2011 Endeavor Summit Hot Topic workshop: Term Sheet Negotiations, the devil is in the details

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This is a presentation I made last June at the 2011 Endeavor Summit in San Francisco. …

This is a presentation I made last June at the 2011 Endeavor Summit in San Francisco.

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  • CAP VenturesCAP Venture Capital es un fondoargentino de Capital Emprendedor (Venture Capital). El foco de inversiónestá en compañías con alto potencial de crecimientolideradasporsólidosequipos de gestión. CAP Ventures apoya a emprendedoresquemotivan a susequipos y superanobstáculosparacrear valor económico y social. El fondoinvierte en posicionesminoritarias, aportando entre USD0.5m y USD3m porempresa, sin restricciones en cuanto a sectoresperoinvierteespecialmente en empresas de Agronegocios, Tecnología y Servicios.Recientemente, hemoscreado CAP Tech, un sub-fondoqueinvierte en emprendimientos de índoletecnológico. Para másinformación, visitewww.cap.com.ar.LAVCALa AsociaciónLatinoamericana de Capital Privado (LAVCA) esunaorganización sin fines de lucrodedicada a apoyar y promover el crecimiento de la industria de Private Equity y Venture Capital en Latinoamérica y el Caribe. Los más de 90 fondosmiembros de LAVCA incluyencompañías de alcance global queinvierten en la regióncomoasítambiénfondos locales desde Mexico hasta Argentina. En conjunto, lasfirmasmiembrocontrolanmás de US$30 billonesdedicados a capitalizar y crecernegocios en Latinoamérica y el Caribe. La misión de LAVCA – promover el crecimientoeconómico regional a través de lasinversionesprivadas – esalcanzada a través de programas de research, eventos de networking, seminarioseducativos y promoción de políticaspúblicas. Visitewww.lavca.orgparamásinformacíon.

