Term Sheets Valuations (20537)

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Term Sheets &
Valuations
An Inside Look at the Intricacies of Term Sheets & Valuations
By,
Alex Wilmerding
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Wm
ASPATORE
(Executive (Business QnteCCigence
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Published by Aspatore Books, Inc.
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First Printing, September 2001

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Copyright © 2001 by Aspatore Books, Inc. All rights reserved. Printed in the
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Copyright Act, without prior written permission of the publisher.
ISBN 1-58762-068-5
Library of Congress Card Number: 2001093288
Bigwig Briefs Editor, Ginger Conlon
Cover design by Rachel Kashon, Kara Yates
Material in this book is for educational purposes only. This book is sold with
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renderinglegal, accounting, investment, or any other professional service.
This book is printed on acid free paper.
Special thanks also to: Ted Juliano, Tracy Carbone, and Rinad Beidas
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Term Sheets &
Valuations
Contents
Chapter One
Term Sheet Basics
Chapter Two
How to Examine a Term Sheet 19
Chapter Three
A Section-by-Section View of a Term Sheet 31
Chapter Four
Valuations and the Term Sheet 82
Chapter Five
What Every Entrepreneur Needs to Know About
Term Sheets 94
About the Author 135
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Term Sheets & Valuations 7
Chapter 1
Term Sheet Basics
What Is a Term Sheet?

In the venture capital community, a term sheet outlines the
terms for a deal; it serves as a letter of intent given to a
company seeking investment by a venture firm in order to
outline the proposed terms for an investment transaction
between the two parties. A term sheet has two important
functions: it summarizes all the important financial and
legal terms related to a contemplated transaction; and it
quantifies, both in numbers and qualified terms, the value
of the transaction or the venture capital financing. If the
terms for a financing as captured in the term sheet are
agreed to by the entrepreneur and the investor who presents
it, the document then serves the basis by which to draft the
legal documents surrounding the class of the securities
contemplated by the financing and to make modifications
to the articles of incorporation of the company where
necessary.
Typically, term sheets are used by venture capital investors

as well as institutional investors or syndicates of angel
investors in their discussions and negotiations with
prospective investees. Outside of the venture capital
context, term sheets can be used for any business
development or financing deal. For example, a company
contemplating a contract with a potential business partner
can capture the terms of a proposed relationship in a term
sheet. The value of a term sheet is its ability to focus parties
in a deal on the essence of the deal prior to initiating costly
legal drafting and to move them to close the transaction.
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8 Term Sheets & Valuations
Term sheets are most often produced by the venture firm

that is making its initial investment in a private company.
The firm or individual investor who puts out the term sheet
is usually the lead investor in a venture investment round.
Take, for example, a company that has been founded by
management and has only common stock. The founder or
core of executive management of that company will
approach prospective angel and venture investors in the
hope that those investors will be interested enough in
making an investment that they will draft a term sheet and
present that to the company.
Once drafted, the term sheet becomes an expression of a

group of investors' interest in investing in a company as
well as an outline of the terms by which they are interested
in investing. It is typically presented to that prospective
investee's CEO. As part of the process of agreeing on the
terms of a term sheet, the two parties (the investors and the
CEO or core executive team of the firm seeking funding)
participate in a series of discussions, with the expectation
from the investors that the company will accept their
proposed terms. In situations in which companies are hotly
sought after by venture investors, term sheets can be
subject to negotiation.
Magnified Importance
In the venture capital community, the importance of a term
sheet is magnified when a round requires an amount of
capital greater than that which one investor alone is willing
to provide. In these instances, the term sheet allows an
entrepreneur, CEO, or management team to gain a
commitment from one investor and use that investor as a
reference point to bring aboard other investors as part of a
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syndicate that commits to invest the required amount of

capital. This is particularly important in the later stages of a
company's life in those instances when a term sheet is
initiated by investors who had participated in prior rounds
of a company's financing. For example, in weak markets,
companies may be unsuccessful in attracting new capital
and a new investor at a time when additional capital is
required by the company. In order to do so, it may be
necessary for an existing investor or group of investors to
come up with a term sheet and float it to the company.
Typically, investors from prior rounds of financings are

prepared to invest in subsequent rounds because they both
believe in the company's prospects and want to ensure that
a new round of financing does not dilute their original
interest in the company. Unless of course a company is
fabulously successful, the amount that an investor or group
of investors will commit to investing in rounds subsequent
to their initial round of investment will typically be only a
portion of the contemplated subsequent round. In the event
that a company is struggling to raise that round, existing
investors who float a term sheet will do so under terms that
are attractive when compared to prior rounds, called a
down round, or represent a round at the same price as the
prior round, called a flat round.
Written in Stone?
A term sheet is not technically a binding legal document.
As a matter of contract law, both parties have an implied
duty to negotiate in good faith. Yet while a term sheet is
not legally binding, to the extent that a person's word is his
honor, it reflects an agreement between two parties to
proceed to a financing subject to the terms incorporated in
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the term sheet. The more reputable the venture firm and the
more ethical the entrepreneur the more likely the essence of
the term sheet will be preserved and remain binding up
until the closing of a financing.
Term sheets often include an exclusivity clause. This

requires the company, once it has accepted the term sheet,
not to solicit competing term sheets from other venture
firms or syndicates. Nevertheless, an entrepreneur retains
an "out" in effect, because there is little legal recourse for
the prospective investor if he does so.
The tenor and nature of the relationship that is established

between prospective investors and a company is critical to
the strength of the term sheet and the extent to which it
remains binding through to a financing. From a reputable
venture firms perspective, the assumption is that once a
term sheet has been agreed upon and due diligence
commences, the deal is going to be consummated on an
agreed timetable (in many cases it can take two to four
weeks of legal drafting for a round to be finalized). In the
rare situation in which investors or the company moves to
revisit and diverge from the terms after the term sheet has
been agreed upon, the bedrock of the relationship between
investors and a company is challenged, sometimes
irreparably.
The Only Thing Constant is Change

Even so, a term sheet is not a living, breathing document
that lasts beyond a financing. A term sheet accepted by the
entrepreneur and the investor who is proposing it works as
a summary or outline that is used to draft the legal
documents surrounding the new class of securities that are
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contemplated in a round of financing and to make

modifications to the articles of incorporation of the
company, also known as the company's charter. While
common stock may be owned by the founders and angel
investors, venture investors will typically call for a new
class of stock, called preferred stock, to be issued when
they invest. A new class of stock can be issued during each
round of investment; the terms will vary depending upon
the strength and state of the company. The terms of each
round of financing may affect previous classes of stock and
the legal language that dictates the powers related to those
previous classes of shares. As a result, powers that were
granted to existing shareholders may need to be changed or
modified as a result of the terms proposed by a new round
of investors before a round of financing can be
consummated.
For example, a new investor may want to receive a class of

securities that have liquidation preference, the right to be
paid back before other investors. The corporate charter will
dictate whether investors holding previous classes of
securities have to agree to allow a new class of shares to
have terms or powers superior to theirs. The new investor
may propose that he wants those powers only for his class
of securities, but the entrepreneurs and previous investors
may say that the a new class of shares can't have them
unless prior classes are allowed them as well. So, it is
critical that the term sheet reflect a clear understanding of a
company's capital structure and the expectations and
understanding of the business by existing shareholders.
After the term sheet is agreed to, the lawyers have to redraft
and make amendments to the company's articles of
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incorporation in order to reflect any changes required by

the new class of shares created by a round of financing and
to make any changes to the powers of existing classes of
shares. To the extent that they are empowered to, investors
holding prior classes of stock whose powers are amended
as a result of a new financing will need to agree with
proposed changes. During the drafting process, the term
sheet gives the lawyers the framework to draft a Purchase
and Sale Agreement, the document that the investors in the
new round will sign, and to make amendments to the
company's charter or articles of incorporation. Any
amendment to the articles of incorporation that
compromises the powers of existing classes of shareholders
requires a vote by all the shareholders and directors before
the amendment to the article of incorporation can be made
and the financing proceeds.
Once the documents surrounding a financing, typically the

Purchase and Sales Agreement and revised Certificate of
Incorporation, have been prepared and signed off, the
company gets back to its usual course of business and the
term sheet is no longer relevant to the life of the company.
It is just a part of the history of the company's financing.
Finding a Term Sheet That Fits

As is the case in any investment, terms and conditions will
vary widely. So much, in fact, that one could compare an
initial template (see Chapter Three) with a final term sheet
and see few similarities. The reason that term sheets vary
so much is that the context in which each company finds
itself is different. The competitive profile of every
company is different; its management team and list of
customers, for example, will have different values or merits
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depending upon the bias of each group of investors. The

investment climate at the time of each contemplated
financing will also vary.
So context is really what dictates the contents of a term

sheet. It is the context in which an investment finds itself or
is placed that will determine the profile of a term sheet and
the extent to which terms appear fair or more favorable to
the investors or to the company.
There are, however, five basic forms and styles of term

sheets. These are typically attributable to the leading
venture legal firms: Cooley; Hale and Dorr; Mintz-Levin;
Testa, Hurwitz and Thibeault; and Wilson-Sonsini. Term
sheets created by these firms don't vary significantly in
general format but do vary in style. The fact that a
prospective investor does not use one of these firms should
not be a red flag for an entrepreneur; countless other firms
have developed reputable venture practices and have
adopted term sheet styles that follow the format and styles
of the term sheets of these five firms.
Because a term sheet is basically an outline for a

transaction and reflects the style of the legal firm used by
the investor, there can be anywhere from eight to 15
sections. There are many variables within each of these
sections in terms of legal language, which can be changed
and substituted so that there is an exponential number of
term sheets that one could devise. So the structure of term
sheets will be similar in nature, but the language and
effective result can vary significantly.
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Investors: Institutional Versus Angel Term Sheets

Term sheets written by institutional investors, which
includes venture capital firms and large corporations, are
likely to vary from those offered by angel investors, who
often do not offer term sheets at all. Angel investors
typically invest during the very early stages of a company,
use their own private capital, and may invest in chunks of
$10,000 or $50,000 or $100,000 or $250,0000. Angels are
typically buying common stock, the same class of stock
owned by founders. That sort of individual may be fluent in
the terms and conditions that venture and corporate
investors use but is not likely to dwell on legal parlance in a
term sheet to the extent that later stage venture investors
will. Angels are classed as such because they are willing to
assume greater risk at a time when the future of a
company's business is more uncertain. It is therefore less
likely that they will be able to secure from entrepreneurs
terms that require a company to meet very specific and
exact hurdles in terms of financial performance.
Angel networks and angel investors themselves have

however become more sophisticated. It is entirely plausible
that one angel or several could work together to provide an
entrepreneur a pool of capital and in so doing require that
their capital be treated differently from that of the
entrepreneur who would hold common stock. In this
instance, the angel investor or investors would probably
provide a term sheet but given the early stage of the
company, the framework of the term sheet would likely be
quite simple.
The process of working with angel investors who purchase

common stock on an individual basis is likely to be more
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Term Sheets & Valuations IS
informal, because angels who are experienced will typically

assume that the rights of common stockholders will be a
subject for negotiation when the company entertains a later
round of venture investing. Having said this, it serves the
company well to incorporate in its charters a host of rights
to common stockholders; while they can always be
negotiated out at a later stage, it is easier to do so than to
try to negotiate them at that stage.
Angel money typically assumes a subsequent round of

financing and enormous potential for change in the profile
of a company; it is therefore less practical for angels who
typically invest in smaller amounts and not as syndicates to
negotiate preferential terms and to slow the work of a
company down by requiring companies to issue new
classes of preferred stock at a stage when growth and time
to market are critical. At the time of an investment by a
venture investor, however, term sheets take on an important
role for the venture investor who is looking to capture
expectations in terms of the company's revenue
performance and profitability and the way in which
liquidation or exit will be handled by the company.
Corporate Responsibility
The objective for financial return for an institutional
investor (corporate or venture) is similar to that of the angel
investor, but an institutional investor's primary concern is
the investor's own fiduciary responsibility to its own
investors. A key issue for an institutional investor is how
the terms of its participation, dictated in the term sheet, will
enable the investment firm to work within the guidelines of
its own investment mandate. This is why a time frame
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spelled out clearly on a term sheet is so important to an

institutional investor.
Entrepreneurs seeking funding must understand that

venture and corporate investors have limited partners or
shareholders to speak to. In the case of the venture investor,
which primarilywork as limited partnerships, their partners
dictate that they will only operate as a partnership for a
restricted number of years. In some cases it is as limited as
five years with a two year extension; in other cases its as
long as 10 years with the ability to extend for one or two
years. These limited partners, whether they be pension
funds or wealthy individuals, will expect to contribute their
capital over a relatively short number of years (one to four),
and they will expect to see returns within three to seven
years.
As venture capitalists (VCs) propose a term sheet to a

company they are naturally going to try to include terms
that will encourage the way the companyoperates to reflect
the time frame to liquidity that the venture investor is
looking to receive. In otherwords, the company is expected
to meet its financial responsibility to the venture firm in the
investor's necessary time frame. This can be managed or
expressed in certain clauses within a term sheet. The most
obvious one is called a milestone section, in which a
venture investor will set strict milestones in terms of when
a company should have performed or achieved certain
levels of revenues or numbers of contracts that are assumed
to be each yielding certain revenue, and at what time. This
stages the infusion of capital. For example, an investor can
milestone a $10 million syndication of capital so that the
capital is contributed to the company in two or three lump
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sums based on the company achieving certain levels of

revenue and sales.
In the Driver's Seat

When entrepreneurs receive their first term sheet, they
should consult their lawyer and decide whether the
economics of the deal are close to what they expected them
to be. If so, they should ask the lawyer or the lawyer of the
venture investor to draft the necessary securities documents
related to the new class of shares.
If the economics of the deal is not up to the entrepreneurs

expectations, the term sheet enables the entrepreneurs to
potentially seek other investors; in other words, accelerate
the process of getting the right financing. But entrepreneurs
may go about this the wrong way. Assuming there is no
exclusivity clause in the term sheet, which is intended to
prevent them from continuing to shop a deal, some may
meet with a prospective investor and say, "We have a
commitment at a pre-money valuation of X, but we really
want Y; we don't think they will give us that amount.
You're firm is a better fit for us; it has strengths the other
firm doesn't." This is not the best approach. The venture
capital community is small and tight-knit. Many deals are
done together, so turning your back on one firm means
potentially turning your back on everybody. Even if an
entrepreneur considers a term sheet non-binding, whether
or not it has an exclusivity clause, shopping the deal has the
risk of undermining his credibility and reputation with the
firm that has already submitted a term sheet to him. It's
better to look for a firm that brings a host of positives and
meet at some reasonable middle ground on valuation,
because the nature of the relationship that evolves during a
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term sheet negotiation will be carried forward throughout

the life of a company should an investor agree to
consummate a deal, and should a term sheet result in
financing.
On the other hand, it's possible to shop for financing the

way one might shop for a car: You are trying to find the
dealer with the best price, and they all have Audi's. That's
normal. In a financing, the entrepreneur may approach two
firms simultaneously and work with the one that commits
to the dollar amount that solves all his financial goals.
The smartest entrepreneur is working several venture firms

simultaneously, looking either to have one of them finance
the deal in entirety or to bring them together to finance the
deal as a group. This is likely to happen when an
entrepreneur is looking for financing and either can't find a
firm that will provide the entire amount or doesn't want a
firm to provide the entire amount. The entrepreneur may
receive a term sheet from an investor willing to give 25
percent of the round, then he can use that term sheet to help
attract investors willing to partner with the lead investment
firm and cover the remaining 75 percent.
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Chapter 2
How to Examine a Term Sheet
Under the Looking Glass

It is critical to consult experienced counsel prior to
agreeing to a term sheet. But while a lawyer is examining
the economics of the deal spelled out in the term sheet, the
entrepreneur should be conducting his own examination of
the terms. If the term sheet is balanced and fairly aligns the
interests of investors and the company, it will typically not
have substantive effects on the company—if the company
performs to or exceeds expectations and meets milestones
that have been agreed upon or represented in the
company's business plan. Nevertheless, there are a few
terms and sections to which the entrepreneur should give
extra attention. For the purposes of discussion, the section
names to which I will refer correspond to the term sheet
framework and style provided by the Boston offices of
Kirkpatrick and Lockhart.
The most obvious section that requires extra attention is the

price per share. Price per share is important because it
embodies the economic value of where the company is
today. It is possible to do a simple equation to determine
what the price per share converts to in terms of pre-money
or post-money valuation for the company.
The Current Securities Section (which describes all shares

and the number of shares in each class of stock that have
existed before the round that is being contemplated) gives
the investor's summary of the company's capital structure
and will typically include not only existing shares but a
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summary of any warrants and options issued. The

calculation of pre-money value should be the result of
multiplying the total number of shares outstanding,
including warrants and issued options, by the price per
share that is offered in the term sheet. The post-money
valuation is determined by adding the total amount to be
raised in equity in the round of financing contemplated by
the term sheet to the pre-money valuation. The post-money
value placed on a company at the time of the term sheet
discussions embeds some expectations for performance of
the company over time. So one can look quickly to the
value placed on the company, examine the company's
expectations as to how it's going to perform in terms of
revenue numbers and profitability over subsequent one to
three years, and consider what values the company may
command at future periods of time either in a sale or in a
future financing. Then one can calculate what that means in
terms of a multiple or rate of return over a period of years
on the investment. If a venture investor is looking to
achieve a gross return of 50 percent and a net return after
fees in the 35 percent range, the relationship between the
post-money valuation and the value of the company at time
of exit are critical in the VC's calculation of expected
return.
Corporate Governance
It's also vital to inspect the terms in the Board Composition
and Meetings as well as Special Board Approval Items
sections that concern corporate governance and the way in
which the company's executive team and board of directors
will be expected to interact. These terms help investors,
who are close enough to the company and have done
enough due diligence, immediately see the way in which
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certain types of actions and powers, if held by certain

members of the board, could be useful in affecting how the
company is managed in certain critical circumstances.
When examining these sections, it is important to review

who the directors are and which classes of stock will be
represented by which seats or individuals. It is also
necessary to consider how many executives, members of
management teams, and founders are represented on the
board, and the total number of board members. This
information is critical, because as classes of shares are
issued subsequent to each financing, each class will
typically require one or several board seats and the right to
influence certain actions of the company. Additionally, a
board that has a majority influence by founders and
individuals who are related to founders may be less
attractive to a sophisticated institutional investor at any
stage of investment unless the majority of individuals on
the board alongside the VC are clearly established industry
names with a depth of experience and are respected
independent thinkers. The degree of influence that a board
can have over the direction of a company is diluted unless a
board has a balance of management, independent industry
experts, and financial investors.
In later-stage investments, the board composition and

meetings section gets more complex, because a company
that initially offered only common stock and possibly one
class of preferred stock may experience one or more
subsequent rounds of preferred financings. This will affect
the board composition, because as more investors become
involved, their expectations will need to be represented.
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The degree to which management is executing becomes

increasingly under greater scrutiny by the investors.
For all of these reasons, it is necessary to inspect the

Special Board Approval Items section for any powers that
existing board members hold. Often board members
representing preferred stock or a majority of the
shareholders of a class of preferred stock (the shares that
venture investors typically purchase) will expect to give
approval in the event that the company contemplates such
actions as taking on debt above certain modest levels, say
$250,000; making significant management hires; or
engaging in a merger or acquisition. Entrepreneurs are
naturally loathe to give up the freedom to make certain
operating decisions, however VCs expect their level of
influence to be high, particularly over areas that could
significantly affect the company's capital structure or
profitability.
Don't Get Held Up

