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Demystifying the ‘Transaction Flow’ of VC Deals

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Treelife

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Published on

August 7,
2024

Last updated on

August 20, 2024
21:10

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Blog Content Overview

1 Important Steps
2 The ‘Transaction Flow’ – A Founders’ perspective
3 Conclusion

The ‘transaction flow’ refers to the various stages involved in a Company obtaining funding from an Investor. Given that this imposes numerous obligations on the Company and the Founders, it becomes critical for Founders to have a clear understanding of the steps involved in receiving funding from an Investor. However, fledgling startups often find the complex terms involved overwhelming and are thus unable to gain a clear picture of the process flow involved in raising funding.

Important Steps

Term Sheet – a non-binding agreement that outlines the basic terms and conditions of the transaction.
Transaction Documents – refers to the agreements required to be entered into between the parties to lay down the governing framework of the investment. This would typically take the form of a securities subscription agreement (“SSA”) and a shareholders’ agreement (“SHA”), or a variation of the same known as a securities subscription and shareholders’ agreement (“SSHA”). These agreements will contain detailed language on the nature of each party’s rights and obligations under the contract and will be binding on the parties.
Execution – refers to the stage where the parties actually sign and ‘execute’ the Transaction Documents, validating the same and binding the parties to the terms agreed.
Conditions Precedent – refers to the conditions required to be completed by the Company and/or Founders to the Investor’s satisfaction before the investors wire the funds to the Company’s bank account (also referred to as Closing). The conditions precedent shall be completed in parallel with execution of transaction documents so that there is no delay in Closing.
Closing – refers to the stage at which the funds are received by the company and securities are allotted to the Investors.
Conditions Subsequent – refers to the conditions required to be completed by the Company and/or Founders after Closing, typically include conditions arising out of due diligence of the company and other compliance related steps.

The ‘Transaction Flow’ – A Founders’ perspective

Important Terms	Points to bear in mind for Founders
Term Sheet	A Term Sheet helps layout the structure for the Transaction Documents and can help establish the negotiated position on critical terms early in the process, which in turn, enables a quick flow from drafting and vetting of agreements to Execution. Term Sheets are non-binding and the terms, although not advisable, but, can vary in the transaction documents.
Due Diligence	A due diligence exercise reviews the records maintained by the Company to ascertain whether the Company’s operations are in accordance with the applicable law. The findings are then highlighted to the Investors basis the magnitude of risk involved in a due diligence report. Typically, startups have trouble ensuring the secretarial compliances prescribed under Companies Act, 2013 (and relevant rules thereunder) or compliances prescribed under labour legislations, and rectifying the same is made a Condition Precedent or a Condition Subsequent. This would vary from Investor to Investor, based on how risk averse they are.
Transaction Documents	In the event that the Company has already completed previous round(s) of funding, Founders must pay heed to the rights of existing Investors and ensure that the appropriate waiver of rights (as applicable) is captured in the agreements. Further, in case of an existing SHA with Investors from earlier rounds of funding, the parties would execute an amendment to SHA or a complete restated SHA, which would be signed by all shareholders of the Company, in addition to the incoming Investors. Consequently, the transaction documents would require consensus of terms from both existing and incoming Investors. It is also important to note that employment agreements between the Founder(s) and the Company (sometimes prescribing specific conditions of employment by Investors) are often made part of this stage.
Execution	Every agreement would require payment of stamp duty to the competent state government. The duty payable varies from state to state and agreement to agreement, and is either a fixed value or a percentage (%) value of the investment amount (i.e., the ‘consideration’). The Stamp papers are required to be procured prior to the execution of the transaction documents. Execution can be done through either wet ink or digital signatures.
Conditions Precedent	This usually encompasses a variety of obligations on the Company/Founders. Typically, completion of this stage is marked by a “Completion Certificate” issued by the Company. We can broadly categorise Conditions Precedent into two headings: (a) statutorily mandated conditions; and (b) Investor mandated conditions. Statutorily mandated conditions – this would include actions such as passing board and shareholders’ resolutions for increasing authorised capital of the Company and issuance of shares, circulation of offer letters and filing the legally mandated forms for private placement of securities (such as SH-7, MGT-14), procuring requisite valuation reports, et al. Investor mandated conditions – this would typically arise from a due diligence exercise undertaken by the Investors of the Company. Legal and/or financial issues in the operations of the Company would be actioned for resolution here. However, based on the regulatory requirements applicable to a foreign Investor, sometimes satisfaction of certain compliances that would ordinarily be undertaken later, are included in this stage.
Closing	This stage is marked by movement of funds from the Investors and related compliances to be undertaken under law/the Transaction Documents to complete the allotment of securities, such as: filing of PAS-3, issue of share certificates, amending the articles of association, compliance with Foreign Exchange Management Act, 1999 (including filing form FC-GPR reporting the remittance received), appointment of directors, etc. It is critical to understand that this is the stage at which the Investors actually become shareholders of the Company.
Conditions Subsequent	Conditions subsequent are usually required to be completed within a specific period after the Closing Date (i.e., the date on which Closing takes place). These can include items such as amendment of articles of association and memorandum of association of the Company or even statutory filings (such as under Companies Act, 2013 or Foreign Exchange Management Act, 1999). However, this can also include special items mandated by the Investors such as appointment of a labour law consultant or privacy law consultant to ensure that the Company is in compliance with applicable laws that might be too complex for the Founders to navigate without professional expertise.

Conclusion

It is important to realise that every Investor is different and therefore the ‘transaction flow’ can look different for two different rounds of funding for the same Company. The above terms are simplified for Founders to gain an understanding of what to expect when preparing to raise funding. Founders who are aware of the intricacies involved in raising funding can:

be better prepared in structuring the round;
gain an understanding of the ancillary costs roughly involved; and
negotiate a position that allows for the completion of certain action items in a manner that does not cause significant financial strain or undue delay in reaching the Closing stage.

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