Observation 1 — Convertible debt is a bad deal for angel investors

I think many sophisticated angel investors realize that convertible bridge notes do not adequately compensate angel investors for the risk that they take in funding early-stage companies. For example, typical provisions in a company-friendly pre-Series A convertible bridge note financing may include a 20% conversion discount from the Series A price and a 2x return on a sale of company.

Assume the angel investor invests $500K. If the company eventually raises $50M in a Series A financing at a $100M valuation, a 20% discount from that price is not particularly attractive compensation for that investment risk, as the investor would only own about 0.4% of the company after the financing (assuming that the shares issued upon conversion of the bridge were not included in the pre-money fully-diluted share number). Similarly, if the company is sold for $100M, the investor would only receive 2x their investment back (plus interest), or a total of $1M, which would only be 1% of the sale price.

If the investor had invested $500K in a Series A Preferred Stock at a $4.5M premoney valuation, then the investor would own 10% of the company. If the company raises $50M in a Series B financing at a $100M valuation, the investor would own 6.67% of the company post-Series B financing.

Similarly, if the company was sold for $100M before another round of financing, the investor would receive 10%, or $10M.

Observation 2 – Angel investors realize convertible debt is a bad deal so they demand price protection provisions (i.e. a price cap)

Due to the economic results described above, many sophisticated angel investors refuse to do convertible note bridge financings unless the conversion price on the debt is capped.  In other words, an investor may request that the conversion price is the lower of (i) a 20% discount from the Series A price, or (ii) the price per share determined if the valuation was $[X]M.  Typically, the valuation might be some reasonable projection of the valuation range in the eventual Series A financing.  The valuation is typically higher than what would be set if the investor and the company negotiated a valuation at the time of the convertible debt financing, but lower that the expected Series A valuation if the company achieved their objectives.

Similarly, in the event of a sale of company before a Series A financing, a sophisticated angel investor may request that they receive the better of (i) 2x their investment back (plus interest), or (ii) the return if they had invested their money at an $[X]M valuation.

In any event, I think that convertible debt financings are still easier to complete than a Series A financing, so a convertible note with a cap achieves the investor’s objective without the complexity of a Series A financing.

Wilson Sonsini Goodrich & Rosati provides a powerful online tool that provides clean technology entrepreneurs and companies with a searchable, easy-to-use source for federal and state government funding opportunities and guidance on how to apply.

The publicly available tool aggregates and frequently updates the numerous financing opportunities, such as grants, loan guarantees, tax credits, and other programs, being offered by federal and state governments. Users are able to search by industry sector, as well as by state-by-state resources. The tool also includes articles by Wilson Sonsini Goodrich & Rosati attorneys on how to take advantage of governmental funding opportunities, links to useful federal and state websites, and additional firm publications such as The Clean Tech Report and relevant WSGR Alerts and press releases.

The tool may be accessed through the Wilson Sonsini Goodrich & Rosati website at http://www.wsgr.com/cleantech.

Founders of startup companies often wait to incorporate a company until they are confident that their concept is viable or fundable.  At some point, however, an entrepreneur will need to formally incorporate a company.  Several reasons exist for taking the step to incorporate.

• More than one founder.  If there is more than one founder, the likelihood of an argument about how the equity should be split in the new company increases dramatically.  Incorporating a company and issuing stock to the founders will help prevent misunderstandings among the founders about equity splits.  Trying to clean up pre-incorporation promises to grant equity in a startup company is a painful task, especially if founders part ways before there are formal documents in place to deal with the situation.  Please keep in mind that even if a company is incorporated, founder stock purchase agreements with repurchase rights over unvested stock if founders leave are not included with the documents from typical online incorporation services.

• Creating intellectual property.  If there is any IP created and there is more than one founder, then incorporating an entity and assigning IP to the entity is important.  Otherwise, if a founder leaves before incorporation and IP has not been assigned to the other founder or an entity, then use of IP created by the former founder may be problematic.  Once again, please keep in mind that the documents from typical online incorporation services do not contain IP assignment provisions in connection with the purchase of founders stock or separate IP assignment documents.

• Hiring employees or third party contractors.  Although I’ve run into a situation where the former CEO of a Fortune 500 company personally paid an “employee” out of his own pocket for a year prior to incorporation while incubating an idea, most founders will need to incorporate a company if they intend to hire employees.  In addition, if an entrepreneur needs to engage third party contractors, it generally makes sense to incorporate a company so that the third party enters into an agreement with a company instead of an individual.  In addition, any IP created by the contractor can be assigned to the company instead of an individual founder.

