By: Asheesh Advani
No matter who you’re raising capital from and no matter whether you’re raising money in the form of debt or equity funding, you’ll be faced with the prospect of financing agreements that are written to favor the investor over the entrepreneur. Over the years, the agreements used by more informal investors have come to mirror the investor-friendly agreements used by venture capital firms. So it’s critical, especially during the startup stage when your negotiating leverage with investors is often weak, to know the difference between what is tolerable and what is intolerable when it comes to structuring a financing deal.
Your guiding principle should be this: Look into your crystal ball and choose your first investor carefully. Don’t agree to terms that will limit or restrict your ability down the road to grow your company or attract additional investors. When raising money from angel investors or relatives and friends, the terms negotiated by your first investor in a financing round tend to be the terms that last for the entire round. Similarly, the terms you agree to in your first round set the stage for later rounds. And giving away too much could come back to hurt you or your business.
So here are a few tips about what to look out for to get a deal that works for you:
Don’t give pro-rata rights to your first investors. If your first investor (or his or her attorney) negotiates pro-rata rights (which means the investor is given the right to maintain ownership in the company through future investment rounds), all the investors in the round are likely to also want those rights.even if most wouldn’t have otherwise requested them. Although anti-dilution provisions are in the interest of early investors, they’re off-putting to later investors. So you’ll need to balance the needs of your early investors to protect their stake in the company with how attractive your company will appear to later institutional investors.
Avoid giving too many people the right to be overly involved. The follow-the-leader mentality described above gets particularly problematic when you give up control of the business and require investor consent for business decisions. If you’re not careful, you may find yourself in the tedious and time-consuming position of needing signatures from all or most of your shareholders to make future financing decisions or management choices–all because you gave these rights to your first investor. Similarly, some investors will want detailed reports on a weekly, monthly or quarterly basis. Agree to this only when it seems necessary. Spending a lot of time preparing and mailing reports, and requesting and collecting signatures, is probably not the best use of your time.
Beware of any limits placed on management compensation. In the past few years, angel investor groups have started to “over reach” by adding clauses to financing agreements that limit the salaries of senior management. While this type of restriction might make sense for businesses running out of money or ones in which the board of directors is too cozy with senior management, entrepreneurs should be wary about agreeing to such limits. Arbitrary limits on how much you can pay your top employees means you’ll be limiting your ability to attract the best people at the time you need them most. What you might do instead is to agree to set up a compensation committee for your new business and review salaries as part of a total budget.
Request a cure period. To protect themselves, investors may want you agree to covenants and representations about your company that might be difficult for an under-funded startup to swallow. These can include representations about every legal agreement your business has ever entered into, and guarantees that your business is compliant with all laws, licenses and regulations in every state. Most agreements will indicate that you are in default of the agreement if you violate any of its provisions.
Agreeing to such sweeping provisions is often difficult for honest entrepreneurs. One way to deal with this is to ensure that you have a “cure period” in your financing agreements. You should negotiate a cure period of two to four weeks to allow yourself time to remedy your errors. This cushion will give you the time you need to find a solution or a “white knight” investor if you’re ever vulnerable.
Restrict your share restrictions. Historically, friends, family and angel investors wouldn’t request adding restrictions on the sale of shares owned by the founders or management team. These restrictions were typically added during venture capital rounds of financing in which retaining the founders and management team are critical to making the deal work.
However, I’ve noticed that angel investor groups have started to insist on these restrictions even during early rounds. While it’s unlikely that founders’ shares have much street value during the early rounds and it’s unlikely that anyone will want to buy them, it’s still not a good idea to agree to such restrictions. If you know that you plan to raise additional capital, having unrestricted shares is often one of your only bargaining chips with future investors.
When raising money from any type of investor, it’s a good idea to speak to your attorney about whether he or she is seeing an investor-friendly or entrepreneur-friendly capital market. If it’s not friendly, then be patient–recent experience shows that the tide will always turn.