Tesla locks in stock surge with $2B offering at $767 per share

Tesla has priced its secondary common stock offering at $767, a 4.6% discount from Thursday’s share price close, according to a securities filing Friday.

Tesla said in the filing it will sell 2.65 million shares at that discounted price to raise more than $2 billion. Lead underwriters Goldman Sachs and Morgan Stanley have the option to buy an additional 397,500 shares in the offering.

Tesla shares closed at $804 on Thursday. The share price opened lower Friday, jumped as high at $812.97 and has hovered around $802.

The automaker surprised Wall Street on Thursday when it announced plans to raise more than $2 billion through a common stock offering, despite signaling just two weeks ago that it would not seek to raise more cash.

CEO Elon Musk will purchase up to $10 million in shares in the offering, while Oracle co-founder and Tesla board member Larry Ellison will buy up to $1 million worth of Tesla shares, according to the securities filing.

Tesla said it will use the funds to strengthen its balance sheet and for general corporate purposes. In a separate filing Thursday that was posted prior to the stock offering notice, Tesla said capital expenditures could reach as high as $3.5 billion this year.

The stock offering conflicts with statements Musk and CFO Zach Kirkhorn made last month during Tesla’s fourth-quarter earnings call. An institutional investor asked that given the recent run in the share price, why not raise capital now and substantially accelerate the growth in production? At the time, Musk said the company was spending money sensibly and that there is no “artificial hold back on expenditures.”

At the time of Thursday’s announcement, Tesla shares had risen more than 35% since the January 29 earnings call, perhaps proving too tempting of an opportunity to ignore.

Negotiate for ‘better’ stock in equity-funded acquisitions

For many founders, building and selling a successful venture-backed company for cash is the ultimate goal. However, the reality is that some companies will instead receive an equity-funded acquisition proposal in which equity of another private venture-backed company, rather than cash, represents all or a significant portion of the purchase price.

Because all equity is not created equal, it is important for founders to understand how to negotiate for better equity in the context of such an acquisition proposal. This article explores what better equity looks like and some strategies founders can use to negotiate for that equity.

What is “better” equity?

To know what “better” equity is for the seller, it is necessary to understand what the “worst” and “best” stock is in the context an equity-funded acquisition by a private company buyer. The “worst” stock is plain common stock which does not enjoy any special rights and is subject to contractual restrictions which diminish its liquidity profile. Common stock sits at the bottom of the priority stack (after debt and preferred equity) in the event the company dissolves or is sold — thus, it is least valuable. Variations of transfer restrictions (e.g., a prohibition on private secondary sales) may further diminish the desirability of common stock by making it difficult or impossible for the holder to achieve liquidity outside of an M&A event or initial public offering (IPO).

In contrast, the “best” stock is (1) the acquirer’s most senior series of preferred stock, coupled with (2) additional contractual rights enhancing such stock’s liquidity profile. For our purposes here, we’ll call this “enhanced preferred stock.” All things being equal, founders and VCs should have a strong preference for enhanced preferred stock in an equity-funded acquisition for several reasons:

  • Usually, the most senior series of preferred stock will enjoy a liquidation preference ensuring that a certain amount of proceeds (commonly equal to invested capital) from a sale of the company flow to stockholders of that series before proceeds are distributed to junior preferred and common stockholders.
  • Unique contractual rights not shared by common stockholders, like special voting rights with respect to major events and transactions, unique information rights, pro rata investment rights with respect to future financings, rights of first refusal and co-sale rights, increase the stock’s relative value.
  • Beyond the standard set of rights that are usually enjoyed by all preferred stockholders, additional contractual rights of and reduced restrictions on enhanced preferred stock make it more likely that the holder of such equity will achieve liquidity of some or all of its holdings prior to an M&A event or IPO. Such additional rights may include one or more of the following: time or event-based redemption rights (i.e., the right to force the acquirer to redeem equity at a specified price in the future), other liquidity rights tied to future financings or commercial transactions (e.g., the right to sell stock to the investors in the next equity financing), covenants of the acquirer to permit and support private secondary sales and registration rights (i.e., the right to force the acquirer to register stock with the SEC, thereby allowing for unrestricted resale by the holder).

“Better” stock lies somewhere on the continuum between the common stock and enhanced preferred stock poles, with the type of stock and bundle of rights associated with such equity determining its precise location. Additional contractual rights and reduced restrictions may significantly improve the desirability of common stock and perhaps place the holder in a better position than it would have been as a preferred stockholder. For example, a seller able to negotiate the right to sell a certain amount of common stock to investors in the acquirer’s next preferred stock equity financing could be more favorably positioned than the holder of senior preferred stock without any enhanced preferred rights.