• Issuing stock options.  Many entrepreneurs do not have the cash to pay third parties and may partially compensate third parties by granting stock options or giving them the opportunity to purchase equity at nominal prices.  Although it is possible to have pre-incorporation agreements to grant equity upon incorporation, it is simply easier to incorporate a company and grant stock options or equity to satisfy these promises.

• Launching a service/product and general liability issues.  One important reason for incorporating a company is to protect the stockholders against personal liability.  If a company complies with corporate formalities, creditors of the company generally cannot reach the stockholders to satisfy the company’s liabilities.  Thus, a company should generally incorporate before launching a product or a service due to potential liability issues, as the risk of liability to a founder increases with customers or users.

• Obtaining visas.  If a non-U.S. citizen/non-permanent resident founder intends to work in the U.S. on a startup project, then the founder should work with an immigration attorney on a strategy to legally work in the U.S.  Incorporating a company and demonstrating that it is a “real” business with sufficient capital is typically a prerequisite to a visa application.

• Starting capital gains holding period in the event of a stock sale.  If a founder sells stock of a company in a taxable transaction and it is held for greater than one year, then the capital gains tax rate is 15% for founders in the 25% tax bracket and higher. These days, it is fairly easy to develop a hit iPhone app or Facebook app and sell a company fairly quickly.  I represented a couple of Facebook app companies last year that were sold in taxable transactions.  One app was sold by an individual founder and the app was only several months old.  Unfortunately, the founder was unable to receive the benefit of long-term capital gain tax treatment on the asset sale (and ended up paying the same tax rate as ordinary income on the sale proceeds).  The other app was sold by an individual founder and the app was only several months old, but he had the foresight to incorporate a company more than a year prior to the sale and assign IP to the company.  The buyer bought the stock of the company as opposed to the app itself.  Thus, even though the app was less than one year old, the shares of stock of the company were held for greater than one year, and qualified for long-term capital gain tax treatment.

• Funding.  Obviously, if third party investors want to invest in a startup idea, there needs to be an entity to accept the investment.  Generally, I prefer to incorporate and issue founder’s stock at nominal prices well in advance of a Series A preferred stock financing because it is difficult to justify that common stock should be priced at $0.001 per share while Series A preferred stock is issued at $1.00 per share.

Incorporating a company is a serious step that results in out of pocket costs and ongoing tax and other filing obligations. In addition, if a founder still has a day job as an employee of another company, then the founder will need to review the founder’s employment documents carefully in order to determine if there are any issues. The first step in deciding whether to incorporate or not is to discuss the situation with a competent attorney.

The budget proposal would modify IRC Section 1202 to provide for a complete exemption from capital gains tax for qualified small business stock issued after February 17, 2009 and held for five years, and the amount excluded would not be added back for alternative minimum tax purposes. If enacted, this would significantly enhance the tax incentives currently available for qualified small business stock. Under current law, the exclusion for purposes of the regular income tax system of 50% of the recognized gain on the disposition of qualified small business stock (which was increased by the recent American Recovery and Reinvestment Act to 75% for issuances in 2009 (after February 17, 2009) and in 2010) is substantially undercut by the combination of the high rate of tax (28%) applicable to the non-excluded portion of the gain under the regular income tax and the interplay between the AMT rules and Section 1202. Thus, historically, the principal federal tax benefit of qualified small business stock has been the ability to achieve “rollover” treatment of the proceeds from the sale of qualified small business stock under IRC Section 1045.

In light of the potential for this significant benefit associated with qualified small business stock, all venture financings should be analyzed very closely from a qualified small business stock standpoint. In addition, post-financing transactions, particularly stock redemptions, that potentially could undermine qualified small business stock status should be carefully reviewed.

The relevant provisions of the summary of the budget proposal related to qualified small business stock are below.

ELIMINATE CAPITAL GAINS TAXATION ON INVESTMENTS IN SMALL BUSINESS STOCK

Current Law

Taxpayers other than corporations may exclude 50-percent (60 percent for certain empowerment zone businesses) of the gain from the sale of certain small business stock acquired at original issue and held for at least five years. Under ARRA the exclusion is increased to 75 percent for stock acquired in 2009 (after February 17, 2009) and in 2010. The taxable portion of the gain is taxed at a maximum rate of 28 percent. Under current law, 7 percent of the excluded gain is a tax preference subject to the alternative minimum tax (AMT). The AMT preference is scheduled to increase to 28 percent of the excluded gain on eligible stock acquired after December 31, 2000 and to 42 percent of the excluded gain on stock acquired on or before that date.

