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Venture Capital: Forms and Analysis
Incisive Media, Dec 2007, Pages: 500
CHAPTER 1
Introduction
§ 1.01 Introduction
CHAPTER 2
Letter of Intent — Equity Based Financing
§ 2.01 Letter of Intent or Term Sheet
§ 2.02 Basic Term Sheet
[1] Preamble
[2] Brief Summary of Transaction
[3] Outstanding Capitalization
[4] Closing Date
[5] Use of Proceeds
[6] Stock Option Plan
[7] Representation and Warranties
[8] Dividends
[9] Liquidation Preference
[10] Conversion Ratio; Anti-Dilution Adjustment
[11] Automatic or Mandatory Conversion
[12] Voting Rights
[13] Registration Rights
[14] Lockup
[15] Information and Reporting
[16] Participation in Future Offerings
[17] Transfer to Affiliates
[18] Board of Directors
[19] Protective Provisions
[20] Directors and Officers Insurance
[21] Employment Agreements; Key Man Insurance
[22] Stockholders Agreement
[23] Standstill
[24] Confidentiality
[25] Public Non-Disclosure
[26] Expenses
[27] Contingencies
§ 2.03 Letter of Intent — Participating Preferred
§ 2.04 Participating Preference with a Cap
§ 2.05 Issuance of Warrants
[1] In General
[2] Warrant Coverage
[3] Strategic Relationships
§ 2.06 Mandatory Redemption
§ 2.07 Pay to Play
§ 2.08 Form of Term Sheet for Equity Based Financing
CHAPTER 3
Letter of Intent — Debt Based Financing
§3.01 Debt Financing
§3.02 Basic Term Sheet
[1] Preamble
[2] Basic Description of the Offering
[3] Participation
[4] Closing Date
[5] Terms of the Notes
[6] Security
[7] Use of Proceeds
[8] Warrants
[9] Negative Covenants
[10] Information Rights
[11] Expenses
[12] Conditions to Closing
[13] Confidentiality and Public Non-Disclosure
[14] Exclusivity
[15] Binding Provisions
§3.03 Form of Term Sheet
CHAPTER 4
Due Diligence Request
§ 4.01 Due Diligence and Its Purpose
§ 4.02 The Due Diligence Scope and Process
§ 4.03 Due Diligence Request List
[1] Corporate Records
[2] Stock and Securities Issuances
[3] Material Agreements
[4] Related Party Transactions
[5] Intellectual Property Assets
[6] Confidentiality and Related Agreements
[7] Employment Matters
[8] Financial Statements and Tax Documentation
[9] Litigation
[10] Industry and Business of the Company
[11] Miscellaneous
§ 4.04 On-Site Visit
§ 4.05 Dealing with Negatives
§ 4.06 Focus on Intellectual Property Due Diligence
[1] Ownership and Status
[2] Scope
[3] Validity and Enforceability
§ 4.07 Form of Due Diligence Request List
CHAPTER 5
The Certificate of Incorporation of a Venture-Backed Corporation
§ 5.01 The Certificate
[1] In General
[2] Authorized Capital Stock
[3] Classes and Series of Stock
[4] Dividends
[5] Liquidation Preference; Deemed Liquidation
[6] Redemption
[7] Conversion
[8] Voting Rights
[9] Designation of Directors
§ 5.02 Form of Certificate of Incorporation
CHAPTER 6
Conversion: Anti-Dilution Provisions
§ 6.01 Introduction
§ 6.02 Convertible Preferred Stock
§ 6.03 Convertible Notes
§ 6.04 Warrants
§ 6.05 Conversion Generally: Preferred Stock
§ 6.06 General Adjustments to the Conversion Price
[1] Structural Changes: Stock Splits, Combinations and Dividends
[2] Structural Changes: Merger or Reorganization, etc.
