Funding 101 for Tech Entrepreneurs

© 2020 Haynes and Boone, LLP
Funding 101 for Tech
Entrepreneurs
February 22, 2022
#startup
1
Roger Royse
@rroyse00

Disclaimer
No information contained in this presentation is to be construed as legal advice.
No information contained in this presentation is intended or related to any
particular factual situation. Nothing herein forms an attorney-client relationship. If
legal advice or other expert assistance is required, the services of a competent
professional should be sought.
2

Startup Resources
 8% of startups have less than $25,000.
 Only 40% of startups become profitable.
Source: Profit From Tech
 ¾ of startups used personal savings during the development process.
Source: Quickbooks
 From 2010 to 2018, startup valuation grew by 11.2% for seed, 15% for series
B, and 16.2% for Series A.
 58% of Micro Venture Capital funds are located in the US.
Source: Toptal
 Most companies raise three rounds of financing before Series A.
Source: TechCrunch
 0.05% of startups raise venture capital.
Source: Fundera
3

Failure Rates
• 9 out of 10 startups don’t make it.
• 20% of startups fall apart after a year.
• 30% of startups close within two years.
• 50% of startups shut their doors within five years.
• 70% of startups dissolve within 10 years.
4
(Source: Failory)

Venture Expectations
 52% of companies expected their next source of funding to be Venture
capital.
 0.05% actually do
5

Venture Capital
6

VC Funding at Record High
 2021was record year for startup, investment, and exits
 U.S. VCs invested $330B in 17000+ deals, twice the 2020 amounts
 $1T in Private Equity investments, 80% went to smaller companies
 $775B in exits via IPO across 350+ deals, twice of 2020
 $1T in exits, leading to a rise in startup and other acquisitions
 $4.5T valuation of VC backed companies
 $900B of dry powder available to invest now
7

Bay Area VC
 Bay Area startups raised a record $30 billion in Q3 2021
 $88 Billion in 2021 by Q3 and on track to hit $100 Billion annual
Silicon Valley Business Journal (Oct 13, 2021)
8

ESG Investing (Source – Sonen Capital http://www.sonencapital.com/impact/methodology/)
9

Ethical Business Practices for portfolio companies
 Environmental, Social and Governance (ESG)
 Policies and compliance procedures
 AML and anti-corruption
 KYC
10

Distributed Ledger
 Supply chain
 Volatility in crypto
 SEC
 NFTs
 Non fungible tokens
 Ethereum
 Digital ownership (art)
11

NFTS Explained (https://www.theverge.com/22310188/nft-explainer-what-is-
blockchain-crypto-art-faq)
12

Successful sectors
 Ecommerce Ag-Tech
 Online services Ed-Tech
 Food safety Cyber Security
 Precision medicine Supply Chain
 Housing Transformative Tech
 AV Energy Tech

Basic Principles
 Investors are partners
 Stage your financing
 Most funding is dilutive
 Your valuation might have little to do with what you are worth
 Valuation is not your biggest issue
 Avoid early mistakes
 Take cheap money over expensive money
 Common stock is for service providers
 Get a data room
 Do the cleanup ahead of time
14

Sources of Funding
 Founders – savings, IRAs, credit cards, mortgage equity
 Debt Financing
 Government Grants
 Friends and Family
 Angels or Seed Investors
 Incubators
 Pitch Competitions
 Institutional (VC or Private Equity)
 Alternative Financing:
o Rewards-Based Crowdfunding
o JOBS Act Crowdfinancing
o ICOs, STOs, IEOs
o Royalty Financing (SEALS)
15

Founders
 77% of startups rely on personal savings (and their parents) for their initial
funds
16
Source: Wells Fargo/Gallup Small Business Index

How Much?
 Angels - $25,000
 Angel Groups - $250k to $750k
 Early stage VC - $1.5 M and up ($3m to $5M)
 Later Stage VC - $10M and up
17

