IMPROVING LEGAL DOCUMENTS IN CROWDFUNDING: INTERNAL RATE OF RETURN

Internal rate of return, a financial concept, is not always used correctly in Crowdfunding documents.

The internal rate of return, often referred to as IRR, calculates the total rate of return of an investment, expressed as a percentage. Suppose you invested $100 in a bond that paid $5 at the end of each year for four years and were redeemed at the end of the fifth year for $105. Not surprisingly, that investment has an IRR of 5%.

Suppose you try to calculate IRR at the end of the fourth year? You tell Microsoft Excel that you paid $100 and have received $5 per year for four years and Excel says your IRR is minus 43.25%, i.e., you’ve made a terrible investment. What went wrong?

What went wrong is that you didn’t give Excel all the information it needs. It’s like the George Carlin joke, when he plays a sportscaster and announces “Here’s a partial score: Yankees 3.”

To get the right answer for IRR at the end of the fourth year, you have to tell Excel that the bond is still worth $100. When you do that, Excel calculates that your IRR is 5%.

And so it is in Crowdfunding. Often, the sponsor promises that upon any “capital transaction” – a sale or a refinancing, typically – the investors receive an IRR of X% before the sponsor receives his “promote.” Typical language:

The net proceeds of a Capital Transaction shall be distributed first to Investors, until they have received an internal rate of return of 8%, and then 70% to Investors and 30% to Sponsor.

But that’s like “Yankees 3.” It works if the Capital Transaction was a sale of the entire business, but it doesn’t work if the Capital Transaction was anything else, like a refinancing or a sale of only part of the business. With this language the investors are going to receive a complete return of their investment even if only a portion of the project has been sold, which might not be what the parties intended.

To get the right result you need to say something like this:

The net proceeds of a Capital Transaction shall be distributed first to Investors, until they have received an internal rate of return of 8%, and then 70% to Investors and 30% to Sponsor. If the Capital Transaction does not consist of the sale of all of the Company’s property and the distribution of all of the net proceeds to the Members, then the internal rate of return shall be calculated by (i) assigning to the remaining assets of the Company a value determined in good faith by the Manager, and (ii) assuming a residual value to the Investors equal to the amount they would receive if all such remaining assets were sold for such value and distributed in a Capital Transaction.

As for a definition of internal rate of return:

The term “internal rate of return” means the internal rate of return calculated using the XIRR function in Microsoft Excel.

Questions? Contact Mark Roderick at Flaster/Greenberg PC.

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2 thoughts on “IMPROVING LEGAL DOCUMENTS IN CROWDFUNDING: INTERNAL RATE OF RETURN

  1. Scott Lichtman November 12, 2014 at 9:28 pm Reply

    Hello Mark, I haven’t seen deals that in my experience says “The net proceeds of a Capital Transaction shall be distributed first to Investors, until they have received an internal rate of return of 8%, and then 70% to Investors and 30% to Sponsor” – have you? Rather, it’s common to say “… until they received a preferred equity rate of return of 8%…” IRR is invariably left until profit end, which for crowdfunders involves a complete sale of property (if we’re talking about equity investments). Regards, Scott

  2. crowdfundattny November 12, 2014 at 9:34 pm Reply

    Oh sure, especially in a real estate transaction you need to deal with internal rates of return before a sale of the property, specifically in the context of a refinancing. A refinancing is like a sale because you’re distributing the equity in the property. At the extreme, you could distribute the entire equity in a refinancing, then have nothing left to distribute on sale. That’s why the financial provisions have to treat a sale and a refinancing in the same way.

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