Angel Group and Venture Capital

Term Sheets
TCN: The Capital Network
October 12, 2010

Paul G. Sweeney
Partner

(617) 832-1296
psweeney@foleyhoag.com

© 2010 Foley Hoag LLP. All Rights Reserved.

 These materials have been prepared solely for educational purposes. The
presentation of these materials does not establish any form of attorney-client
relationship with the author or Foley Hoag LLP. Specific legal issues should be
addressed through consultation with your own counsel, not by reliance on this
presentation or these materials. Attorney Advertising. Prior results do not
guarantee a similar outcome. © Foley Hoag LLP 2010.

United States Treasury Regulations require us to disclose the following: Any

tax advice included in this document and its attachments was not intended or
written to be used, and it cannot be used by the taxpayer, for the purpose of (i)
avoiding penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any transaction or matter
addressed herein.

© 2010
2008 Foley Hoag LLP. All Rights Reserved. Presentation Title
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 What is a term sheet?

ƒ aka- “Letter of Intent,” “Memorandum of

Understanding,” “Agreement in Principle”
ƒ Basic agreement on the material terms of the
transaction
– Road map, marching orders
ƒ More detail is generally better (especially for the
company/seller)
ƒ If you really want to mess up your transaction, this is
the place to do it

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title
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 Non Binding
ƒ A term sheet is not a binding agreement to fund
– Subject to actual documents
– Subject to due diligence
– Subject to other closing conditions (legal opinion etc.)
– Timeline from Term Sheet to closing has been much longer and
much more uncertain in the last two years
ƒ Confidentiality
– Term sheets typically have a binding confidentiality provision prohibiting
disclosure of the terms and the existence of the term sheet
ƒ Exclusivity
– Term sheets typically give the investor some period of exclusivity (45 to
90 days)

© 2010
2008 Foley Hoag LLP. All Rights Reserved. Presentation Title
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 Founders’ Main Concerns

ƒ Loss of control over your company

ƒ Dilution of your personal equity position in your
company
ƒ Risk of having your stock repurchased if terminated
ƒ Is the financing adequate for your plans
ƒ What are the future capital needs and expected dilution
ƒ If debt, is there a security interest in key assets
ƒ Success of partnership with angels and VCs – access
to key industry contacts, future $, business guidance

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title
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 Investors’ Main Concerns

ƒ Accuracy of valuation (both present and projected)

ƒ Risk level of investment
ƒ Projected returns on investment (ROI)
ƒ Liquidity if business in distress (downside protection)
ƒ Ability to participate in later rounds (upside protection)
ƒ Influence and control over management and strategic
direction

© 2010
2008 Foley Hoag LLP. All Rights Reserved. Presentation Title
6 | 6
 Pre-Money Valuation
ƒ “Pre-Money Valuation” means the value given to the company before the
transaction. It allows for the calculation of the share price, which is equal
to the pre-money valuation divided by the number of shares “outstanding”
before the transaction:

Share Price = Pre-Money Valuation

Pre-money Shares Outstanding

ƒ Critical Issue –What shares are being counted in the “Shares Outstanding”
number? (All outstanding options? Options reserved under the option
pool? What is the size of the option pool?). The higher the number of
shares deemed “outstanding,” the lower the share price, and therefore the
higher the number of shares (and “actual” percentage of the company)
that the investors receive for the same dollar amount of investment.

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title
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 Post-Money Valuation
ƒ“Pre-Money Valuation” means the sum of the pre-money valuation plus
the amount invested.

ƒPop Quiz: New investor values your company at a pre-money valuation

of $10,000,000, and offers to invest $5,000,000 into the company.

ƒQuestion: What percentage of the company would the investor own after
the investment?
A: 33%
B: 50%
C: It’s too early in the morning for a math quiz

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title
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 Key Terms – Pre Money Valuation

ƒ Pre Money Valuation (Without Option Pool)

33%

Investors

Founders
67%

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title
9 | 9
 Key Terms – Pre Money Valuation

ƒ Pre Money Valuation (With Option Pool)

20%

33%

Investors
Founders
Option

47%

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title10 | 10
 Math Geek Part 1

ƒ Offer 1: Pre-Money Value of $10 million, $5 million

investment, 10% Post-Money Option Pool
ƒ Offer 2: Pre-Money Value of $11 million, $5 million
investment, 20% Post-Money Option Pool

ƒ Which is the better offer?