The amount of gain eligible for the exclusion by a taxpayer with respect to any corporation during any year is the greater of (1) ten times the taxpayer’s basis in stock issued by the corporation and disposed of during the year, or (2) $10 million reduced by gain excluded in prior years on dispositions of the corporation’s stock. To qualify as a small business, the corporation, when the stock is issued, may not have gross assets exceeding $50 million (including the proceeds of the newly issued stock) and may not be an S corporation.

The corporation also must meet certain active trade or business requirements. For example, the corporation must be engaged in a trade or business other than: one involving the performance of services in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services or any other trade or business where the principal asset of the trade or business is the reputation or skill of one or more employees; a banking, insurance, financing, leasing, investing or similar business; a farming business; a business involving production or extraction of items subject to depletion; or a hotel, motel, restaurant or similar business. There are limits on the amount of real property that may be held by a qualified small business, and ownership of, dealing in, or renting real property is not treated as an active trade or business.

Reasons for Change

Because the taxable portion of gain from the sale of qualified small business stock is subject to tax at a maximum of 28 percent and a percentage of the excluded gain is a preference under the AMT, the current 50-percent provision provides little benefit. Increasing the exclusion would encourage and reward new investment in qualified small business stock.

Proposal

Under the proposal the percentage exclusion for qualified small business stock sold by an individual or other non-corporate taxpayer would be increased to 100 percent and the AMT preference item for gain excluded under this provision would be eliminated. The stock would have to be held for at least five years and other provisions applying to the section 1202 exclusion would also apply. The proposal would include additional documentation requirements to assure compliance with the statute.

The proposal would be effective for qualified small business stock issued after February 17, 2009.

Adeo Ressi, the founding member of TheFunded, recently announced the establishment of TheFunded Founder Institute.

The Founder Institute helps founders launch innovative companies by providing training, services, and company-building assignments, such as incorporating the business, filing provision patents, and setting up books and records. The Institute offers a four month program, called a Semester, hosted initially in the Bay Area and then expanding to locations around the world. The program participants, the Founders, receive extensive training in weekly sessions overseen by three Mentors – two seasoned CEOs and one domain expert for each topic.

The driving beliefs behind the Institute are that (1) great founders are often overlooked by the current entrepreneurial ecosystem, and that (2) innovative startups have a dramatic positive effect on the global economy. Startup companies consume resources intelligently, put people to work in efficient ways, and produce market driven products at lower costs. Helping smart people start new companies should, in fact, help the global economy.

TechCrunch initially reported on the Founder Institute in March 2009.  The Founder Institute has recruited 25 executives to serve as mentors for the founders participating in the program.  The mentors will also lead weekly evening training sessions on company-building tasks.  Founders are not expected to quit their day jobs to participate in the program, which starts on May 19, 2009 and ends on September 8, 2009.  Sessions will be held in the San Francisco Bay Area at locations such as Stanford and Wilson Sonsini Goodrich & Rosati.  Class sessions and course material will be available online.  Although founders outside of the San Francisco Bay Area are welcome, founders in the Bay Area who are able to attend sessions in person are likely to benefit the most from interactions with mentor and other founders.  Future semesters are expected to be held in other locations.

The Founder Institute will assist founders in setting up meetings with potential investors and other parties throughout the semester.

Applications

The Founder Institute intends to accept between 75 and 100 founders for the initial semester, although the size may be limited.  Applications are due by May 10, 2009.  Applicants must:

• Have a preliminary idea and a passion to build something
• Have not yet incorporated, though the Founder Institute will make some exceptions for existing businesses
• Focus on a high tech or innovative sector, such as biotech, cleantech, and information technology
• Possess reasonable training or domain expertise
• Pass basic background and reference checks

The application fee is $50, which only partially offsets costs associated with processing applications.  If accepted, the founder must pay a $450 course fee to cover material and administrative costs.  Microsoft BizSpark has provided a limited number of scholarships to the program.  If a founder’s company raises more than $50,000 in debt or equity financing, excluding funds from the founder, within 18 months of formation, then the founder must pay a tuition fee of $4,500, which is used to cover the Institute’s expenses in providing the program.