Transcript

  • 1. Hot Topic Session
    Negotiating a Term Sheet: The Devil is in the Details
    Ariel Muslera
    Advisor, The Latin American VC Association
    Partner, CAP Ventures
  • 2. My Affiliations
    The Latin American Venture Capital Association (LAVCA) is a not-for-profit membership organization dedicated to supporting the growth of the private equity and venture capital industry in Latin America comprising over 100 firms, from leading global investment firms active in the region to local fund managers from Mexico to Argentina. We are the leading source of data on the industry and also organize the largest Latin American PE/VC events in the region and in NYC.
    To learn more visit www.lavca.org.
    CAP Ventures is an Argentina-based, $17M venture capital fund. Since 2007, we’ve been supporting high-growth, high-impact companies in multiple sectors. Our current strategy leans towards Technology investments, with a focus in Consumer Web, Social, SaaS and Infrastructure services.
    To learn more visit www.cap.com.ar.
    ARCAP is the Argentine Seed, VC and PE association. Launched in 2009, ARCAP seeks to promote and develop the private capital industry in Argentina and has over 30 member firms.
    To learn more, visit www.arcap.org.
    You can also follow me at:
    @Bluelabel
    www.arielmuslera.com
    www.linkedin.com/in/amuslera
    www.slideshare.net/amuslera
  • 3. Disclaimer
    The views and comments in this presentation are not representative of the views of any of the organizations I represent.
    Also, I would like to give credit to Alex Wilmerding’s book “Term Sheets & Valuations, a line by line look at the intricacies of Term Sheets & Valuations” for a lot of the information comprised in this document.
  • 4. THE TEN COMMON PITFALLS OF VENTURE BOARDS
    There are many causes of failure in a new venture, but some of the preventable ones include the following pitfalls that Venture Boards sometimes get into:
    Complacency
    Inability to confront difficult issues
    Distraction and over-commitment
    Misalignment of interests between Board Members and investors
    Divisiveness on the Board
    Paralysis over liability issues
    Board Member role confusion
    Leadership vacuum
    Loss of trust in the CEO
    Resolution to fail
  • 5. Lessons from a Term Sheet negotiation
    Never negotiate individual terms without understanding the term sheet in its entirety
    Even if you have been trained in law, you should always bring someone (i.e., not you) with legal expertise and market knowledge to help in the negotiation
    A negotiation is also an opportunity for your company to improve the governance and discipline
    Entrepreneurs should recognize that VC firms do Term Sheets for a living. The good ones, presumably, have figured out the right balance between their “greed” and the fairness to entrepreneurs so that ultimately the startups have a better chance to succeed; trying to significantly change the Term Sheet of a VC is like saying you don’t like their work
  • 6. The Option of Stock Options
    If the current pool of options is not sufficient to enable the company to provide key employees with a competitive options package, the way in which an options pool is increased as part of the financing is critical to the economic value of the round
    Look out for…
    How will they be issued? When? Pre round? Post?
  • 7. Key terms of the Term Sheet
    Why? How? What to look for?
  • 8. Dividend Provisions
    This clause will be the guide for the Board whenever the company is in a position to generate dividends
    From a VC standpoint, it is a tool to ensure at least some prospect of a return in the event of a liquidation of the company
    It can have a significant impact in the founder’s economic outcome in both a liquidation (bad) and a liquidity (good!) scenario
  • 9. Liquidation Preference
    Another clause that has huge impact in outcome
    Investor favorable wording will be what’s usually called “Participating Preferred”, which means that the Preferred holders will get their money back (plus some return) first, and afterwards, whatever is left is distributed to all (Common and Preferred) on an as-converted basis
    Note that this clause does not apply should the Preferred elect to convert to Common (i.e., under an IPO), but what it does is increase the threshold for conversion to be worth it
  • 10. Participating vs. Non-Participating Preferred
  • 11. Redemption
    A way to ensure that your company does not become a “lifestyle” company or, as we call it, a “living dead”
    Puts a finite # of years to an investment, assuming that the company is able to generate enough liquidity
    Not seen often in early stage deals, but something to be aware of when pitching certain liquidity scenarios
  • 12. Conversion
    Not considered investor or company favorable
    Simply allows investors to give up their Preferred rights when converting to Common yields a higher return (i.e., an IPO or a big liquidity event)
    However, it is influenced by the terms of the Liquidation Clause, the Automatic Conversion Clause and the Antidilution Provisions
  • 13. Automatic Conversion
    This is similar to a “Drag”. It forces, under certain conditions, to convert Preferred to Common so that the company can generate liquidity to do a Public Offering
    The Investors will always try to set a floor for this clause to trigger so that they are not forced but can choose to convert
  • 14. Antidilution Provisions
    Single most important tool for investors who want to ensure that any subsequent financing will, at the very least, not dilute the value of their investments below the price paid in a prior round
    Key to investors when future rounds are flat or down (a down round)
    Most investor favorable clause is called a “Full Rachet”, meaning that when a liquidity event happens, old investors conversion rate adjusts so that the cost and ownership % is as if that investor invested in the new round side-by-side
    This adjustment is usually at the expense of Common Stock holders (i.e., YOU!!), who will be diluted at the time of conversion
  • 15. Voting Rights / Protective Provisions
    Simply states that, in the event that a shareholder vote is called, all shares are treated equally
    In general, certain protective provisions are set in the “Protective Provisions clause to increase power of Preferred for key decisions like future rounds of financing, board member selection, dividends, etc.
    The protective provisions section is a good signal of the influence that the investors plan to have in some of the strategic actions of the company
  • 16. Information Rights
    No big issue here, although it is important to understand the expectations of the investor in terms of timing, detail and format of information
  • 17. Board Composition and Meetings
    Typically, you’ll aim at having an odd-numbered board, with roughly equal power between investors and management and one independent who is mutually agreed upon
    It is important to pay attention at how the board members are elected (for example, allocating the election of a certain number per class as opposed to electing everyone on an as-converted basis) since sometimes that actually makes a difference and gives additional power to the founders
  • 18. Other Clauses That You May See and Can Be Negotiated
    Use of Proceeds
    Key Person insurance
    Restriction on Sales
    ESOP details and Stock vesting (read the mess at Skype!!)
    Drag / Tag along
    Intellectual Property
    Legal Counsel for final documentation
    Transaction Expenses
    Finders fees
    Non-competes
    Non-disclosures
    Binding vs. non-binding term sheets
    Expiration
    No shop
  • 19. Ariel Muslera
    @Bluelabel
    www.linkedin.com/in/amuslera
    www.arielmuslera.com
    www.slideshare.net/amuslera