Term Sheet

In our previous post – which started to get long and unwieldy (ah – the need for an editor – where are those guys when you need them) – we didn’t cover two critical issues: (1) What happens if the acquisition is in cash vs. public stock vs. private stock, and (2) Who pays for the “basis” of the stock options? The form of consideration of the acquisition can be a many spendored thing. We’re going to ignore tax considerations for this post (although you shouldn’t – we just don’t want this to be 12 pages long.) If I’m an employee of a seller, I’m going to value cash differently than public stock (restricted or unrestricted?) differently than public stock options differently than private stock (or options). If the buyer is public or is paying cash, the calculation is pretty straightforward and can be easily explained to the employee. If the buyer is private, this becomes much more challenging and is something that management and the representatives of the seller who are structuring the transaction should think through carefully. ...

It’s been a little over a month since Jason and I wrote posts for our Letter of Intent series. We took a time out for our 409A series and for actually selling two companies (Commerce5 to Digital River and another that hasn’t been disclosed yet) rather than writing about selling companies. This is the first time in four years where I personally haven’t been actively trying to close the sale of a company over the holidays, so I thought I’d put some time in and finish up this series. 2005 was an awesome year for M&A and all the pundits think 2006 will be equally good (or better), especially after all the M&A bankers get their year end bonuses in January and receive a new dose of forward motivation. ...

For my 40th birthday, I got a couple of cool t-shirts with photos of me substituted for Jack Bauer on 24. The only thing disconcerting was the image of me holding a handgun. I was pondering how ripped I looked (on Jack’s torso) when two questions on term sheets came in from someone at Ernst & Young. Being the excellent delegator that I am (much better than Jack, if you know what I mean), I forwarded the questions on to Jason who promptly answered them. They are as follows: ...

I had the following conversation recently. Entrepreneur: “Brad, I just got an offer for my company for $15 million from Company X.” Brad: “Awesome. Who’s Company X – I’ve never heard of them.” Entrepreneur: “It’s a private company funded by Venture Firm Y.” Brad: “Cool – $15 million – is it a cash deal?” Entrepreneur: “No, it’s all stock.” Brad: “Hmmm – are you getting preferred or common stock?” Entrepreneur: “Common stock – why?” Brad: “How much money has the company raised?” Entrepreneur: “$110 million” Brad: “What’s the liquidation preference? Is it a participating preferred? What’s the valuation of the company?” Entrepreneur: “Oh – I’m not worried about that stuff – the valuation is $300m and they say they are going public soon.” ...

My partner Heidi pointed out that the analogy (or is it a metaphor – I can never remember – another one of my brain quirks) that I used in my Letter of Intent: Structure – Asset vs. Stock post could have been better. An asset (or “artichoke” deal) is actually like eating the artichoke heart and leaving the leaves untouched since the heart is the good part and the leaves have thorns.

While price is usually first issue on every seller’s mind, structure should be second. While there only two types of deals (asset deal vs. stock deal), there are numerous structural issues surrounding each deal. Rather than trying to address all the different issues, Jason and I decided to start by discussing the basics of an asset deal and a stock deal. In general, all sellers want to do stock deals and all buyers want to do asset deals. Just to increase the confusion level, a stock deal can be done for cash and an asset deal can be done for stock – don’t confuse the type of deal with the actual consideration received (if you start getting confused, simply think of an asset deal as a “artichoke deal” and a stock deal as a “strawberry deal.”) ...

Jason and I have engaged in a little foreplay with you in our Letter of Intent series. While you might think the length of time that has passed since my last post is excessive, it’s often the length of time that passes between the first overture and an actual LOI (although there are plenty of situations where the buyer and the seller hook up after 24 hours, just like in real life.) ...

As Jason and I launch into our new series on the Letter of Intent (LOI), we thought we’d start out like most LOI’s do – with a little foreplay. To keep it simple, assume there are two primary parties in an M&A transaction – the “buyer” and the “seller” (for the time being, let’s not worry about complex deals that have more than two parties – this is a family blog after all – well, not really.) ...

Coming off the high of a manic Monday in the tech business, Jason and I have decided to follow our Term Sheet series with a new series scintillatingly called “Letter of Intent.” Deals like eBay / Skype (wow – what a deal – congrats to DFJ, Bessemer , Index, and especially the Skype guys) have to start somewhere, and often the first real “document” that gets negotiated after the foreplay turns serious is the infamous “letter of intent.” ...

Jason and I hope you enjoyed reading our term sheet series at least as much as we enjoyed writing it. While we won’t be competing with our friend Jack Bauer for any drama awards (I tried to make it 24 posts, but could only get to 20), we’ve tried to take a balanced and pragmatic approach to explaining the mysterious “VC term sheet.” Remember – we’re not lawyers (ok – Jason is) and this isn’t legal advice so you should not rely on it for anything, yada yada standard disclaimers follow. In other words, use at your own risk. ...