02 March 2023
A Term Sheet is a non-binding document outlining the basic terms and conditions under which an investment will be made. It is essentially a brief understanding between the founders and the potential investor(s). The document summarizes the key points of the commercial agreement set by both parties, before actually executing the definitive agreement(s) and initiating the time-consuming due diligence.
The primary purpose of executing a term sheet is for both parties to concur on the important terms by means of negotiations. Typically, the negotiations for term sheet(s) are not long and the number of iterations between the parties is limited.
While term sheets vary for different companies, investors, and even between rounds, there are a few essential terms that should be kept in mind in any fundraising round as they are crucial and most importantly, negotiable.
The company’s valuation, along with the amount of money invested, determines the percentage of the company the new investors will own. This is one of the most crucial components of the term sheet because it has the most direct impact on ownership and rights in the event of liquidation of the company.
Valuation is expressed in terms of pre-money and post-money. The pre-money valuation is the company’s valuation before the new investment and is a vital factor for determining the price per share at which the new investors will be subscribing to the securities of the company. The post-money valuation is simply equal to the pre-money valuation plus the amount of the new investment.
A key tool to attract and retain talent in a company is by granting equity ownership to the employees. Granting ESOPs (Employee Stock Option Pool) to employees can have multifold benefits as the employees gain vested interest in the company. Investors often require the promoters to organize a sizable option pool prior to their investment so that their shareholding in the company does not dilute in the event that the company decides to grant ESOPs. Option pools are notional in nature and can either come directly out of the promoter shareholding or by creating a separate pool which is reflected on the fully diluted shareholding pattern of the company.
The liquidation preference clause ascertains the mechanism that provides the chronology and amount of payment in the event of liquidation, bankruptcy or a sale. Including a liquidation preference protects the investment of the investors by ensuring that the investors get their money back before any other shareholders. While negotiating, Founders should try to ensure that the liquidation preference right granted to the investors is on a non-participatory basis so that there can be a sufficient balance of the liquidation proceeds remaining to distribute among the equity shareholders of the company.
This right is held by the existing shareholders in a Company, whereby it ensures that the issuance of new shares, the existing shareholders shall have the right to subscribe to such newly issued shares which would enable them to protect their shareholding from the dilution that would have occurred due to the fresh issuance of such shares.
With an anti-dilution provision in place, subject to the terms of the anti-dilution clause, the company is prevented from diluting investors' shareholding while issuing shares to any third party. The company should issue additional shares free of cost to the investor or transfer shares from their own shareholding to the third party to prevent dilution of investor shareholding. There are two key varieties; broad-based weighted average anti-dilution and ratchet based anti-dilution.
The right of first refusal protects shareholders in the case of a secondary offering. This refers to the sale/transfer of existing shares. It is a right that grants the holder of such a right to be offered the shares being sold in such a secondary sale, prior to it being sold to such a third party purchaser. It is a right granted in order to protect the existing shareholders to maintain their shareholding in the company, as they often do not have the same ability to negotiate an attractive deal as certain shareholders or founders. It signifies that if one of the shareholders has negotiated a sale of their shares with a third party purchaser at a certain price, the holder of the right can opt-in that round of sale to purchase such sale shares, at exactly the same deal terms.
The right of first offer (“ROFO”) mandates that the party desirous of selling the shares subject to the ROFO must first offer such shares to the party holding the ROFO; in the event that the party holding the ROFO does not elect to purchase the assets, the selling party may then undertake the sale of the concerned assets to a third-party.
In the event that the ROFO holding party elects to purchase the assets, the selling party must undertake the sale of the assets to the party holding the ROFO provided that the selling shareholder is unable to obtain a higher price from a third-party and subject to the manner in which the ROFO provision is drafted.
The investors may wish to procure the right to get appointed as the board of directors or as the board observer in order to take more control of the board and to participate in the day to day workings of the company. It is advisable that the founders gauge their power on the board, especially at the early stages, to ensure that they still retain some primary decision-making powers in the company.
Information rights require the company to share the company’s financial information and business condition with the investors on a regular basis.
In most cases, the information rights will oblige the company to provide quarterly management reports with some financial or management dashboard data.
The investors make the decision to invest in a company not just based upon the future prospects that the company promises and the past progress of the company but also on what the founders bring to the company. If the founders start to divest their shares of the company, it may signify that they have lost faith in the company and thus want an exit. The founder lock-in and transfer restrictions ensure that the founders don’t exit the company after the investment for a considerable amount of years by creating unattractive provisions with regards to the transfer of shares, in order to deter the founders from taking an exit from the company.
Achieving a successful exit from a company is the primary goal for most of the financial investors. While there are many routes via which an investor intends to obtain an exit, such as through an IPO, third-party sale or buy-back of their shares, there are other contractual mechanisms available such as a drag-along right and tag-along right which also aid in achieving the desired exit. A 'drag along' clause allows the investors to 'drag' the other shareholders into a joint sale of their shareholding too. Usually, if the investor is a minority shareholder it may become difficult to find a buyer for such shares, hence the investors usually demand a drag-along right to make the sale attractive for any buyer by offering a significant chunk of shareholding of the company. A tag-along provision is a clause that allows the investors to 'tag-along with the promoters or group of shareholders if they find a buyer of their shares on the same terms and conditions. The term sheet is an important document and may create issues for the parties involved if it does not correctly reflect what has been agreed on or fails to deal with key terms which may lead to ambiguity and uncertainty over the exact nature of the relationship between the parties.
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