80      $6.86       $8.43         0.1        $0.69           $0.84
Single         0    0      0   0    0   0   0   0   0   0     30     150     $12.87      $15.80         0.2        $2.57           $3.16
Double         0    0      0   0    0   0   0   0   0   0     50     250     $21.44      $26.34         0.3        $6.43           $7.90
Triple         0    0      0   0    0   0   0   0   0   0     80     400     $34.31      $42.14         0.3       $10.29          $12.64
Home Run       0    0      0   0    0   0   0   0   0   0    300    1500    $128.66     $158.04         0.1       $12.87          $15.80
                                                                                                                                              $32.85   $40.35

True Preferred Return (pre-tax)

Strikeout      0    0      0   0    0   0   0   0   0   0       0     80      $0.00       $0.00         0.1        $0.00           $0.00
Single         0    0      0   0    0   0   0   0   0   0       0    150      $0.00       $0.00         0.2        $0.00           $0.00
Double         0    0      0   0    0   0   0   0   0   0     6.8    250      $2.92       $3.58         0.3        $0.87           $1.07
Triple         0    0      0   0    0   0   0   0   0   0    36.8    400     $15.78      $19.39         0.3        $4.73           $5.82
Home Run       0    0      0   0    0   0   0   0   0   0   256.8   1500    $110.14     $135.28         0.1       $11.01          $13.53
                                                                                                                                              $16.62   $20.42

Straight Carry (after-tax)

Strikeout      0    0      0   0    0   0   0   0   0   0    13.6     80      $5.83       $7.16         0.1        $0.58           $0.72
Single         0    0      0   0    0   0   0   0   0   0    25.5    150     $10.94      $13.43         0.2        $2.19           $2.69
Double         0    0      0   0    0   0   0   0   0   0    42.5    250     $18.23      $22.39         0.3        $5.47           $6.72
Triple         0    0      0   0    0   0   0   0   0   0      68    400     $29.16      $35.82         0.3        $8.75          $10.75
Homerun        0    0      0   0    0   0   0   0   0   0     255   1500    $109.37     $134.33         0.1       $10.94          $13.43
                                                                                                                                              $27.92   $34.30

True Preferred Return (after-tax)

Strikeout      0    0      0   0    0   0   0   0   0   0       0     80      $0.00       $0.00         0.1        $0.00           $0.00
Single         0    0      0   0    0   0   0   0   0   0       0    150      $0.00       $0.00         0.2        $0.00           $0.00
Double         0    0      0   0    0   0   0   0   0   0    5.78    250      $2.48       $3.04         0.3        $0.74           $0.91
Triple         0    0      0   0    0   0   0   0   0   0   31.28    400     $13.42      $16.48         0.3        $4.02           $4.94
Homerun        0    0      0   0    0   0   0   0   0   0   218.3   1500     $93.62     $114.99         0.1        $9.36          $11.50
                                                                                                                                              $14.13   $17.36

                                                                                                                           Diff. in value    ($13.79) ($16.94)
                                                                                                                           to GP of after
                                                                                                                           tax straight
                                                                                                                           carry vs. after
                                                                                                                           tax carry
                                                                                                                           subject to true
                                                                                                                           preferred
                                                                                                                           return


                                                                                                                           Diff in value to ($22.99) ($28.24)
                                                                                                                           GP, grossed
                                                                                                                           up to reflect
                                                                                                                           tax on
                                                                                                                           substitute
                                                                                                                           compensation




Results

Pre-tax. Pre-tax, using an 8% discount rate, the straight carry is worth $32.85, and the
carry subject to the preferred return is worth $16.62.

After-tax. After-tax, using an 8% discount rate, the straight carry is worth $27.92 and the
true preferred return is worth $14.13.

Difference and Gross-Up. The after-tax straight carry is worth $13.79 more to the GP
than the after-tax carry subject to the preferred return. Assuming that the GP would
demand substitute compensation, which would in turn be taxed at 40%, this amount must
be grossed up by 40%. The result is $22.99.



                                                                             57
                                   C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                                    Last printed 7/11/2011 2:53 PM
Increased Management Fee. An increase of 3% ($3.00) per year has a present value of
$20.13 over ten years, again using an 8% discount rate.

Conclusion. A GP would prefer a straight carry ($27.92) to a carry subject to a preferred
return ($14.13), even assuming a pre-tax increase of 3% in the management fee.