Another sticking point in a term sheet is options and the
way in which they are treated and valued in a pre- or post-
money valuation. There can be extreme differences in
opinion as to how many options should be issued in order
to accommodate future growth.
Companies can have great plans for doubling the size of its
workforce within a 12-month period. But after financing,
say they have 10,000 shares outstanding, only 5 percent of
which are options, all of which are granted, they may need
to create another 15 percent of options for new employees.
Or, founding management who have founders shares may
ask to be treated as employees. Those who do so are
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effectively double dipping. They want to keep their

founders shares but also want to be awarded as employees,
so they ask for a percentage in terms of options. Suddenly
the contemplated valuation of the company can change by
10 to 20 percent, depending on the future expectations for
the company.
Essentially, founders see themselves getting diluted during

each subsequent financing. Although dilution is a typical
part of each subsequent round of financing, they sometimes
want to be awarded options for their role as employees. If
they do, the founders should be prepared to raise the bar
and tie additional options awards to improved performance
and shareholder value.
Red Flags
Price per share, corporate governance, options, and
valuation. These are all key areas of a term sheet that
entrepreneurs need to inspect thoroughly. But they are not
the only areas to watch. Entrepreneurs must look out for the
many possible red flags any term sheet may have. The three
biggest are as follows:
1) Underfinancing One red flag is if an amount of

money offered by an investor is lower than the dollar
amount the entrepreneur feels he or she reasonably needs to
get through the next phase of growth and to a subsequent
financing at a reasonable subsequent valuation.
This strategy may benefit the company seeking financing,

but it has drawbacks and attendant risks unless it is a
carefully crafted part of a long-term financing strategy. It
may also benefit the VC. The VC can ensure that the value
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of the company will rise if, by requiring an entrepreneur to

accept a lower dollar amount in a round, the entrepreneur is
then able to bring in a strategic investor later on to secure
additional financing for the company and do so at a higher
valuation. The downside comes about if the strategy
doesn't work out and the company fails to attract capital in
a later round for any number of reasons. Should the market
change, investors might, in a competitive financing market,
conclude that one of the reasons a prior round was small
was because the company's business model had not been
compelling enough to attract sufficient numbers of
investors. Similarly, a sector can lose its luster or suffer a
general re-evaluation by the VC and corporate strategic
investment community. Under such circumstances when a
company cannot attract new investors on better terms, its
existing round of investors may seek to protect themselves
by investing money at preferential terms.
Encouraging companies to pursue business plans which

assume subsequent rounds of financing within relative
short periods of time can be an effective way for VCs to
motivate companies and to ensure that their funding is
provided at intervals rather than up front. But it is wiser for
entrepreneurs to seek funding which will last them 12 to 18
months in competitive financing environments. This does
not mean that financing for this period of time need
necessarily be secured in one payment up front. A
syndicate of investors with the capability of investing funds
in several trenches can enable the entrepreneur a 12- to 18
month period of funding; the challenge for the entrepreneur
is to assemble a syndicate with this capability, but under an
initial valuation that leaves room for future fUnding.
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2) Limitations to the Scope of a Syndicate Another

red flag is investors who try to dissuade an entrepreneur
from opening a round or increasing it in size in order to
accommodate other interested VCs. Some investors may do
so only to maximize influence and control by that VC firm
or to take as much of a good thing as they can get. There
may, however, be legitimate reasons for a VC to do so: Not
all VCs work well together; certain round sizes may also
become too small to justify the overhead that may be
required to administer an investment.
The other practical downside in not opening a syndicate

that includes several venture firms is that a company may
limit its options when it looks for follow-on rounds of
financing. Presumably, the more diverse the profile of a
syndicate the higher the likelihood of more introductions to
other VC firms in a future round of financing.
One simple rule in any financing for entrepreneurs is this: It

is often wise to take funding from interested investors when
you are offered it. The fundraising process is distracting
and eats up precious time.
3) Milestones Milestones can be a reasonable approach

to constructing a term sheet; they can also be a serious red
flag. For some entrepreneurs any milestone set by an
investor in a term sheet is a red flag. Investors typically
milestone a deal by writing into a term sheet the
commitment to fund, but only in allotments and based upon
specific financial performance prior to subsequent rounds
of funding. Investors might provide $10 million in
commitments in four quarterly payments, for example,
enabling the investors to revisit the performance of the
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company at the time of each quarter's funding payment.

From the view of an entrepreneur, everybody participating
in an early stage company typically should accept that it is
a highly risky venture. Opportunities as perceived today
can change quickly, and companies may need to retrench
and revisit assumptions.
What's more, management is taking additional risks by

committing to a highly risky venture. Not surprisingly,
management will want to have the flexibility to be able to
change course as necessary, rather than to find out that in
two or three months, should the company not be meeting
their plan for unanticipated and understandable reasons, an
institutional or venture investor who has prescribed this
power can basically take over control of the company, boot
management and bring in new management, or curtail the
investment entirely.
Even so, goals that require a company to meet at a

minimum 50 percent or 75 percent of plan should be
achievable—particularly in expansion and later stage
deals—barring enormous cyclical shifts in the economy or
in a sector. At the end of the day, if a company can't meet a
majority of its plan, particularly when due to factors within
the company's control, the company is not performing.
Clearly, a key reason investors like to use milestones is that

it can provide downside protection for them. In the event
the firm doesn't reach certain targets there can be a
conversion ratio that will allow the preferred investors to
have an adjustment in their stock value. With a downside
protection clause investors will set a date by which certain
targets are expected to have been met. For example, if
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actual revenues for a period are below 75 percent of a

target, a conversion ratio could kick in to adjust the value
of shares issued in the most recent round of financing
proportionately. A second hurdle could require the share
price to be adjusted further under a more demanding
formula in the event the company fails to reach revenue
targets of 50 percent of plan. An entrepreneur can be
comfortable with these conversion ratios if a company's
plan is eminently achievable, and there is little perceived
risk associated with doing so. However, the entrepreneur
has to be careful to ensure that the manner and way in
which revenue will be recognized is stipulated. Something
as simple as a change in the way Globally Accepted
Accounting Practice (GAAP) regulations recognize
revenues could trigger an adjustment to share pricing,
unless language stipulating the contrary has been
incorporated into documentation. It's vital to ensure that
the term sheet articulates the standards, or references
standards given elsewhere, and shows an example. If
standards change and an investor wants to take advantage
of such a clause, the entrepreneur may be setting himself up
for a legal challenge.
Although milestones are a red flag, they are also

negotiable. But depending upon a company's
circumstances and the funding environment, other issues
may be more important negotiation points for the
entrepreneur.
Red Flags for Investors

As much as milestones are a source of discomfort for
entrepreneurs, strong resistance by a company to accept a
revaluation of investors shares in the event a company does
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not meet milestones or to accept funding in trenches can be

a red flag for an investor. If the stage of the investment is
so early that a revenue plan is clearly unpredictable, it
might be unreasonable for an investor to expect an
entrepreneur to accept tight milestones. But if a company is
a relatively later or expansion stage opportunitywith a high
degree of predictable revenues and a sufficiently rich pre
money valuation it is understandable that an investor may
consider an entrepreneur's intransigence on this issue
disconcerting at best or a no-go at worst.
The category of Special Board Approval Items that are

defined by venture investors in term sheets is another area
about which VCs will be somewhat stubborn. Fiduciary
responsibility to ensuring a modicum of influence over the
course of an investment, particularly when an investment is
not going to plan, makes these issues particularly important
to an investor and a source of significant concern when an
entrepreneur looks to remove them from a proposed term
sheet.
Board composition is likewise as significant an issue for

investors as it is for entrepreneurs. When a venture investor
is in the business of trying to predict to some high degree of
probability a successful financial outcome, he wants to
know that the future course of the company is relatively
clear and that as many tools as possible are provided to him
to influence that future when necessary. If a board is
composed of a majority of advisors and friends of the firm
who do not have close alignment with the interests of
shareholders in maximizing value, the VC is going to want
to see a change that creates some sort of balance that more
closely aligns the board with the goals of a majority of
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shareholders. To a VC, a board requires a balance of

management, independent industry experts, and financial
investors.
A variety of other areas can also cause VCs to seriously

reconsider an investment. Protection in the event of
liquidation, found in the Liquidation Preference section of a
term sheet, is a critical area for investors. Entrepreneurs
need to remember that if pricing is fair or aggressive,
downside risk will be the one area which VCs will focus
on.
Limitations in the Information Rights section will also be a

red flag for investors. Entrepreneurs rightfully do not want
to spend a majority of their time reporting to VCs.
Nevertheless, entrepreneurs who are too controlling and
resist providing an investor with the right to a full audit of
the company's operations or even a reasonable level of
access by VCs to company information risk turning off
investors completely. The way this section is handled and
renegotiated could signal to the investor that the
entrepreneur may want to try to hide something in the
future or may be difficult to work with.
To avoid creating a red flag for investors, entrepreneurs

must look for balance and flexibility when negotiating
terms.
Beware of Strategic Partners, That Become

Investors
A final red flag, for both investors and entrepreneurs, is
when a firm's strategic partner is interested in becoming an
investor in that company. A strategic partner that is also an
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investor can put a company in a compromising position for

two primary reasons. First, the strategic partner can require
up front certain rights or powers to influence or block
future partnerships or a sale or acquisition of a company,
whether or not its investment is staged. These red flags
would typically show up in the Special Board Approval
Items section. The amount and nature of an equity
investment from a strategic partner can put off future
potential partners and acquirers. The term sheet is the
entrepreneur's first opportunity to see what the true
intentions of a strategic partner may be.
Second, if the partner's investment is staged and the

company's business model is too dependent upon the
strategic partner, the company can unknowingly limit its
choices and independence down the road. Certainly, a
strategic partner can offer a host of distribution channels as
well as product collaboration opportunities. But it is critical
that a company's business plan is not so dependent on a
strategic partner that a staged investment by that partner
could allow the partner to renegotiate terms unfairly when a
later stage of the investment comes due. So the core goals
of one's business plan need to be considered carefully
when analyzing the terms and conditions incorporated into
a term sheet by a strategic investor.
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Chapter 3
A Section-by-Section View of a Term Sheet
What is a Term Sheet?

In the venture capital community, a term sheet is basically
a letter of intent prepared by a venture capital firm to
summarize all the important financial and legal terms
related to a transaction and to quantify the value of the
transaction or the venture capital financing. A term sheet
serves as an outline of a transaction, so there are usually
eight to 15 sections. (There are 16 sections in the sample
term sheet presented in Figures 1 to 18 in this chapter.)
There are many variables within each section, in terms of
legal language, so that there is an exponential number of
term sheets that one could draw up. Many of these sections
can be written either to favor the investor, to favor the
entrepreneur, or in a balanced manner so as to benefit both
parties as fairly as possible.
Every entrepreneur contemplating venture financing needs

to understand the degrees to which sections of a term sheet
are either Company or Investor Favorable. This section has
been designed to provide a range of examples of how many
sections of a term sheet can be either Company Favorable,
Investor Favorable, or Middle of the Road. Where
appropriate, examples are labeled Investor Favorable,
Middle of the Road, and Company Favorable. A term sheet
would only have one clause, not all three, but the format
used here is intended to provide entrepreneurs with a clear
picture as to how any one of the three types of clauses can
vary the economic and qualitative effect of the investor's
offering.
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The Preamble
In a preamble to a term sheet there can be certain
exclusions or assumptions as to the length of time that a
term sheet will remain in place, and provisions as to the
entrepreneur's ability to shop a deal to other investors.
There may be a paragraph that states that during a period

commencing on a given date, the company's directors,
employees, and representatives may not contact, solicit,
engage in any discussions, enter in any agreement, or
furnish any information to anyone other than the investors
or representative of investors, without prior written
consent. This type of language effects a quiet period or
lock-up period during which the term sheet should not be
discussed with third parties or other term sheets solicited.
Opening Information
The first paragraph of a term sheet is fairly standard (see
Figure 1). In fact, quite often that first paragraph doesn't
even exist. Instead the term sheet might simply have a title
that gives the name of the company being funded, a subtitle
that reads "A Summary of Terms for Proposed Private
Placement of (name of stock—Series A Preferred Stock,
for example), and the name of the stock issuer, which
would be the name of the company that would be receiving
the investment from the venture capitalist or syndicate of
investors. But the first paragraph is a good way of
summarizing what is in the document and of providing an
overview of the nature of the transaction contemplated. If
the term sheet is going to be read by people who aren't
close to the transaction, the opening paragraph clarifies the
nature of the situation.
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In the example below, [ ] Ventures, L.P. would refer

to the typical name of a venture capital firm's fund, each of
which typically are limited partnerships, here abbreviated
as L.P. The bracket referring to the "Investors" could
include the name of individuals or corporate investors who
may be investing as a syndicate alongside the venture fund.
FIGURE 1
[Company Name]
[Term Sheet Date]
MEMORANDUM OF TERMS FOR PRIVATE

PLACEMENT OF EQUITY SECURITIES
General
[ ] Ventures, L.P., and [ ] (the "Investors") are prepared
to invest $ [ ] million in [ ] (the "Company") under the
terms contained in this term sheet. With the exception of the section of
this agreement relating to expenses, this term sheet is a non-binding
document prepared for discussion purposes only, and the proposed
investment is specifically subject to customary stock purchase
agreements, legal due diligence, and other conditions precedent
contained herein, all satisfactory to the Investors in their sole
discretion.
[Other Company or deal specific terms.]
New Securities Offered

The New Securities Offered section, which appears at the
top of Figure 2, at first appears to be self-explanatory. It is
critical, however, that an entrepreneur understand the
differences between different classes of securities and what
the implications are of the type of security contemplated by
a proposed offering. Figure 2 assumes that Series A
Preferred will be offered.
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In order of priority, common stock usually holds no special

powers, it's just ordinary stock with one vote exercisable
per share in the event a shareholder vote is called. Preferred
stock takes a more senior position in the company's capital
structure, which means it usually has some rights attached
to it that give it preference over common stock and usually
has powers that common stock do not hold. There can be
multiple series of preferred stock. As each subsequent
financing transpires, it is often appropriate to issue a new
series of preferred stock at the time of each transaction in
order to provide that series with the rights and pricing that
is appropriate at that point in the life of the company.
Assuming the life and value of a company is not static,
Purchase Price Per Share for each new class of stock will
typically differ at each subsequent offering, substantiating
the need to issue new classes of securities at each
successive financing.
Typically, for example, common stock is issued when a

company is founded. Everybody shares in the same level of
risk. It's just common stock, meaning angel investors and
founders receive common shares on equal terms. A
company grows in size and sophistication and then tries to
attract new money. A successive round of funding might
involve a venture or corporate investor. Preferred shares
will be issued to those investors, because the pricing and
value of the shares will presumably be different from that
of the common shares. At the very least, the investors in a
successive round will require certain levels of influence and
rights that the common shareholders do not hold.
Those investors, having agreed to finance the company on

different terms from the common, ask for certain rights, in
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terms of influence. This is done to compensate for what is

typically a minority position at a higher price than common
or to retain a level of influence over whether the company
entertains future financings, on what terms those financings
may occur, and in the event that the company doesn't
perform or meet the expectations, over how and when the
company may need to be liquidated. Allocating a certain
number of seats on the board that are attributable to that
series of preferred investors is one way of securing
influence. So if there were five board members before the
preferred shares are issued for example, the company might
agree to ask two existing board members to step down in
order to issue two new board seats to the investors of that
preferred round. The board could also be expanded.
Unless there is a change in the future board composition

that is agreed to by the preferred investors, they will always
keep those seats and always have that level of influence. In
fact, they will probably ask that the company's charter is
changed to reflect an agreed upon number of seats. In this
way, if any change in size of the board is contemplated, the
preferred investors would have to agree; if they did not, the
company's charter typically could not be amended.
Assuming that the company's articles of incorporation

reflect that there will be a five-person board, the preferred
investors are being assured of retaining a 40 percent
influence at the board level. In this example, the investors
as a class of preferred stock could therefore only have a 15
percent interest in the company and yet retain close to a
majority of control at the board level. In fact, if one of the
remaining three board members is an independent, it would
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be possible that the "block" could retain a controlling

influence on the board.
In some cases new classes of stocks will have the same

rights as all previous preferred series of shares. So a B
could be issued after an A, and the B investors have the
same rights as the A. In this case, the pricing and board
representation might be the only difference. But typically,
the lower in the alphabet the series of shares, the more
influence the most recent series might have over that
company and the higher the likelihood that all existing
preferred shares are sharing any rights they have with that
current round. So either the most current round has more
influence, or at the very least, shares all the rights of a
previous round.
The most significant change will be in valuation. The

higher in the alphabet series of shares, most probably the
lower the price of the shares if a company is performing
well.
Total Amount Raised, Number of Shares, and

Purchase Price Per Share
Each of the Total Amount Raised, Number of Shares, and
Purchase Price Per Share sections (see Figure 2) are fairly
self-explanatory. Total Amount Raised refers to specific
elements to the total amount to be raised by the proposed
financing; Number of Shares is the number of shares that
will result as a result of the proposed financing; and
Purchase Price Per Share is the purchase price per share of
the shares in the proposed financing. The Total Amount
Raised should equal the product of the Number of Shares
plus the Purchase Price Per Share.
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Post-Financing Capitalization
The purpose of the Post-Financing Capitalization section is
to summarize what the capital structure of the company
will look like after the proposed new financing. Some term
sheets include a Current Securities section at the very
beginning of the term sheet; in our example (in Figure 1),
there is no Current Securities section. Typically, had one
been included, no Post-Financing Capitalization would be
included in the term sheet; instead the Current Securities
section would, when considered together with the New
Securities Offered section, provide enough information for
the reader to put together a capitalization table. The Post-
Financing Capitalization included in Figure 2 summarizes
succinctly what the capital structure should look like after
the proposed financing and includes summaries of both
current and new securities.
The information in this section allows the reader to

determine the pre-money and post-money or Total
Enterprise Value valuations of the company. To determine
the pre-money valuation, one must examine the Post-
Financing Capitalization section and multiply the total
number of shares—excluding the number of New
Securities Offered shares but including the number of
options and warrants issued—by the Proposed Purchase
Price Per Share noted in Figure 2. To ascertain the post-
money valuation or Total Enterprise Value, multiply the
number of Total Common Equivalent shares by the
Purchase Price Per Share proposed in the term sheet.
It is also possible to determine the Total Common Stock

Equivalent number. To do so one should add the number of
common stocks, options and warrants, and any preferred
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stock that had been issued prior to the proposed financing

together with the number of shares to be purchased as part
of the proposed financing. The Total Common Equivalent
assumes that preferred stock and common as well as
options and warrants are treated equally in valuing the
company. This approach to valuing the company is
factually accurate at the time of a financing but may not,
when considering preferred stock, reflect the value of
preferred stock if converted to common at some point in the
future. Preferred stock can, as the next section explains,
carry a dividend that could accrue and, in some cases, be
added to the original value of the stock should it be paid
back under certain circumstances, in liquidation for
example.
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FIGURE 2
New Securities Offered: Newly issued shares of the Company's

Series [A] Preferred (the "Preferred")
Total Amount Raised: [$ ]
Number of Shares: [ / To be determined to result
in the Post-financing Capitalization below.]
Purchase Price Per Share: [$ / To be determined to
result in the Post-financing Capitalization below (the "Original
Purchase Price").]
Post-Financing Capitalization: Common Stock
Founders:
[Name] [ ]
[Name] [ ]
[Name] [ ]
Sub-Total [ ]
Stock Option Program
[CEO] [ ]
[Others] [ ]
Sub-Total [ 1
Preferred Stock
[ ] Ventures, L.P., [
[Co-Investor(s)] [ ]
Sub-Total [ ]
Total Common Equivalent [ ]
Total Enterprise Value L J
Dividend Provisions
The true value of preferred stock will therefore be a
function of a number of provisions detailed throughout the
term sheet. Figure 3 highlights the type of clauses that are
likely to detail the economic effect that Dividend
Provisions can have in increasing the value of preferred
stock over time.
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Dividend provisions are one of the critical tools that allow

VCs to protect their investment and to get out of an
investment with at least some prospect of a return in the
event of liquidation of the company. The dividend
provisions are what the board will live by when they either
consider issuing or are required to issue dividends.
There are three dividend provision clauses outlined in