Negotiating for better stock. With a framework for understanding what better stock means, below are several strategies sellers can employ in M&A negotiations to obtain better stock than that initially offered by the buyer.

Avoiding dire situations and preserving leverage. Leverage matters in every negotiation and any strategy that ignores this reality is doomed to fail. To state the obvious, the first strategy to negotiate for better stock in an equity-funded acquisition is the first strategy in preparing for any M&A event: companies should do all they can to avoid being in a dire fire sale situation when a buyer comes knocking on their door. If the seller is a failing company seeking a sale as a last ditch effort to avoid shutting its doors, even the best strategies may be useless in negotiation since as soon as the buyer says “no”, the seller will likely fold its hand and agree to the deal offered.

How to build or invest in a startup without paying capital gains tax

Founders, entrepreneurs, and tech executives in the know realize they may be able to avoid paying tax on all or part of the gain from the sale of stock in their companies — assuming they qualify.

If you’re a founder who’s interested in exploring this opportunity, put careful consideration put into the formation, operation and selling of your company.

Qualified Small Business Stock (QSBS) presents a significant tax savings opportunity for people who create and invest in small businesses. It allows you to potentially exclude up to $10 million, or 10 times your tax basis, whichever is greater, from taxation. For example, if you invested $2 million in QSBS in 2012, and sell that stock after five years for $20 million (10x basis) you could pay zero federal capital gains tax on that gain. 

What is QSBS, and why is it important?

These tax savings can be so significant, that it’s one of a handful of high-priority items we’ll first discuss, when working with a founder or tech executive client. Surprisingly, most people in general either:

  1. Know a few basics about QSBS;
  2. Know they may have it, but don’t explore ways to leverage or protect it;
  3. Don’t know about it at all.

Founders who are scaling their companies usually have a lot on their minds, and tax savings and personal finance usually falls to the bottom of the list. For example, I recently met with someone who will walk away from their upcoming liquidity event with between $30-40 million. He qualifies for QSBS, but until our conversation, he hadn’t even considered leveraging it. 

Instead of paying long-term capital gains taxes, how does 0% sound? That’s right — you may be able to exclude up to 100% of your federal capital gains taxes from selling the stake in your company. If your company is a venture-backed tech startup (or was at one point), there’s a good chance you could qualify.

In this guide I speak specifically to QSBS on a federal tax level, however it’s important to note that many states such as New York follow the federal treatment of QSBS, while states such as California and Pennsylvania completely disallow the exclusion. There is a third group of states, including Massachusetts and New Jersey, that have their own modifications to the exclusion. Like everything else I speak about here, this should be reviewed with your legal and tax advisors.

My team and I recently spoke with a founder whose company was being acquired. She wanted to do some financial planning to understand how her personal balance sheet would look post-acquisition, which is a savvy move. 

We worked with her corporate counsel and accountant to obtain a QSBS representation from the company and modeled out the founder’s effective tax rate. She owned equity in the form of company shares, which met the criteria for qualifying as Section 1202 stock (QSBS). When she acquired the shares in 2012, her cost basis was basically zero. 

A few months after satisfying the five-year holding period, a public company acquired her business. Her company shares, first acquired for basically zero, were now worth $15 million. When she was able to sell her shares, the first $10 million of her capital gains were completely excluded from federal taxation — the remainder of her gain was taxed at long-term capital gains.

This founder saved millions of dollars in capital gains taxes after her liquidity event, and she’s not the exception! Most founders who run a venture-backed C Corporation tech company can qualify for QSBS if they acquire their stock early on. There are some exceptions. 

qsbs tax savings example

Do I have QSBS?

A frequently asked question as we start to discuss QSBS with our clients is: how do I know if I qualify? In general, you need to meet the following requirements:

  1. Your company is a Domestic C Corporation.
  2. Stock is acquired directly from the company.
  3. Stock has been held for over 5 years.
  4. Stock was issued after August 10th, 1993, and ideally, after September 27th, 2010 for a full 100% exclusion.qsbs stock acquired
  5. Aggregate gross assets of the company must have been $50 million or less when the stock was acquired.
  6. The business must be active, with 80% of its assets being used to run the business. It cannot be an investment entity. 
  7. The business cannot be an excluded business type such as, but not limited to: finance, professional services, mining/natural resources, hotel/restaurants, farming or any other business where the business reputation is a skill of one or more of the employees.