                                               58
                 C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                  Last printed 7/11/2011 2:53 PM
                                                                                                     Appendix C
                                                                                  Regents of the University of California
                                                                               Alternative Investments as of March 31, 2003129
                     Fund Name                                      Type            Vintage            UC                  Cash In      Current NAV         Cash Out     Cash Out          Investment            Net
                                                                                    Year            Commitment                                                          Current NAV         Multiple 130         IRR131

VENTURE CAPITAL                                                                                                                          Dollars in Thousands
InterWest Partners I                                      Venture Capital            1979            $3,000             ($3,000)          $0            $6,681             $6,681             2.23x              19.2%
Alta Company                                              Venture Capital            1980            $3,000             ($3,000)           $0           $6,655             $6,655             2.22x               13.8%
Kleiner Perkins Caufield & Byers II                       Venture Capital            1980            $7,500             ($7,500)           $721         $31,521            $32,242            4.30x               50.6%
Golder, Thoma Fund I                                      Venture Capital            1980            $5,000             ($5,000)           $0           $59,125            $59,125            11.82x              31.0%
Welsh, Carson, Anderson & Stowe II                        Venture Capital            1980            $4,000             ($4,000)           $0           $8,670             $8,670             2.17x               14.2%
Sequoia Capital III                                       Venture Capital            1981            $4,000             ($4,000)           $30          $7,232             $7,261             1.82x               11.3%
Alta II, L.P.                                             Venture Capital            1981            $3,000             ($3,000)           $0           $5,300             $5,300             1.77x                7.2%
InterWest Partners II                                     Venture Capital            1982            $4,000             ($4,000)           $0           $6,974             $6,974             1.74x                8.5%
Technology Venture Investors - 2                          Venture Capital            1982            $4,000             ($4,000)           $0           $6,744             $6,744             1.69x                9.2%
Kleiner Perkins Caufield & Byers III                      Venture Capital            1982            $7,832             ($7,832)           $0           $13,596            $13,596            1.74x               10.2%
Welsh, Carson, Anderson & Stowe III                       Venture Capital            1983            $5,000             ($5,000)           $0           $9,067             $9,067             1.81x                8.4%
Brentwood Associates IV                                   Venture Capital            1983            $5,000             ($5,000)           $0           $10,863            $10,863            2.17x               10.9%
Mayfield V                                                Venture Capital            1983            $6,300             ($6,300)           $0           $8,248             $8,248             1.31x                4.6%
Sequoia Capital IV                                        Venture Capital            1984            $4,000             ($4,000)           $0           $9,698             $9,698             2.42x               18.7%
Golder, Thoma, Cressey Fund II                            Venture Capital            1984            $3,000             ($3,000)           $0           $10,920            $10,920            3.64x               18.0%
Technology Venture Investors - 3                          Venture Capital            1984            $8,000             ($8,000)           $0           $13,333            $13,333            1.67x                7.2%
Kleiner Perkins Caufield & Byers II Annex Fund            Venture Capital            1984            $1,500             ($1,500)           $41          $2,975             $3,016             2.01x               12.6%
Institutional Venture Partners III                        Venture Capital            1985            $8,000             ($8,000)           $0           $17,169            $17,169            2.15x               13.9%
InterWest Partners III                                    Venture Capital            1985            $7,000             ($7,000)           $0           $20,431            $20,431            2.92x               20.0%
Kleiner Perkins Caufield & Byers IV                       Venture Capital            1986            $10,000            ($10,000)         $0            $18,342            $18,342            1.83x               11.0%
Sequoia Capital Growth Fund                               Venture Capital            1987            $10,000            ($9,579)           $473         $38,536            $39,010            4.07x               23.8%
Mayfield VI                                               Venture Capital            1987            $15,000            ($15,000)         $0            $58,374            $58,374            3.89x               26.6%
Institutional Venture Partners IV                         Venture Capital            1988            $12,000            ($12,000)         $2,135        $17,309            $19,444            1.62x                9.5%
Alta IV, L.P.                                             Venture Capital            1988            $5,000             ($5,000)           $0           $15,546            $15,546            3.11x               22.4%
Technology Venture Investors - 4                          Venture Capital            1988            $12,000            ($12,000)         $1,205        $38,060            $39,265            3.27x               24.1%
Kleiner Perkins Caufield & Byers V                        Venture Capital            1989            $15,000            ($15,000)         $0            $60,176            $60,176            4.01x               35.7%
InterWest Partners IV                                     Venture Capital            1989            $10,000            ($10,000)         $160          $17,004            $17,164            1.72x               11.2%
Sequoia Capital V                                         Venture Capital            1989            $6,000             ($6,000)           $421         $31,391            $31,812            5.30x               39.6%
Merrill, Pickard, Anderson & Eyre V                       Venture Capital            1989            $10,000            ($9,658)           $345         $52,892            $53,236            5.51x               46.1%
Institutional Venture Partners V                          Venture Capital            1991            $12,000            ($12,000)         $62           $35,896            $35,958            3.00x               28.0%
Kleiner Perkins Caufield & Byers VI                       Venture Capital            1992            $15,000            ($15,000)         $677          $49,266            $49,943            3.33x               39.0%