Figure 3: Investor Favorable, Middle of the Road, and
Company Favorable. Only one form of these three would
exist in the term sheen proposed by an investor. These
provisions are a mix of weighted variables: neutral,
negative, or positive in the favor of investor or company.
The differences between the economic effect of the way
each of the Investor Favorable, Middle of the Road, and
Company Favorable sections are structured is a function of
the percentage of return assumed for the preferred stock,
whether the dividend is cumulative or non-cumulative, or
whether issuance of a dividend for preferred stock should
take preference over issuance of a dividend for any existing
shares that have rights to dividends.
An entrepreneur must not underestimate the economic

effect and difference between cumulative and non
cumulative dividends. If the dividend is non-cumulative
and the company doesn't make a decision to issue a
dividend in year one, or doesn't have the resources to do
so, the subsequent year the slate is clean and the company
thereafter is not obligated to make good on the issuance of
dividends for any previous years. This means that if the
dividend is not issued in year one and a dividend were to be
issued in a subsequent year, the company would not be
required to issue dividends cumulatively or retroactively
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for previous years in which the company was unable to

issue a dividend.
Let us consider the case of the Investor Favorable example

of Dividend Provisions below. As this term sheet details a
first round of preferred shares, Series A, the investor
would, should the term sheet include the Investor Favorable
text in Figure 3, expect to receive dividends at a specific
rate of return, in this case at 15 percent. If therefore,
dividends were to be issued by the company, dividends
would need to be issued to the Series A preferred at a
cumulative rate of 15 percent per annum before any
dividends could be issued for common shares. Even if the
common stock stipulated a return of say 8 percent, this
clause would require the board to make a decision to issue
dividends to preferred investors. Whatever funds were
available would first have to provide the Series A investors
with a 15 percent return on their invested capital. Only after
this is done would any funds be used to generate a dividend
for common stock.
FIGURE 3
Rights, Preferences, and Privileges of the Series
[A] Preferred.
(1) Dividend Provisions:

Investor Favorable: The holders of the Series [A] Preferred shall
be entitled to receive cumulative dividends in preference to any
dividend on the Common Stock at the rate of 15 percent of the Original
Purchase Price per annum, when and as declared by the Board of
Directors.
Middle of the Road: The holders of the Series [A] Preferred shall
be entitled to receive non-cumulative dividends in preference to any
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Purchase Price per annum, when and as declared by the Board of
Directors. The Series [A] Preferred also will participate pro rata in any
dividends paid on the Common Stock on an as-converted basis.
Company Favorable: The holders of the Series [A] Preferred shall

be entitled to receive non-cumulative dividends in preference to any
Purchase Price per annum, when, as and if declared by the Board of
Directors.
Liquidation Preference
Liquidation means closing down the company. That doesn't
necessarily have to be devastating for a VC if appropriate
protections have been incorporated into a term sheet. The
liquidation preference clause is a tool that enables favorable
treatment for preferred shareholders in the event of
liquidation.
The most significant variable to consider in the liquidation

preference section is the multiple on the value of their
initial investment that preferred and common shareholders
will receive as a result of this clause (see Figure 4). So,
Investor Favorable terms will generally provide the
preferred investor a multiple on the value of the initial
investment of say three times. In the event of a sale or
bankruptcy proceedings, preference would be given to the
preferred investor to receive a three-times return on their
initial investment, before any proceeds are used to pay
anything to any other shareholders, including common
shareholders who do not retain these rights. That is in one
version of the most investor-favorable situation.
In the case of the Middle of the Road clause in Figure 4,

proceeds are distributed so that they are given first to
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preferred shareholders but in a less preferential manner.

The preferred would, in this case, get their original
purchase price plus any declared but unpaid dividends.
Thereafter, common and preferred shareholders share in
proportion to their ownership position the remaining
distributions until such time as the preferred has received
three times their original purchase price.
VCs are highly sensitive to the time value of money. A

return of 3 times over 4 years actually equates to only a 32
percent annualized return. The net return to an investor,
when deducting a venture fund's fees, would be below 25
percent, which is not considered an extraordinarily
attractive venture capital return.
FIGURE 4
(2) Liquidation Preference:

Investor Favorable: In the event of any liquidation or winding up
of the Company, the holders of the Series [A] Preferred shall be entitled
to receive in preference to the holders of the Common Stock an amount
equal to the Original Purchase Price plus any accrued, or declared, but
unpaid dividends (the "Liquidation Preference"). After the payment of
the Liquidation Preference to the holders of the Series [A] Preferred,
the remaining assets shall be distributed ratably to the holders of the
Common Stock and the Series [A] Preferred on a common equivalent
basis. A merger, acquisition, or sale of substantially all of the assets of
the Company in which the shareholders of the Company do not own a
majority of the outstanding shares of the surviving corporation shall be
deemed to be a liquidation.
Middle of the Road: In the event of any liquidation or winding up

to receive in preference to the holders of the Common Stock a per share
amount equal to the Original Purchase Price plus any declared but
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unpaid dividends (the "Liquidation Preference"). After the payment of

the Liquidation Preference to the holders of the Series [A] Preferred,
the remaining assets shall be distributed ratably to the holders of the
Common Stock and the Series [A] Preferred on a Common Stock
equivalent basis; provided that the holders of Series [A] Preferred will
stop participating once they have received a total liquidation amount
equal to [three] times the Original Purchase Price. A merger,
acquisition, sale of voting control, or sale of substantially all of the
assets of the Company in which the shareholders of the Company do
not own a majority of the outstanding shares of the surviving
corporation shall be deemed to be a liquidation.
Company Favorable: In the event of any liquidation or winding up

to receive in preference to the holders of the Common Stock an amount
equal to the Original Purchase Price (the "Liquidation Preference").
After the payment of the Liquidation Preference to the holders of the
Series [A] Preferred, the remaining assets shall be distributed ratably to
the holders of the Common Stock. A merger, acquisition, or sale of
substantially all of the assets of the Company in which the shareholders
of the Company do not own a majority of the outstanding shares of the
surviving corporation shall be deemed tobea liquidation.
Redemption
Redemption clauses are the one way for VCs to ensure that
a company does not become a lifestyle company that is
only in business to give its founders and management a
salary or become what VCs consider to be part of the
"living dead." Entrepreneurs need to remember that most
funds function as limited partnerships with a finite number
of years of life. The purpose of the Redemption clause is to
provide a structure (see Figure 5) that makes certain that
the investors do not invest in companies that are unable to
generate liquidity.
The redemption clause puts a finite number of years on the

life of an investment, by assuming that the investment is
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able to generate a return. In so doing it stipulates that at

some point in the future if a liquidity event has not
happened, then the company will become obligated to
redeem the investor's interest in a specific time frame. A
liquidity event is a way of providing the investor with a
currency through which to phase out of the investment, like
a public offering or a buyout that allows the investors'
interest to be purchased. Those time frames and variables
are stipulated in the examples of Redemption clauses cited
in Figure 5. Clauses that are Investor Favorable require
redemption relatively rapidly and over a defined and
shorter number of years. Clauses that are Middle of the
Road are less rapid. The Company Favorable flavor of this
clause would of course be no clause at all.
Here is an example of how a redemption clause works:

WidgetCompany.com receives $10 million in proceeds
from the sale of preferred stock. If on the company's third
anniversary it has not generated any opportunity for
liquidity for the investor, the Investor Favorable clause
requires that, if an election by holders of preferred stock
forces them to do so, the company will be required to
redeem or pay back one third of the outstanding preferred.
In doing so the company must redeem these preferred
shares at a rate of three times their Original Purchase Price
plus any accrued or unpaid dividends on those shares. In
this case the cost to the company would be $10,000,000
after three years plus accrued and unpaid dividends on
these shares. The clause goes on to require payment of one
half of the outstanding preferred on the fifth anniversary at
the same multiple plus accrued and unpaid dividends on
this portion of securities. It then requires that remainder of
unredeemed shares be treated similarly on the sixth
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anniversary of the initial investment. The company's

management team is basically on notice and reminded that
in three years the company must have generated some way
in which to pay back investors or it will need to begin to
provide them some liquidity so that holders of the stock are
not motivated to exercise this right.
This clause in the Investor Favorable format is more stick

than carrot. While the three-year wake-up call is more
aggressive than what one typically sees in early or
expansion stage term sheets, it would make sense for a later
stage deal that is expensive and touting to generate liquidity
for investors in short order.
The Middle of the Road format is just that. For an early or

expansion stage deal it is an eminently reasonable
compromise. It is probably generous to rich and more
Company Favorable from the VC perspective if the pricing
of a deal is expensive and the entrepreneur is pitching
liquidity and an exit for the venture investor in less than 5
years time.
FIGURE 5
(3) Redemption:
Investor Favorable: Redemption at Option of Investors:
At the election of the holders of at least [a majority] of the Series [A]
Preferred, the Company shall redeem 1/3 of the outstanding Series [A]
Preferred on the [third] anniversary of the Closing, 1/2 of the
outstanding Series [A] Preferred on the fifth anniversary of the Closing
and all of the remaining outstanding Series [A] Preferred on the sixth
anniversary of the Closing. Such redemptions shall be at a purchase
price equal to [three] times the Original Purchase Price plus accrued
and unpaid dividends.
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Middle of the Road: Redemption at Option of Investors:
At the election of the holders of at least [two thirds] of the Series [A]
Preferred, the Company shall redeem the outstanding Series [A]
Preferred in three equal annual installments beginning on the [fifth]
anniversary of the Closing. Such redemptions shall be at a purchase
price equal to the Original Purchase Price plus declared and unpaid
dividends.
Company Favorable: None.
Conversion and Automatic Conversion

Conversion (see Figure 6) is a short clause that is not
considered Investor nor Company Favorable, because when
conversion happens, it is always assumed to be at an event
in which preferred convert to common shares on a 1:1
basis. The purpose of this clause is to enable preferred
shareholders to convert in the event of a liquidity event that
is likely to generate a return that is higher than the multiple
that is prescribed as mandated in the Liquidation Preference
section. Investors who are only purchasing preferred stock
will often give up their preferred rights if a transaction
would yield a higher return. Many of the issues that
preferred investors have about control and preferred stock
become secondary in a liquidity event that promises them
greater upside than that dictated in the Liquidation
Preference clauses previously discussed.
Consequently, it is important to consider the relationship

between the Liquidation Preference Clause and the
Conversion Clause.
In the face of an IPO, the preferred investor will have

unique concerns, which are addressed in the Automatic
Conversion clause that is proposed in the term sheet. The
Automatic Conversion clause, described in Figure 6,
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specifically describes the range of powers which preferred

investors may strive to require in the event a company
pushes to go public.
IPOs are not a panacea when it comes to liquidity. A

second-rate underwriter who pushes to raise a small amount
of money through an IPO could well set a company up to
perform poorly on the public markets. If the stock is thinly
traded, the preferred investor is left with little ability to
trade out of the stock and analysts and market makers have
little motivation to follow the stock. Consequently, there
are two variables that differentiate the Investor Favorable
and Company Favorable clauses in Figure 6. They are the
number of times the originalpurchase price of the preferred
stock will automatically convert into common and facilitate
a public offering, and the amount of money that will
qualify an IPO as acceptable to the preferred. The preferred
investor will contend that the extent to which the multiple
is high and the amount of money that is raised is high will
determine the success of the IPO.
The choice of language in this clause qualifies the type of

underwriter who is likely to be involved in an IPO. The size
of the IPO, whether it is Investor Favorable or Company
Favorable, scales downwards as it is considered to be more
Company Favorable. In the event that a smaller-size
offering is contemplated, the type of underwriter is likely to
be less established, because the fees involved and the float
would only be inviting to a less-established firm.
So the modus operandi of the investor and of management,

should an IPO be contemplated that will generate a greater
amount of liquidity, is to work together. The higher number
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of times the original purchase price at which an investor

states he will be comfortable converting is really a way for
the investor and the investor class to protect itself and to
make sure that the IPO will generate liquidity of a certain
multiple. It is difficult to generalize, but depending on the
investor, investors are looking at a two- to three-year time
frame, and a minimum of a three to four times return in that
period if not greater. If one considers a net return of 35
percent to the investor in a VC fund to be a goal that an
investor may be looking for, the VC will have to return
close to 50 percent on all his or his investments in order to
produce this return net of fees. An investment would have
to do eight times in five years in order to produce a gross
return of 52 percent; the effective gross return of the VCs
portfolio will of course be significantly lower and the need
for the VC to get a return of over 50 percent higher if the
success of the one investment must make up for other failed
companies in the VCs portfolio. The time value of money
weighs heavily in a VCs assessment of an opportunity.
Entrepreneurs' projections of returns are likely to be more

aggressive than the actual performance of a company. So
when VCs make their predictions and entrepreneurs take
exception to what appear to be the aggressive multiples of
VCs, what entrepreneurs may fail to accept or realize is that
VCs will by their nature be likely to discount an
entrepreneurs projections. It is for this reason that
milestones can be a middle ground tool in balancing the
expectations of VCs and entrepreneurs.
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FIGURE 6
(4) Conversion: [Investor Favorable, Middle of the Road and

Company Favorable are the same.]
The holders of the Series [A] Preferred shall have the right to convert
the Series [A] Preferred, at any time, into shares of Common Stock.
The initial conversion rate shall be 1:1, subject to adjustment as
provided below.
(5) Automatic Conversion:
Investor Favorable: The Series [A] Preferred shall be

automatically converted into Common Stock, at the then applicable
conversion price, (i) in the event that the holders of at least two thirds
of the outstanding Series [A] Preferred consent to such conversion or
(ii) upon the closing of a firmly underwritten public offering of shares
of Common Stock of the Company at a per share price not less than [3
times the Original Purchase Price] per share and for a total offering
with net proceeds to the Company of not less than $40 million (a
"Qualified IPO").
Middle of the Road: The Series [A] Preferred shall be

conversion price, (i) in the event that the holders of at least two thirds
of Common Stock of the Company at a per share price not less than [2
times the Original Purchase Price] per share and for a total offering
with gross proceeds to the Company of not less than $25 million (a
"Qualified IPO").
Company Favorable: The Series [A] Preferred shall be

conversion price, (i) in the event that the holders of at least a majority
of Common Stock of the Company at a per share price not less than
two times the Original Purchase Price (as adjusted for stock splits and
the like) and for a total offering of not less than $5 million, before
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deduction of underwriters commissions and expenses (a "Qualified

IPO").
Dilution Clauses
The single most important consideration when raising
funds is anticipating how, as a company grows, new rounds
of financing will affect the value of the shares of
company's existing shareholders. Dilution clauses are the
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 they
paid in a prior round. The Internet craze produced some
excellent examples of this. Companies that were able to
raise millions with only a business plan at high pre-money
valuations quickly found themselves and their shareholders
in a very unhappy position when they went out for
subsequent rounds of funding in a bear funding market.
Many companies that had actually executed to plan found
that they were unable to raise money at higher valuations
and, in some cases, had to accept lower pre-money
valuations in subsequent rounds than their post-money
valuations in prior rounds.
Dilution clauses are important in the event that a

company's future financing results in a round of financing
at the same price as the previous round, called a flat round,
or in a round in which share prices are, when taking
dilution into account, lower than the share prices of a
previous round, called a down round. The three clauses in
Figure 7 stipulate ways of calculating conversion prices in
the event that a future share price is dilutive to the investors
of the preferred round.
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The most Investor Favorable clause implements what is

called a full ratchet, which means that the effective cost and
ownership percentage in the company for the preferred
investor who invested at a given price in a prior round
adjusts so that the cost and ownership percentage to the old
investor is as if that investor invested in the new round
side-by-side. So, if a share price at a Series A Preferred
round is $2, and subsequently there is a down round and the
share price in a Series B Preferred round is $1, the full
ratchet would allow the Preferred A investor to benefit at
the time of conversion into common from an adjustment
that ensures that the conversion price of his shares is $1, the
same conversion price of the new Series B. Because the
value per purchase price for Preferred B investors may drop
to $1, the conversion price at which that Preferred B
investor may convert to common will be set at $1. With a
full ratchet, the conversion price at which the Preferred A
investor will be allowed to convert his shares will be
adjusted in the company charter from $2 to $1, prior to any
adjustments for cumulative dividends for example. At that
point in time when the Preferred A investor chooses to
convert his shares to common, he will convert at a price of
$1 instead of $2. The cost for this is to the holders of
common stock, whose shares will be the ones to get diluted.
Hence the conundrum for companies that are able to
receive high pre-money valuations early in the life of a
company. The entrepreneur may think that this is a risk
worth taking, however valuations that are prematurely high
in early rounds can adversely affect the marketability of a
company in a later round. Investors who come to the table
may sense that the management and its previous investors
had lofty and inappropriate expectations and that as a result
management may be difficult to work with or to rely on
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when it comes to future performance. The economic

consequences of a down round can also be devastating for
existing shareholders whose impatience and soured
demeanor can create a less than welcoming environment
for new investors.
The Middle of the Road clause results in some dilution for

existing preferred shareholders in the event of a future
round at a lower price. The clause requires a weighted
average conversion which means that the conversion price
which is established for an existing class of preferred
shares must be changed. The conversion price is simply the
price at which the preferred would convert to common. A
company's charter will typically state that each share of
preferred will convert into the number of shares of common
that you get when you divide the preferred price, which in
our example above was $2, by the preferred conversion
price, which in this case would initially be stated as $2 in
the company's charter. In a down-round which effects a
weighted average adjustment, the conversion price which is
stated in the company's charter must be adjusted and the
number of common shares which the preferred is then able
to purchase upon conversion is determined by a new
conversion price. The following formula on the next page is
used to determine the new conversion price for the
preferred when a weighted average adjustment is brought
into effect:
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# of Shares of Common
which amount paid for
Preferred B would
# of Shares of Common + Purchase if at old
Equivalent Outstanding Prior to Preferred A
Old Preferred A Preferred B Round Conversion Price
Conversion Price X
# of Shares of Common Equivalent + # of New Shares

Outstanding Prior to Preferred B Round of Preferred B
Issued
In applying this formula, consider the example used in the

full ratchet discussion: a $2 Conversion Price for Preferred
A that must be adjusted when a subsequent Preferred B
round of 4 million shares is priced at $1 per share. Let us
assume that the company had 13 million common
equivalent shares outstanding prior to the Preferred B
round. Let us also assume that 2 million shares or $4
million had been received from the Preferred A investors in
the prior round. Were $4 million to purchase Common at
the Conversion Price for the Preferred A as established in
the company's charter at the time of the Preferred A round,
it would in effect have the buying power to purchase 2
million shares. The resultant weighted average price per
share for the Preferred A investor in this scenario would be
$1.76 per share; this was derived by applying the formula
and our assumptions as follows:
Common which
# of Shares of Amount Paid for
Common Equivalent Preferred B would
outstanding Prior to Purchase if at old
Preferred B Round Preferred A
(13,000,000) + Conversion Price
Old Preferred A (2,000,000)
Conversion Price X
($2)
# of Shares of Common # of New Shares of
Equivalent outstanding Preferred B issued
prior to Preferred B Round + (4,000,000)
(13,000,000)
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It is important to note that the Middle of the Road example

below includes a "play-or-lose" provision which is not
always seen in deals. The provision in this case would
require a prior investor to invest his pro-rata share of a
subsequent round.
The Company Favorable scenario is one in which there is

no dilution protection for the investor. This is typically only
seen in first angel rounds, in which all common stocks and
stockholders are treated equally.
FIGURE 7
(6) Anti-dilution Provisions:
Investor Favorable: The conversion price of the Series [A]

Preferred will be subject to a full ratchet adjustment in the event that
the Company issues additional equity securities (other than the reserved
employee shares described under "Employee Pool") at a purchase price
less than the applicable conversion price. The conversion price will also
be subject to proportional adjustment for stock splits, stock dividends,
recapitalizations, and the like.
Middle of the Road: The conversion price of the Series [A]

Preferred will be then subject to a weighted average adjustment (based
on all outstanding shares of Preferred and Common Stock) to reduce
dilution in the event that the Company issues additional equity
securities (other than the reserved employee shares described under
"Employee Pool") at a purchase price less than the applicable
conversion price. The conversion price will also be subject to
proportional adjustment for stock splits, stock dividends,
recapitalizations, and the like. This anti-dilution protection is subject to
a play-or-lose provision that provides that adjustments will be made to
the Series [A] Conversion Price only if the Series [A] holder
participates in such dilutive offering to the extent of its pro rata equity
interest in the Preferred. Any investor who does not participate in a
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future financing forfeits the benefits of dilution protection [for all

future rounds of financing/only for that financing round].
Company Favorable: The conversion price of the Series [A]