The Lead
 Smart Money
 Chemistry
 Commitment
 Deep Pockets
 Network
18

Debt Financing
 Bank Debt
 Security
 Personal Guarantees
19

Government Grants and Loans
 Free Money from the Government
https://www.usa.gov/grants
https://www.aprise.org/
https://www.sba.gov/funding-programs
SBIR program
STTR grants
20

Friends and Family
 38% of startup founders raised money from their
friends and family
 $23,000 was the average amount invested by
friends and family per startup
21

Outside Money
 Angels, VCs, crowdfunding, private equity, etc.
 How much to raise?
 Milestones
 Burn rate
 Target runway
 Equity percentage and valuation
22

Staged Financings
 Enough to get to next valuation event
 2X
 1 to 2 years
 Up vs Down rounds
23

Executive Summary
 Team
 Projections
 Market
 Industry
 IP and Patents
24

Pitch Deck
 Market Size
 Team
 Product
 Go To Market Strategy
 Financial projections
 NOT VALUATION
 Get a professional designer!
25

Pitch
 Mission
 Problem to be solved
 Solution (aspirin, not vitamins)
 Opportunity
 Competition (or alternatives)
 Product
 Business Model
26

Money –The Priced Round
 VC or Institutional Investor
 Preferred Stock
 Valuation Methods
 Score Card
 Venture Capital Method
 Berkus Method
 Cayenne Calculator
 Risk Factor Summation
 Negotiation
27

Money –The Priced Round
 More Valuation Methods
 (Patents + People) x $1 Million
 Comparables
 Discounted Cash Flow
 Market Multipliers
 Discount to Public Companies
28

Rewards-Based Crowdfunding
 Kickstarter, Indiegogo
 Marketing effect of offering
 Tax issues
 FTC or state law liability

Reg CF Equity Crowdfunding
 Crowdfunding (Title III of the JOBS Act)
 The company issuer may sell up to $5million of securities in a 12-month
period
 Individual investments in all crowdfunding issuers in a 12-month period are
limited by income or net worth tests.
 Platforms
 WeFunder
 Republic
 StartEngine

Accredited Only Equity Crowdfunding
 Rule 506 now provides for two different types of private offering:
 Rule 506(b) is essentially the same as the old Rule 506, providing an exemption for
non-public offerings but prohibiting general solicitation
 Rule 506(c) is a new exemption that allows general solicitation, but with certain
restrictions and filing requirements
 Rule 506(c): issuers can offer securities through means of general solicitation
as long as:
 All purchasers are accredited investors; and
 The issuer takes “reasonable steps” to verify the accredited investor status
 Crowdfunding
 AngelList
 SeedInvest
 FundersClub
 CircleUp
 OurCrowd

Reg. A Plus
 The JOBS Act included legislation to create what is nicknamed “Regulation
A+”, an upgrade to Regulation A
 The new Regulation A keeps the allowance of non-accredited investors, and
features two kinds of Regulation A offerings, called “Tiers”:
 Tier 1, with a $20 M maximum, does not preempt state law registration, but has low
federal compliance burdens
 Tier 2, with a $75 M maximum, preempts state law registration, but has high
federal compliance burdens including ongoing semi-annual, annual, and current
disclosures

Initial Coin Offering (ICO)
 An ICO is a fundraising mechanism in which new projects sell their underlying
crypto tokens in exchange for bitcoin and ether.
 Similar to an Initial Public Offering (IPO) in which investors purchase shares
of a company.
 Based on tech like ERC20 Token Standard
 Investors send funds (usually bitcoin or ether) to a smart contract that stores
the funds and distributes an equivalent value in the new token
 Often “pre-sold” to raise money to build the platform
 Tokens may have “utility” or security
 Traded on exchanges

Royalty Financing
 Alternative to regular loans and equity financing
 Company receives a specific amount of money from an investor in exchange
for a percentage of the company's future revenues over a certain period of
time, up to a specific amount.
 Investment can be considered an "advance" to the company, and the periodic
percentage payments can be considered "royalties" to the investors.

