Term sheets the definitive guide for entrepreneurs

1. Term Sheets: The Definitive Guide for Entrepreneurs
by Todd Miller | Feb 3, 2016 | Founders, Fund Raising, Term Sheets
The term sheet is one of the most important documents a founder will ever encounter.
But they don’t teach you about term sheets and cap tables in school. It’s part of the “street smarts”
of being an entrepreneur, and most founders have to learn as they go.
You can look at term sheet templates and samples all day, but what will you learn by reading
through a bunch of terms you don’t fully understand? I’ve included a template resource with this
post; however, it won’t really tell you anything by itself.
What you really need to know is which terms are most important, how they affect you, and how to
negotiate them. Only then will you be able to look at a term sheet and make smart cap table
decisions.
Lucky for you, I’ve written this article to help you accelerate up the learning curve so you don’t get
blindsided or taken advantage of.
Bonus Tool: Click here to download the Term Sheet Scorecard. Just match the values on the
scorecard with your term sheet to calculate the “founder friendliness” score.
What is a Term Sheet (Explained in Plain English)
A term sheet is like a marriage between your company and your investors, but with a lot less
romance or open-ended trust. It dictates who gets what financially, and who gets to do what legally,
in almost every scenario.
The terms in the term sheet outline the “conditions” for an investment. These terms will describe
things like the agreed upon valuation of the company, the price per share for the investment, the
economic rights of the new shares and so forth.
Generally, a term sheet itself is not legally binding. Its main purpose is to serve as a blueprint for the
formal legal documents that will be drafted by lawyers. However, you usually agree to confidentiality
and a promise not to enter into negotiations with other investors at the same time.
When raising capital, you can get term sheets for both equity investments and convertible
instruments ( KISS docs, SAFE docs, convertible debt, etc). In this post we’re going to mainly focus on
equity term sheets. If you want to learn more about convertible debt and the like, read our post that
covers everything you need to know about convertible debt.
Term Sheet Negotiation
Term sheets are essentially all about two things:
Control of the company
Cash received upon an exit event (the economics)

2. These elements are at the heart of being an entrepreneur, so you absolutely want to understand
how different terms affect you. It can be a make-or-break deal for startup founders.
Knowing where to negotiate and what to negotiate for is critical, because not all terms are equally
important. You want to focus on the components that really matter. And once you successfully
negotiate the key terms, the incremental benefit of negotiating other terms diminishes pretty
quickly.
A lack of term sheet knowledge puts you at a serious disadvantage. Academics would call this
information asymmetry. Venture capitalists aren’t out to dupe you, but they’re not charity
foundations either. In the Darwinian world of startups, only the smartest and most savvy
entrepreneurs generally survive.
Nearly all VCs work hard to maintain positive, long-term relationships with entrepreneurs. But would
a rational investor negotiate against themselves? No. They will act rationally in their best interest.
VCs are in the business of making deals, so of course they know all the ins and outs. It’s your
responsibility as a founder to educate yourself. Don’t expect your investors to spend time and
energy training you to get best possible terms in a negotiation.
Also keep in mind the interpersonal nature of term sheet negotiation. Some entrepreneurs make
self-destructive mistakes by ignoring important social and interpersonal dynamics involved with
accepting a term sheet. Venture capital is a small world, so avoid burning bridges.
Key Terms – Economics
Valuation (and percentage ownership)
The company’s valuation, along with the amount of money invested, determines the percentage of
the company the new investors will own. This is one of the most crucial components of the term
sheet, because it has the most direct impact on who owns what and how much cash each
shareholder receives when the company sells.
Valuation is expressed in terms of pre-money and post-money values. The pre-money valuation is
the company’s valuation before the new investment. The post-money is simply equal to the pre-
money valuation plus the amount of the new investment. The founder’s basic objective is to
maximize the amount of capital investment while minimizing dilution.
If investors believe the company is worth $4M, and they want to invest $1M, your pre-money is $4M
and your post-money is $5M:
Post-money = $4M pre-money + $1M investment
The $1M investment gives investors 20% of the company:
Investor ownership = $1M investment / $5M post-money
Valuation is arguably the most important component of the term sheet. A poor valuation can ruin a
deal even if all other terms are in your favor. However, the inverse isn’t necessarily true. A great
valuation doesn’t always outweigh unfavorable terms elsewhere on the term sheet.
But many founders don’t know this. They naively assume that a great valuation equates to a great
term sheet.