Preferred will be subject to proportional adjustment for stock splits,
stock dividends, recapitalizations, and the like.
Voting Rights
Voting rights means that in the event that a shareholder
vote is called, all shares are treated equally (see Figure 8).
It is important to note that there are certain protective
provisions that are articulated in Section 8 of this sample
term sheet (see Figure 9) that will allow the preferred
investor to have powers that do not require the vote of all
shareholders. Clearly therefore, voting rights are important
to preferred investors, but their level of influence is
supplemented by additional powers, examples of which are
articulated in Figure 9.
FIGURE 8
(7) Voting Rights: [Investor Favorable, Middle of the Road and
Company Favorable are the same.]
The Series [A] Preferred will vote together with the Common Stock
and not as a separate class except as specifically provided herein or as
otherwise required by law. Each share of Series [A] Preferred shall
have a number of votes equal to the number of shares of Common
Stock then issuable upon conversion of such share of Series [A]
Preferred.
Protective Provisions
Protective provisions effectively enable the class of shares
that are being contemplated to have certain powers
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associated with them (see Figure 9). Any action taken by

the class of shares holding protective provisions would
require consent of some proportion of the shareholders of
that class. The extent to which these protective provisions
are Investor Favorable or Company Favorable will depend
upon the type of powers and to what extent the powers are
in favor of the investors or the company.
Typically, the concerns that new investors will have, which

are often written into the protective provisions section,
include whether new shares can be issued with or without
the approval of the class of shareholders holding the
protective provisions. This means that the preferred shares
would, in the case of the Investor Favorable and Middle of
the Road examples in Figure 9, like to have an influence
and the power to approve any future round of financing that
will have a dilutive effect on the value of their securities. In
the Investor Favorable example, the preferred will require
that the rights and preferences associated with the previous
stock cannot be changed without a majority approval of
that class of preferred. The preferred may want to be sure
that redemption of common stock by employees who may
wish to sell the stock cannot transpire without their
approval, and that significant events that would affect the
course of the company's business cannot transpire without
the approval of that series of preferred. These would
include a merger, a reorganization, a sale, amendments to
the company's certificate of incorporation, amendments to
its bylaws, increases or decreases in the company's number
of authorized shares or the size of the board, as well as
payments of or the declaration of dividends.
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The Middle of the Road example shows powers that are

diluted or reduced when compared to the Investor
Favorable version. In the Company Favorable example,
these powers are virtually eliminated.
The Protective Provisions section is significant in that it

articulates and captures the extent to which the investors
are expecting to influence certain actions by the company.
FIGURE 9
(8) Protective Provisions:

Investor Favorable: The consent of the holders of at least two
thirds of the Series [A] Preferred shall be required for any action that (i)
alters or changes the rights, preferences, or privileges of the Series [A]
Preferred; (ii) increases or decreases the authorized number of shares of
Series [A] Preferred; (iii) creates (by reclassification or otherwise) any
new class or series of shares having rights, preferences, or privileges
senior or pari passu to those of the Series [A] Preferred; (iv) results in
the redemption of any shares of Common Stock (other than pursuant to
employee agreements); (v) results in any merger, other corporate
reorganization, sale of control, or any transaction in which all or
substantially all of the assets of the Company are sold or exclusively
licensed; (vi) amends or waives any provision of the Company's
Certificate of Incorporation or Bylaws; (vii) increases or decreases the
authorized size of the Company's board; or (viii) results in the payment
or declaration of any dividend on any shares of Common or Preferred
Stock.
Middle of the Road: For so long as at least [one-half of the shares

originally issued] shares of Series [A] Preferred remain outstanding,
consent of the holders of at least two thirds of the Series [A] Preferred
shall be required for any action that (i) alters or changes the rights,
preferences, or privileges of the Series [A] Preferred; (ii) increases or
decreases the authorized number of shares of Common or Preferred
Stock; (iii) creates (by reclassification or otherwise) any new class or
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series of shares having rights, preferences, or privileges senior to or

pari passu with the Series [A] Preferred; (iv) results in the redemption
of any shares of Common Stock (other than pursuant to equity
incentive agreements with service providers giving the Company the
right to repurchase shares upon the termination of services); (v) results
in any merger, other corporate reorganization, sale of control, or any
transaction in which all or substantially all of the assets of the
Company are sold; or (vi) amends or waives any provision of the
Company's Certificate of Incorporation or Bylaws relative to the Series
[A] Preferred.
Company Favorable: The consent of the holders of at least 50

percent of the Series [A] Preferred shall be required for any action that
(i) adversely alters or changes the rights, preferences, or privileges of
the Series [A] Preferred, or (ii) decreases the authorized number of
shares of Series [A] Preferred.
Board Composition
The language of any Board Composition and Meetings
section is typically straightforward. But the board
composition that is proposed will typically contemplate an
effective change in the influence, balance, and role of the
board as a result of the addition of or substitution of board
representation of the investors proposing the term sheet.
Investor Favorable clauses will typically propose a board
composition that will give the class of shares created as a
result of the contemplated investment a majority control
directly or indirectly on the board of the company. A
Middle of the Road scenario would perhaps contemplate an
odd-numbered board that proposes an equal number of
seats to the common or the management of the company,
an equal number to the preferred stock or venture investors,
and one independent who is mutually agreed upon.
The Company Favorable scenario below is favorable to the

company because on an as-converted basis, the founders
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and their friends and family would own enough common

stock to ensure a majority vote on a shareholder-vote basis
to support the profile of a board that the founders and
management would prefer.
FIGURE 10
(9) Board Composition and Meetings:

Investor Favorable: The size of the Company's Board of Directors
shall initially be set at [three]. The holders of the Series [A] preferred,
voting as a separate class, shall be entitled to elect two members of the
Company's Board of Directors, the holders of the Common Stock shall
be entitled to elect one member,and the third member shall be mutually
agreed upon. The Board shall initially be comprised of
[ ], [ ], and [ ].
Board of Directors will be elected annually. Board of Directors
meetings will be held at least four times per year. Until the Company is
profitable or the Board otherwise agrees, Board meetings will be
targeted for every two months, or six times per year.
Middle of the Road: The size of the Company's Board of Directors

shall be set at [five]. The Board shall initially be comprised of
[ ], [ ], [ ],
[ 1, and [ ]. At each meeting for
the election of directors, the holders of the Series [A] Preferred, voting
as a separate class, shall be entitled to elect one member of the
Company's Board of Directors, the holders of Common Stock, voting
as a separate class, shall be entitled to elect two members, and the
remaining directors will be mutually agreed upon by the Common and
Preferred. It is anticipated that the Company's CEO will occupy one of
the remaining seats. Board of Directors meetings will be held at least
four times per year. Until the Company is profitable or the Board
otherwise agrees, Board meetings will be targeted for every two
months, or six times per year.
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Company Favorable: The size of the Company's Board of Directors

shall initially be set at [five]. All directors shall be elected by the
shareholders voting on an as-converted basis.
Special Board Approval Items

The Special Board Approval Items section is a rider that
may or may not be included in a term sheet; it is entirely
negotiable (see Figure 11). But it is a critical section to
understand, because some of these issues may represent
issues of control, such as a requirement that the board
provide approval for hiring of officers of the company or
senior management or for the assumption of debt by the
company above certain prescribed levels that have not
previously been articulated in the company's articles of
incorporation or bylaws.
FIGURE 11
(10) Special Board Approval Items:

Board approval will be required for:
1. Hiring of all officers of the Company.
2. Any employment agreements (approval by a majority of
disinterested Directors, or a Compensation Committee when
established).
3. Compensation programs including base salaries and bonus programs
for all officers and key employees (approval by a majority of
disinterested Directors or a Compensation Committee when
established).
4. All stock option programs as well as issuance of all stock and stock
options (approval by a majority of disinterested Directors or a
Compensation Committee when established).
5. Annual budgets, business plans, and financial plans.
6. All real estate leases or purchases.
7. Execution of entrance obligations or commitments, including capital
equipment leases or purchases, with total value greater than
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$[ ] and which are outside the most recent business plan or

budget approved bythe Board ofDirectors.
Information Rights
Information rights define the extent to which investors are
given access to information in a company (see Figure 12).
The most complete and Investor Favorable type of
investors rights are typically referred to by the term
forensic audit: An investor requires that he be able to
examine almost any document, audited or unaudited,
financial or otherwise, that may exist in a company's files
or accounting software. A Middle of the Road scenario is
clearly less Investor Favorable and dilutes the power or the
type of demands that can be made by the investors in terms
of access to information. A Company Favorable scenario
limits the amount of information that it is required to
provide to investors. The extent to which entrepreneurs
push back on the language proposed in the Information
Rights section will reveal the extent to which they may be
control-oriented by nature or have something to hide.
One important area to examine in the Information Rights

section is whether the requirements that are articulated may
be unique to a specific firm; a firm may require from all of
its investments the type of rights proposed. These requests
may not signal the attitude of the firm, but some of its past
experiences. In the case of asking for forensic audit rights,
for example, an investor may have been burned in the past
and now requires the ability to closely examine the books
of their invested entities.
Whether this transpires is another issue. It may be that

unless the investor suspects fraud or other questionable
activities, specific types of information are never actually
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requested. Nevertheless, information rights can be a

disruptive and concerning clause, unless the entrepreneur
explores the investor's background and rationale for
including it.
It is also uncommon for an investor to require observer

rights, which is the ability to sit it on board meetings and
have access to information at the board level. It does not
allow them the rights to vote; however entrepreneurs
should not be naive. Observers can have significant voice
and influence in the mood and tenor of board discussions.
Particularly with strategic investors, who can glean levels
of information that otherwise might not be shared in as
timely and open a fashion with all investors.
FIGURE 12
(11) Information Rights:

Investor Favorable: So long as an Investor continues to hold
shares of Series [A] Preferred or Common Stock issued upon
conversion of the Series [A] Preferred, the Company shall deliver to the
Investor audited annual financial statements, audited by a Big Five
accounting firm, and unaudited quarterly financial statements. In
addition, the Company will furnish the Investor with monthly and
quarterly financial statements and will provide a copy of the Company's
annual operating plan within 30 days prior to the beginning of the fiscal
year. Each Investor shall also be entitled to standard inspection and
visitation rights.
Middle of the Road: So long as an Investor continues to hold

Investor audited annual financial statements audited by a Big Five
accounting firm and unaudited quarterly financial statements. So long
as an Investor holds not less than [one quarter of the Shares originally
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issued] shares of Series [A] Preferred (or [one quarter of the Shares
originally issued] shares of the Common Stock issued upon conversion
of the Series [A] Preferred, or a combination of both), the Company
will furnish the Investor with monthly financial statements compared
against plan and will provide a copy of the Company's annual operating
plan within 30 days prior to the beginning of the fiscal year. Each
Investor shall also be entitled to standard inspection and visitation
rights. These provisions shall terminate upon a public offering of the
Company's Common Stock.
Company Favorable: So long as an Investor continues to hold

Investor audited annual financial statements audited by a Big Five
accounting firm and unaudited quarterly financial statements. Each
Investor shall also be entitled to standard inspection and visitation
rights. These provisions shall terminate upon a registered public
offering ofthe Company's Common Stock.
Registration Rights
The registration rights section stipulates the extent to which
preferred versus common stock will share equal or
preferential treatment when their securities have been
converted and are participating in a public offering or
registration subsequent to a public offering (see Figure 13).
This will depend upon whether the registration rights
section is Investor or Company Favorable. The extent to
which the Registration Rights language of a term sheet
stands up at the time of a contemplated IPO will be more a
function of the influence of the investor at the time of the
public offering, the nature of the financial markets at the
time of the offering, and the strength of the underwriter's
influence at that time.
The weight and influences of these clauses can vary

significantly depending upon the timing and context of
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public offerings. It is possible that in the excitement of the

public offering an underwriter, depending upon the
underwriter's weight and influence in the public markets,
may require significant changes to the manner in which
these clauses are treated at the time of an actual offering
and thereafter. So, depending upon the situation at the time
of an offering, the underwriters influence may be such that
some of the language contemplated in this section and later
incorporated in the company's articles of incorporation or
charter may be revisited.
The variables here are the number of registrations that the

company is obligated to effect, the period of time in which
these registrations are required, and the economic cost of
going through registration.
FIGURE 13
(12) Registration Rights:

Investor Favorable: Demand Rights: If Investors holding at least
30 percent of the outstanding shares of Series [A] Preferred, including
Common Stock issued on conversion of Series [A] Preferred
("Registrable Securities"), request that the Company file a Registration
Statement having an aggregate offering price to the public of not less
than $5,000,000, the Company will use its best efforts to cause such
shares to be registered; provided, however, that the Company shall not
be obligated to effect any such registration prior to the second
anniversary of the Closing. The Company shall have the right to delay
such registration under certain circumstances for two periods not in
excess of ninety (90) days each in any twelve (12) month period.
The Company shall not be obligated to effect more than two (2)
registrations under these demand right provisions, and shall not be
obligated to effect a registration (i) during the ninety (90) day period
commencing with the date of the Company's initial public offering, or
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(ii) if it delivers notice to the holders of the Registrable Securities

within thirty (30) days of any registration request of its intent to file a
registration statement for a Qualified IPO within ninety (90) days.
Company Registration: The Investors shall be entitled to "piggy-back"

registration rights on all registrations of the Company or on any
demand registrations of any other investor subject to the right,
however, of the Company and its underwriters to reduce the number of
shares proposed to be registered pro rata in view of market conditions.
If the Investors are so limited, however, no party shall sell shares in
such registration other than the Company or the Investor, if any,
invoking the demand registration. No shareholder of the Company shall
be granted piggy-back registration rights that would reduce the number
of shares includable by the holders of the Registrable Securities in such
registration without the consent of the holders of at least two thirds of
the Registrable Securities.
S-3 Rights: Investors shall be entitled to an unlimited number of

demand registrations on Form S-3 (if available to the Company) so
long as such registered offerings are not less than $500,000. The
Company shall not be obligated to file more than one S-3 registration in
any six month period.
Expenses: The Company shall bear registration expenses (exclusive of

underwriting discounts and commissions) of all such demands,
piggy-backs, and S-3 registrations (including the expense of one special
counsel of the selling shareholders).
Transfer of Rights: The registration rights may be transferred to (i) any

partner or retired partner of any holder which is a partnership, (ii) any
family member or trust for the benefit of any individual holder, or (iii)
any transferee who acquires at least [one quarter of the shares originally
issued] shares of Registrable Securities; provided the Company is given
written notice thereof.
Standoff Provision: No Investor holding more than 1 percent of the

Company will sell shares within 120 days of the effective date of the
Company's initial public offering if all officers, directors, and other 1
percent shareholders are similarly bound.
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Other Provisions: Other provisions shall be contained in the Investor

Rights Agreement with respect to registration rights as are reasonable,
including cross-indemnification, the period of time in which the
Registration Statement shall be kept effective, and underwriting
arrangements.
Middle of the Road: Demand Rights: If Investors holding more

than 50 percent of the outstanding shares of Series [A] Preferred,
including Common Stock issued on conversion of Series [A] Preferred
("Registrable Securities"), request that the Company file a Registration
Statement having an aggregate offering price to the public of not less
than $5,000,000, the Company will use its best efforts to cause such
shares to be registered; provided, however, that the Company shall not
be obligated to effect any such registration prior to the third anniversary
of the Closing. The Company shall have the right to delay such
registration under certain circumstances for one period not in excess of
ninety (90) days in any twelve (12) month period.
The Company shall not be obligated to effect more than two (2)
registrations under these demand right provisions, and shall not be
obligated to effect a registration (i) during the one hundred eighty (180)
day period commencing with the date of the Company's initial public
offering, or (ii) if it delivers notice to the holders of the Registrable
Securities within thirty (30) days of any registration request of its intent
to file a registration statement for such initial public offering within
ninety (90) days.
Company Registration: The Investors shall be entitled to "piggy-back"

registration rights on all registrations of the Company or on any
demand registrations of any other investor subject to the right,
however, of the Company and its underwriters to reduce the number of
shares proposed to be registered pro rata in view of market conditions.
If the Investors are so limited, however, no party shall sell shares in
such registration other than the Company or the Investor, if any,
invoking the demand registration. No shareholder of the Company shall
be granted piggy-back registration rights that would reduce the number
of shares includable by the holders of the Registrable Securities in such
registration without the consent of the holders of at least two thirds of
the Registrable Securities.
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S-3 Rights: Investors shall be entitled to two (2) demand registrations

on Form S-3 (if available to the Company) so long as such registered
offerings are not less than $500,000.

underwriting discounts and commissions) of all such demands,
piggy-backs, and S-3 registrations (including the expense of one special
counsel of the selling shareholders not to exceed $15,000).
Transfer of Rights: The registration rights may be transferred to (i) any

partner or retired partner of any holder which is a partnership, (ii) any
family member or trust for the benefit of any individual holder, or (iii)
any transferee who acquires at least [one eighth of the shares originally
issued] shares of Registrable Securities; provided the Company is given
written notice thereof.
Lock-Up Provision: If requested by the Company and its underwriters,

no Investor will sell its shares for a specified period (but not to exceed
180 days) following the effective date of the Company's initial public
offering; provided that all officers, directors, and other 1 percent
shareholders are similarly bound.

Rights Agreement with respect to registration rights as are reasonable,
including cross-indemnification, the period of time in which the
Registration Statement shall be kept effective, and underwriting
arrangements.
Company Favorable: Company Registration: The Investors shall be

entitled to "piggy-back" registration rights on all registrations of the
Company subject to the right, however, of the Company and its
underwriters to reduce the number of shares proposed to be registered
pro rata among all Investors in view of market conditions.
S-3 Rights: Investors shall be entitled to two (2) demand registrations

on Form S-3 (if available to the Company) so long as such registered
offerings are not less than $500,000.

underwriting discounts and commissions) of all such piggy-backs, and
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S-3 registrations (including the expense of a single counsel to the

selling shareholders not to exceed $5,000).
Standoff Provision: If requested by the underwriters no Investor will

sell shares of the Company's stock for up to 180 days following a
public offering by the Company of its stock.
Termination of Rights: The registration rights shall terminate on the

date three (3) years after the Company's initial public offering, or with
respect to each Investor, at such time as (i) the Company's shares are
publicly traded, and (ii) the Investor is entitled to sell all of its shares in
any ninety (90) day period pursuant to SEC Rule 144.