Angels
35

Angels
 Angels
 Angel Groups
 Angel Funds
36

Angels
 The Good:
 Connections to VC funding
 Mentorship
 Risk capital
 The Bad
 Hostage takers
 Whiners
 Demanders
 The Ugly
 Potential plaintiffs
 Disturbers
37

SAFEs and Convertible Notes
 Convertible Notes and SAFEs
 Debt obligations that convert to preferred stock
 Conversion feature – automatic, optional, prepayment
 Valuation Cap
 Sets a maximum valuation at which note will convert
 Discount
 Early investors get a discount to the preferred price
 Change of Ownership
 Investors convert to common or get a multiple on a sale of the
company prior to a priced financing round
 Shadow Preferred
 Pre and Post Money
 MFN
38

Convertible Debt
 Short term
 Secured?
 Subordinate?
 Interest
 Fixed repayment
 Discount
 Valuation Caps
39

SAFEs
 Simple agreement for future equity
 Pre and Post Money
 Pro Rata Rights
40

Effect of Valuation Caps
41
Founders 4,000,000 100% 4,000,000 100%
Stock Pool 0 0% n/a
total 4,000,000 100% 4,000,000 100%
Company sells a $1,000,000 SAFE with a $4,000,000 pre money valuation cap
That means that the SAFE will take 20% of the capitalization ($1,000,000/$5.000,000)
Fully Diluted % Issued %

The UNSAFE
 Valuation Caps + SAFE = Unknown Dilution
Pre–Money – SAFEs take dilution of other SAFEs
Post-Money – SAFEs do not dilute for other SAFEs
https://safegenie.io/ is a tool that helps project pre money SAFE valuation
42

Series Seed Stock
 Watered down preferred stock
 Justifies low common stock price
43

Pre and Post Money Valuation Caps
44
Founders 4,000,000 100% 4,000,000 100%
Stock Pool 0 0% n/a
total 4,000,000 100% 4,000,000 100%
Company sells a $1,000,000 SAFE with a $4,000,000 pre money valuation cap
That means that the SAFE will take 20% of the capitalization ($1,000,000/$5.000,000)

SAFE and Conv Debt Traps
 Post Money SAFEs
 Valuation caps and excessive dilution
 Securities law violations
 Cap Tables
45

Money to Not Take
 Investor goals
 Cooperation and Accessibility
 Control
 Terms and Valuation
46

“Avoid venture capital unless you absolutely need it.” Randy
Komisar, venture capitalist*
*Straight Talk For Startups
47

Should You Take Venture Capital?
 Must give up Equity
 No near term cash flow
 Risky
 Illiquid
 Can the business scale?
 Explosive growth
 Huge market
48

Which VC should I approach?
 Thematic Investors bet on their thesis of what is next
 Domain Investors focus on an industry that they know well
 Quant Investors focus on data
 People Investors bet on the jockey, not the horse
 Tech investors bet on the horse
49

Venture Capital Economics 2/20 Formula
 2% management fee on committed capital
 20% carried interest
 7 to 10 year terms
 LPS want 2 1/2 to 3 times investment return
 VC fund must earn 3 to 4 times investment to
return that amount
50

Venture Capital Economics – Expected Performance
 50% lose money
 20% – 30% are singles or doubles
 The rest must be home runs (10X to 100X)
51

General VC Fit
 Large potential market
 First Mover or first to market advantage
 Long term scale over short term profits
 Not able to service debt
 Traction!
52

Venture Capital Economics – Management
 Venture capital will participate in management
 Board seats
 Board Observer
 Management rights letter (for VCOC exemption)
 Seven to ten year term (and longer)
 Precludes small investments
 Board meetings
 Management
53

Venture Capital Metrics
 Team
 Domain expertise
 Technical co-founders
 Technology or product
 Solve problems, address pain points
 Customer validation
 Market size
 Must be a huge market
54

Picking a VC
 Reputation
 Likelihood of closing
 Stage of fund
 Size of Fund
 How much dry powder?
 Is there a fund 2, fund 3 etc.?
 Are they litigious?
 Deal with decision makers
55

Entrepreneur VC Fit
 Network
 Temperament
 Advice
 See the published email from the CEO of CircleUp to an
investor at for an example of a VC/Founder relationship
that did not work out
56