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 Math Geek Part 1 Answer
ƒ Offer 1, even though it’s a lower “pre-money valuation.” It values the outstanding
common stock higher because it includes a smaller post-money option pool. Here’s
the math:

ƒ Offer 1 Values:
– Preferred Stock $ 5,000,000
– Option Pool 1,500,000
– Common Stock 8,500,000
– Total Post-money $15,000,000

ƒ Offer 2 Values:
– Preferred Stock $ 5,000,000
– Option Pool 3,200,000
– Common Stock 7,800,000
– Total Post-money $16,000,000

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title12 | 12
 CAUTION!
ƒ Pre-Money Valuation is only one of many economic terms.
ƒ As the saying goes, a sophisticated investor, whether Angel or VC,
will gladly let you pick the valuation if they get to pick all the other
terms. You can construct the other economics in many ways, the
easiest of which is the liquidation preference…

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title13 | 13
 Convertible Preferred Stock

ƒ Why Convertible Preferred Stock?

– “Preferred” - Preference over common stock on dividends,
distributions, liquidation, redemption
– “Convertible” - All of the upside of common stock

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title14 | 14
 Liquidation Preference
ƒ “Liquidation preference” is the right of the holders of preferred
stock to get their money back (and perhaps more) before the
common stock when a “liquidation event” occurs (generally, an
M&A transaction). Sometimes “multiples” are used (1x, 2x, 3x the
investment amount). Sometimes accruing dividends are included.
ƒ “Preference overhang“ refers to the total amount of liquidation
proceeds that go to the holders of preferred stock before the
holders of the common stock begin to share in the liquidation
proceeds.
ƒ Three main flavors:
– No participation
– Participating preferred (aka “Piggy Preferred”)
– Capped participation

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title15 | 15
 Math Geek Part 2
ƒ Assume we took Offer 1 ($10 pre and $15 post) and a year later we sold the
company for $30 million (with the option pool fully issued/vested for simplicity).
Here are how different preferences and participation rights would play out:
ƒ 1x preference, no participation:
– Preferred Stock: $10 million (33% of proceeds)
– Common Stock: $20 million
ƒ 1x preference, full participation:
– Preferred Stock: $13.3 million (44% of proceeds)
– Common Stock: $17.7 million
ƒ 1x preference, participation capped at 2x:
– Preferred Stock: $10 million (33% of proceeds)
– Common Stock: $20 million
ƒ 1x preference, participation capped at 3x:
– Preferred Stock: $13.3 million (44% of proceeds)
– Common Stock: $17.7 million
ƒ 3x preference, full participation:
– Preferred Stock: $20 million (67% of proceeds)
– Common Stock: $10 million

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title16 | 16
 Math Geek Part 2
ƒ Now assume it was only one week later and for $15 million:
ƒ 1x preference, no participation:
– Preferred Stock: $5 million (33% of proceeds)
– Common Stock: $10 million
ƒ 1x preference, full participation:
– Preferred Stock: $8.3 million (55% of proceeds)
– Common Stock: $7.7 million
ƒ 1x preference, participation capped at 2x:
– Preferred Stock: $8.3 million (55% of proceeds)
– Common Stock: $7.7 million
ƒ 1x preference, participation capped at 3x:
– Preferred Stock: $8.3 million (55% of proceeds)
– Common Stock: $7.7 million
ƒ 3x preference, full participation:
– Preferred Stock: $15 million (100% of proceeds)
– Common Stock: $0
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 Current Trends (Q2/09 – Q2/10)
ƒ For Series A financings, 28-50% had some form of
participating preferred.

ƒ For Series B+ financings, 55-72% had some form of

participating preferred.

ƒ Source: Foley Hoag’s Perspectives – August 2010

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title18 | 18
 Math Geek Part 2

Source: www.wikipedia.org

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 Antidilution Protection
ƒ Addresses Investors’ concern re: valuation
ƒ Changes the conversion price used to calculate the number of
shares of common stock issued when a share of preferred stock
converts
ƒ Helps protect investors in the case of a “down round,” when new
money comes in at a total pre-money valuation (or price per share)
that is lower than the previous round’s post-money valuation.