Rights Agreement with respect to registration rights as are reasonable
and standard, including cross-indemnification, the period of time in
which the Registration Statement shall be kept effective, and
underwriting arrangements.
Right of First Refusal

The Right of First Refusal is a clause that investors include
to ensure that an investor is able to have influence over the
sale of any shares, be they preferred or common, and to
retain the ability to either purchase those shares or restrict
their sale (see Figure 14). The degree to which these are
Company or Investor Favorable is a function of the amount
of influence the company has over an investor's right to
refuse a sale.
FIGURE 14
(13) Right of First Refusal:

Investor Favorable: The Investors shall have the right in the event
the Company proposes to offer equity securities to any person (other
than securities issued pursuant to employee benefit plans or
acquisitions, in each case as approved by the Board of Directors,
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including the director elected by holders of the Series [A] Preferred) to

purchase on a pro rata basis all or any portion of such shares. Any
securities not subscribed for by an Investor may be reallocated among
the other Investors. If the Investors do not purchase all of such
securities, that portion that is not purchased may be offered to other
parties on terms no less favorable to the Company for a period of sixty
(60) days. Such right of first refusal will terminate upon a Qualified
IPO.
Middle of the Road: Investors holding at least [one eighth of the

shares originally issued] shares of Registrable Securities shall have the
right in the event the Company proposes to offer equity securities to
any person (other than securities issued pursuant to employee benefit
plans or pursuant to acquisitions) to purchase their pro rata portion of
such shares. Any securities not subscribed for by an eligible Investor
may be reallocated among the other eligible Investors. Such right of
first refusal will terminate upon a Qualified IPO.
Company Favorable: Each Investor holding at least [one quarter of

the shares originally issued] shares of Series [A] Preferred shall have
the right in the event the Company proposes to offer equity securities to
any person (other than securities issued to employees, directors, or
consultants or pursuant to acquisitions, etc.) to purchase its pro rata
share of such securities (based on the total fully diluted number of
common stock equivalents outstanding). Such right of first refusal will
terminate upon an underwritten public offering of shares of the
Company.
Conditions Precedent
The Conditions Precedent section in many ways presents a
road map to the completion of the financing that is
proposed by the term sheet (see Figure 15).
It details the due diligence that must be completed once the

term sheet has been agreed upon and highlights that a round
of financing will not be complete until the final purchase
and sale agreement has been signed by prospective
investors, any amendments to the articles of incorporation
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that may be necessary have been made, and the money is in

the bank.
This section is provided more for education purposes,

because it is often not necessarily included in entirety in
most term sheets. A company, in contemplating and
agreeing to a term sheet, should be expecting to do
whatever it takes to accommodate the investors' due
diligence.
FIGURE 15
(14) Conditions Precedent:
Investor Favorable: This proposal is non-binding, and is
specifically subject to:
(1) Completed due-diligence reviews satisfactory to [Investor] and

Investors'counsel, specifically including review of [InvestorCounsel].
(2) Customary stock purchase and related agreements satisfactory to
[Investor] and Investors' counsel, including stockoptionplan.
(3) Intellectual property, confidentiality, and non-compete agreements
with all key employees of the Company satisfactory to Investors'
counsel.
(4) Satisfactory review of the Company's compensation programs and
stock allocation and vesting arrangements for officers, key employees,
and others, as well as any existing employment or similar agreements.
(5) Both the Company and Investors will negotiate exclusively and in
good faith toward an investment as outlined in this proposal and agree
to "no-shop" provisions for reasonable and customary periods of time.
(6) Conversion of all outstanding convertible securities (e.g.,
convertible notes or preferred stock issued prior to the date of this
Series A financing).
Middle of the Road and Company Favorable: This proposal is non-

binding, and is specifically subject to:
(1) Completed due-diligence reviews satisfactory to [Investor] and
Investors' counsel, specifically including review of [Investor Counsel].
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(2) Customary stock purchase and related agreements satisfactory to

[Investor] and Investors' counsel, including stockoptionplan.
(3) Both the Company and Investors will negotiate exclusively and in
good faith toward an investment as outlined in this proposal and agree
to "no-shop" provisions for reasonable and customary periods of time.
Purchase Agreement
The Purchase Agreement is the document that investors
sign in order to purchase shares in a company. The major
difference between the Investor Favorable and Middle of
the Road passages in Figure 16 is the requirement in the
Investor Favorable section that the founders make certain
representations. The extent to which the founders warrant
certain items provides investors both with more comfort
and with an additional tool that enables them to have legal
recourse against a founder in the event that such
representations prove to be inaccurate after a financing.
The Company Favorable passage in this example not only
excludes the requirement for representations by the
founders but lowers the bar with respect to the percentage
of the class of stock that must approve any amendment to
the stockholder's agreement. Often a series of stock will be
purchased by multiple parties, so the lower the percentage
required to make an amendment to the stockholder's
agreement the greater the flexibility of the company going
forward.
Once a term sheet has been accepted, a company and its

counsel will be expected to produce certain legal and other
documentation. The first item will be a Purchase
Agreement, which provides for the purchase of the form of
security that is being contemplated in the term sheet. The
second will be a form of agreement called the Investment
Security, which details the terms and conditions of the
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actual security that the investor purchases. It will describe

the liquidation rights, voting rights, dividends, etc. that are
provided to the venture investor. The third is a Registration
Rights Agreement that provides the venture investor with
the right to force registration of the securities held, under
the Securities Act and other applicable laws. The fourth is a
Stockholder's Agreement, which is entered into among the
company, the founders, and the firm. This agreement refers
to and relates to the governance of the company and any
sales of the securities by the company's management or
current stockholders.
FIGURE 16
(15) Purchase Agreement:
Investor Favorable: The investment shall be made pursuant to a
Stock Purchase Agreement reasonably acceptable to the Company and
the Investors, which agreement shall contain, among other things,
appropriate representations and warranties of the Company,
representations of the Founders with respect to patents, litigation,
previous employment and outside activities, covenants of the Company
reflecting the provisions set forth herein, and appropriate conditions of
closing, including an opinion of counsel for the Company. The Stock

Purchase Agreement shall provide that it may only be amended and any
waivers thereunder shall only be made with the approval of the holders
of two thirds of the Series [A] Preferred. Registration rights provisions
may be amended or waived solely with the consent of the holders of
two thirds of the Registrable Securities.
Middle of the Road: The investment shall be made pursuant to a

appropriate representations and warranties of the Company, covenants
of the Company reflecting the provisions set forth herein, and
appropriate conditions of closing, including an opinion of counsel for
the Company. The Stock Purchase Agreement shall provide that it may
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only be amended and any waivers thereunder shall only be made with
the approval of the holders of two thirds of the Series [A] Preferred.
Registration rights provisions may be amended or waived solely with
the consent of the holders of two thirds of the Registrable Securities.
Company Favorable: The investment shall be made pursuant to a

appropriate representations and warranties of the Company, covenants
of the Company reflecting the provisions set forth herein, and
appropriate conditions of closing, including an opinion of counsel for
the Company. The Stock Purchase Agreement shall provide that it may
only be amended and any waivers thereunder shall only be made with
the approval of the holders of 50 percent of the Series [A] Preferred.
Registration rights provisions may be amended or waived solely with
the consent of the holders of 50 percent of the Registrable Securities.
Employee Matters
Anyone involved in a financing, whether as employees or
investors, put a high value on flexibility and liquidity. The
terms articulated in the Employee Matters section,
examples of which are contained in Figure 17, will
typically outline the number of shares of common stock
reserved for options pools and specific investing programs,
co-sale agreements, whether key management insurance
will be provided for key employees, and any management
hires that may transpire subsequent to the financing. From
an investor's perspective, the language in this section will
strive to put some reigns on some of the powers employees
and founders may have with regard to their stock in the
company.
When asked what the most important thing is about a deal,

investors will typically say Management, Management,
Management. And so, for example, affording key
employees and founders the ability to cash out of their
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shares in advance of later stage investors is typically

restricted; the Employee Matters section is where the nature
of these restrictions will be articulated. This makes sense if
one assumes that the future value of a company is directly
related to the motivation and performance of founders and
management. It stands to reason that if this class of
stakeholder cashes out early in the game, the company
could be left in a position where it needs to both refresh its
options pools and attract more incentivized management. It
is not uncommon, therefore, that investors will also require
Key Man insurance in order to provide the company with a
buffer in the event that a founder or series of key
employees die.
The degrees to which the examples of text included are

Investor or Company Favorable are really a matter of how
tightly the clauses are drafted and how flexible or
restrictive they are. Often in the early stages of a company,
at the urging of sophisticated angel investors who are
buying common stock or when the first round of preferred
stock is being contemplated by a venture investor, these
issues will be discussed and incorporated into the
company's bylaws in great detail. Once established, there
may be little need in later rounds to amend these terms or
incorporate them into a term sheet.
The section may articulate, for example, whether future

options, if issued, will be issued and if so for whom they
will be dilutive. A term sheet may require that additional
options be issued on a pre-money basis, therefore only
diluting existing investors and not the new investors. There
may, however, be some unissued options in an existing
pool, in which case new investors are likely to agree that
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the financing assumes that any future number of options, up

to some specific number, will be equally dilutive to current
and new shareholders.
Typically, the price of a share that is incorporated in the

term sheet reflects the expectations of the new investor as
to how options will be treated. And these expectations may
be further detailed in the Employee Matters section. Often a
new investor assumes that a board would determine
rationally and reasonably how options would be issued
should a policy already have been put in place with regard
to issuance of options.
FIGURE 17
(16) Employee Matters:
Investor Favorable:
Employee Pool: Upon the Closing of this financing there will be
[ ] shares of issued and outstanding Common Stock held by the
Founders and an additional [ ] shares of Common Stock
reserved for future issuance to key employees.
Stock Vesting: All stock and stock equivalents issued after the
Closing to employees, directors and consultants will be subject to
vesting as follows: 20 percent to vest at the end of the first year
following such issuance, with the remaining 80 percent to vest monthly
over the subsequent four years. The repurchase option shall provide
that upon termination of the employment of the shareholder, with or
without cause, the Company or its assignee (to the extent permissible
under applicable securities law qualification) retains the option to
repurchase at cost any unvested shares held by such shareholder.
The outstanding Common Stock currently held by the Founders will be

subject to similar vesting terms, with such vesting period beginning as
of the Closing Date.
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Restrictions on Sales: The Company shall have a right of first refusal

on all transfers of Common Stock.
Proprietary Information and Inventions
Agreement: Each officer, employee and consultant of the

Company shall enter into an acceptable proprietary information and
inventions agreement.
Co-Sale Agreement: The shares of the Company's securities held by

the Founders of the Company shall be made subject to a co-sale
agreement (with certain reasonable exceptions) with the holders of the
Series [A] Preferred such that the Founders may not sell, transfer or
exchange their stock unless each holder of Series [A] Preferred has an
opportunity to participate in the sale on a pro rata basis. This right of
co-sale shall not apply to and shall terminate upon a Qualified IPO.
Key-Man Insurance: As soon as reasonably possible after the Closing,

the Company shall procure a key-man life insurance policy for
[ ] in the amount of $1,000,000, naming the Company as
beneficiary; provided, however, that at the election of holders of a
majority of the outstanding Series [A] Preferred, such proceeds shall be
used to redeem shares of Series [A] Preferred.
Management: The Company will, on a best efforts basis, hire a

chief [ ] officer within the six (6) month period following the
closing of the financing.
Middle of the Road:

Employee Pool: Upon the Closing of this financing there will be
r 1 shares of issued and outstanding Common Stock held by the
Founders and an additional [ ] shares of Common Stock
reserved for future issuance to key employees. Promptly after the
Closing, Messrs. [ ] and \ ] will be granted
incentive stock options from the [ ] share pool in the
amount of [ ] shares each exercisable at $0.10 per share,
which options will vest in accordance with the following paragraph.
Stock Vesting: All stock and stock equivalents issued after the
Closing to employees, directors, consultants and other service providers
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will be subject to vesting as follows: [20 percent to vest at the end of

the first year following such issuance, with the remaining 80 percent to
vest monthly over the next four years.] The repurchase option shall
provide that upon termination of the employment of the shareholder,
with or without cause, the Company or its assignee (to the extent
permissible under applicable securities law qualification) retains the
option to repurchase at cost any unvested shares held by such
shareholder.
The outstanding Common Stock currently held by the Founders will be

subject to similar vesting terms, provided that the Founders shall be
credited with two years of vesting as of the Closing, with their
remaining unvested shares to vest monthly over three years.
Restrictions on Sales: The Company shall have a right of first refusal

on all transfers of Common Stock, subject to normal exceptions.
Proprietary Information and Inventions
Agreement: Each officer and employee of the Company shall

enter into an acceptable proprietary information and inventions
agreement.
Co-Sale Agreement: The shares of the Company's securities held by

[ ], [ ], [ ] and
[ ] (the "Founders") shall be made subject to a co-sale
agreement (with certain reasonable exceptions) with the holders of the
Series [A] Preferred such that the Founders may not sell, transfer or
exchange their stock unless each holder of Series [A] Preferred has an
opportunity to participate in the sale on a pro rata basis. This right of
co-sale shall not apply to and shall terminate upon the Company's
initial public offering.
Key-Man Insurance: The Company shall procure a key-man life

insurance policy for [ ] in the amount of $1,000,000,
naming the Company as beneficiary.
Company Favorable: None.
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Closing Date, Legal Counsel, Expenses, and

Finders
These four sections, as detailed in Figure 18, can have a
significant influence over the outcome of a closing and the
economics of a deal.
The closing date needs to be realistic. Entrepreneurs should

consult existing investors or other sources of capital on
what is an optimal closing date. This is to ensure that in the
event that the closing process, including drafting of legal
documents, takes longer than expected the entrepreneur
does not put undue pressure on a new investor or group of
investors to work more quickly than is realistic.
More important is the choice of legal counsel.

Entrepreneurs should not underestimate this. If a company
offers a second or subsequent round of preferred stock, it
may be appropriate for the company's counsel to draft the
documents for the subsequent round, if the new and current
investors are reasonably satisfied with the format and
quality of the documentation for the prior round of
preferred stock.
If the investors are offering to purchase a first round of

preferred stock, Series A, or feel strongly about leading the
drafting process, it would be reasonable to let the investor's
counsel take the lead. In this case it would also be advisable
to ensure that company's counsel is experienced in the type
of transaction contemplated. If the company's counsel is
tasked with the drafting, counsel to the new round of
investors is likely to be very involved. The counsel to the
new investor or to the lead for a syndicate of investors will
want to be actively involved in reviewing and proposing
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changes to any documentation that company's counsel

produces.
If the entrepreneur had a bad experience with company

counsel in drafting a previous round of documents,
changing legal counsel would be a smart idea. Many
venture investors have typically worked with their counsel
on a number of deals and will understandably have a short
fuse if company's counsel is inexperienced or does not
consider the company's account a priority.
There may be a number of firms or parties involved in

financing, and each may have their own attorneys, but the
round should be looking to one legal counsel in particular
to represent the investors.
Expenses can mount up when multiple law firms are

involved. The reality is that if the company prefers to have
its own counsel draft documents, the lead investor's
counsel will try to eliminate duplication of work but will to
an extent be spending an equal amount of time reviewing
and proposing changes to documentation produced by
company's counsel. Entrepreneurs must remember that
most venture investors expect that the expenses of counsel
to the lead investor will be borne by the company as a
consequence of the contemplated financing. Being too
hard-nosed about accommodating a reasonable amount of
expenses on the part of the lead can be mistake.
Finally, the Finders clause details how finder's fees will be

handled. In the example below, the company and the
investor are agreeing to indemnify each other for finder's
fees that may eventualize. Unless a deal is very
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competitive, it is common for an investor to look to the

company to cover expenses related to a finder who
introduced a deal to the investor.
FIGURE 18
Closing Date: [ ], 200[_] (the "Closing

Date").
Legal Counsel: The Company shall select legal counsel

acceptable to [Investor] ([ ]). Unless counsels agree
otherwise, Investors' counsel [ ] shall draft the financing
documents for review by Company counsel.
Expenses:
Investor Favorable: The Company shall pay the reasonable fees
and expenses of Investors' counsel and Company counsel.
Middle of the Road: The Company shall pay the reasonable fees
for one special counsel to the Investors, expected not to exceed
$[25,000 - $35,000], and for Company counsel.
Company Favorable: The Company and the Investors shall each

bear their own legal fees and expenses in connection with the
transaction.
Finders: The Company and the Investors shall each

indemnify the other for any finder's fees for which either is responsible.
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Chapter 4
Valuations and the Term Sheet
Determining Value
The price a significant investor is willing to pay for a
company on a per share basis determines the value on a per
share basis of each of the shares of the company. The
reason term sheets are given such serious consideration is
that typically there are a host of attendant conditions that
new investors wish to attach to the new classes of shares
that are offered in each successive financing in the life of a
company. While a company's valuation is simply a
function of the price the investor is willing to pay,
imbedded in the valuation are a host of assumptions and
expectations of investors that may or may not be shared by
the company. Herein lies the root of the differences that
may arise between the valuations proposed by investors and
those expected or ultimately accepted by a company.
When an entrepreneur is considering the amount of

investment contemplated by an investor or group of
investors, as well as the percentage of the company that the
investor(s) will purchase and the price offered per share, he
should consider three critical issues. First, the value of any
company is often the sum of several parts. An investor may
discount the revenue stream or earnings of one or several
parts of a business and assign different values to different
parts of the business.
Second, the entrepreneur should consider carefully the

effect that any future financing plans or contingent
financing plans may have on the future value of the
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company and that are likely to be open to interpretation and

a point of disagreement for the company and its investors.
Failing to anticipate future capital needs when agreeing to a
share price for a round of financing can be fatal. A
company that is overpriced today or that appears fairly
priced but under-performs and requires a subsequent,
unanticipated round of financing will be met with suspicion
by future investors and likely be penalized, to the
disappointment of current investors. The question to ask is,
where is the valuation going to take the company? This is
as true in public company shares as it is in venture-backed
private companies.
Third, there is imbedded in the value of a share an

expectation that the price for which a share is offered today
is at a discount to some future value. Even if the
entrepreneur and a prospective investor see eye to eye on
future financing needs and the likely revenue numbers and
earnings figures for a company going forward, the likely
value for which a company can be sold or go public at
some future point in time is open to interpretation. The
more adept and informed an entrepreneur is in selecting
and comparing appropriate comparables and considering
the possible effects of depressed markets on future
valuations of those comparables, the more likely his
expectations with regard to future valuations will be
tempered and closer to those of investors.
The mechanics of how pre-money and post-money

valuations can be calculated are discussed in the Post-
Financing Capitalization section of Chapter 3.
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Creating Return on Investment

The quantitative and qualitative factors that influence how
a venture investor determines the pre-money valuation of a
share are as much a function of the investor's internal
hurdles and requirements for a return as they are a result of
his view of what the likely scenario is for a liquidity event
and in what time frame. The expected investment returns
by different types of investors and their internal hurdles
will vary, so the valuations offered to companies will of
course vary.
Venture funds and their investors will usually have clear

expectations with respect to returns; these typically boil
down to an expectation that investments will generate a
minimum of a certain multiple on investment and hence
minimum rates of return. The returns for a venture fund are
a function of fees charged investors and returns generated
from investments. A fund with $100 million in committed
capital will typically charge an annual fee of 2 percent,
which over a 10 year period equates to $20 million in fee
expenses. Simplistically speaking, a venture investor with a
$100 million fund has $250,000 in overhead expense
associated with every $1 million the fund actually invests.
Therefore, a $1 million investment that yields a multiple of
two times actually only yields a net multiple of 1.75 times.
The longer an investment is under management the greater
the spread between the gross return and net return on an
investment. Time value of money weighs heavily in a
venture investor's calculations. And not every investment
does well; a core of investments will excel, a second group
might do one to two times the initial investment, and the
balance are write-offs. An investment that yields a multiple
on original investment of five times invested capital in four
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years would generate the equivalent internal rate of return

(IRR) of 49 percent; the same investment could produce a
return for the investor of only 2.25 times original
investment in two years and yield roughly the same IRR.
Because of the relatively high cost of capital for venture
investors, often internal hurdles for gross IRR returns will
be 50 percent or more. This translates to net returns in the
mid-30s for investors.
How appropriate an investor's valuation is depends not

only upon the stage of the investment and the investor's
internal hurdles, but upon the extent to which the business
is predictable and a thorough evaluation of the different
parts and prospects for a company's business is possible. In
the very early stages in the life of a company expectations
tend to be more tempered, at a time when valuations can
often over or under estimate upside or downside, for the
simple reason that business models and plans change
dramatically in earlier stage companies. Early stage
companies often learn as they go and that can either be at
the expense of investors or can result in some pleasant
surprises. Later stage valuations tend to be more a function
of short- to near-term exit expectations, which are tightly
tied to expectations about the public markets and known
comparables in public markets or to a range of examples of
purchase prices by likely and known potential strategic
acquirers.
For some, the term strategic investor connotes investors

with lower hurdles and an ability to offer rich valuations.
There is truth to the fact that strategic investors will
sometimes overpay when compared to venture investors,
but they typically will only do so when they are acquiring
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proprietary access to technology or other benefits like the

opportunity to develop a sales channel. It is, however, more
likely that strategic investors will look to experienced
venture investors to lead a round and will participate in a
syndicate for strategic as well as financial reasons. The
nature of the relationship that develops between portfolio
company and strategic investor clearly takes on a symbiotic
nature in the best of situations.
Typically, the central concern and focus for an entrepreneur

when reviewing and agreeing to a valuation is how that
valuation and any associated terms in the term sheet may
dilute the entrepreneur. Management should not lose sight
of the opportunity to earn additional awards in the form of
options by proposing aggressive and achievable revenue
plans that accelerate revenue growth and thereby stand to
increase the value pie. Venture investors will typically be
motivated to consider additional awards in the form of
options if they are tied to more aggressive growth and yield
a chance at achieving liquidity earlier.
How to Conduct a Valuation

