T 4/13/21 How to Structure Venture Capital Term Sheets for a Win-Win Deal
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How to Structure Venture Capital Term Sheets for a Win-Win Deal
1. How to Structure Venture Capital Term Sheets
for a Win-Win Deal
Presented on April 13, 2021 by Jason Putnam Gordon
Email: jgordon@polsinelli.com
2. 2
• Today’s Discussion is General Information – Not Legal Advice
• We will be discussing rules and exceptions thereto. Those rules,
exceptions, and exceptions to the exceptions may not be applicable to your
situation.
• You need to retain competent legal counsel to review all facts and
circumstances before weighing in with advice.
• Off-the-cuff answers to your questions are not, and should not be taken as,
legal advice.
Important Caveats
3. 3
• My Background
• Items to be covered
• What a venture capital financing is
• How venture capital financings fit into the business model of emerging-growth companies
• What venture capital fund investors look for in an investment
• What strategic investors look for in an investment
• The difference between what the two types of investors
• The costs and benefits of having only one type of investor in a round.
• The costs and benefits of having both types of investors in a round.
• What you should look for in a venture capital investor
• Why it’s critical to run pro forma cap tables before financings
• The terms commonly negotiated in a venture capital term sheet
• How to handle requests for side letters
• Common legal mistakes in raising capital
Overview
4. 4
• Venture Capital and Emerging Growth Company attorney—practicing law
since 2005.
• Polsinelli is an Am Law 100 firm with approximately 900 attorneys in over
twenty offices throughout the US.
• My office is in San Francisco, but I work with companies throughout the
US and the world.
• I love working with entrepreneurs on financings and as outside general
counsel.
My Background
6. 6
What Happens Between Rounds
Idea(s)
(Intangible Assets)
Technicians who have
skills like: sales,
marketing, business
acumen
(Services)
Investors
(Capital)
Company Increases in Value
7. What VCs Want
Objectives of Investors
Building a portfolio where a few companies will be home runs
Fund’s life is usually around 10 years
Strategic investors have different considerations
Mechanisms to reach objectives
Investing in rounds
Syndicating rounds
Protective provisions and rights.
8. What You Want in a VC
Answer in comments and let’s discuss
9. 9
Correct structure
Having company documentation in place
Modeling round
Pre-Round Issues
10. 10
Example 1 Shares Fully Diluted%
Founder 1 3,000,000 40.00%
Founder 2 3,000,000 40.00%
Preferred 1,500,000 20.00%
Total 7,500,000 100.00%
Example 2 Shares Fully Diluted%
Founder 1 3,000,000 28.72%
Founder 2 3,000,000 28.72%
Converted SAFEs/Notes 1,000,000 9.57%
Warrants 100,000 0.96%
Preferred 2,000,000 19.15%
Outstanding Options 300,000 2.87%
Available Options 1,045,000 10.00%
Total 10,445,000 100.00%
Pro Forma Cap Tables
11. 11
How to Negotiate a Term Sheet – Standard Deal Points
How much of the company is
being sold based on a valuation
Dividends
Liquidation preferences
Voting Rights
Protective provisions
Optional and Mandatory
Conversion
Check out NVCA.org for Model
Term Sheet
Anti-dilution protection
Vesting for founders
Documentation
Attorneys Fees
No Shop and Confidentiality
Provisions
Whether investors will get a
board seat
12. 12
Deep dive on dilution with Supporting Strategies -
https://www.youtube.com/watch?v=zOWV7zaHYKo
Economics – Exit Waterfall
13. 13
Control Rights
Right to Elect Directors – For so long as x number of shares of preferred are outstanding, the
preferred have the right to elect y number of directors.
Protective Provisions – For so long as x number of shares of preferred are outstanding, the
following require approval by y% of the outstanding preferred.
Liquidation of the company
Issuing cryptocurrency
Dividends or distributions
Authorizing senior equity or
increase in a series of preferred
Changing charter or bylaws
Changing the equity incentive plan
Creation of debt, usually with thresholds
Changing the board composition
Partial ownership of a subsidiary
Voting Rights
Vote along with the common, on an as converted basis
Separate class vote on various corporate matters
14. 14
Agreements outside of financing documents
Terms commonly negotiated in side letter
Board observer seats
Preemptive rights
Information rights
Other covenants
Commercial terms
Alterations to rights to amend other agreements
Side Letters
15. 15
Negotiating before you have run a proper pro forma
Securities laws issues
Finders
Poor record keeping
Napkin promises
Common Pitfalls and Traps for the Unwary
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