Mentors

The Founder Institute has assembled 25 executives to serve as mentors for the participants and to lead weekly sessions.  Mentors for the Summer 2009 Semester include:

• Trip Adler – CEO, Scribd
• Michael Arrington – TechCrunch
• Joe Betts-LaCroix – CTO, OQO
• Jason Calacanis - CEO, Mahalo
• Russ Fradin - CEO, Adify
• Scott Heiferman - CEO, Meetup
• David Higly - CEO Higley & Company LLC
• Jay Jamison – Founder, Moonshoot
• Philip Kaplan – Entrepreneur
• Eugene Lee – CEO, Socialtext
• Bubba Muraka – Business Development, Facebook
• Scott Painter – CEO, Zag
• Aaron Patzer – CEO, Mint.com
• Peter Pham – CEO, BillShrink
• Mark Pincus – CEO, Zynga
• Alain Raynaud – CEO, FairSoftware
• Ken Ross – Founder/CEO, ExpertCEO
• Munjal Shah – CEO, Like.com
• Jen Shelby – Managing Director, Astia
• Jeff Stewart – CEO, Urgent Career
• Brian Thatcher – CEO, Empressr
• Joe Zawadzki – CEO, MediaMath

Additional mentors will be announced shortly.

Curriculum

The evening training sessions will be held weekly with various company-building “homework” assignments.  The curriculum is as follows:

Your Vision & Idea Types
May 19th, 2009: Identify a vision for your business
Description: How to articulate your vision and your passion. Does it involve intellectual property, model innovation, speed to market, market positioning? What is required for different types of ideas?
Mentors: Trip Adler | Philip Kaplan | Mark Pincus | Paul Harkins |

Basic Research
May 26th, 2009: Validate your idea with industry professionals
Description: Know your market, your competitors, and your idea. Can it be done? Will it work?
Mentors: Trip Adler | Mark Pincus | Jason Calacanis | Joe Betts-LaCroix |

Naming
June 2nd, 2009: Name your future business
Description: What’s in a name, and how do you choose a good one?
Mentors: Bryan Thatcher | Mark Pincus | Jay Jamison |

Intellectual Property
June 9th, 2009: File your provisional patents
Description: Practical strategy to getting your first patents quickly, cheaply, and with the necessary protections.
Mentors: Alain Raynaud | Eugene Lee | Joe Betts-LaCroix |

Roadmap
June 16th, 2009: Develop a plan to build your idea
Description: What it takes to get from an idea to an offering. What are common planning mistakes and how do you to avoid them?
Mentors: Trip Adler | Philip Kaplan | Munjal Shah | Jason Calacanis | Bubba Murarka |

Revenue
June 23rd, 2009: Create a revenue model for your business
Description: How to get it. How to grow it. How to track it. How to scale from the first sale to the millionth.
Mentors: Munjal Shah | Eugene Lee | Jay Jamison | Jen Shelby |

Books and Records
June 30th, 2009: Set-up accounting practices
Description: Set-up an accounting system to grow with your needs. What do you start with? Where do you end up after scaling?
Mentors: David Higley | Ken Ross |

Budgeting and Cash Flow
July 7th, 2009: Develop budgeting practices for your model
Description: What is right for a new business: annual, quarterly, or monthly budgets? What does a good budget process look like?
Mentors: Joe Zawadzki | Ken Ross |

Hiring and Firing
July 14th, 2009: Implement hiring policies and practices
Description: When to hire and when to fire? When is it ‘too late’? Choosing co-founders, and forming a founding team with a well-rounded skill set…
Mentors: Scott Heiferman | Joe Zawadzki | Jay Jamison | Paul Harkins |

Recruiting Success
July 21st, 2009: Identify world-class talent
Description: Who are the best in your field? Can you sell them on your vision?
Mentors: Jeff Stewart | Scott Heiferman | Russ Fradin | Bubba Murarka |

Exit Strategies
July 28th, 2009: Build a value generation plan
Description: How to prepare for an exit long before it happens. How to keep your start-up in the sights of both partners and buyers. How to build enterprise value every day. Don’t get caught off guard with an opportunity.
Mentors: David Higley | Peter Pham | Russ Fradin |

Vendors
August 4th, 2009: Select key vendors
Description: What to in-source. What to outsource. How to hire the best vendors for the best rates. What tools does the business need?
Mentors: Munjal Shah | Alain Raynaud | Peter Pham | Joe Betts-LaCroix |

Incorporation
August 11th, 2009: Incorporate the business
Description: How to set-up the right company structure to attract great employees and investors. What corporate formalities are required, and when?
Mentors: Ken Ross |