There are a variety of ways to determine the current value
of a company. The most important task for an investor is to
project the likely value for a company at the time at which
the company may generate liquidity for the investor, either
by being sold or by going public, and then to discount that
future value to the present based on a rate of return that is
preferred by the investor.
Assume, for example, that a group of preferred investors

expect that a media company can be sold for $150 million
in four years. The investors have agreed with management
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that the company is likely to generate $60 million in

revenues in four years and project a valuation of $150
million at time of exit. This is based on two factors: 1)
according to data from Standard & Poors, the average price
for buy-outs of media companies with revenues of between
$100 million and $250 million have been roughly 2.5 times
revenues or 8.5 times Earnings Before Interest Taxes
Depreciation and Amortization (EBITDA); 2) the investors
are fairly confident that management has the capability to
generate EBITDA of $18 million in year four and revenues
of $60 million, so the fixture valuation at time of exit makes
sense.
Now assume that the company is valued at $20 million

post-money today and that the investors own 25 percent of
the company today based on their initial investment of $5
million. Also assume that in 24 months the company is
going to have to raise an additional $10 million of
expansion capital in order to grow the business to a point
where it will have $60 million in revenues at the end of
four years. The venture investor must first determine the
company's value in two years. If the company has, say, $25
million in revenues at that time, it is conceivable that the
company may be valued at $50 million pre-money. This
again is based on the investor's expectations that if the
company raises $10 million in new money and the
company generates $60 million in revenues in year four,
the company will be worth 2.5 times revenue or $150
million.
Assuming that the original investors do not participate in

the second round, their ownership percentage would have
dropped from 25 percent to 21 percent. After four years the
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investors' $5 million investment would, based on these

assumptions, potentially be worth $31.5 million. This
would represent a multiple of 6.3 times or a gross IRR of
roughly 58 percent over four years.
Analyzing a Future Exit

When a venture firm wants to create a valuation based on a
future exit, it considers current value as a function of the
likely outcomes for possible exit values and times. The
extent to which comparables are reliable and available in
the public and private markets is clearly important in
guiding investors. So, for example, if investors are looking
at a pure services company, they might consider companies
like Service Master, and consider the multiples by which
those companies are trading. In choosing appropriate
comparables, one must first consider what that company's
growth rates are and whether the comparison is appropriate.
Service Master is a multibillion-dollar company and may
not be an appropriate comparable for a company that is
expected to have $100 million in revenues in a matter of
years.
Basically, the investor is looking for comparables in the

public and private market with similar business models and
in sectors similar to the one being valued. The comparables
can then, when considered as a basket, give an indication of
what the future value of a current business might be. For
example, the market cap of a basket of five to 10
companies within a sector similar to a company under
consideration could each be $500 million to $1 billion, and
each could have growth rates of between 10 percent and 20
percent and certain commonalities in terms of EBITDA.
The investor could conclude, based on the business plan
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and revenue model of the contemplated investment, that

within two to three years the company under consideration
should have the capability to develop a profile similar to
this basket of companies. The investor could also determine
what the likely valuation for the company under
consideration would be in two to three years based on these
comparables.
The Benefit of a Contemplated Strategic

Acquisition
In addition to comparing public market comparables,
investors can examine recent strategic or private sales. The
challenge in predicting the value of a strategic sale is in
aggregating data that is helpful. The number of transactions
in the area of strategic sales is in some cases too limited in
a specific sector to provide a reliable prediction of a likely
value for a company. If a venture investor is comfortable
with the available data for comparable strategic sales in a
sector, he will consider the multiple of price to revenue or
price to EBITDA for these comparable companies and
calculate a future value at the time of expected sale. The
investor will then discount the projected value of the
investor's ownership position at the expected time of the
future sale to the present to determine the current value of
the company.
Strategic sales are more common in certain industries and

sectors and therefore more likely to be a compelling factor
in determining a valuation if the probability of an
acquisition is high. Larger companies may have net
margins of say 10 percent, whereas a smaller company may
have margins of say 20 to 30 percent. A company that is
trading at a multiple of 10 times on the public markets and
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has margins of 10 percent can, for example, find a smaller

company with margins of 20 to 30 percent that is growing
at a rate of 15 to 20 percent particularly attractive. An
acquisition creates a positive effect to the earnings of the
larger company. The blended margins of the larger
company will naturally improve with the acquisition of the
smaller company.
Like small companies, firms with service-based business

models are by nature likely to generate particularly high
profit margins. They are, therefore, attractive acquisition
candidates for public companies or large private companies
looking either to expand their offerings or to improve their
earnings. Take, for example, a computer hardware
company that is looking to improve its offering through the
acquisition or growth of a services business that provides
professional services along with its hardware offering.
Professional services businesses typically have margins of
sometimes 20 to 30 percent, whereas hardware companies
just in the business of selling hardware may have margins
of 10 percent or less. This is why companies like Hewlett
Packard and others have built out their services businesses.
Companies dependent upon showing high margins of
incremental growth often must pay a premium for
companies with high growth rates. So the challenge for an
early stage company is in positioning itself as an attractive
acquisition candidate in its sector of business. The range of
strategic acquisitions that may be available as comparables
in a specific sector will, however, represent a range of
valuations that may be a function of the varying strategic
objectives of the acquirers. For this reason, it is unlikely
that entrepreneurs and investors will agree on the same
range of strategic sales as likely predictors in determining
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the future value of a company. Given the range of

approaches to selecting comparables, it is therefore not
surprising that the valuations expected by entrepreneurs
and those offered by venture firms differ.
When There Are No Comparables

There are times when the company being valued has no
direct comparables and is a maverick. History tells us to
focus on the fundamentals in these cases. The Internet craze
is perhaps the best road map. Companies that shot for the
stars with unproven and unchallenged business models
were quickly brought back to earth and required by their
investors to focus on fundamentals like cash flow and
profitability. In these instances it is perfectly plausible to
class an investment, even if is a maverick, as broadly
within a sector and to gauge its future value based on a
multiple of revenues or EBITDA at some future point in
time. The challenge in these instances is in getting an
entrepreneur and an investor to agree on which
comparables are fair.
A Wrinkle in Valuations
The other wrinkle in determining valuation is in
considering what truly will be required to get a company to
become cash-flow positive and to position the company as
an attractive candidate for a sale or IPO. Entrepreneurs and
their boards may differ on their assumptions as to the pace
and nature of growth that a company should pursue.
Whereas one might contemplate two stages of financing,
the likely valuation of a future financing will be subject to
market factors, the financial performance of the company,
and the profile of the management team at a future point in
time. Often what is built into a current valuation will be the
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assumption of several financings prior to a possible sale or

public offering.
An entrepreneur may lay out a plan that does not

contemplate a future financing, whereas a VC may build a
model that clearly assumes this as a possibility. The
company has to ensure that its business model considers the
worst case: fierce competition, price erosion, decrease in
demand, dramatic changes in costs of distribution channels,
and a longer-than-expected sales cycle.
For these reasons, it is incumbent on a venture investor to

make assumptions that contemplate future financing even
when an entrepreneur's plan may not include such
financings. This may suggest that venture investors and
entrepreneurs don't often see eye to eye on a company's
business plan. To the contrary, the process of agreeing on a
valuation often involves honest and candid discussions
between an entrepreneur and an investor that result in more
tempered and perhaps more realistic revenue models. On
the other hand, the VCs that are notorious for being
aggressive in their valuations but have remained in business
have done so by operating with the expectation that their
investments will take longer to harvest and more capital
than it may appear.
This may not be something that an entrepreneur will want

to agree to or accept, because by nature entrepreneurs and
CEOs of fast-running companies need to believe in their
plans. But it is perfectly reasonable and rationale for any
objective bystander to say that the course of the company
and its business plan, by the nature of business, might need
to change. And herein lies the essence of what hopefully
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will be a source of positive rather than negative tension

between entrepreneur and investor.
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Chapter 5
What Every Entrepreneur Needs to Know About
Term Sheets
Key Areas of Concern

While valuations are critical to setting in place a road map
for future financings, a number of other areas of a term
sheet require an entrepreneur's close attention as he or she
looks to negotiate terms, gain leverage, or simply finalize
the funding.
Fees
Economics can be significantly affected by the language
that addresses legal fees, placement fees, transaction fees,
and finder's fees. This language typically appears in the last
sections of the term sheet. It may not reveal the exact dollar
amount of those fees, but may simply state that the
company bear the cost of whatever fees may arise. It is
critical therefore to clarify any language pertaining to
intermediaries. Placement agents, for example, often
require fees of up to 5 percent of the cash raised by a
financing and in the region of the equivalent of 5 percent of
the value of the round in warrants. Because placement
agents are typically engaged by a company seeking
financing, their fees should not come as a surprise. Finders
fees can however become an issue; a VC may have learned
of an investment through an intermediary and have an
obligation to offer that intermediary a fee or an opportunity
to earn equity in the contemplated investment.
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The Crossroads to Liquidity

The liquidation section of the term sheet spells out that in
the case of the company's liquidation, preferred investors
will require some multiple on their investment before
common investors share in the proceeds from that
liquidation. For example, if a company is raising $10
million in preferred stock, the investors might say that in
the case of liquidation, the preferred will first be paid their
original investment and any dividends out of proceeds and
then will share on an as-converted basis the remaining
proceeds with common investors. If an 8 percent
cumulative dividend had been declared but not paid in each
of three years on the preferred and the company is sold for
$12.4 million, the preferred would receive all of the
proceeds of the sale and the common would receive
nothing. If the company were sold for $40 million and the
preferred owned 40 percent of the company, the preferred
would receive their initial $12.4 million plus 40 percent of
the remaining proceeds, or $11.04 million, and the common
would receive 60 percent of the remaining proceeds, or
$16.56 million.
From the venture investor's perspective, this approach is

eminently fair. In fact a 2.34 times return for the VC on
original invested capital is not hot by VC standards. If we
assume that the common paid 50 cents per share, their
return is more like 2.2 times—not far behind that of the
VC. But the extent to which this approach is fair from an
entrepreneur's or common shareholder's perspective is
purely a function of the entrepreneur's ownership position
in the company, his or her cost basis for that ownership,
and the likelihood of the company reaching its revenue
target and break-even cash flow without needing a
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subsequent financing as well as likely exit values for the

company.
Liquidation Versus Conversion

Depending upon the terms that are negotiated, there is a
point at which conversion to common by the preferred
makes sense. If a cap has been negotiated so that the
preferred is only able to receive a multiple on its original
investment, say three times, after which all proceeds go to
the common, there is great incentive, if we consider again
the example of the investor who purchases 40 percent of a
company for $10 million, for the investor to convert to
common when faced with a likely sale of a company for
more than $60 million. Here's the math: again assuming an
unpaid cumulative dividend of 8 percent for three years, the
first $12.4 million in our example above would go to the
preferred as payment for their original investment plus
dividends. Of the remaining $47.6 million, the first $44
million would be shared on a common equivalent basis
with $17.6 million going to the preferred and $26.4 million
going to common. However, the remaining $3.6 million
goes entirely to the common; once the preferred have
received three times their original investment all proceeds
are awarded to the common.
The comparison of liquidation preference versus

conversion is a good litmus test for entrepreneurs looking
to get a clear indication of the value an investor is looking
for as a minimum and at what point a company's
performance will generate returns for everybody that more
than exceed minimum expectations.
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Balancing Expectations and Requirements

The next issue for the entrepreneur is balancing his desire
to optimize the terms of a financing with the fact that he
has been offered a term sheet that represents his potential
financing partner's requirements. Because the context of
every financing is subject to so many variables—an
investor's assessment of and appetite for risk, the stage of
the company within the sector in which it is focused, and
the profile of the management team to name a few—
predicting the appropriate balance between the desires of
both parties in any one case is simply not possible. If there
is anything that feels too complicated or inappropriate
when considering the context and stage or profile of an
investment, a warning bell should probably go off.
Milestones may be appropriate, for example, for companies
that are predicting aggressive growth but have little in their
history to indicate likelihood of achieving that growth.
With an experienced management team that is looking for a
small amount of funding and that has countless examples of
customers in-hand who are predictive of the acceptance of
a business model by new customers, milestones may be
inappropriate.
Therefore, the maxim "know and understand your

customer" certainly applies when analyzing the motivations
and desires of the investor who has presented a term sheet.
If entrepreneur and investor agree on the value of the
business being built, if the funding history and the
momentum of the firm have been clean and without speed
bumps, and the risk associated with the investment in the
investor's mind is relatively low, there shouldn't be too
many complicated terms. Nevertheless, there may be terms
that are unique to and typical of the way the investor works.
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No matter what the flavor of term sheet, it is important to

work with an experienced lawyer who knows term sheets.
If the lawyer feels that there are unusual terms, the
entrepreneur should first explore with the VC or investor
why the terms have been presented. The entrepreneur
should treat a first discussion about the term sheet as an
opportunity to learn more about his partner. If that
discussion becomes a negotiation and terms seem
unreasonable, it would be appropriate to include
experienced counsel in a discussion or negotiation.
Exercising Control
The control that investors may look for should typically
empower them to ensure that a company's business plan is
followed and that a company is performing to expectation
and to plan. Entrepreneurs should closely examine the
Protective Provisions, Board Composition and Meetings,
Special Board Approval Items sections as well as any
milestones. Where these provisions are not aligned with the
goals and projected needs as outlined in the company's
business plan, they should be questioned (or, if acceptable
to the entrepreneur, the business plan altered). These
sections and tools may have the intended effect of giving
investors the power to link an entrepreneur and his
management team's future with the company and with the
company's performance. The way in which powers are
either articulated or actually exercised will significantly
impact the flexibility and independence of the management
team when reaching their goals and targets.
The Option of Stock Options

Stock options, the way stock options will be issued, and the
size of the overall stock option pool should also be an area
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of concern for entrepreneurs. Whether or not a Post

Financing Capitalization Table is built into a term sheet, an
entrepreneur should keep an intimate knowledge of his cap
table. If the pool of stock options that has been created
before a contemplated round 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 a financing is critical to the economic
value of the round that evolves. It would be typical that
options and warrants outstanding, whether issued or
unissued, are included in the pre-money valuation. It would
also be understandable that investors would expect that a
sufficient number of options will be issued either before or
after the financing to satisfy the need to incentivize staff
once the round is closed. Clearly, issuance of options is
dilutive. Term sheet pricing that assumes that options will
be issued after a round is closed may therefore typically be
cheaper than term sheet pricing that assumes an adequate
number of options exist so that no new options will have to
be created either before or after the contemplated round is
closed.
Entrepreneurs must therefore clearly understand how an

options plan will affect valuations and the pricing of
financings. This will allow them to avoid situations in
which an investor has agreed to a certain pre-money
valuation, joins a board after a financing goes through, and
then becomes less flexible as a firm's options plan begins
to call for issuance of additional numbers of shares that had
never been contemplated at the time of the prior financing.
With this in mind, it should not be surprising that investors
may question vesting schedules, ask that they be revisited
at the time of a financing, or require that new contracts for
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certain employees be put in place before a closing is

executed. Vesting schedules are typically four years, but
terms can be accelerated to three or extended to five.
What Not to Do in a Negotiation

There are many terms to watch for; depending upon market
conditions, most are negotiable. But one thing an
entrepreneur should never do is negotiate terms without
understanding the term sheet in its entirety. Consult a
lawyer before deciding to negotiate it yourself. Venture
firms spend a great deal of time and resources in drafting a
term sheet. Attempting to negotiate without fully
understanding how each of the parts of a term sheet interact
will either reveal an entrepreneurs' weakness in a
negotiation or test the patience of investors.
Even if the entrepreneur has been trained in the law, he still

should involve someone with legal expertise and an
understanding of the broader marketplace in any
negotiation of a term sheet once it is accepted. As
company's counsel will ultimately need to review or draft
the documents that are produced once the term sheet is
agreed upon, it is just smarter to get the same advice during
the term sheet stage. The entrepreneur will also look more
professional during any negotiation with investors, and
rather than test an investor's patience, have a higher
likelihood of working a negotiation to the company's
advantage.
Negotiation is certainly an opportunity to improve terms,

but it's also an opportunity to improve the governance and
discipline of the company. Entrepreneurs should respect
that the best venture firms have consistently used similar
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terms and set similar expectations in their term sheets,

presumably to the success of their companies as much as
for their own benefit. Trying to dramatically change the
term sheet of a venture firm is like saying you don't like the
way they work. There will be different partners at venture
firms who all have different ways of operating and
communicating. But if it's a good firm, the terms should
not be grossly different when compared to other deals of
similar profiles done by the firm. There are always
exceptions, but most of the time terms from the same firm
will have a level of consistency from term sheet to term
sheet.
Unusual Requests
It is possible, however, to see an unusual request made by
an investor. These are often call outliers. They can simply
indicate a characteristic unique to the firm's approach, not
one that is necessarily unique to the firm's negotiation with
the entrepreneur. Outliers are typically instituted because of
fiduciary guidelines unique to one firm or because the
market environment is moving the firm to require
particularly investor-friendly terms.
The requirement to be able to perform a forensic audit is

one example. The ability to require a forensic audit
provides an investor with the opportunity to conduct a
complete audit of a company's activities. It may be
performed by an accounting team, members of the venture
firm, or by a corporate investor's own staff. The purpose
would be to ensure that significant contracts and
corresponding performance obligations or expectations are
legitimate, and to audit the company's performance against
milestones, which may have been set in contracts, as well
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as to make sure the firm isn't "cooking its books." In

essence, it's post-investment due diligence; an annual full
audit of the balance sheet and off balance sheet risks, and
an attempt to validate a company's cash burn rate and to
review internal controls. Such a request is typically
representative of a set of policies that have been put in
place by an investment firm or several firms.
Another example of an outlier is fees paid to an investor as

part of a transaction as well as additional fees related to his
or her activities serving on the board or in other capacities
for the company. For larger funds it is typical that
companies will pay expenses related to a board member's
travel and accommodation for board meetings. But there is
a class of small funds whose size is so small that the
economics of such funds will assume that board
participation and transaction fees will supplement fund fee
income.
Creating Partnerships
The chemistry and type of partnership that evolves and
reveals itself during the initial due diligence and term sheet
process will set the tone for the type of relationship that
will transpire thereafter. The best relationships between a
firm and a portfolio company begin with a complete review
and understanding of a business plan and how the firm
expects to execute. Term sheets should not be about long
and protracted negotiation processes; they are about having
spent enough time at a company to really understand the
opportunity it presents, to learn the basics of the politics
and existing shareholders issues and objectives, and to
present a term sheet that works with those criteria.
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For entrepreneurs, a large and important part of deciding

whether and how much to negotiate is understanding the
style of the partner or group of partners with whom they are
working. Although an entrepreneur may always speak with
only one representative of a VC firm, there are typically
several partners who he has never met who are involved in
the review of a company and wield significant influence.
So, the entrepreneur needs to understand the venture firm's
process and the way in which its terms are drafted and
presented.
In most cases, it is to be expected that there will be certain

issues that will always be unique to each prospective
portfolio company that require negotiation. But by the time
a term sheet is presented to a company, the majority of the
economics have already been discussed by a venture firm
and the partners responsible for a deal. Even with some
give and take, the nature of the term sheet that is initially
presented is not going to be wildly different from the
negotiated final document.
But some firms don't work that way at all. They will float a
term sheet before much of the due diligence work on the
deal is done by the firm and submit a term sheet with the
intention of getting the entrepreneur to commit to a
relationship before seriously researching the opportunity.
The process that follows is a period of negotiation and
simultaneous due diligence. The risk involved from the
company's perspective and the venture firm's perspective
is that the nature of the relationship will not be really clear
until after the negotiation has transpired and that
disagreements which may follow result in irreconcilable
differences.
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Simultaneous Deals
In some cases an entrepreneur will negotiate several term
sheets simultaneously. In these situations, investors may
vary in their willingness to negotiate.
When investors agree with entrepreneurs about the

prospects for their company, the investors may come close
to meeting the expectations of the prospective portfolio
company regarding expected valuation. This assumes that
the investors have taken the time to meet and understand
the position of existing stakeholders. If what follows is a
protracted set of negotiations in which the entrepreneur
works with several other firms simultaneously to develop
several other term sheets, the investor to submit the first
term sheet may not on principle be willing to change its
original position until the company commits to select them.
The whole term sheet process is in a way a test of the type
of relationship that is likely to be consummated in a
financing. So why would an investor float a term sheet if
there is a risk that it may be shopped? The typical
expectation is that the entrepreneur who said he would like
to work them, because of the added value they may bring or
their firm may bring, has done so in good faith. The
assumption is that if the entrepreneur identifies another
firm that has complementary strengths, that the
entrepreneur will consider working with both of them if the
capital required would warrant participation by two firms.
If a second firm provides a higher valuation, they can only
trust that the entrepreneur will be open with them and, if
new information warrants a higher valuation or the
valuation should be revisited, that they will be given the
opportunity to do so.
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East Coast Versus West Coast Rules