When in doubt, follow this flowchart to see if you qualify:

Founder’s guide to the pre-IPO secondary market

The increase in activity in the pre-IPO secondary market means that founders, early employees, and investors are receiving liquidity much sooner in a company’s lifecycle than ever before. For most startups and privately-held companies, liquidity is often an issue for stockholders, as no market exists for selling shares and/or transfer restrictions can prevent their sale. Secondary stock transactions, however, are a way to work around this problem.

Here’s a quick look at how they work and what to keep in mind, especially if you’re going through the process for the first time. (If you’re not familiar, secondaries are transactions in which an existing stockholder sells their stock for cash to third parties or back to the company itself before the company undergoes an exit; traditionally, an exit refers to an M&A or an IPO.)

Offering secondary transactions to founders is a tool VCs have been using to win deals. For example, if a VC promises that the founders will receive $1,000,000 in cash through a secondary sale from a $15,000,000 venture financing round, the founders will likely prefer that VC’s term sheet to a term sheet from a VC that does not offer that deal.

Why would a founder consider a secondary sale of their equity?

Africa e-tailer Jumia’s shares fall 4% day after IPO lockup expiration

Shares of Africa focused e-commerce company Jumia dropped 4% the day after the lockup period expired for its April IPO on the New York Stock Exchange.

The lockup provision prevents major shareholders — namely those who purchased equity pre-public listing — from selling their shares for a specified number of days following the IPO.

Jumia’s stock price began Thursday at $7.54, fell to an all-time low of $6.98 by 2pm, and then closed 35 cents down from opening, at $7.19. Jumia’s trading volume on Thursday moved up 19 percent over the daily average since the company went public.

Jumia Share Price October 10Sites that track SEC Form 4 trades, or sales by insiders, aren’t showing anything (at the moment) for Jumia.

What does this all mean? It appears there wasn’t an immediate big stock sell by Jumia’s early and large shareholders post lockup expiry. There was some speculation these investors could drop the company after several rough and tumble months for Jumia post IPO.

Founded in Lagos in 2012, Jumia currently operates multiple online verticals in 14 African countries — from B2C consumer retail to travel bookings.

For Jumia, going public has been an up and down affair. After becoming the first tech startup operating in Africa to list on a major exchange, the company saw its share price rise 70% after listing on the NYSE in April at $14.50.

Then in May, Jumia’s stock tumbled when it came under assault from a short-seller, Andrew Left, who accused the company of fraud in its SEC filings.

Jumia’s latest earnings reporting — delivered in August — had some downside beyond losses. The  company did post second-quarter revenue growth of 58% (≈$43 million) and increased its customer base to 4.8 million from 3.2 million over the same period a year ago.

But Jumia also posted greater losses for the period, 67.8 million euros, compared to 42.3 million euros in 2018.

On top of that, Jumia opened up about a sales related fraud (that it has reported in its original SEC IPO filing) committed by some of its employees and members of its JForce program “to benefit from differences between commissions charged to sellers and higher commissions paid to JForce agents,” according to a Jumia statement.

“The transactions in question generated approximately 1% of our GMV in each of 2018 and the first quarter of 2019 and had virtually no impact on our 2018 or 2019 financial statements,” the statement continued.

Collectively, this has added up to influence Jumia’s share-price falling some 50% from its opening price of $14.50 and 80% from its high of $46.99 on May 1.

As a public company now, the most direct way for Jumia to revive its share-price would be reducing its losses while maintaining or boosting revenues. Of course, that’s the common prescription for many a tech company.

Jumia believes expanding and generating more revenue through its JumiaPay product (with better margins than B2C e-commerce transactions) could help close the revenue vs. loss gap.

Investors and the market at large will be able to track Jumia’s progress during its next (Q3) earnings call, scheduled for November 12, Jumia confirmed to TechCrunch.

 

 

 

 

 

 

 

Snap looks to raise $1 billion in private debt offering

Snap, the parent company of Snapchat, is looking to add some cash to its coffers via a new proposed private offering of $1 billion in convertible senior notes, with a due date for maturation of August 1, 2026. The debt offering will be used to cover the cost of general operating expenditures involved in running the business, Snap says, but also potentially to “acquire complementary businesses, products, services or technologies,” as well as possibly for future stock repurchase plans, though no such plans exist currently.

Raising debt to fund operations and acquisitions is not unusual for a publicly traded company – Netflix does this regularly to pick up more money to fund its increasingly expensive production budget for content, for instance. So far, the market seems to be reacting negatively to the news of Snap’s decision to seek this chunk of debt funding, however, as it’s down in pre-market trading.