Marketing
August 17th, 2009: Create a messaging plan
Description: How to sell the story of your company and your offering.
Mentors: Bryan Thatcher | Scott Painter | Bubba Murarka | Joe Zawadzki | Jen Shelby |

Publicity
August 18th, 2009: Start outreach to key media sources
Description: Getting your vision and company name out there. From blogs to radio, what works and what does not?
Mentors: Philip Kaplan | Jason Calacanis | Peter Pham | Bubba Murarka |

The Funding Lifecycle
August 25th, 2009: Create a funding plan with targets
Description: What are the typical stages of the funding life cycle for different types of startup businesses? What kind of specific milestones should one expect to meet in order to progress through those funding stages?
Mentors: Scott Painter | Scott Heiferman | Russ Fradin | Paul Harkins |

Presentation
September 8th, 2009: Create a perfect pitchdeck
Description: How to explain and present your business to target partners and investors.
Mentors: Bryan Thatcher | Scott Painter | Eugene Lee |

Warrants and Bonus Pool

Each founder participating in a semester’s program will sign a Founder Agreement, which includes an obligation to grant a warrant to the Founder Institute to purchase 3.5% of the founder’s company’s fully-diluted capitalization immediately after an initial equity financing raising greater than $100,000.  The exercise price will be the price per share to other investors in the financing.  The founder’s company may terminate the warrant on or prior to the initial equity financing by paying the Founder Institute $100,000.  In addition, if the founder is removed or resigns as a director and does not certify to the reasonable satisfaction of the Founder Institute that such resignation or removal was voluntary, then the founder’s company must pay the Founder Institute $100,000.  Forms of the Founder Agreement and the warrant are available on the Founder Insititute website.

30% of the proceeds from the warrants received within five years from the start of a term shall be set aside in a bonus pool for the founders participating in a particular semester.  In addition, another 30% of the proceeds will be set aside for the mentors, with a portion of that based on founder reviews.

Founder friendly documents

The Founder Institute has developed Class F common stock, which provides founders with a maximum amount of control over the founder’s company.  TechCrunch and VentureBeat recently reported on this innovation and Adeo Ressi provided his thoughts in PEHub.  A form of Certificate of Incorporation that includes provisions for Class F common stock, along with a form of restricted stock purchase agreement are available on the Founder Institute website.  The Founder Institute requires founders to use these documents, or other documents approved by the Founder Institute, when forming a company.

[Disclaimer:  I represent the Founder Institute.]

Data is analyzed by: founder/non-founder status, company revenue and headcount, geography, business segment, and number of financing rounds raised. Additional detail is provided on compensation for the Board of Directors, general organizational changes over time and other compensation trends.

The survey consists of a Web-based questionnaire, which can be filled out by a single member of a company’s executive team and takes approximately 45-60 minutes to complete.

CEOs or CFOs of startups in the US, China, India, Israel, or the UK in the technology or life science industry should consider taking the survey.   Participants who complete the survey will receive the full results at no cost. 

The 2008 results are available on Altgate and are also embedded below.

For example, below are the 2008 results for average equity granted at time of hire in IT companies:

• CEO 5.40%
• President/COO 2.58%
• CFO 1.01%
• Head of Technology/CTO 1.19%
• Head of Engineering 1.32%
• Head of Sales 1.20%
• Head of Marketing 0.91%
• Head of Business Development 1.23%
• Head of Human Resources 0.24%
• Head of Professional Services 0.60%

2008 CompStudy Report in Technology

2008 CompStudy Report in Life Sciences

The Founder Institute helps founders launch innovative companies by providing training, services, and company-building assignments, such as incorporating the business, filing provision patents, and setting up books and records. The Institute offers a four month program, called a Semester, hosted initially in the Bay Area and then expanding to locations around the world. The program participants, the Founders, receive extensive training in weekly sessions overseen by three Mentors – two seasoned CEOs and one domain expert for each topic.

The driving beliefs behind the Institute are that (1) great founders are often overlooked by the current entrepreneurial ecosystem, and that (2) innovative startups have a dramatic positive effect on the global economy. Startup companies consume resources intelligently, put people to work in efficient ways, and produce market driven products at lower costs. Helping smart people start new companies should, in fact, help the global economy.

The Founder Institute recently published a sample certificate of incorporation that Adeo used when incorporating the Founder Institute, Incorporated.  Adeo was focused on creating mechanisms to protect founders who may lose control of the companies they created after raising financing from investors.  The current customary form of venture financing documents has not changed much since with mid-1970s when they first became widely adopted in Silicon Valley.