There are five different forms and styles of term sheets that
are typically attributable to firms that are considered
leaders in the venture legal space—Testa, Hurwitz &
Thibeault; Mintz, Levin, Cohn, Ferris, Glovsky and Popeo;
and Hale & Dorr on the East Coast; and Cooley Godward
and Wilson, Sonsini, Goodrich and Rosati on the West
Coast.
The term sheets' general formats and styles don't vary

significantly from firm to firm. But there are many
variables in terms of legal language that can be changed
and substituted; the effective result can vary significantly.
Traditionally, people have considered West Coast terms to

be written more loosely and fluidly than East Coast terms.
East Coast terms are known to be a little tighter and more
conservative. This is not to say that the lawyers in the West
Coast are not equally thorough and conscientious. This is
just a generalization in terms of a way of differentiating
two styles.
There are a few areas in which East Coast and West Coast
rules vary significantly. One area is dividends. West Coast
firms may encourage clients to consider cumulative
dividends whereas East Coast firms may be comfortable
with non-cumulative dividends. Another area of
differentiation between the Coasts is the way in which anti
dilution clauses are calculated. The two different formulas
that can be used are broad-based or narrow-based. An anti
dilution clause that is broad-based will take stock options
into account. The California standard is broad-based and
could affect a 6 to 7 percent higher value for existing
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shareholders in the event of dilution when compared to the

East Coast standard.
Another approach attributable to West Coast firms are pay

to-play rules. New investors can be harsh and require that
in future rounds, current investors will need to maintain
their pro-rata share of investment—continue to invest so
that their shareholding percentage remains the same. Such
rules would dictate that if they don't, their share holding
position may be diluted significantly. The pay-to-play term
is a significant requirement of investors. But it is not
uncommon at an early stage in a deal, because people are
saying: "Look, this deal has a significant amount of risk, it
might take longer to execute than we envision, and we
don't want to get in as a lead investor unless everyone else
recognizes this risk."
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The Format of Aspatore Entrepreneurial Review
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Chapter Title Author Units
VENTURE CAPITAL/ENTREPRENEURSHIP
141. Term Sheet Basics, Alex Wilmerding (Boston Capital Ventures), 1
142. *How to Examine a Term Sheet, Alex Wilmerding (Boston Capital Ventures), 1
143. *A Section-by-Section View of a Term Sheet, Alex Wilmerding (Boston Capital Ventures), 4
144. *Valuations and the Term Sheet, Alex Wilmerding (Boston Capital Ventures), 1
289. *A Summary of Term Sheets, Alex Wilmerding (Boston Capital Ventures), 1
145. Marketing Your Business to Investors, Harrison Smith (Krooth & Altman, Parmer), 1
146. Essential Elements in Executive Summaries, Harrison Smith (Krooth & Altman, Partner), 1
123. *Developing the Right Team Strategy, Sam Colella (Versant Ventures, Managing Director), 1
124. *Successful Deal Doing, Patrick Ennis (ARCH Venture Partners, Partner), 1
125. *Deal Making: The Interpersonal Aspects, John M. Abraham (Battery Ventures, Venture Partner), 1
126. *The Art of Negotiations, Robert Chefitz (APAX Partners, General Partner), 1
128. *What VCs Look For, Heidi Roizen (SOFTBANK Venture Capital), 1
136. *VC Investments in Technology/Software Co's, Stephan Andriole (Safeguard Scientifics, Inc.), 1
267. The Journey to Entrepreneurship, Dave Cone (Camstar, CEO), 1
268. *Founding a Business on Principles, Steve Demos (White Wave, Founder & President), 1
269. *Entrepreneur 101-From Validation to Viability, Mike Turner (Waveset Technologies, CEO), 1
270. Entrepreneurship Through Choppy Waters, Frederick Beer (Auragen Communications, CEO), 1
271. The World of Entrepreneurial Momentum, Hatch Graham (Bandwidth9, CEO), 1
271. The Extreme Entrepreneur, Todd Parent (Extreme Pizza, CEO), 1
272. *An Entrepreneur's Blueprint for Success, Farsheed Ferdowsi (Paymaxx, CEO), 1
273. From Mom & Pop to National Player, Jack Lavin (Arrow Financial Services, CEO), 1
274. Better to Be a PT Boat Than a Battleship, Lucinda Duncalfe Holt (Destiny, CEO), 1
275. *Lessons Learned for Entrepreneurs, Art Feierman (Presenting Solutions, CEO), 1
276. Life Lessons-Build Your Team of Entrepreneurs, Gary L. Moulton (Glyphics Communications, CEO), 1
277. Did I say Entrepreneurialism? I meant creativity!, Douglas P. Bruns (Atlantic Corporate Interiors, CEO), 1
278. The Contagious Entrepreneur, Rodney Kuhn (Envision Telephony, CEO), 1
279. It Takes Two: Human and Financial Resources, Peter J. Valcarce (Arena Communications, President), 1
280. Hanging Tight in a Roller-Coaster Economy, Dave Hegan (MAJAC Steel, CEO), 1
281. Entrepreneurial Spirit and Passion, Aaron Kennedy (Noodles & Company, Co-CEO), 1
282. Essential Nutrients for Growing, Greg Wittstock (Aquascape Designs, CEO), 1
283. Tools, Tricks and Tactics That Work, Kurt Thomet (Quest Solutions, President), 1
284. Shooting for the Moon, David Law (Speck Product Design, Co-Founder) , 1
290. Success Makes You Just Like Everyone Else, Patrick Smith (Natural Data, President), 1
285. Leading a Virtual Business for Pleasure/Profit, Daniel A. Turner (Turner Consulting Group, President), 1
286. Success Via Ethical and Sound Fundamentals, Russ W. Intravartolo (StarNet, CEO), 1
287. Seizing the Golden Market Opportunity, Mark Esiri (Fulcrum Analytics, CEO), 1
288. *Learning to Fly in Business Combat, James D. Murphy (Afterburner Seminars, CEO), 1
MARKETING/ADVERTISING/PR
1. *Connecting With Consumer Needs, Stephen Jones (Coca-Cola, Chief Marketing Officer), 1
2. Staying Customer Focused, T. Michael Glenn (FedEx, EVP Market Development), 1
3. Building an Internet Mega-Brand, Karen Edwards (Yahoo!, VP, Brand Marketing), 1
4. Giving the Consumer a Seat at the Table, Michael Linton (Best Buy, SVP Marketing), 1
5. Building a Powerful Marketing Engine, Jody Bilney (Verizon, SVP Brand Management), 1
6. *Brands and Marketing: Evolving Together, John Hayes (American Express, EVP Brand Management), 1
7. *Marlboro Friday: Branding a Product, Richard Rivers (Unilever, SVP), 1
8. Marketing Success: Providing Choice, Richard Costello (GE, Corporate Marketing Manager), 1
9. Turning a Brand Into a National Pastime, Tim Brosnan (Major League Baseball, EVP Business), 1
10. Advertisers' Conundrum-Change or Be Changed, M T Rainey (Young & Rubicam, Co-CEO), 1
11. *Rallying the Troops in Advertising, Eric Rosenkranz (Grey, CEO Asia Pacific), 1
12. Achieving Success as an Advertising Team, David Bell (Interpublic Group, Vice Chairman), 1
13. *Advertising: Invitation Only, No Regrets, Bob Brennan (Leo Burnett Worldwide, President), 1
14. The Secret to Global Lovemark Brands, Tim Love (Saatchi & Saatchi, Managing Partner), 1
15. Soak it All In-The Secrets to Advertising Success, Paul Simons (Ogilvy Mather UK, CEO), 1
16. Likeable Advertising: Creative That Works, Alan Kalter (Doner, CEO), 1
17. Advertising Success: Tuning Into the Consumer, Alan Schultz (Valassis, CEO), 1
18. The Client Perspective in Advertising, Brendan Ryan (FCB Worldwide, CEO), 1
♦Denotes Best Selling Chapter
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19. *Advertising Results in the Age of the Internet,David Kenny (Digitas, CEO), 1
20. *Communications for Tomorrow's Leaders,ChristopherKomisarjevsky (Burson-Marsteller,CEO), 2
21. The Creation ofTrust, Rich Jernstedt (Golin/Harris International, CEO), 1
22. *Prosumer: A New Breed of Proactive Consumer,Don Middleberg(Middleberg Euro RSCG, CEO), 1
23. *The Power of PR in a Complex World, Richard Edelman (Edelman PR, CEO), 1
24. Success in Public Relations, Lou Rena Hammond (Lou Hammond & Assoc, President), 1
25. The Art and Science of Public Relations, Anthony Russo, Ph.D. (Noonan Russo Communications, CEO), 1
26. Critical Elements of Success in PR, Thomas Amberg (Cushman Amberg Communications, CEO), 1
27. Small Business PR Bang!, Robyn M. Sachs (RMR & Associates, CEO), 1
28. PR: A Key Driver of Brand Marketing, PatriceTanaka (PatriceTanaka & Company, Inc., CEO), 1
29. PR: Essential Function in a DemocraticSociety, David Finn (Ruder Finn Group, Chairman), 1
30. *21st Century Public Relations, Larry Weber (Weber Shandwick Worldwide, Founder), 1
31. *Public Relations as an Art and a Craft, Ron Watt (Watt/Fleishman-Hillard Inc., CEO), 1
32. Connecting the Client With Their Public, David Copithorne(PorterNovelli International, CEO), 1
33. PR: Becoming the PreferredStrategicTool, Aedhmar Hynes (Text 100, CEO), 1
34. Public RelationsToday and Tomorrow, Herbert L. Corbin(KCSA PR, Managing Partner), 1
35. Delivering a High Quality, Measurable Service, David Paine(PainePR,President), 1

36. *The Impact of High-Technology PR, Steve Schwartz (Schwartz Comm., President), 1
37. The Emotional Quotient ofthe Target Audience, Lee Duffey (Duffey Communications, President), 1
38. The Service Element in Successful PR, Andrea Carney (Brodeur Worldwide, CEO), 1
39. Helping Clients Achieve Their True PE Ratio, Scott Chaikin (Dix & Eaton, Chairman and CEO), 1
40. The Art of Public Relations, Dan Klores (Dan Klores Communications, President), 1
41. Passion and Precision in Communication, Raymond L. Kotcher (Ketchum, CEO), 1
42. Professionalismand Success in PublicRelations,Victor Kamber(The Kamber Group, CEO), 1

51. *What is Guerrilla Marketing?, Jay Levinson (Best-Selling Author), 1
52. *What Makes a Guerrilla?, Jay Levinson (Best-Selling Author), 1
53. *GuerrillaMarketing: Attacking the Market, Jay Levinson (Best-Selling Author), 1
86. *Everyone is a Marketer, Jay Levinson (Best-Selling Author), 1
87. *Media Choices for the GuerrillaMarketer,Jay Levinson (Best-Selling Author), 1
88. Technology and the Guerrilla Marketer, Jay Levinson (Best-Selling Author), 1
107. *GuerrillaMarketing on a Budget, Jay Levinson (Best-Selling Author), 1
MANAGEMENT/ CONSULTING
276. *MaintainingValues in a Cultureof Change,RichardPriory(Duke Energy, CEO), 1
69. *Fundamentals Never Go Out of Style, Fred Poses (American Standard, CEO), 1
70. High-Tech Company, High-Touch Values, John W. Loose (Corning, CEO), 1
71. Balancing Prioritiesfor the Bottom Line, Bruce Nelson (Office Depot, Chairman), 1
72. *Keeping the Right People With Your Company, Thomas C. Sullivan (RPM, CEO), 1
73. *GainingEntrepreneurial Momentum, Myron P. Shevell (New EnglandMotor Freight,CEO), 1

74. Creating a Culture That Ensures Success, Justin Jaschke (Verio, CEO), 1
54. The Drive for Business Results, FrankRoney (IBM, GeneralManager), 1

55. ""Understanding the Client, Randolph C. Blazer (KPMG Consulting, Inc., CEO), 1
56. *The Interface of Technology and Business, PamelaMcNamara (Arthur D. Little, Inc., CEO), 1
57. *Elements of the Strategy Consulting Business, Dr. Chuck Lucier (Booz-Allan & Hamilton, SVP), 1
58. *Consulting: Figuring Out How to Do it Right, Dietmarr Osterman (A.T. Kearney, CEO), 1
195. Client Value in Consulting, Luther J. Nussbaum (First Consulting Group, CEO), 1
196. The Rules Have Changed in Consulting, John C. McAuliffe (General Physics Corporation, President), 1
197. Tailoring Solutions to Meet Client Needs, Thomas J. Silveri (Drake Beam Morin, CEO), 1
198. The Future of Marketing Consulting, Davis Frigstad (Frost & Sullivan, Chairman), 1
59. *Setting and Achieving Goals (For Women), Jennifer Openshaw (Women's Financial Network), 1
60. The Path to Success (For Women), Tiffany Bass Bukow (MsMoney, Founder and CEO), 2
61. Becoming a Leader (For Women), PatriciaDunn (Barclays Global Investors, CEO), 1
62. Career Transitions (For Women), Vivian Banta (Prudential Financial, CEO), 1
63. Making the Most of Your Time (ForWomen), Kerri Lee Sinclair (AgentArts, Managing Director), 1
64. Follow Your Dreams (For Women), Kim Fischer (AudioBasket, Co-Founder and CEO), 1
65. Keep Learning (For Women) , Krishna Subramanian (Kovair, CEO), 1
66. Keep Perspective (For Women), Mona Lisa Wallace (RealEco.com, CEO), 1
67. Experiment With Different Things (ForWomen), Emily Hofstetter (SiliconSalley.com, CEO), 1
68. Do What You Enjoy (For Women), Lisa Henderson (LevelEdge, Founder and CEO), 1

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LAW
75. *Navigating Labor Law, Charles Birenbaum (Thelan Reid & Priest, Labor Chair), 1
76. The Makings of a Great Labor Lawyer, Gary Klotz (Butzel Long, Labor Chair), 1
77. The Complexity of Labor Law, Michael Reynvaan (Perkins Coie, Labor Chair), 1
78. *Labor Lawyer Code: Integrity and Honesty, Max Brittain, Jr. (Schiff Hardin & Waite, Labor Chair), 1
89. The Litigator: Advocate and Counselor, Rob Johnson (Sonnenschein Nath, Litigation Chair), 1
90. *Keys to Success in Litigation: Empathy, John Strauch (Jones, Day, Reavis & Pogue, Litigation Chair), 1
91. *Major Corporate and Commercial Litigation, Jeffrey Barist (Milbank, Tweed, Hadley, Litigation Chair), 1
92. Keys to Success as a Litigator, Martin Flumenbaum (Paul, Weiss, Rifkind, Litigation Chair), 1
93. *Deciding When to Go to Trial, Martin Lueck (Robins, Kaplan, Miller, Litigation Chair), 1
94. Credibility and Persuasiveness in Litigation, Michael Feldberg (Schulte Roth & Zabel, Litigation Chair), 1
95. *Litigation Challenges, Thomas Kilbane (Squire, Sanders, Dempsey, Litigation Chair), 1
96. *Keeping it Simple, Evan R. Chesler (Cravath, Swaine & Moore, Litigation Chair), 1
97. Assessing Risk Through Preparation & Honesty, Harvey Kurzweil (Dewey Ballantine, Litigation Chair), 1
98. The Essence of Success, James W. Quinn (Weil, Gotshal & Manges, Litigation Chair), 1
99. The Performance Aspect of Litigation, Charles E. Koob (Simpson Thacher Bartlett, Litigation Chair), 1
100. The Future of IP: Intellectual Asset Mngmnt., Richard S. Florsheim (Foley & Lardner, IP Chair), 1
101. The Balancing of Art & Science in IP Law, Victor M. Wigman (Blank Rome, IP Chair), 1
102. *Policing a Trademark, Paula J. Krasny (Baker & McKenzie, IP Chair), 1
103. Credibility & Candor: Must Have Skills, Brandon Baum (Cooley Godward, IP Litigation Chair), 1
104. The Art & Science of Patent Law, Stuart Lubitz (Hogan & Hartson, Partner), 1
105. Successful IP Litigation, Cecilia Gonzalez (Howrey Simon Arnold & White, IP Chair), 1
106. Achieving Recognized Value in Ideas, Dean Russell (Kilpatrick Stockton, IP Chair), 1
108. Keeping Current W/ Changing Times, Bruce Keller (Debevoise & Plimpton, IP Litigation Chair), 1
109. *Maximizing the Value of an IP Portfolio, Roger Maxwell (Jenkins & Gilchrist, IP Chair), 2
110. * Experience in Deal Making, Joseph Hoffman (Arter & Hadden, Corporate/Securities Chair), 1
111. The Art of the Deal, Mark Macenka (Testa, Hurwitz & Thibeault, Business Chair), 1
112. Communicating With Clients, Gerard S. DiFiore (Reed Smith, Corporate/Securities Chair), 1
113. Making a Deal Work, Kenneth S. Bezozo, (Haynes and Boone, Business Chair), 1
114. Challenges for Internet & Tech. Companies, Carl Cohen (Buchanan Ingersoll, Technology Chair), 1
115. The Copyright Revolution, Mark Fischer (Palmer & Dodge, Internet/E-Commerce Chair), 1
116. Privacy Rights and Ownership of Content, Brian Vandenberg (uBid.com, General Counsel), 1
117. Business Intelligence From Day One, Mark I. Gruhin (Schmeltzer, Aptaker and Shepard,, Partner), 1
118. Legal Rules for Internet Companies, Arnold Levine (Proskauer Rose LLP, Chair, iPractice Group), 1
119. Protecting Your Assets, Gordon Caplan (Mintz Levin PC), 1
120. The Golden Rules of Raising Capital, James Hutchinson (Hogan & Hartson LLP), 1
121. Identifying the Right Legal Challenges, John Igeo (Encore Development, General Counsel), 1
122. The Importance of Patents, Richard Turner (Sughrue, Mion,, Senior Counsel), 1
79. *Common Values in Employment Law, Columbus Gangemi, Jr. (Winston & Strawn, Labor Chair), 1
80. Building Long Term Relationships with Clients, Fred Alvarez (Wilson Sonsini, Labor Chair), 1
81. *Becoming Part of the Client's Success, Brian Gold (Sidley Austin Brown & Wood, Labor Chair), 1
82. *Understanding Multiple Audiences, Raymond Wheeler (Morrison & Foerster, Labor Chair), 1
83. Employment Lawyer: Advisor & Advocate, Judy Langevin (Gray, Plant, Mooty & Bennett, Labor Chair), 1
84. *Bringing Added Value to the Deal, Mary Ann Jorgenson (Squires Sanders Dempsey,Labor Chair), 1
85. Traditional Legal Matters on the Internet, Harrison Smith (Krooth & Altman LLP, Partner), 1
TECHNOLOGY/INTERNET
167. *Closing the Technology Gap, Dr. Carl S. Ledbetter (Novell, CTO), 1
168. *Creating and Enriching Business Value, Richard Schroth (Perot Systems, CTO), 1
169. *Innovation Drives Business Success, Kirill Tatarinov (BMC Software, Senior Vice President, CTO), 1
170. *Managing the Technology Knowledge, Dr. Scott Dietzen (BEA E-Commerce Server Division, CTO), 1
171. The CTO as an Agent of Change, Doug Cavit (McAfee.com, CTO), 1
172. The Class Struggle and The CTO, Dan Woods (Capital Thinking, CTO), 1
173. A CTO's Perspective on the Role of a CTO, Mike Toma (eLabor, CTO), 1
174. Technology Solutions to Business Needs, Michael S. Dunn (Encoda Systems, CTO, EVP), 1
175. Bridging Business and Technology, Mike Ragunas (StaplesDirect.com, CTO), 1
176. The Art of Being a CTO - Fostering Change, Rick Bergquist (PeopleSoft, CTO), 1
178. Developing Best of Breed Technologies, Dr. David Whelan (Boeing, Space and Communications, CTO), 1
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179.Technology as a Strategic Weapon, Kevin Vasconi (Covisint,CTO), 1
180.Role of the CTO in aVenture-BackedStartup, DanBurgin(Finali, CTO), 1
181. Leading Technology During Turbulent Times,Frank Campagnoni (GEGlobal eXchange Services, CTO), 1
276. Success Begins & Ends With Customers,RichardNotebart(Tellabs, CEO), 1
277. *Success is Persistence, Passion & Perspiration, David Struwas(DSL.net, CEO), 1
279. *Successful Telecom,Here andOverseas, K. Paul Singh(Primus Telecommunications Group, CEO), 1
280. Managing in Telecommunications, Alex Mashinsky(QOptics andArbinet-theexchange, Founder), 1
281. Staying on Course: Telco Navigation, JohnSchofield(AdvancedFibreCommunications, CEO), 1