Mayfield VII                                              Venture Capital            1992            $15,000            ($15,000)         $712          $42,117            $42,829            2.86x               24.9%
Sequoia Capital VI                                        Venture Capital            1992            $8,500             ($8,500)           $1,262       $131,973           $133,234           15.67x             110.4%
InterWest Partners V                                      Venture Capital            1993            $17,000            ($17,000)         $2,746        $70,875            $73,621            4.33x               61.6%
Institutional Venture Partners VI                         Venture Capital            1994            $12,000            ($12,000)         $2,074        $67,838            $69,912            5.83x               64.7%
Kleiner Perkins Caufield & Byers VII                      Venture Capital            1994            $20,000            ($15,000)         $4,674        $482,985           $487,658           32.51x             121.7%
Mayfield VIII                                             Venture Capital            1995            $12,000            ($12,000)         $4,455        $34,085            $38,540            3.21x               49.6%
Sequoia Capital VII                                       Venture Capital            1995            $13,000            ($13,000)         $16,308       $196,750           $213,058           16.39x             174.5%
Institutional Venture Partners VII                        Venture Capital            1996            $18,000            ($18,000)         $13,747       $106,194           $119,941           6.66x               96.9%
Kleiner Perkins Caufield & Byers VIII                     Venture Capital            1996            $20,000            ($20,000)         $10,074       $329,915           $339,989           17.00x             286.6%
InterWest Partners VI                                     Venture Capital            1996            $15,000            ($15,000)         $9,119        $27,523            $36,642            2.44x               49.5%
Hummer Winblad Venture Partners III                       Venture Capital            1997            $10,000            ($10,000)         $1,348        $6,040             $7,388             0.74x               15.3%
Sequoia Capital VIII                                      Venture Capital            1998            $16,000            ($16,000)         $7,019        $33,530            $40,549            2.53x               90.4%
Institutional Venture Partners VIII                       Venture Capital            1998            $30,000            ($30,000)         $15,862       $15,286            $31,148            1.04x                1.6%
InterWest Partners VII                                    Venture Capital            1999            $15,000            ($13,350)         $4,526        $1,320             $5,846             0.44x        NM    -28.9%      NM
Sequoia Capital Franchise Fund                            Venture Capital            1999            $22,000            ($16,280)         $5,633        $5,966             $11,598            0.71x        NM    -17.0%      NM
Kleiner Perkins Caufield & Byers IX-A                     Venture Capital            1999            $20,000            ($17,000)         $6,879        $0                 $6,879             0.40x        NM    -23.3%      NM
Oxford Bioscience Partners III                            Venture Capital            1999            $20,000            ($18,500)         $11,840       $0                 $11,840            0.64x        NM    -20.2%      NM
Sequoia Capital IX                                        Venture Capital            1999            $18,000            ($15,444)         $3,908        $9,327             $13,236            0.86x        NM     -6.1%      NM
Redpoint Ventures I                                       Venture Capital            1999            $30,000            ($23,250)         $8,021        $0                 $8,021             0.34x        NM    -33.5%      NM
Versant Venture Capital I                                 Venture Capital            1999            $20,000            ($16,000)         $14,199       $0                 $14,199            0.89x        NM     -6.3%      NM
Venture Strategy Partners II                              Venture Capital            1999            $15,000            ($8,775)           $4,169       $0                 $4,169             0.48x        NM    -37.5%      NM
Polaris Venture Partners III                              Venture Capital            2000            $20,000            ($13,600)         $7,606        $403               $8,009             0.59x        NM    -25.6%      NM
Perseus-Soros BioPharmaceutical Investors                 Venture Capital            2000            $10,000            ($3,735)           $3,162       $0                 $3,162             0.85x        NM    -18.5%      NM
Sequoia Capital X                                         Venture Capital            2000            $28,000            ($17,500)         $9,171        $379               $9,549             0.55x        NM    -31.0%      NM
Kleiner Perkins Caufield & Byers X--A                     Venture Capital            2000            $20,000            ($9,500)           $5,631       $0                 $5,631             0.59x        NM    -17.5%      NM
Accel VIII                                                Venture Capital            2000            $20,400            ($8,070)           $4,126       $0                 $4,126             0.51x        NM    -26.8%      NM
Intersouth Partners V                                     Venture Capital            2000            $20,000            ($10,100)         $6,248        $0                 $6,248             0.62x        NM    -28.0%      NM
InterWest Partners VIII                                   Venture Capital            2000            $50,000            ($20,000)         $11,873       $2                 $11,875            0.59x        NM    -32.4%      NM
Redpoint Ventures II                                      Venture Capital            2000            $30,000            ($9,375)           $4,985       $0                 $4,985             0.53x        NM    -32.0%      NM
Oxford Bioscience Partners IV                             Venture Capital            2001            $25,000            ($9,375)           $8,263       $0                 $8,263             0.88x        NM    -16.3%      NM
Versant Venture Capital II                                Venture Capital            2001            $30,000            ($4,500)           $3,626       $0                 $3,626             0.81x        NM    -30.1%      NM
Warburg Pincus Private Equity VIII                        Venture Capital            2001            $50,000            ($12,000)         $11,310       $1,340             $12,649            1.05x        NM      7.5%      NM
Polaris Venture Partners IV                               Venture Capital            2001            $25,000            ($750)            $483          $0                 $483               0.64x        NM    -50.6%      NM
Intersouth Partners VI                                    Venture Capital            2002            $15,000            $0                $0            $0                 $0                 N/A          NM      N/A       NM
Lighthouse Capital Partners V                             Venture Capital            2002            $20,000            $0                $0            $0                 $0                 N/A          NM      N/A       NM