Snap has generally been on a positive path in terms of its relationship with stockholders, however – its stock price rose on the back of a strong quarterly earnings report at the end of July, closing above its IPO price for the first time. It’s now dipped south of that mark again, but it’s still much-improved on a year-to-date timeline measure.

Amazon shareholders reject facial recognition sale ban to governments

Amazon shareholders have rejected two proposals that would have requested the company not to sell its facial recognition technology to government customers.

The breakdown of the votes is not immediately known. A filing with the vote tally is expected later this week.

The first proposal would have requested Amazon to limit the sale of its Rekognition technology to police, law enforcement and federal agencies. A second resolution would have demanded an independent human and civil rights review into the use of the technology.

It followed accusations that the technology has bias and inaccuracies, which critics say can be used to racially discriminate against minorities.

The votes were non-binding, allowing the company to reject the outcome of the vote.

But the vote was almost inevitably set to fail. Following his divorce, Amazon founder and chief executive Jeff Bezos retains 12% of the company’s stock, as well as the voting rights in his ex-wife’s remaining stake. The company’s top four institutional shareholders, including The Vanguard Group, Blackrock, FMR and State Street, collectively hold about the same amount of voting rights as Bezos.

The resolutions failed despite an effort by the ACLU to back the measures, which the civil liberties group accused the tech giant of being “non-responsive” to privacy concerns.

In remarks, Shankar Narayan, ACLU of Washington, said: “The fact that there needed to be a vote on this is an embarrassment for Amazon’s leadership team. It demonstrates shareholders do not have confidence that company executives are properly understanding or addressing the civil and human rights impacts of its role in facilitating pervasive government surveillance.”

“While we have yet to see the exact breakdown of the vote, this shareholder intervention should serve as a wake-up call for the company to reckon with the real harms of face surveillance and to change course,” he said.

The civil liberties group rallied investors ahead of the Wednesday annual meeting in Seattle, where the tech giant has its headquarters. In a letter, the group said the sale of Amazon’s facial recognition tech to government agencies “fundamentally alters the balance of power between government and individuals, arming governments with unprecedented power to track, control, and harm people.”

“As shown by a long history of other surveillance technologies, face surveillance is certain to be disproportionately aimed at immigrants, religious minorities, people of color, activists, and other vulnerable communities,” the letter added.

The ACLU said investors and shareholders had the power “to protect Amazon from its own failed judgment.”

Amazon pushed back against claims that the technology is inaccurate, and called on the U.S. Securities and Exchange Commission to block the shareholder proposal prior to its annual shareholder meeting. The government agency blocked Amazon’s efforts to stop the vote, amid growing scrutiny of its product.

Amazon spokesperson Lauren Lynch said on Tuesday, prior to the meeting, that the company operates “in line with our code of conduct which governs how we run our business and the use of our products.”

An email to the company following Wednesday’s meeting was unreturned at the time of writing.

Read more:

Lyft’s stock has a blue Monday as shares slide after public debut

Investors took off their rose-colored glasses and looked at Lyft’s shares with fresh eyes after Friday’s ebullient debut.

And — judging by the company’s share price at the end of the day — what they saw wasn’t exactly to their liking.

Lyft’s shares suffered a pretty blue Monday in trading on the Nasdaq stock exchange today, closing down $9.28 (or 11.85%).

One trading after the pink confetti was swept up off the floor and analysts and investors had a different story to tell about one of the first unicorns to make its public debut.

Part of the reason for the company’s share price tumble was a report from Guggenheim Partners analyst Jake Fuller, which voiced skepticism about the ride hailing company’s path to profitability.

Lyft’s financial picture has always been challenged. That was clear from the moment it filed its financial documents with the Securities and Exchange Commission before its public debut.

As TechCrunch wrote at the time:

According to the filing, Lyft recorded $2.2 billion in revenue in 2018, more than double the $1 billion recorded in 2017. Meanwhile, losses have been growing considerably. The company posted a net loss of $911 million on the $2.2 billion in revenue and a $688 million loss on 2017’s $1 billion.

The analysis from Fuller simply makes clear that Lyft’s purported path to profitability is dependent on a number of steps that could prove very difficult for the company to execute.

“We see four paths to profitability: cut driver pay, turn off incentives, reduce insurance costs or shift to self-driving cars,” Fuller is quoted by MarketWatch as writing. “The first two would be tough in a highly competitive category, the third might not be enough by itself and the fourth is likely 10 years out.”