Therefore, Adeo wanted to include a number of extremely founder-friendly provisions in the certificate of incorporation for companies formed in connection with the Founder Institute.  These provisions include a special class of super-voting common stock, called “Class F” common stock, which is named for “Founders.”

• Voting.  The COI includes Class A common stock, which has one vote per share, and Class F common stock, which has 10 votes per share.  Companies such as Google, Martha Stewart Living Omnimedia, Broadcom and others have super-voting common stock.  Super-voting common stock is sometimes seen in companies where founders or a family wish to maintain control of a company after obtaining outside investment.

• Protective provisions.  Similar to protective provisions in a Series A preferred stock financing, there are certain fundamental actions that cannot be taken without the consent of holders of more than 50% of the Class F common stock.  The Class F common stock protective provision basically provides:

As long as any of the Class F common stock is outstanding, consent of the holders of at least 50% of the Class F common stock will be required for any action that (i) alters any provision of the certificate of incorporation or the bylaws if it would adversely alter the rights, preferences, privileges or powers of or restrictions on the Class F common stock; (ii) changes the authorized number of shares of Class F common stock; (iii) authorizes or creates any new class or series of shares having rights, preferences or privileges with respect to dividends or liquidation senior to or common stock on a parity with the Class F common stock or having voting rights other than those granted to the Class F common stock generally; (iv) approves any merger, sale of assets or other corporate reorganization or acquisition, or the liquidation or dissolution of the Company; (v) increase the size of the board; or (vi) declares or pays any dividend or distribution.

• Directors.  Holders of Class F common stock are allowed to elect one director.  The Class F director has 2 votes per director, as opposed other directors, who have one vote. Section 141(d) of the Delaware General Corporation Law permits a company to have directors with more than one vote per director. This may address a situation where there is a desire to keep the size of a board small, but ensure that board “control” is maintained by a particular group of stockholders.

The Class F common stock and the Class A common stock otherwise participate equally with respect to dividends and distributions and other economic rights.  The Class F common stock can be converted into Class A at any time at the option of the holder, and will automatically convert if the holder dies or if the Class F common stock is transferred to someone other than another Class F holder or an entity for the benefit of a Class F holder.

Whether any of these provisions will survive after a typical Series A venture financing depends on the negotiating position of the parties.  At a minimum, people like Adeo and blogs like Venture Hacks are educating founders about financing terms that may be detrimental to founders.

[Update:  Class F common stock is discussed in Techcrunch, VentureBeat, PE Hub and the WSJ.  In addition, Marc Andreessen has a blog post strongly supporting dual class stock structures in certain circumstances.]

Always looking for ways to better serve the entrepreneurial community, Wilson Sonsini Goodrich & Rosati is pleased to announce the release of the WSGR Term Sheet Generator, a publicly available online tool that allows entrepreneurs and investors to generate an initial draft of a term sheet for a preferred stock financing. By answering a series of questions, users are guided through the principal variables contained in a venture financing term sheet. Brief explanations of the questions and typical deal terms are included. After answering as many questions as desired, users can generate, print, and save a Word version of the term sheet, which is intended to be useful in deal discussions between entrepreneurs and investors and in crafting a final, customized term sheet with the help of attorneys.

The term sheet generator is another example of the firm’s commitment to providing services to our clients more quickly and efficiently. Our attorneys use a more extensive version of the tool to generate initial drafts of documents for Series A preferred stock financings, including Certificates of Incorporation, Preferred Stock Purchase Agreements, Investor Rights Agreements, Right of First Refusal and Co-sale Agreements, Voting Agreements, corporate approvals, and closing documents. By using this tool, we believe that we are able to represent clients and complete transactions more efficiently. We also have a similar tool for generating initial drafts of more than 20 start-up company formation documents. In addition to document automation, Wilson Sonsini Goodrich & Rosati has developed other sophisticated knowledge management and related resources that enable our attorneys to better serve clients by tapping the essential expertise and experience of the entire firm.

Users with general comments regarding the WSGR Term Sheet Generator should contact partner Yoichiro (Yokum) Taku at ytaku@wsgr.com or Practice Resources Special Counsel Anthony Kikuta at akikuta@wsgr.com. To learn more about Wilson Sonsini Goodrich & Rosati’s entrepreneurial services, please click here.

[Update:  See below for various mentions of the term sheet generator.]

Altgate:  Law Firm Wilson Sonsini Now Preparing Term Sheets For Free (Furqan Nazeeri provides a review of the tool along with a sample term sheet that he created.)