282. Surviving to Success, Danny Stroud (AppliedTheory, CEO), 1
283. High-SpeedManagement, DavidTrachtenberg (StarBand Communications, CEO), 1
284. Leadership in Telecommunications, Gordon Blankstein (Global LightTelecommunications, CEO),1

285. Winning on the Basics: Right People,Values, Jeff Allen (IntelliSpace, CEO), 1
286. Watching Information Flow, Art Zeile (Inflow, CEO), 1
147.*WirelessTechnology: Make It Simple , JohnZeglis (AT&T Wireless, CEO), 1
148.*BringingValue to the Consumer, PatrickMcVeigh (OmniSky, Chairmanand CEO), 1
149.Wireless Challenges,Sanjoy Malik (Air2Web, Founder, Presidentand CEO), 1
150.The High Costs ofWireless, Paul Sethy (AirPrime, Founder& Chairman), 1
151. Developing Areas ofWireless, Reza Ahy (Aperto Networks, President& CEO), 1
152.The Real Potential forWireless, Martin Cooper(Arraycomm, Chairman & CEO), 1
153.BringingWireless into the Mainstream, Robert Gemmell (DigitalWireless, CEO), 1
154. VoiceXML, Alex Laats (Informio, CEO and Co-Founder), 1
155.Reachingthe Epitomeof Productivity, Rod Hoo(LGCWireless,President and CEO), 1
157.The Wireless Satellite Space , Tom Moore(WildBlue, Presidentand CEO) 1
158.*Memory Solutions forSemiconductor Industry, Steven R. Appleton (MicronTechnology, Inc., CEO), 1
159.*Programmable Logic: The DigitalRevolution, Wim Roelandts(Xilinx, Inc., CEO), 1
160. The Streaming Media Future, Jack Guedj, Ph.D. (Tvia, Inc., President), 1
161.Buildinga Winning Semiconductor Company, IgorKhandros, Ph.D. (FormFactor, President and CEO), 1
162.The Next Generation Silicon Lifestyle, Rajeev Madhavan (Magma,Chairman, CEO and President), 1
163.Semiconductors: The Promise of the Future, Steve Hanson (ON Semiconductor, President and CEO), 1
164.Dynamicsof the Semiconductor DataCenter, EyalWaldman(MellanoxTechnologies,LTD, CEO), 1
165.The Market-Driven Semiconductor Industry, Bob Lynch (Nitronex,President and CEO), 1
166.Semiconductors: MeetingPerformance Demand, Satish Gupta(Cradle Technologies, President and CEO), 1
FINANCIAL
244. *MergingInformation Tech. & Accounting,PaulMcDonald (RobertHalf Int'l, Executive Director), 1
245. *The Accountant's Perspective, Gerald Burns (Moss Adams, Partner),2
247. *Audits & Analyzing BusinessProcesses, Lawrence Rieger(Andersen, GlobalManaging Partner), 1
250. E-Business Transformation, FredRound (Ernst & Young, Directorof eBusiness Tax), 1
251. Accounting:The UK/US Perspective, ColinCook (KPMG,Headof Transaction Services - London), 1

252. The ChangingRole of the Accountant, Jim McKerlie (Ran One, CEO), 1
253. The Future of Accounting, Harry Steinmetz (M.R. Weiser & Company, Partner), 1
INVESTING
197.Who Wants to Become a Millionaire?, LauraLee Wagner (American Express, Senior Advisor), 1
198. The Gold is in Your Goals, Harry R. Tyler (Tyler Wealth Counselors, Inc., CEO), 1
199. Timeless Tips for Building Your Nest Egg, ChristopherP. Parr(Financial Advantage, Inc.), 1
200. It's What You Keep, Not Make, That Counts, JerryWade (Wade Financial Group, President), 1
201. Accumulating Your Million-DollarNest Egg, Marc Singer(Singer Xenos Wealth Management), 1
228. Time-Honored Investment Principles,Marilyn Bergen (CMC Advisors, LLC, Co-President), 1
229. The Art & Science of Investing, ClarkBlackman, II (Post Oak CapitalAdvisors, ManagingDir.), 1
240. Altering Investment Strategy for Retirement, Gary Mandell (The Mandell Group, President), 1
241. *FairValue & UnfairOdds in Investing,Scott Opsal(InvistaCapital Mngmt, Chief Investment Officer), 1
242. Earnings Count & Risk Hurts,VictoriaCollins(KellerGroupInvestment Mngmnt, Principal), 1
243. *NavigatingTurbulent Markets,HowardWeiss (Bank of America, Senior Vice President), 1

249. Building an Ail-Weather Portfolio, Sanford Axelroth & Robert Studin (First FinancialGroup), 1
254. Managing Your Wealth in Any Market,GildaBorenstein (MerillLynch, Wealth Mngmt. Advisor), 1
255. Winning Strategiesfor International Investing, Josephine Jimenez (Montgomery Asset, Principal), 1
256. The Psychology of a Successful Investor, Robert G. Morris(LordAbbett, Dir. of Equity Investments), 1
257. *Investing for a SustainableFuture,Robert Allan Rikoon (Rikoon-CarretInvestments, CEO), 1
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MANAGEMENT/CONSULTING
Inside the Minds:Leading Consultants-Industry CEOs Share Their
Knowledge on the Art of Consulting (ISBN: 1587620596)
Inside the Minds:Leading CEOs-CEO Visionaries Reveal the Secrets
to Leadership & Profiting in Any Economy (ISBN: 1587620553)
Inside the Minds: Leading Women-What It Takes to Succeed & Have It
All in the 21st Century (ISBN: 1587620197)
Bigwig Briefs: Management& Leadership-The Secrets on How to Get
There, Stay There, and Empower Others (ISBN: 1587620146)
Bigwig Briefs: Human Resources & Building a Winning Team-Yiirmg,

Retaining Employees & Building Winning Teams (ISBN: 1587620154)
Bigwig Briefs: Become a CEO-The Golden Rules to Rising the Ranks
of Leadership (ISBN: 1587620693)
VENTURE CAPITAL/ENTREPRENEURSHIP
Bigwig Briefs: Term Sheets & Valuations-A Detailed Look at the
Intricacies of Term Sheets & Valuations (ISBN: 1587620685)
Inside the Minds: Venture Capitalists-Inside the High Stakes and Fast
Moving World of Venture Capital (ISBN: 1587620014)
Inside the Minds: Leading Deal Mafers-Negotiations, Leveraging
Your Position and the Art of Deal Making (ISBN: 1587620588)
Bigwig Briefs: Startups Keys to Success-Golden Rules for Launching a
Successful New Venture of Any Size (ISBN: 1587620170)
Bigwig Briefs: Hunting Venture Cop/taZ-Understanding the VC Process
and Capturing an Investment (ISBN: 1587621150)
Bigwig Briefs: TheArt ofDeal Making-The Secrets to the Deal Making
Process (ISBN: 1587621002)
TECHNOLOGY/INTERNET
Inside the Minds: The Wireless Industry-Leading CEOs Share Their
Knowledge on The Future of the Wireless Revolution (ISBN:
1587620202)
For More Information, Visit Us At www.Aspatore.com Or

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Inside the Minds:Leading CrOs-Leading CTOs Reveal the Secrets to
the Art, Science & Future of Technology (ISBN: 1587620561)
Inside the Minds: The SemiconductorIndustry-Leading CEOs Share
Their Knowledge on the Future of Semiconductors (ISBN:
1587620227)
Inside the Minds: Chief Technology Queers-Developing,

Implementing and Capitalizing on the Best Technologies in the World
(ISBN: 1587620081)
Bigwig Briefs: Become a CTO-Leading CTOs Reveal How to Get

There, Stay There, and Empower Others That Work With You (ISBN:
1587620715)
Bigwig Briefs: Small Business Internet Advisor-Big Business Secrets

for Small Business Success on the Internet (ISBN: 1587620189)
Inside the Minds: Internet Marketing-Advertising, Marketing and
Building a Successful Brand on the Internet (ISBN: 1587620022)
Inside the Minds: Internet Bigwigs-Leading Internet CEOs and
Research Analysts Forecast the Future of the Internet Economy (ISBN:
1587620103)
Inside the Minds: Internet CPOs-Information Every Individual Should

Know About the Financial Side of Internet Companies (ISBN: 158762)
Inside the Minds: Internet BizDev-The Golden Rules to Inking Deals in
the Internet Industry (ISBN: 1587620057)
Bigwig Briefs: The Golden Rules ofthe Internet Economy-The Future
of the Internet Economy (Even After the Shakedown) (ISBN:
1587620138)
Inside the Minds: InternetLawyers-Important Answers to Issues For

Every Entrepreneur, Lawyer & Anyone With a Web Site (ISBN:
1587620065)
LAW
Inside the Minds: Leading Labor Lawyers-Labor Chairs Reveal the
Secrets to the Art & Science of Labor Law (ISBN: 1587621614)
Inside the Minds: Leading Litigators-Litigation Chairs Revel the
Secrets to the Art & Science of Litigation (ISBN: 1587621592)
Inside the Minds: Leading IP Lawyers-IP Chairs Reveal the Secrets to
the Art & Science of IP Law (ISBN: 1587621606)
Inside the Minds: Leading Deal Makers-Negotiations, Leveraging Your
Position and the Art of Deal Making (ISBN: 1587620588)

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Inside the Minds: Internet Lawyers-Important Answers to Issues For
Every Entrepreneur, Lawyer & Anyone With a Web Site (ISBN:
1587620065)
Bigwig Briefs: The ArtofDeal Making-The Secrets to the Deal Making

Process (ISBN: 1587621002)
Bigwig Briefs: CareerOptionsfor LawSchool Students-Leading
Partners Reveal the Secrets to Choosing the Best Career Path (ISBN:
1587621010)
MARKETING/ADVERTISING/PR
Inside the Minds: Leading Marketers-Leading Chief Marketing
Officers Reveal the Secrets to Building a Billion Dollar Brand (ISBN:
1587620537)
Inside the Minds: LeadingAdvertisers-Advertising CEOs Reveal the
Tricks of the Advertising Profession (ISBN: 1587620545)
Inside the Minds: TheArt ofPR-Leading PR CEOs Reveal the Secrets
to the Public Relations Profession (ISBN: 1587620634)
Inside the Minds: PR Visionaries-The Golden Rules of PR and
Becoming a Senior Level Advisor With Your Clients (ISBN:
1587621517)
Inside the Minds: InternetMarketing-Advertising, Marketing and
Building a Successful Brand on the Internet (ISBN: 1587620022)
Bigwig Briefs: Online Advertising-Successful and Profitable Online
Advertising Programs (ISBN: 1587620162)
Bigwig Briefs: Guerrilla Marketing -The Best of Guerrilla Marketing-
Big Marketing Ideas For a Small Budget (ISBN: 1587620677)
Bigwig Briefs: Become a VPofMarketing-How to Get There, Stay
There, and Empower Others That Work With You (ISBN:
1587620707)
FINANCIAL
Inside the Minds: LeadingAccountahts-The Golden Rules of
Accounting & the Future of the Accounting Industry and Profession
(ISBN: 1587620529)
Inside the Minds: Internet CFOs-Information Every Individual Should

Know About the Financial Side of Internet Companies (ISBN:
1587620057)
Inside the Minds: The Financial Services Industry-The Future of the

Financial Services Industry & Professions (ISBN: 1587620626)

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Inside the Minds: LeadingInvestment Bankers-Leading I-Bankers
Reveal the Secrets to the Art & Science of Investment Banking (ISBN:
1587620618)
Bigwig Briefs: Become a CFO-Leading CFOs Reveal How to Get
There, Stay There, and Empower Others That Work With You (ISBN:
1587620731)
Bigwig Briefs: Become a VPofBiz £>ev-How to Get There, Stay There,
and Empower Others That Work With You (ISBN: 1587620723)
Bigwig Briefs: Career Optionsfor MBAs-l-Bankers, Consultants &
CEOs Reveal the Secrets to Choosing the Best Career Path (ISBN:
1587621029)
INVESTING
Inside the Minds:Building a $1,000,000 Nest Egg -Simple, Proven
Ways for Anyone to Build a $1M Nest Egg On Your Own Terms
(ISBN: 1587622157)
Inside the Minds: Leading WallSt. Investors -The Best Investors of
Wall Street Reveal the Secrets to Profiting in Any Economy (ISBN:
1587621142)
OTHER
Inside the Minds: TheNew Health CareIndustry-The Future of the
Technology Charged Health Care Industry (ISBN: 1587620219)
Inside the Minds: TheReal Estate Industry-The Future of Real Estate
and Where the Opportunities Will Lie (ISBN: 1587620642)
Inside the Minds: The Telecommunications Industry-
Telecommunications Today, Tomorrow and in 2030 (ISBN:
1587620669)
Inside the Minds: TheAutomotive Industry-Leading CEOs Share Their
Knowledge on the Future of the Automotive Industry (ISBN:
1587620650)
www.itdf.ir
About the Author
Alex Wilmerding is a Principal at Boston Capital Ventures, a venture

firm specializing primarily in private equity direct investments in
companies with an information technology (IT) software and services
focus. Wilmerding has over ten years of private equity as well as
general management operating experience in the IT software, Internet,
transportation and hospitality industries. At BCV, he serves as a
director on the boards of portfolio companies including HUBX, Inc., a
Waltham, Massachusetts based revenue management and distribution
services solutions provider to the hospitality industry; ImpactXoft, Inc.,
a San Jose, CA based software company providing simultaneous
collaborative engineering solutions to the manufacturers; and
KhiMetrics, Inc., the Scottsdale, AZ based developer of the first
revenue management system designed to help retailers maximize
revenue and profits. Wilmerding also serves as an observer to the
boards of Exa Corporation, the Bedford, MA based developer of fluid
flow simulation software for wind tunnel applications and Vectrix
Corporation, the New Bedford, MA based advanced transportation
solutions provider. In the not-for-profit arena, Wilmerding serves as an
Officer and Trustee of the Yale-China Association, an organization
based in New Haven, CT which facilitates educational, environmental,
legal and medical exchanges between the United States and China. A
great believer in the value of international work experience, he is fluent
in Mandarin and has held management positions in the Peoples
Republic of China as well as in Hong Kong, Taiwan and Indonesia.
Wilmerding earned his B.A. in history from Yale University and his
M.B.A. in Finance and Organizational Management from the Columbia
Business School. He currently lives in the Boston area with his wife,
Ginny, and son, Nicholas.
For press inquiries, speaking opportunities or other inquiries, please

email authors@aspatore.com.
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%&&
ASPATORE
(Executive (Business lnteCCigence
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THE MOST AUTHORITATIVE BOOK EVER
WRITTEN ON TERM SHEETS & VALUATIONS
r e r m Sheets & Valuations is thefirst ever in-depth lookat the nuts and bolts
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such as What is a Term Sheet, How to Examine a Term Sheet, A Section-by-Section
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Know About Term Sheets, Valuation Parameters, and East Coast Versus West Coast
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with line by linedescriptions of each clause, whatcan/should be negotiated, and the
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Praise
"This primer should be required reading for every entrepreneur. It is
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- Graham D.S. Anderson
GeneralPartner, EuclidSR Partners
C'A valuable resource forEntrepreneurs
\ new to the world of venture capital.
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About the Author 7

Alex Wilmerding is\a Principal at Boston Capital Ventures, a venture firm
specializing primarily \^ private equity direct investments in companies with an
information technology 1ST) software and services focus. Wilmerding has over ten
/years of private equity as wSll as general management operatingexperience in the IT
software, Internet, transportation and hospitality industries. He is fluent in
Mandarin and has held management positions in the Peoples Republic of China as
well as in Hong Kong, Taiwan and Indonesia. Wilmerding earned his B.A. in history
n Yale University a/d his M.B.A. in Finance>,and Organizational/Management
\ the Columbia Business School. \ /
ASPATORE
VISIT US AT /
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^v^

(Executive ^Business QnteCCigence

CORPORATE PUBLISHING GROUP (CPG)

Into a New Revenue Stream For Your Company

An Inside Look at the Intricacies of Term Sheets & Valuations

For information on bulk orders, classroom use, sponsorship opportunities or

any other questions please email store@aspatore.com. For review information,

comments, speaking inquiries or any other information regarding this book,

please email authors@aspatore.com.

First Printing, September 2001

Library of Congress Card Number: 2001093288

Bigwig Briefs Editor, Ginger Conlon

Cover design by Rachel Kashon, Kara Yates

renderinglegal, accounting, investment, or any other professional service.

This book is printed on acid free paper.

About the Author 135

What Is a Term Sheet?

Typically, term sheets are used by venture capital investors

Term sheets are most often produced by the venture firm

Once drafted, the term sheet becomes an expression of a

syndicate that commits to invest the required amount of

Typically, investors from prior rounds of financings are

Term sheets often include an exclusivity clause. This

The tenor and nature of the relationship that is established

The Only Thing Constant is Change

contemplated in a round of financing and to make

For example, a new investor may want to receive a class of

incorporation in order to reflect any changes required by

Once the documents surrounding a financing, typically the

Finding a Term Sheet That Fits

depending upon the bias of each group of investors. The

So context is really what dictates the contents of a term

There are, however, five basic forms and styles of term

Because a term sheet is basically an outline for a

Investors: Institutional Versus Angel Term Sheets

Angel networks and angel investors themselves have

The process of working with angel investors who purchase

informal, because angels who are experienced will typically

Angel money typically assumes a subsequent round of

spelled out clearly on a term sheet is so important to an

Entrepreneurs seeking funding must understand that

As venture capitalists (VCs) propose a term sheet to a

sums based on the company achieving certain levels of

In the Driver's Seat

If the economics of the deal is not up to the entrepreneurs

term sheet negotiation will be carried forward throughout

On the other hand, it's possible to shop for financing the

The smartest entrepreneur is working several venture firms

Under the Looking Glass

The most obvious section that requires extra attention is the

The Current Securities Section (which describes all shares

summary of any warrants and options issued. The

certain types of actions and powers, if held by certain

When examining these sections, it is important to review

In later-stage investments, the board composition and

The degree to which management is executing becomes

For all of these reasons, it is necessary to inspect the

Don't Get Held Up

effectively double dipping. They want to keep their