Company VC fit
 Capital intensive business?
 Follow on funding?
 Time to exit
57

Structuring For Venture Capital
 Business Model
 Choice of Entity
 Cap Table
 Vesting
 Debt
58

Series A is the New Series B
 Series Seed
 Pre-Seed
 Series A-1, A-2
59

Types of Funds
 Micro VC – angels with other people’s money
 Seed Stage Fund – early, first institutional money
 Mid Stage – B and beyond
 Late Stage
60

Syndicates
 Lead or Co Lead and followers
 Party rounds
61

Other Parties
 Lawyers
 CPA
 Banker/Broker/Finders
 Mentors and Advisors
62

Strategic Venture Capital
 Can you pivot?
 Will it affect customers?
 Follow on investors
 Change in management
 Strategic agreements
 Confidentiality
 ROFR, right of first look, right of first offer
 Strategic objectives
 Less operational involvement
63

Venture Debt
 Expensive (fees and warrant coverage)
 Secured by IP
 Less dilution
64

Venture Studios
 Bet on the trainer, not the horse or the jockey. (GSSN, “Why the Startup
Studio Model is Where Investors Find Capital Efficiency”)
 Venture studios, venture builders, company builders
 Create startups providing the initial team, strategic direction and capital.
 Closely involved in the day-to-day operations and strategic decisions.
 Venture studio’s employees may stay in the portfolio company after funding or
work on a new startup.
 Take up to 50% equity
65

Choice of Entity
 Limited Liability Company (LLC)
 S Corporation (S Corp)
 C Corporation (C Corp)
 Foreign Corporation
66

Advantages of a C Corporation
1. Operating Agreements
2. S Elections
3. Suspended Losses
4. 704(c) Allocations
5. Venture Capital
6. QSB Stock
7. Stock Option Plans
8. LLC Debt
9. Reorganizations
10. Fringe Benefits
11. Audits and Liabilities
12. Contingent Allocations
67

Qualified Small Business Stock – 1202 and 1045
General Requirements
 Original issue
 Five-year holding period
 100% post-Sept. 27, 2010
 C Corporation issuer
 Up to $10 million or 10 times basis exclusion
 1045 Rollover treatment
68
 $50 million Gross
Assets Test
 Active Business Test
 No significant
redemptions
Note: California does not follow federal income tax treatment of QSB stock under
I.R.C. § 1202.

VC Considerations
1. QSBS
2. VC’s LPA will not allow investment in a
passthrough
1. Tax exempt investors want to avoid UBTI
2. Foreign investors want to avoid ECI
3. VC wants to be able to manage losses
1. No K-1’s showing losses
69

Founder’s Equity
70
 Vesting
 Equal Percentages
 Subjective
 Formula

Advisors
71
FAST Model
Valuation
Milestones and
Deliverables
Vesting Stock v.
Options

Currency
 Options
 NSOs
 ISOs
 Extended NSOs
 RSUs
 Restricted Stock
 Phantom Plan Units
72

Vesting
 Who should vest
 How long?
 Acceleration?
 Change of control
 Termination without cause
 Double and single triggers
73

The VC’s View of Vesting
VC will require unvesting shares so vesting period could be 8 years
Fund life can be 7 to 10 years
Most exits are M&A - Fewer and longer IPOs
Extended Option exercise periods
74

Class F Supervoting Stock
Special class of common that has super voting rights
Facebook, Google Snap
May be negotiated away in institutional round
75

Transfer Restrictions
 Right of First Refusal (ROFR)
 Lock Ups
 Co-Sale Rights
 Drag Along
 Buy Sell
 Rule 144
76

Cap Table
 Common Stock
 Options
 Warrants
 Convertibles
 Preferred Stock
77

Capitalization
78
Founders 5,000,000 38% 5,000,000 45%
Stock Pool 2,000,000 15% n/a
Series A 3,000,000 23% 3,000,000 27%
Series B 3,000,000 23% 3,000,000 27%
total 13,000,000 100% 11,000,000 100%