Mendelson’s Musings: Wilson Sonsini Term Sheet Generator

Legal Blog Watch: Law Firm Replacing Itself With Free Term Sheet Generator

Guy Kawasaki:  Free Online Term Sheet Generator

WSJ Blogs: The Daily Startup: Putting Terms in Entrepreneurs’ Hands

ABA Journal: Wilson Sonsini Offers Free Document Assembly Tool

Adams Drafting:  The WSGR Term Sheet Generator: The Inoxerable Creep of Document Assembly

Prism Legal: New WSGR Term Sheet Generator – an Innovative Online Service

Law Shucks:  WSGR Term-Sheet Generator

Startup CFO:  Automatic Term Sheet Generator

The Startup Lawyer:  WSGR Launches Term Sheet Generator

VC Confidential: Term Sheet Tool

CenterNetworks:  Wilson Sonsini Launches Free Term Sheet Generator

Strategize:  Wilson Sonsini Term Sheet Generator

Sophisticated Finance:  Wilson Sonsini Term Sheet Generator

Kentucky Startup Blog: Term Sheet Generator

Steven Cox: Need a Venture Capital Term Sheet?  Here’s a FREE One

Legal Process Outsourcing:  Have Wilson Sonsini Read “The End of Lawyers?”

Barron’s:  For the Startup with No Money to Pay Pricey Lawyers:  Wilson Sonsini’s Do-It-Yourself Term Sheet Generator

Reuters:  Free financing tool to help startups get legal ball rolling

Reuters:  Hoopla over automated term sheet may be legit

WSJ Law Blogs:  Wilson’s Little Gift to the World

Xbusinessman:  WSGR term sheet generator (in Japanese)

The Lean Marketer: Online Term Sheet Generator for Venture Capital Funding

The Act provides companies with a number of exemptions from federal registration requirements. For some of the exemptions, such as rules 505 and 506 of Regulation D, a company may sell its securities to what are known as “accredited investors” defined in rule 501 of Regulation D.  Offerings to accredited investors are exempt from the registration requirements on the theory that accredited investors are sophisticated enough to protect their own interests.

The following types of individuals are accredited investors:

• a director, executive officer, or general partner of the company selling the securities;
• a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of the purchase; or
• a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year.

Net worth includes the value of houses and automobiles.  Thus, many homeowners are accredited investors due to the value of their houses.  The $1 million net worth and $200,000 income standards were established in 1982 and have not increased with inflation.

The following types of entities are accredited investors:

• a bank, insurance company, registered investment company, business development company, or small business investment company;
• an employee benefit plan, within the meaning of the Employee Retirement Income Security Act, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million;
• a charitable organization, corporation, or partnership with assets exceeding $5 million;
• a business in which all the equity owners are accredited investors; or
• a trust with assets in excess of $5 million, not formed to acquire the securities offered, whose purchases a sophisticated person makes.

If founders want the benefit of flow through tax treatment with respect to losses prior to an outside financing, an S corp election may make sense as long as there are no entity or non-U.S. citizen/resident stockholders.  However, S corp losses can only be used to offset personal income up to the founders’ basis in the S corp stock, which may decrease the utility of the S corp election. In any event, the S corp election can be easily revoked at the time of a financing. The legal documentation for an S corp is basically identical to an C corp.

I generally avoid LLCs as most technology startup companies need to grant options to employees and consultants, and there is no easy “off the rack” method to do this.  In addition, the conversion of an LLC to a C corp results in additional legal and accounting expense.  However, LLCs may make sense for businesses like consulting companies.

The primary differences between C corps, LLCs and S corps are outlined below.

Taxation

• C Corps. A C corp is a separate taxable entity independent from its stockholders. Thus, the earnings of a C corporation are generally taxed twice: once at the corporate level on the corporation’s taxable income and a second time at the stockholder level on dividends or distributions. In addition, C corps often must pay higher state franchise taxes than LLCs or S corps.

Although the double-taxation feature of C corps may be undesirable, its impact may be diminished where a company does not pay dividends or generates taxable income at a lower marginal tax rate than the rate applicable to the individual stockholders. If a C corp generates net operating losses rather than net income, these are carried forward to offset future corporate taxable income. However, such operating losses may not be used to offset taxable income of the individual shareholders.

