The Science & Art of Term Sheet Negotiation

Posted by Pierre de la Fortune on August 01, 2015 @ 12:01 a.m.

Written by Furqan Nazeeri

I recently got some comments on a blog post I did a while ago from Yoichiro Yokum Taku, a partner at Wilson Sonsini Goodrich & Rosati and the blogger behind Startup Company Lawyer, on my post about evaluating one or more term sheets. By the way, SCL is a great blog and I highly recommend it as a resource. If youre looking for a quick education on startup legal issues so you can have an efficient conversation with your own attorney, this is the place to go.

Yokum gave me the following feedback:

At first glance, my initial feedback is that you have overvalued the RORFR/Co-sale and (non-cumulative) dividend rights. All deals have a ROFR/Co-sale and they are rarely invoked as a practical matter. West coast deals have non-cumulative dividends, which makes a dividend preference meaningless. Also, I think that the relative weighting of liquidation preference and anti-dilution is a bit off. I think that liquidation preference is significantly more important than anti-dilution.

This got me thinking that I should repost my original treatise and see what folks think. So have a read of the below post. What do you think?

By the time I was in the 9th grade, I had been playing chess for a few years (as in I knew the rules) but I didnt play seriously and more often than not I lost. Then one day at the library (remember, pre-internet) I happened to find a book on chess. So I read the book and almost overnight I became one of the chess stars in high school. In one of the funnier incidents, I started playing chess during lunch hour and was hustling money which on one occasion resulted in a kid pulling a knife on me after I relieved him of a few bucks. True story.

What was it in that book that allowed me to take advantage of the situation? Well, there was a lot of basic stuff, some general rules and even some strategy, however, the most useful bit of information, initially, was a table on the relative value of pieces. You know, a pawn is worth 1, a knight/bishop 3, rook 5, a queen 9 and the king infinite unless its the endgame then its more like a 4. Experienced players have a feel for this from many games played and they can also break the rules by, for example, sacrificing a queen for a rook to get better position. But these are all things learned from experience and best not tried by a novice. If you are new to the game, you have no idea. When you are starting out, having some rules of thumb can make all the difference between winning and getting hustled.

What does this have to do with negotiating term sheets? Well, I think a lot of newbies get hustled when negotiating term sheets because they dont know the relative importance of the various terms. Have you heard the joke about the VC who says, Ill let you pick the pre money valuation if I get to pick the terms? My goal here is to provide a framework that gives relative value of various terms on a term sheet and allows you to compare them on two dimensions: economics and control (or as my friend Noam Wasserman likes to say, rich versus king). In the same way that a chess grand master doesnt need rules of thumb from someone else, if youre a seasoned negotiator of term sheets then this is probably equally useless. And no, this is not based on any academic or scientific study. Its based on my own experience and, more importantly, that of a few other experts like Dave Kimelberg (Softbanks GC).

In my view there are 12 important terms on a typical Series A / B term sheet. Yes there are other terms and yes sometimes they are important, but if you go with the thesis of keep it simple, then 12 is the magic number. In terms of rating, the rich/king differentiation is important as different people are after different things so depending upon your motivation you may be inclined to pay more attention to one column than the other. So without further adieu, below is a table showing them as well as the relative importance:

Term Rich King 1. Investment / price 10 - 2. Board of directors - 8 3. Option pool refresh 10 - 4. Preemptive rights 1 3 5. Andi-dilution protection 5 - 6. Registration rights 1 1 7. Drag along rights 1 5 8. Right of first refusal / co-sale 5 - 9. Dividend right 5 - 10. Liquidation preference 7 - 11. Protective provisions - 8 12. Redemption 1 -

Here a 10 means it is really important to get as favorable a result as possible on this term, a 1 means it is not so important and a - means it doesnt apply (i.e. a zero). The cool thing about having something like this is you can use it as a tool to compare term sheets (provided you can determine how favorable or unfavorable each individual term ismore on that below).

The next part of this post is to provide a range of typical results for each term which will give you a means to rank each term in each term sheet with a 1,3 or 5? where 1 is unfavorable, 3 is fair and 5 is favorable. If you arent already familiar with the terms in a term sheet, you should check out the model term sheet (basically a template) put together by the National Venture Capital Association. They have other model agreements too, but you will see with the term sheet that they include various options, some discussed here. Below is a scale for each of the 12 key terms across the two dimensions:

Investment/price. I think there are two ways you can rank price. One is to rate it relative to your expectation and another is to rate it relative to similar companies (in terms of stage, geography, sector, etc.). If you dont have comparables, you can fairly easily get them, for example Dow Jones puts out a quarterly survey of VC deal terms which includes pre-money valuation (send me an email if you want a copy). If youre less than 80% of your benchmark, thats probably unfavorable, if you are within +/- 20% than thats fair and if youre over 120%, then its favorable. Board of directors. This term comes down to simple math. If you give up and dont have control of the board, thats unfavorable, if its tied, call it fair and if you control it, that is quite favorable. BTW, the reason I didnt rate the board control a 10? on the king scale is because even when you give up control, your board members are bound by fiduciary obligations to the firm, i.e. they cant do whatever they want. Option pool refresh. Often time this will show up as a separate term in the term sheet, however it is actually just another bite at the apple in terms of price. Traditionally there is a refresh pre-deal so that after the round the company can execute on its hiring plan without needing to expand the pool for 12-18 months. You will have to develop your hiring budget if you havent already. Given that benchmark and your hiring equity budget, Id say less than 12 months is favorable, 12-18 months is fair and more than 18 months is unfavorable. Preemptive rights. As you know, preemptive rights give your investor the right to invest in future rounds. This is of moderate economic value, however you are giving up some control of future financings. There is remarkably little variation in how this term gets negotiated, probably because of its relatively low importance in the grand scheme. Im told the only area that gets negotiated is whether the investor has an overallotment right whereby they can take a portion or all of the pro rata of another investor in the same series who didnt participate. That said, unless something unusual is in your term sheet, its probably a 1 for rich and 3 for king. Anti-dilution protection. Anti-dilution is a pretty important economic term. In terms of the range of possibilities, no anti-dilution would be a 5, broad-based weighted average would be a 3 and full-ratchet would be a 1. I think the vast majority of deals end up as broad-based weighted average. Very few deals avoid it altogether, but it can be done, particularly in later stage or very hot deals. Registration rights. Reg rights have some economic value and in theory you do give up some control, but in reality theyre close to worthless. You can push on these and most investors will give in when pressed. You can negotiate when the right kicks in and cutbacks. But bear in mind that investors will love it if you waste time negotiating this because it is not an important term. Unless something unusual is going on, Id rate this a 1 on both dimensions. Drag along rights. Most deals include drag along rights and like many of the other terms, the key is in the voting thresholds. I rated this a 1/5 on the rich/king scale. In terms of economics the issue is with regard to a sale of the company where the preferred stock, because of special rights, is indifferent to a deal that would be better for Common. However, the bigger issue is on the control side of the equation where you could get dragged into a sale that you dont want to do. So in terms of rating both the economic and control sides, I would say that if the thresholds are such that a single investor can unilateral drag along, thats a 1, if it takes 2 or more investors thats a 3 and if it takes investors plus either a neutral party or Common (you) then its a 5. Right of first refusal / co-sale. I rated this a 5 because this is essentially a lock-up on the founders stock which seriously affects liquidity and thus value. It doesnt really affect control issues. If you read the actual section of the stock purchase agreement that describes this term its several pages of bureaucratic procedures for a sale that in the real world you cant imagine ever occurring (which they dont). As a result, the only real counter party for selling common stock is the other investors or the company with the investors approval and theyre all quite likely to low ball. Unfortunately, Ive never heard of avoiding this term completely, so in terms of how to rate it, Id say that if you can negotiate a right to sell some portion (say 20% on an annual basis) youre at a 5 otherwise if its a standard lockup then youre at 3. Dividend right. I rate this a 5 on the economic scale. In terms of the range, there is no dividend which is a 5, then there is a simple interest dividend which Id say is a 3 and a 1 would be a compounding dividend. For some reason, the dividend rate has been 8% ever since Ive seen term sheets. You can negotiate the rate, but the bigger battle is whether you pay a dividend and how the rate compounds. Liquidation preference. This is a very important economic term that doesnt have any importance in terms of control. The issue here is during a sale, how do investors get paid out. Id say about 1/3 of deals have a preference at 1X but no participation, another 1/3 have a preference with a cap and participation and the balance a preference with no cap plus participation and thats pretty much how Id rate it, i.e. 5 for 1X preference/no participation, 3 if with a cap in the 2-4X range and 1 if with no cap and participation. Protective provisions. This is very important from a control perspective but not so economically. While there are a ton of these protective provisions, the key ones relate to sale/merger of the company and future rounds of financing. As with other control rights, the key is in the voting thresholds so Id assess this the same as 7 (drag along rights). Redemption. Finally, we get to number twelve, redemption rights. This is an almost worthless economic right. Ive never seen or heard of this being exercised and most investors will acquiesce if you push on this. Unless you see something unusual, Id rate this a 3.

Ultimately the individual rating combined with the overall importance of each term will allow you to create a weighted average total for each term sheet on both the rich and king dimensions. While you wouldnt want to make a decision to take an investment on this alone, it will give you a basic idea of where the strengths andweaknesses of particular term sheets lie. It also gives some tips for negotiating. For example, you dont want to waste your time negotiating redemption rights and attorneys fees and instead, you want to go to the core of whats important to you on the rich/king scale.

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