Venture Capital Deal Terms

1. Venture Capital: Fueling High-Growth Companies

Venture capital has established itself as an important source of capital for a variety of companies, ranging from start-ups to more established businesses.

Enabling Innovation. Venture capital (VC) serves as a critical funding source for companies with significant growth potential, from nascent startups to expanding businesses. Unlike traditional lenders, VC firms are willing to invest in companies with higher risk profiles, recognizing the potential for substantial returns upon a successful exit. This willingness to take risks fuels innovation and allows groundbreaking ideas to come to fruition.

Staged Investments. To mitigate risk, VC firms typically invest in multiple rounds, rather than providing the total capital upfront. This staged approach allows investors to assess the company's progress at each stage, ensuring that funds are allocated effectively and that the company is meeting its milestones. This also allows for re-negotiation of terms if the company is not performing as expected, or to discontinue funding if the company's viability is at stake.

Long-Term Partnership. VC firms usually look to retain their investment for a period of at least three to seven years, depending on the company's stage, growth profile, and exit opportunities. This long-term commitment allows the company to focus on building its business without the pressure of immediate repayment, while also aligning the interests of the investors with the long-term success of the company. This partnership extends beyond just capital, often including mentorship, networking, and strategic guidance.

2. Term Sheets: The Foundation of VC Deals

A well-drafted term sheet serves as a tool to focus attention of the parties on the essential elements of the investment, and as an instrument to investigate whether there is common ground between the parties regarding the most important investment conditions, before they spend further time, energy and money on negotiating a deal.

Defining Key Terms. A term sheet is a non-binding document that outlines the fundamental terms and conditions of a proposed investment. It serves as a roadmap for the more detailed legal agreements that will follow, ensuring that both the investors and the company are aligned on the key aspects of the deal. This includes valuation, investment amount, type of security, and control rights.

Efficiency and Focus. The term sheet process helps to streamline negotiations by focusing attention on the most critical elements of the investment. By addressing these issues upfront, the parties can avoid wasting time and resources on a deal that is unlikely to succeed. It also allows both sides to assess whether there is sufficient common ground before incurring significant legal and due diligence expenses.

Essential Elements. A comprehensive term sheet covers a wide range of topics, including:

• Valuation and share price
• Liquidation preferences
• Anti-dilution protection
• Board representation
• Voting rights
• Exit strategies

The term sheet is a critical tool for managing expectations and ensuring a smooth and efficient investment process.

3. Valuation: Art and Science in Early-Stage Investing

Often the valuation is to a large extent based on subjective, rather than objective, variables.

More Art than Science. Valuing early-stage companies is a complex process that relies heavily on subjective factors, rather than precise financial models. Traditional valuation methods like discounted cash flow (DCF) analysis are often unreliable due to the uncertainty surrounding future revenue projections. Instead, investors consider factors such as the quality of the management team, the size and maturity of the market, the uniqueness of the technology, and the competitive landscape.

Pre-Money vs. Post-Money. The pre-money valuation refers to the company's value immediately before the investment, while the post-money valuation is the value immediately after the investment. The pre-money valuation is used to determine the share price for the new investment, and it is a critical point of negotiation between the investors and the company.

Percentage Ownership. Venture capitalists often approach valuation from a percentage ownership perspective. They determine the amount of capital they are willing to invest, and then negotiate for a percentage of the company that reflects their desired return on investment. This percentage, combined with the investment amount, determines the post-money valuation.

4. Control and Protection: Preferred Shares and Investor Rights

Preferred shares typically carry additional rights to provide them with a certain level of control over the business and capital of the company.

Beyond Common Equity. Venture capital investments are typically structured using preferred shares, which offer investors a range of rights and protections that are not available to common shareholders. These rights are designed to provide investors with a degree of control over the company and to protect their investment in the event of a downturn or exit.

Key Rights:

• Liquidation Preference: Priority in receiving proceeds from a sale or liquidation.
• Anti-Dilution Protection: Protection against dilution of ownership in future funding rounds.
• Board Representation: The right to appoint a member to the company's board of directors.
• Voting Rights: The right to vote on key decisions affecting the company.
• Consent Rights: The right to approve certain actions by the company, such as raising additional capital or selling the business.

Balancing Control. While investors seek to protect their investment, it's important to strike a balance between control and allowing the management team to operate effectively. Overly restrictive terms can stifle innovation and hinder the company's growth.

5. Liquidation Preferences: Prioritizing Returns

In the event of a liquidation or winding up of the Company, the holders of Series A Shares will be entitled to receive, in preference to the holders of the Common Shares, payment of an amount equal to the original purchase price per Series A Share, plus any accumulated and unpaid dividends.

Defining the Payout. A liquidation preference determines the order in which shareholders receive proceeds from a sale, merger, or liquidation of the company. Preferred shareholders typically have priority over common shareholders, ensuring that they receive a certain return on their investment before the founders and employees receive any proceeds.

Types of Preferences:

• Non-Participating: Preferred shareholders receive their original investment back and then do not participate in any further distribution of assets.
• Participating: Preferred shareholders receive their original investment back and then also share in the remaining proceeds alongside the common shareholders.
• Capped Participating: Preferred shareholders receive their original investment back, participate in the remaining proceeds, but their total return is capped at a certain multiple of their investment.

Deemed Liquidation Events. The liquidation preference often extends to "deemed liquidation events," such as a sale or merger of the company. This ensures that investors are protected even if the company is not formally liquidated. The specific events that trigger the liquidation preference are a key point of negotiation.