• LLCs. LLCs are flow through entities for tax purposes, meaning that taxable income earned by the entity is passed through to individual members. Thus, earnings are taxed only once, at the member level. An LLC may elect to be taxed as a C corp, an S corp, or a partnership. It may specially allocate items of income or loss among its various members. It may use taxable losses generated at the entity level to offset taxable income of the individual LLC members. However, such flexibility is countered by increased compliance costs due to the application of complex partnership tax rules that also apply to LLCs.

• S Corps. Similar to LLCs, S corps receive flow through tax treatment. However, an S corp must allocate its taxable income to the individual stockholders according to their ownership stakes in the company. Taxable losses at the entity level may be used to offset personal taxable income of the individual stockholders, but only to the extent of the tax basis of their interests in the entity.

Ownership (Stockholders)

• C Corps. C corps may have an unlimited number of stockholders (subject to SEC reporting requirements if the number exceeds 500). The owners do not need to have a relationship with one another nor have a role in running the day-to-day affairs of the company. Additionally, they may transfer their ownership freely and readily (by selling their stock) without affecting the continuing existence of the business or the title to its assets. Thus, the perpetual existence of the entity is unaffected by the death or withdrawal of any one shareholder.

• LLCs. Similar to a corporation, an LLC may have an unlimited number of members. However, ownership transferability for an LLC is not as flexible as that for a C corp. Generally, a member needs the approval of other members before selling an interest in the LLC. Also, a death, withdrawal, expulsion, or other departure of a member may constitute a termination of the LLC and a deemed liquidation for federal tax purposes.

• S Corps. Unlike C corps. and LLCs, S corps are limited to 100 domestic stockholders. Stockholders must be individuals, with limited exceptions for certain trusts, estates, and exempt organizations. Stockholders must also be U.S. citizens or residents.  Ownership transferability is flexible and similar to that of C corps. Finally, the perpetual existence of the S corp is unaffected by the death or withdrawal of any stockholder.

Fundraising

• C Corps. Most venture and institutional investors favor C corps because they may have separate classes of stock, allowing for the creation of various levels of preferences, protections, and share valuations. A C corp is also the easiest type of entity to take public in an initial public offering.

• LLCs. Although LLCs may be attractive to businesses financed by a small number of corporate investors and/or individuals, they are often not suitable for companies planning to attract venture capital or pursue multiple rounds of funding. LLCs require complicated operating agreements that may render the operation of the LLC undesirably difficult with a high number of members. They may be unattractive to tax-exempt venture fund investors because their investment in a flow through entity may produce unrelated business taxable income. Finally, investors simply may be less familiar with LLCs and therefore less willing to invest in them.

• S Corps. S corps are not a popular entity choice because, in addition to presenting the same challenges to tax-exempt venture fund partners as those presented by LLCs, S corps are limited to one class of stock (meaning no preferred stock financings) and 100 stockholders. Such inflexible features are typically unattractive to venture investors.

Governance/Structure

• C Corps. C corps have well-defined structural accountability, with governance responsibilities held separate and apart from the owners. Management is accountable to the board of directors and therefore has the ability to transact business without stockholder participation in each decision. However, corporations are required to pay attention to formalities that legislatures and courts have determined to be significant (e.g., meetings of boards of directors and maintenance of corporate bylaws, corporate minute books, stock ledger books, separate bank accounts, etc.).

• LLCs. LLCs operate more informally then C corps and are either managed directly by the owners or managed by one or more owners (or an outside party) designated to fulfill such responsibility. Unlike corporations, they are not bound by corporate formalities such as holding regular ownership and management meetings. However, in contrast to corporations, they do not operate under a well-defined regime of uniformity and legal precedent.

• S Corps. S corps operate in a manner similar to C corps. and must therefore adhere to statutory formalities for decision making.

Employee Compensation

• C Corps. Businesses that plan to use equity incentives (e.g. stock options) to attract and retain talent often prefer to operate as C corps. C corps can offer incentive stock option plans that allow employees to defer tax on the equity compensation until they sell the underlying stock. Additionally, C corps. may offer certain fringe benefits to employees that are tax-deductible to the company and also tax-free to the employee.

• LLCs. While an LLC may reward employees by offering them membership interests in the LLC, the equity compensation process is awkward and may be unattractive to employees. Furthermore, LLCs are not able to offer certain forms of equity compensation available to C corps., such as incentive stock options.

• S Corps. Although S corps can grant stock options, they should not be granted to non-U.S. residents. S corps are less flexible than C corps with regard to fringe benefits and must either report the benefits as taxable compensation to the employees or forfeit the fringe benefit deduction available to the company.