Other Diligence Issues
 IP Rights
 Patents
 Invention Assignments
 Licenses and ownership
 Data security
 Employment Claims (Homejoy)
 Tax Claims
 Regulatory
 Litigation
 Claims by prior employer
 Entrenched Management
 Material Agreements
79

Term Sheets
 Valuation
80

Participation
 Participating preferred stock returns its investment and
then shares pro rata in proceeds of a sale
 Non-participating convertible preferred stock either gets a
return of its investment or its pro rata share of proceeds
 Participation may be capped at a multiple of the
investment
 Conversion to common – auto-conversion and majority
vote
81

Dividends
 Preferred will have a dividend preference.
 A cumulative dividend on preferred shares must be paid
before any other dividends on common.
o If the company can't pay out a cumulative dividend in a
year, the amount is carried forward.
o Common in private equity deals, not in venture
 Non-cumulative is only paid when as and if declared.
82

Liquidation Preference
 Who gets paid first and how much?
83

Example of Liquidation Preference
 1X Non participating convertible preferred
 $1,000,000 invested for 10%
 Ex 1: Exit (sale) of company for $5,000,00
 Ex 2: Sale for $20,000,000
84

Board Representation
 Size of board
 Founder-friendly boards
 Role of the Board
 Observers
 Indemnification
 Insurance
85

Board rights
 Indemnification
 D&O Insurance
 Right to designate
86

Protective Provisions
 Class vote or majority vote
 Delaware law
 Separate vote for later investors
 Do the interests of different
investors diverge?
87

Protective Provisions
Standard:
 Right to veto or block certain corporate
actions
 Sale of the company
 Amendment to the company’s certificate or
bylaws so as to adversely alter or change the
rights of preferred stock
 Increase or decrease in the number of
authorized shares of preferred or common
 Authorization or issuance of equity security
having a preference over, or being on a parity
with, preferred stock
 Redemption of shares of preferred stock or
common stock
 Declaration or payment of dividends
 Change in the authorized number of directors
of the company
Other:
 Hiring, firing or change in the compensation of
officers
 Any transaction with any director, executive or
employee of the company
 Incurrence of indebtedness in excess of
$[____]
 Change in the principal business of the
company or the entering into any new line of
business
 Any purchase of a material amount of assets
of another entity
 Option plan increase
88

Information Rights
 Financial statements and other information
 Thresholds
89

Registration Rights
 Requires a company to list the shares publicly so
that the investor can sell
 Demand rights
 Piggyback rights
 S-3 rights
90

Common restrictions: Co-Sale Rights, ROFR, Drag
Along
 Co Sale and Tag-Along Rights – right to participate in a
sale
 Right of First Refusal – right of company (first) and
investors (second) to require shares to be offered to each
of them before a third-party sale
 Drag Along – right to force shareholders to sell in an exit
 Board, common and preferred approvals
 Small shareholder carveout
91

Founder Vesting
 Term, milestones, commencement
 Acceleration
 Single and double triggers
 Fire the Founder
92

Pro Rata rights
 Right to maintain, right to participate
 Major investors
 Limited by amount of money company wants to raise
93

Option Plan
 Increased pre money
 409A valuations
 Extended exercise periods for NSOs
94

Redemption Rights
 Feature of Preferred Stock
 Right to put stock to company, usually after a period of time and
over time
 Is effectively a right to force a sale of the company
95

Anti-Dilution
 Broad-based weighted average
 Narrow-based weighted average
 Full ratchet
96

Exclusivity
 No-shop
 30 to 60 days
97

NonBinding
 30 day no shop
 Confidentiality
 Is it really nonbinding?
98

Planning for later rounds
 Overly favorable terms
 Valuation planning and down rounds
 Reverse splits
 Cap table management
 Fire the CEO
99

Troubled Company Terms
 Forced conversion to common
 Full ratchet
 Uncapped participating preferred
 Insider rounds
 Low valuations
 Down rounds
 Trigger anti dilution protection unless waived
 Pay to play
 requires existing investors to invest on a pro rata basis
in subsequent rounds or they lose preferential rights
(anti-dilution, liquidation preferences, voting rights)
100

