Who gets paid first, who controls, and why the labels matter less than the terms.
Esshaki Legal Media TeamCurrent as of July 2022
Equity in a private company comes in classes with negotiated rights. The names
are conventional; the substance is in the documents.
Common stock carries residual economic rights and usually the general voting
power. Founders and employees hold it.
Preferred stock carries a liquidation preference, paid before common on a
sale or liquidation, often with a stated multiple and sometimes participating in
the remainder as well. It typically carries protective provisions — a veto over
sales, new senior issuances, charter amendments and debt above a threshold — and
conversion rights into common.
Dividends on preferred may be cumulative, accruing whether or not declared,
or non-cumulative. Cumulative dividends compound the preference over time and
are easy to overlook when modeling an exit.
LLC units replicate all of this contractually, often as classes with
different distribution waterfalls. Profits interests give a share of future
appreciation only, and their tax treatment depends on structuring them properly
at grant.
The practical point for a minority owner is that the waterfall, not the
percentage, determines what a sale produces. A twenty percent common holder
behind a three-times participating preference may receive nothing in a sale that
looks successful.