3. Never make that assumption. VCs can extract more value than the valuation would imply, so the
best deal may not always be the one with the richest valuation.
Plus, you set a bar for yourself with every future term sheet valuation. And if you haven’t cleared
that bar the next time you need to raise money, you put yourself in a very bad position.
Flat rounds (raising money at the last valuation) aren’t great, but down rounds (raising money below
the last valuation) can literally send a startup into a death spiral.
So approach valuation mindfully. Most entrepreneurs would do best to negotiate a “fair” valuation.
This means playing your hand as an entrepreneur who wants to create win-win outcomes for both
VCs and founders. It also means keeping your requests in line with your industry and your company’s
stage of development.
Entrepreneurs who approach valuation with a level head are more likely to gain a good reputation in
the venture community and build strong relationships with investors. If you want to play the game
more than once, you have to be a smart negotiator.
Option Pool
Most term sheets will stipulate the creation of an option pool or the expansion an existing one to set
aside shares for future hires. The language generally looks something like this:
Prior to the Closing, the Company will reserve shares of its Common Stock so that [XX]% of its fully
diluted capital stock following the issuance of its Series A Preferred is available for future issuances
to directors, officers, employees and consultants.
The language here is crafted very carefully. The key phrase is, “prior to the closing….” What this
means is that the investors want some percentage of the cap table to be set aside for future grants,
but they want existing shareholders to absorb all the dilution.
The most founder friendly approach would be to calculate the option pool post-money and force the
new investors to share in the dilution. But in reality, the standard for most term sheets is to calculate
it pre-money, as in the above example.
The option pool is a common source of information asymmetry, because many founders don’t
understand how VCs think about valuation.
The treatment of the option pool can have a significant impact on the “effective valuation” of your
company. It affects dilution in a big way and can potentially swing the economics by 5-8% or more.
Liquidation Preference
The liquidation preference is downside protection for preferred stock, and it’s a pretty standard
term. Investors would prefer to see your company succeed so their stake in the company is worth
more than they invested. But if the company doesn’t do well, a liquidation preference gives them
some hope of not losing all their money.
The most standard liquidation preference is 1x invested capital, which means when the company is
sold, preferred stock holders are entitled to receive an amount equal to what they invested before
more junior classes of stock can receive anything. Or instead, preferred shareholders can convert

4. their shares into common and receive cash according their percentage ownership in the company (if
doing so would give them a greater return).
Anything above a 1x liquidation preference is very non-standard unless your company has become
something of a trainwreck. If preferred stock has a 2x liquidation preference, this guarantees that
investors get twice their money back before common gets anything. Very few deals warrant that
kind of preference.
The language for the liquidation preference usually contains something like this:
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 a per-share amount
equal to [$X.XXX per share or X times the Original Purchase Price].
However it’s worded, you’re looking to make sure that the preference is not more than the invested
amount.
Participation Rights
Also known as “double dipping,” participation rights let preferred stockholders get their money back
before anyone else, and then also participate fully (pro-rata) in any remaining proceeds.
To illustrate, suppose preferred stock has a $500k liquidation preference with participation rights
and owns 40% of the cap table. If the company sells for $1M, preferred takes $500k off the top and
also gets 40% of the remaining $500k for a total payout of $700k. That leaves $300k for common
shareholders.
As you can see, participation rights heavily favor preferred stockholders. In fact, this can be one of
the most punishing terms to founders and employees as holders of common stock. While not
unheard of, participating preferred stock is definitely not the standard. So don’t hesitate to make a
case against it.
You will likely find the language for participation rights in the liquidation preference section of the
term sheet. There will be a phrase that looks something like this:
After the payment of the Liquidation Preference to the holders of the Series A Preferred, the
remaining assets of the Company shall be distributed ratably to the holders of the Common Stock
and the Series A Preferred on an as-converted-to-Common Stock basis
The best scenario for founders is to negotiate for no participation rights at all. If your investors insist
on participation rights, a reasonable compromise is to negotiate for a cap on participation, which
puts a limit on how much the preferred stockholders can double dip.
For a more in-depth analysis, you can read about how preferred stock terms affect your cap table.
Dividends
Dividends, expressed as a percentage (e.g., 8%), provide an additional return that accrues to
preferred stockholders over time. Any dividends that accrue to preferred stock increases the
liquidation preference by that amount.
Pretty much all term sheets mention dividends, but depending on the language, the section may be
effectively pointless. The most founder friendly dividend language will include the word