129
    All cash flow information is through /31/03 and net asset values are from fund statements as of 3/31/03.
130
    As determined by Cambridge Associates, funds with NM (not meaningful) are too young to have produced meaningful returns. Funds with N/A (not applicable) have not yet commenced operations.
131
    Net IRR (internal rate of return) includes the cash-on-cash return net of fees, expenses, and carried interest as well as the net asset value of University of California Regents’ interest in the partnership as determined by
the General Partners. Differences in the valuation policies employed by General Partners (for which no industry standard currently exists) and differences in the investment pace of each partnership materially affect the
IRR calculations. As such, IRRs should not be used to measure a fund’s performance until all investments have been fully realized. In addition, a comparison of IRRs across funds would fail to account for these inherent
differences.
NM
    For funds formed in a vintage year of 1999 or later, the Investment Multiple and Net IRR are not meaningful as these funds are still in the process of making new investments and the performance of new and existing
investments will not be determined for several years.

                                                                                                               59
                                                          C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                                                           Last printed 7/11/2011 2:53 PM
                                                                                      Regents of the University of California
                                                                                   Alternative Investments as of March 31, 2003132
                          Fund Name                                     Type            Vintage            UC                 Cash In       Current NAV         Cash Out     Cash Out          Investment            Net
                                                                                        Year            Commitment                                                          Current NAV         Multiple 133         IRR134