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title20 | 20
 Anti-Dilution Protection

ƒ Two Flavors: Weighted Average and Full Ratchet

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 Weighted Average
ƒ Weighted average anti-dilution adjustment takes into account the
proportional relevance (or weight) of each component in the calculation
rather than treating each component similarly.
ƒ In a down round, the conversion price of the Series A is lowered to a price
that is an average of the price at which the company sold the new stock,
valuing the common stock outstanding at the pre-adjusted conversion
price.
ƒ Sometimes formulated as “broad-based” and sometimes as “narrowly-
based.” (“narrowly-based” is more favorable to the protected preferred
stock.)
ƒ More common than full ratchet, and much less onerous to un-protected
stockholders.
ƒ Formula:
New price= (P1)(Q1) + (P2)(Q2)
(Q1) + (Q2)

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 Full Ratchet
ƒ The conversion ratio of the protected preferred stock is “ratcheted
down” to the lowest price at which securities are sold in the down-
round (where stock is sold at a price lower than the earlier
protected round). This applies even if only one share is sold. It
treats all subsequent down-round stock issuances similarly,
resulting in an adjustment to the conversion ratio regardless of the
number of shares issued.
ƒ Very onerous, and substantially less common.

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 Math Geek Part 3
ƒ Assume again Offer 1 is closed on ($10m pre and $15m post). Subsequently, the
company has to raise an additional $2.5 million in a Series B at a $7.5 million pre-
money valuation (a 50% decline from the $15 million post-money).
ƒ If the Series A had no antidilution, the resulting cap table would be:
– Series B: 25% ($2.5 million)
– Series A: 25% ($2.5 million)
– Common: 50% ($5.0 million)
ƒ If the Series A had “full ratchet” antidilution, the resulting cap table would be:
– Series B: 25% ($2.5 million)
– Series A: 50% ($5 million)
– Common: 25% ($2.5 million)
ƒ If the Series A had “weighted average” antidilution, the resulting cap table would be:
– Series B: 25% ($2.5 million)
– Series A: 27.5% ($2.75 million)
– Common: 47.5% ($4.75 million)

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title24 | 24
 Current Trends (Q2/09 – Q2/10)

ƒ For Series A financings, 8% had full ratchet;

remainder were evenly split between narrowly
based and broadly based weighted average.

ƒ For Series B+ financings, 18% had full ratchet.

ƒ Source: Foley Hoag’s Perspectives – August 2010

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title25 | 25
 Other Key Terms
ƒ Board seats
ƒ Co-sale rights
ƒ Dividends
ƒ Drag along rights
ƒ Information rights
ƒ Pre-emptive rights
ƒ Protective provisions
ƒ Registration rights
ƒ Right of first refusal

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 Convertible Notes

ƒ Conversion rate and company valuation (discount to

future round)
ƒ Automatic conversion on qualified financing
ƒ Payment on acquisition
ƒ Interest rate
ƒ Maturity date
ƒ Collateral (secured or not)
ƒ Amendment of notes

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 Final Thoughts

ƒ Focus on what’s in the best interest of the company.

ƒ Always ask “why” when terms are proposed.
ƒ All money is not the same. Choose your investors
wisely – their belief in YOU is a not an option, it’s a
necessity.

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title28 | 28
 Other Resources

ƒ www.emergingenterprisecenter.com:
– Glossary (commonly used terms)
– Ask the Startup Lawyers (common questions and answers;
submit your questions!)
– EEC Perspectives (our quarterly publication tracking terms of
New England VC deals)
ƒ NVCA Model Venture Capital Financing Documents
(including model term sheet):
– www.nvca.org (click “Resources” then “Model Legal
Documents”) or use http://bit.ly/bj7Pn
– Forms are intended as starting point only

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2008 Foley Hoag LLP. All Rights Reserved. Presentation Title29 | 29
 Questions?

Paul G. Sweeney
Partner

(617) 832-1296
psweeney@foleyhoag.com

© 2010 Foley Hoag LLP. All Rights Reserved.