5. “noncumulative” and the phrase “when and as declared by the Board of Directors.” With these two
features, this term will likely never come into play.
Watch out for the word “cumulative” or the acronym “PIK,” which stands for “paid in kind.”
Cumulative dividends essentially guarantee investors a certain level of return, which is not a very
standard feature for early-stage deals. PIK dividends are a double whammy, because the value of the
dividend is paid to the investor in the form of additional preferred stock. This not only increases the
liquidation preference for preferred stock, but it also dilutes founders simply with the passage of
time.
Anti-dilution
Anti-dilution is a pretty standard feature of preferred stock. It protects investors from getting grossly
diluted in the event of a “down round” (i.e. the Series A round was raised at $2 per share and later a
“down round” occurs when the Series B round is raised at $1.50 per share). The math gets
complicated, so I won’t cover it here. You can check out this article to dig deeper.
Anti-dilution protection comes in several forms: full-ratchet, narrow-based weighted average and
broad-based weighted average.
Broad-based weighted average is the most founder friendly form of anti-dilution. Adding a “pay-to-
play” provision requires an investor to invest more capital in a down round in order to receive anti-
dilution benefits.
In general, you’re mostly safe if anti-dilution is either of the two weighted average varieties.
Full-ratchet anti-dilution can be pretty devastating to common shareholders in a down round.
Hopefully anti-dilution never comes into play. But if it does, full-ratchet can effectively wipe out
common stockholders, so avoid it if you can.
Key Terms – Control
Control of the company is pretty much binary: either you have it or you don’t. There are three main
elements of control that have implications for different types of decisions.
Board of Directors
The board is a crucial governing body in any company, and term sheets will often include provisions
on how it will be structured and who will control critical board votes. In many ways, the board is the
most important control mechanism of the typical VC-backed company.
As with other terms, there are more founder-friendly options and less founder-friendly options. The
company’s stage makes a big difference in how likely you are to maintain control or not.
Founders often maintain complete control over the boards of early-stage companies. But if they
continue to raise money, often the investors (as a group) will have more control than the founders.
Many feel that the ideal structure, even for later-stage companies, contains an equal number of VC-
friendly members and founder-friendly members, as well as an “independent” board member. The
independent member is usually a respected business person who is trusted by all other board
members.

6. The primary objective for founders is to make sure that board representation between VCs and
founders/common shareholders stays equal. Under these circumstances, both sides have equal
voting power. In a situation where the two sides disagree, neither side would be able to win without
convincing the independent member to vote in their favor.
Ownership Percentage of Share Classes
Some company decisions depend on a shareholder vote rather than a board vote. For these
decisions, voting power comes down to percentage ownership. So the main concern is whether or
not majority ownership of the company is held by founder-friendly shareholders or VC-friendly
shareholders.
A few important company decisions, like stock splits or dilutive issuances, may even require the
approval of a majority of each share class, including common and all preferred. In these cases, the
more shares you control in each class, the more influence you will have in the vote.
Investor Rights
Investors typically require special rights called “protective provisions” before they agree to invest.
These special provisions essentially give investors trump cards that apply to very specific company
actions.
They can include things like limits on how much debt you can take on without VC consent,
restrictions on increasing authorized shares to take on new funding or give to employees, and
changes to the certificate of incorporation.
Some provisions are reasonable and fairly standard, other provisions can be way too restrictive. The
list of potential provisions is too long to list here, so the best approach is to rely on advice from your
lawyer. A good lawyer will be able to catch provisions that could come back to bite you.
Bonus Tool: Click here to download the Term Sheet Scorecard. Just match the values on the
scorecard with your term sheet to calculate the “founder friendliness” score.
Term Sheet Resources and References
You should now have a baseline understanding of what a term sheet is and how to make it as
founder friendly as possible. But that’s a lot of information to digest.
If you found yourself getting lost in legal and financial jargon, check out this plain English term sheet
example. It should help you easily understand the basic premise of each term using a more familiar
vernacular.
Also, there’s a lot I didn’t cover. I couldn’t possibly cover everything in a single blog post. Luckily,
Brad Feld wrote a series of blog posts on term sheets, each one dedicated to dissecting a single
term. He then used those posts as the basis for a book, Venture Deals: Be Smarter Than Your Lawyer
and Venture Capitalist.
So if you need a reference in the midst of negotiations, Brad’s book or blog would be a great
resource.
If you need to see how a term sheet actually plays out on your cap table, you can use Capshare to
model out the scenario and see precisely how it affects every shareholder.

7. Some Final Advice
Term sheets are complicated, and it can be easy to get hung up on the details. But at the end of the
day, there’s probably just a few key terms that you should really care about.
Focus on what’s important.
Educate yourself about the consequences of the various terms, and decide with your co-founders
and advisors what matters most to you. Because you’re not going to get the most founder friendly
arrangement on every term. That’s just not realistic.
If you argue with potential investors on every point and resist compromise on every term, you will
likely end up without a deal.
I’ve outlined some red flags to watch out for in the terms above. Decide what you can tolerate and
what you can’t, and let your lawyer watch your back on the rest.
Also keep in mind that term sheets in a startup’s early financing rounds can set a precedent for later
rounds. Future investors will likely anchor on the terms of the investments that preceded them.