24 August 2009

In Search Of...The Ideal Term Sheet

Continuing with our discussion on term sheets (see "Some Thoughts on Term Sheets" and "Closing Term Sheets Quickly"), today a new "plain vanilla" term sheet was published by Adeo Ressi of TheFunded.com.

You can download it on docstoc here.

It is very basic (a good thing) and entrepreneur-friendly. Whether you'll be able to get a VC to actually use it is another question altogether...when the economy is tough and funding purse-strings tighten, investors will often seek to include various onerous terms to help mitigate their downside risk. Anyway, it's useful as a starting point for discussions.

Rather than comment on it directly, I am re-publishing sections from a post on TechCrunch:

"The key terms include the elimination of participation with preferred stock, a 1x liquidation preference, and single trigger vesting acceleration on acquisition.

What this means: VCs try to increase returns by asking for large liquidation preferences. A 3x liquidation preference, for example, means the VC gets to take out 3 times his/her initial investment before founders and employees get anything. So if you raise $10 million at a 3x liquidation preference and then sell for $25 million, founders and emplyees get nothing. With a 1x liquidation preference, the VC is only able to get the initial investment back before others take their share.

More importantly, participation is eliminated. VCs often ask for this. What it means: Participation rights means the VC gets to take a pro-rata share of money in a sale even after the liquidity preference. With it eliminated, the VC has to choose - either take their 1x liquidation preference or convert and share with common pro rata. For any large deal, they will convert and be treated like the founders and employees.

The single trigger vesting provision is also important. VCs like to keep their founders locked up so they have to keep working even after an acquisition. The provision, called double-trigger acceleration, usually requires a sale followed by a firing without cause. VCs want this because it’s easier to sell a company if the founders are locked into staying on. Founders don’t like it because it sucks.

Most importantly, though, is the cost savings. VCs really need to move to a deal structure that doesn’t burn up so much lawyer time negotiating provisions that are almost never used. I could write 10 posts on how this nonsense works, and may in the future. A term sheet like this can be closed with $10k - $20k in legal fees. When you’re only raising $1 million, that’s a big deal."

More on Seed Stage Terms
One more link while we're on the topic-- here is a new post from Caine Moss, an attorney at WSGR, on the changing face of early stage investing. He explores the difference between terms at the Series A stage and at the seed or "Series 1" stage. The main takeaway is that terms will differ, and entrepreneurs should avoid deals where Series A terms are used for a seed financing.

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