    LEVERAGED BUYOUTS                                                                                                                        Dollars in Thousands
    Brentwood Associates Buyout Fund III                      LBO                        1981            $3,000             ($3,000)           $0           $2,943             $2,943             0.98x              -0.2%
    Welsh, Carson, Anderson & Stowe IV                        LBO                        1985            $10,000            ($10,000)          $0           $26,619            $26,619            2.66x               13.7%
    Alta Subordinated Debt Partners                           LBO                        1986            $4,000             ($4,000)           $0           $7,507             $7,507             1.88x                8.8%
    WCAS Capital Partners                                     LBO                        1987            $10,000            ($10,000)          $0           $26,171            $26,171            2.62x               18.0%
    Golder, Thoma, Cressey Fund III                           LBO                        1987            $15,000            ($15,000)          $4,676       $59,942            $64,618            4.31x               30.6%
    Alta Subordinated Debt Partners II                        LBO                        1988            $7,000             ($7,000)           $0           $14,834            $14,834            2.12x               12.2%
    Welsh, Carson, Anderson & Stowe V                         LBO                        1989            $20,000            ($20,000)          $0           $70,085            $70,085            3.50x               33.2%
    WCAS Capital Partners II                                  LBO                        1990            $20,000            ($20,000)          $5,283       $25,745            $31,028            1.55x               11.1%
    Alta Subordinated Debt Partners III                       LBO                        1993            $10,000            ($10,000)          $3,199       $30,978            $34,177            3.42x               29.6%
    Golder, Thoma, Cressey, Rauner Fund IV                    LBO                        1993            $25,000            ($25,000)          $646         $50,947            $51,593            2.06x               25.6%
    Welsh, Carson, Anderson & Stowe VI                        LBO                        1993            $50,000            ($50,000)          $17,024      $69,418            $86,442            1.73x               12.6%
    Welsh, Carson, Anderson & Stowe VII                       LBO                        1995            $100,000           ($100,000)         $56,204      $115,375           $171,579           1.72x               15.1%
    The SKM Equity Fund II                                    LBO                        1996            $60,000            ($50,451)          $31,639      $2,208             $33,848            0.67x               -9.1%
    Golder, Thoma, Cressey, Rauner Fund V                     LBO                        1997            $40,000            ($40,000)          $29,296      $25,946            $55,242            1.38x                8.3%
    WCAS Capital Partners III                                 LBO                        1997            $200,000           ($170,000)         $176,907     $73,596            $250,503           1.47x               14.2%
    Ripplewood Partners II                                    LBO                        1999            $20,000            ($2,014)           $1,313       $3                 $1,315             0.65x        NM    -43.4%      NM
    Madison Dearborn Capital Partners IV                      LBO                        2000            $50,000            ($5,258)           $5,744       $0                 $5,744             1.09x        NM    104.8%      NM
    Blackstone Capital Partners IV                            LBO                        2002            $50,000            ($3,603)           $3,325       $0                 $3,325             0.92x        NM    -47.8%      NM
    Inverness Partners II                                     LBO                        2002            $15,000            ($1,323)           $1,091       $0                 $1,091             0.82x        NM      NM        NM
    Lake Capital Partners                                     LBO                        2002            $20,000            ($804)             $84          $0                 $84                0.10x        NM      NM        NM
    Lindsay, Goldberg, & Bessemer                             LBO                        2002            $20,000            ($1,519)            $1,065         $1              $1,067             0.70x        NM     -72.9%     NM


    EMERGING MARKETS
    Investment Company of China                               Emerging Market            1992            $12,040            ($11,161)            $2,456        $4,908          $7,363             0.66x                -5.3%
    China Vest IV                                             Emerging Market            1993            $20,000            ($20,000)           $9,803         $6,131          $15,934            0.80x                -3.6%
    AIG Asian Infrastructure Fund                             Emerging Market            1994            $75,000            ($69,736)           $13,421        $30,029         $43,450            0.62x               -10.2%
    AIG-GE Capital Latin American Infrastructure
                                                              Emerging Market            1996            $115,000           ($96,403)           $59,234        $9,365          $68,600            0.71x               -9.7%
    Fund
    AIG Indian Sectoral Equity Fund                           Emerging Market            1996            $15,000            ($12,781)           $9,115         $2,053          $11,167            0.87x               -19.0%
    Latin America Capital Partners II                         Emerging Market            1996            $50,000            ($45,858)           $18,938        $679            $19,617            0.43x               -19.0%
    AIG Asian Infrastructure Fund II                          Emerging Market            1997            $100,000           ($55,170)           $33,867        $17,116         $50,984            0.92x                -2.5%



.




    132
        All cash flow information is through 3/31/03 and net asset values are from fund statements as of 3/31/03.
    133
        As determined by Cambridge Associates, funds with NM (not meaningful) are too young to have produced meaningful returns. Funds with N/A (not applicable) have not yet commenced operations.
    134
        Net IRR (internal rate of return) includes the cash-on-cash return net of fees, expenses, and carried interest as well as the net asset value of University of California Regents’ interest in the partnership as determined by
    the General Partners. Differences in the valuation policies employed by General Partners (for which no industry standard currently exists) and differences in the investment pace of each partnership materially affect the
    IRR calculations. As such, IRRs should not be used to measure a fund’s performance until all investments have been fully realized. In addition, a comparison of IRRs across funds would fail to account for these inherent
    differences.
    NM
        For funds formed in a vintage year of 1999 or later, the Investment Multiple and Net IRR are not meaningful as these funds are still in the process of making new investments and the performance of new and existing
    investments will not be determined for several years.

                                                                                                                    60
                                                              C:\Docstoc\Working\pdf\36f11813-a396-4d75-8b04-3874423e5a6b.doc
                                                                               Last printed 7/11/2011 2:53 PM

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:47
posted:7/11/2011
language:English
pages:60
Description: Preferred Llc Interests Ppm document sample