Successful Exits
 IPO
 Sale or Acquisition
101

Unsuccessful Exits
 Zombie Companies
 In re Trados Inc. Shareholder Litigation
 Bankruptcy or Insolvency Reorganizations
 Fire Sales
 Management carveouts
 Fiduciary duties: shareholders, optionees, preferred and
creditors?
102

Other Unsuccessful Exit Issues
 Tax Liability
 Personal Liability
 Tax
 Employment
 Fiduciary Claims
 Securities Law Claims
 Contractual
 Pierce the veil and creditor claims
 Serial Entrepreneurs and failed companies
103

Bibliography of Essential Reading
 10,000 Startups: Legal Strategies for Startup Success
 Dead on Arrival: How to Avoid the Legal Mistakes that Could Kill Your Startup,
Roger Royse
 Straight Talk For Startups, Randy Komisar and Jantoon Reigersman
 The Startup Checklist, David S. Rose
 Angel, Jason Calcanis
 Venture Deals, Feld and Mendelson
 The Startup Game, William Draper
 Secrets of Sand Hill Road, Scott Kupor
 How to be the Startup Hero, Tim Draper
 Make Elephants Fly, Steve Hoffman
 Getting to Wow, Bill Reichert
104

AUSTIN
600 Congress Avenue
Suite 1300
Austin, TX 78701
United States of America
T +1 512.867.8400
F +1 512.867.8470
CHARLOTTE
101 S. Tryon Street
Suite 2250
Charlotte, NC 28280
T +1 980.771.8200
F +1 980.771.8201
CHICAGO
180 N. LaSalle Street
Suite 2215
Chicago, IL 60601
T +1 312.216.1620
F +1 312.216.1621
DALLAS
2323 Victory Avenue
Suite 700
Dallas, TX 75219
T +1 214.651.5000
F +1 214.651.5940
DALLAS - NORTH
2505 North Plano Road
Suite 4000
Richardson, TX 75082
T +1 972.739.6900
F +1 972.680.7551
DENVER
1050 17th Street
Suite 1800
Denver, CO 80265
T +1 303.382.6200
F +1 303.382.6210
FORT WORTH
301 Commerce Street
Suite 2600
Fort Worth, TX 76102
T +1 817.347.6600
F +1 817.347.6650
HOUSTON
1221 McKinney Street
Suite 2100
Houston, TX 77010
T +1 713.547.2000
F +1 713.547.2600
LONDON
1 New Fetter Lane
London, EC4A 1AN
United Kingdom
T +44 (020) 8734 2800
F +44 (020) 8734 2820
MEXICO CITY
Torre Esmeralda I, Blvd.
Manuel Ávila Camacho #40
Despacho 1601
Col. Lomas de Chapultepec,
DF 11000
Mexico City, Mexico
T +52.55.5249.1800
F +52.55.5249.1801
NEW YORK
30 Rockefeller Plaza
26th Floor
New York, NY 10112
T +1 212.659.7300
F +1 212.918.8989
ORANGE COUNTY
600 Anton Boulevard
Suite 700
Costa Mesa, CA 92626
T +1 949.202.3000
F +1 949.202.3001
PALO ALTO
525 University Avenue
Suite 400
Palo Alto, CA 94301
T +1 650.687.8800
F +1 650.687.8801
SAN ANTONIO
112 East Pecan Street
Suite 1200
San Antonio, TX 78205
T +1 210.978.7000
F +1 210.978.7450
SHANGHAI
Shanghai International
Finance Center, Tower 2
Unit 3620, Level 36
8 Century Avenue, Pudong
Shanghai 200120, P.R. China
T +86.21.6062.6179
F +86.21.6062.6347
THE WOODLANDS
10001 Woodloch Forest Drive
Suite 200
The Woodlands, TX 77380
T +1 713.547.2100
F +1 713.547.2101
WASHINGTON, D.C.
800 17th Street NW
Suite 500
Washington, D.C. 20006
T +1 202.654.4500
F +1 202.654.4501
105

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