6. Anti-Dilution: Protecting Against Down Rounds

In the event that the Company issues new shares or securities convertible into or exchangeable for shares at a purchase price lower than the applicable conversion price of the Series A Shares, then the conversion price of the Series A Shares will be subject to a full ratchet adjustment, reducing the applicable conversion price of the Series A Shares to the price at which the new shares are (to be) issued.

Maintaining Value. Anti-dilution provisions protect investors from the dilution of their ownership stake in the event that the company issues new shares at a lower price in a subsequent funding round (a "down round"). These provisions adjust the conversion price of the preferred shares, effectively increasing the number of common shares that the investors receive upon conversion.

Types of Protection:

• Full Ratchet: The conversion price of the preferred shares is reduced to the price of the new shares, regardless of the number of new shares issued. This is the most investor-friendly type of protection.
• Weighted Average: The conversion price is adjusted based on a weighted average of the old and new share prices, taking into account the number of shares issued at each price. This is a more balanced approach that is less dilutive to the common shareholders.

Carve-Outs. Anti-dilution provisions typically exclude certain issuances of shares, such as those issued to employees under a stock option plan or in connection with an acquisition. These carve-outs are designed to allow the company to attract and retain talent and to pursue strategic opportunities.

7. Board Representation: Investor Oversight

The supervision of the policies by the Management Board and all other tasks and duties as assigned to it will be entrusted to the supervisory board (“Supervisory Board”), which at Closing will consist of three members comprised of (i) one member elected upon the nomination of the holders of the Series A Shares; (ii) one member upon the nomination of Bill Pear and Peter Singh (the “Founders”); and (iii) one member who has specific expertise in the Company’s field of business nominated by a majority of all shareholders and who is mutually acceptable to the Founders and Investors.

Voice at the Table. Board representation gives investors a seat on the company's board of directors, allowing them to participate in key decisions and oversee the management team. This provides investors with valuable insight into the company's operations and strategy, and it allows them to influence the direction of the business.

Board Composition. The term sheet typically specifies the composition of the board, including the number of seats allocated to the investors, the founders, and independent directors. The investors often have the right to nominate one or more board members, ensuring that their interests are represented.

Fiduciary Duty. While board members nominated by investors have a responsibility to represent the investors' interests, they also have a fiduciary duty to act in the best interests of the company as a whole. This can create a tension between the investors' desire for control and the board's obligation to act in the best interests of all shareholders.

8. Exit Strategies: IPOs, Acquisitions, and Redemption Rights

Venture capital firms usually look to retain their investment for a period of at least three to seven years.

Realizing Returns. Venture capital investors generate returns by exiting their investments, typically through an initial public offering (IPO) or an acquisition by another company. The term sheet often includes provisions that facilitate these exit strategies, such as registration rights and drag-along rights.

Registration Rights. Registration rights give investors the right to force the company to register their shares with the Securities and Exchange Commission (SEC), allowing them to be sold to the public in an IPO. These rights can be "demand" rights, which allow the investors to initiate the registration process, or "piggyback" rights, which allow them to include their shares in a registration initiated by the company or another shareholder.

Drag-Along Rights. Drag-along rights allow a majority of the shareholders to force all other shareholders to sell their shares in a sale of the company. This ensures that the company can be sold to a buyer even if some shareholders object.

Redemption Rights. Redemption rights give investors the right to force the company to repurchase their shares after a certain period of time. This provides investors with a potential exit option if the company is not sold or taken public.

9. Legal Agreements: Solidifying the Deal

The purchase of the Series A Shares will be made pursuant to an Investment and Shareholders’ Agreement acceptable to the Investors and containing, inter alia, appropriate representations, warranties as referenced in the ‘Representation and Warranties’ clause and covenants of the Company, Management Board and existing shareholders, where appropriate reflecting the provisions set forth herein and appropriate conditions of the Closing.

Formalizing the Terms. The term sheet is a non-binding agreement, the terms outlined within it are formalized in legally binding documents, primarily the investment agreement and the shareholders' agreement. These agreements provide a comprehensive framework for the investment and the relationship between the investors, the company, and the other shareholders.

Investment Agreement. The investment agreement details the specifics of the investment, including the amount of capital being invested, the type of securities being issued, and the representations and warranties being made by the company. It also outlines the conditions that must be met before the investment can close.

Shareholders' Agreement. The shareholders' agreement governs the relationship between the shareholders, including provisions related to board representation, voting rights, transfer restrictions, and exit strategies. It ensures that all shareholders are aligned on the key aspects of the company's governance and future direction.

10. Due Diligence: Uncovering Risks and Opportunities

Practically all venture capital transactions start out with the execution of a term sheet.

Verifying Information. Due diligence is a critical process that investors undertake after signing a term sheet to verify the information provided by the company and to assess the risks and opportunities associated with the investment. This process involves a thorough review of the company's financial records, legal documents, technology, and market position.

Areas of Focus:

• Financial Due Diligence: Reviewing the company's financial statements, projections, and accounting practices.
• Legal Due Diligence: Examining the company's legal structure, contracts, intellectual property, and compliance with regulations.
• Technical Due Diligence: Assessing the company's technology, product development, and competitive landscape.
• Commercial Due Diligence: Evaluating the company's market opportunity, customer base, and sales strategy.

Identifying Red Flags. The due diligence process can uncover potential red flags that may cause the investors to re-negotiate the terms of the deal or even walk away from the investment. These red flags may include undisclosed liabilities, intellectual property disputes, or a flawed business model.

Last updated: March 18, 2025