[3] Price Protection: Anti-Dilution Adjustments
§ 6.07 Special Considerations
§ 6.08 Pay-to-Play Provisions
§ 6.09 Warrant Provisions
§ 6.10 Convertible Note Provisions
§ 6.11 Conclusion
CHAPTER 7
The Purchase Agreement
§ 7.01 Introduction
§ 7.02 General Drafting and Negotiating Considerations
§ 7.03 Key Sections
[1] Sale and Issuance
[2] Company Representations and Warranties: Generally
[3] Disclosure Schedules
[4] Materiality Qualifications
[5] Ordinary Course
[6] Dollar Thresholds
[7] Knowledge
[8] Investor Representations and Warranties
[9] Special ERISA Considerations
§ 7.04 Conditions Precedent to Closing
[1] Purpose
[2] Key Closing Conditions
§ 7.05 Indemnification
[1] Purpose
[2] Limitations
§ 7.06 Governing Law and Dispute Resolution
[1] Purpose
[2] Governing Law
[3] Dispute Resolution
§ 7.07 Form of Purchase Agreement
CHAPTER 8
Investor Rights Agreements
§ 8.01 Introduction
§ 8.02 Registration Rights
[1] What Shares are Registrable?
[2] Types of Registration Rights
[3] The SEC Approval Process
[4] Registration Expenses
[5] Indemnification
[6] Market “Stand-Off” Agreement
[7] Amendment and Termination of Registration Rights
§ 8.03 Pre-Emptive Rights
§ 8.04 Information and Observer Rights
[1] Information Rights
[2] Inspection Rights
[3] Observer Rights
[4] Termination of Information [and Observer] Rights
[5] Confidentiality
§ 8.05 Additional Post-Closing Covenants
[1] Affirmative Covenants
§ 8.06 Modification and Termination of the Investor Rights Agreement
§ 8.07 Form of Investor Rights Agreement
CHAPTER 9
Control Provisions
§ 9.01 Managing and Limiting Risk
§ 9.02 Initial Financing Risk
§ 9.03 Operational Risk
[1] Board of Directors Participation
[2] Protecting Voting Rights
§ 9.04 Exit Risk
§ 9.05 Conclusion
CHAPTER 10
Right of First Refusal and Co-Sale Agreement
§ 10.01 Introduction
§ 10.02 Basic Terms of a Right of First Refusal and Co-Sale Agreement
[1] Recitals
[2] Definitions
[3] Right of First Refusal
[4] Right of Co-Sale
[5] Drag Along
[6] Employee-Held Securities
[7] Legend
[8] Termination
[9] Conclusion
§ 10.03 Form of Right of First Refusal and Co-Sale Agreement
CHAPTER 11
Warrants
§ 11.01 Background
§ 11.02 Warrant
[1] Legend
[2] Introductory Paragraph
[3] Exercise
[4] Reservation of Shares
[5] Adjustment to Number of Issuable Shares
[6] Other Provisions
[7] Appendixes
§ 11.03 Form of Warrant
CHAPTER 12
Promissory Notes
§ 12.01 In General
§ 12.02 Bridge Financing
§ 12.03 Deal Documents
[1] Securities Act Legend
[2] Who Owes What to Whom and When?
[3] Usury
[4] Security
[5] Ranking
[6] Interest; Payments
[7] Conversion
[8] Representations and Warranties
[9] Covenants
[10] Events of Default
[11] Miscellaneous Provisions
§ 12.04 Form of Note
CHAPTER 13
Founder's Agreements
§ 13.01 Introduction
§ 13.02 Employment Arrangements
[1] Introduction
[2] Offer Letters versus Employment Agreements
[3] Preamble/Whereas Clauses
[4] Duties/Scope of Employment
[5] Employment Term
[6] Compensation
[7] Termination of Employment
[8] Consequences of Termination
[9] Non-Competition Provisions
[10] Change in Control Agreement
[11] Excess Parachute Payments
[12] Miscellaneous
§ 13.03 Form of Employment Agreement and Offer Letter
[1] Form of Employment Agreement
[2] Form of Offer Letter
§ 13.04 Confidentiality and Assignment of Intellectual Property Arrangements
[1] Introduction
[2] Consultants
[3] Preamble/Whereas Clause
[4] Restricted Information
[5] Confidential Information
[6] Assignment of Intellectual Property
§ 13.05 Form of Confidential Information and Invention Assignment Agreement
CHAPTER 14
Opinion Letters
§ 14.01 Closing Opinion
§ 14.02 Basic Closing Opinions
[1] Corporate Status
[2] Corporate Power and Enforceability
[3] Capitalization
[4] No Conflict
[5] Consents, Approvals, and Filings
[6] Securities Exemption
[7] No Litigation
§ 14.03 Form of Closing Opinion for Issuance of Series B Preferred Stock
§ 14.04 Conclusion
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