AGREEMENT OF PREFERRED STOCK FINANCING 鉴于涉及此项投资的投资人已投入和将投入的时间和成本，无论此次融资是否完成，本条款清单之限制出售/保密条款、律师及费用条款对公司都具有强制约束力。未经各方一致签署并交付的最终协议，本条款清单之其他条款不具AGREEMENT OF PREFERRED STOCK FINANCING
In consideration of the time and expense devoted and to be devoted by the Investors with respect to this investment, the No Shop/Confidentiality and Counsel and Expenses provisions of this Term Sheet shall be binding obligations of the Company whether or not the financing is consummated. No other legally binding obligations will be created until definitive agreements are executed and delivered by all parties. This Term Sheet is not a commitment to invest, and is conditioned on the completion of due diligence, legal review and documentation that is satisfactory to the Investors. This Term Sheet shall be governed in all respects by the laws of the State of Delaware.
Closing Date: As soon as practicable following the Company’s acceptance of this Term Sheet and satisfaction of the Conditions to Closing (the “Closing”). provide for multiple closings if applicable
Investors: Investor as well other investors mutually agreed upon by Investors and the Company.
融资金额：Amount Raised: $ ，
Including $______ from the conversion of principal and interest on bridge notes.
每股价格： $______ 每股 （以下文所列公司资本结构表为依据）(“原始购买价”）Price Per Share: $______ per share (based on the capitalization of the Company set forth below) (the “Original Purchase Price”).
Pre-Money Valuation: The Original Purchase Price is based upon a fully-diluted pre-money valuation of $______ and a fully diluted post-money valuation of $______ (including an employee pool representing ______% of the fully diluted post-money capitalization).
Capitalization: The Company’s capital structure before and after the Closing is set forth as Exhibit A.
Alternative 1: Dividends will be paid on the Series A Preferred on an as converted basis when, as, and if paid on the Common Stock
Alternative 2: Non-cumulative dividends will be paid on the Series A Preferred in an amount equal to $______ per share of Series A Preferred when and if declared by the Board.
Alternative 3: The Series A Preferred will carry an annual ______% cumulative dividend compounded annually, payable upon a liquidation or redemption. For any other dividends or distributions, participation with Common Stock on an as-converted basis.
In the event of any liquidation, dissolution or winding up of the Company, the proceeds shall be paid as follows:
Alternative 1 (non-participating Preferred Stock): First pay one times the Original Purchase Price plus accrued dividends plus declared and unpaid dividends on each share of Series A Preferred. The balance of any proceeds shall be distributed to holders of Common Stock.
Alternative 2 (full participating Preferred Stock): First pay one times the Original Purchase Price plus accrued dividends plus declared and unpaid dividends on each share of Series A Preferred. Thereafter, the Series A Preferred participates with the Common Stock on an as-converted basis.
Alternative 3 (cap on Preferred Stock participation rights): First pay one times the Original Purchase Price plus accrued dividends plus declared and unpaid dividends on each share of Series A Preferred. Thereafter, Series A Preferred participates with Common Stock on an as-converted basis until the holders of Series A Preferred receive an aggregate of ______ times the Original Purchase Price.
A merger or consolidation (other than one in which stockholders of the Company own a majority by voting power of the outstanding shares of the surviving or acquiring corporation) and a sale, lease, transfer or other disposition of all or substantially all of the assets of the Company will be treated as a liquidation event (a “Deemed Liquidation Event”), thereby triggering payment of the liquidation preferences described above unless the holders of ___% of the Series A Preferred elect otherwise.
The Series A Preferred Stock shall vote together with the Common Stock on an as-converted basis, and not as a separate class, except
(i) the Series A Preferred as a class shall be entitled to elect _______ (_) members of the Board (the “Series A Directors”), (ii) as provided under “Protective Provisions” below or (iii) as required by law.
The Company’s Certificate of Incorporation will provide that the number of authorized shares of Common Stock may be increased or decreased with the approval of a majority of the Preferred and Common Stock, voting together as a single class, and without a separate class vote by the Common Stock.
只要有___写明固定数量、百分比或任何 A系优先股仍发行在外，未经至少 ％A系优先股股东书面同意，公司不得直接或变相进行兼并、合并或下列其他业务：
So long as insert fixed number, or %, or “any” shares of Series A Preferred are outstanding, the Company will not, without the written consent of the holders of at least ______% of the Company’s Series A Preferred, either directly or by amendment, merger, consolidation, or otherwise:
(i) liquidate, dissolve or wind up the affairs of the Company, or effect any Deemed Liquidation Event;
(ii) amend, alter, or repeal any provision of the Certificate of Incorporation or Bylaws in a manner adverse to the Series A Preferred;
(iii) create or authorize the creation of or issue any other security convertible into or exercisable for any equity security, having rights, preferences or privileges senior to or on parity with the Series A Preferred, or increase the authorized number of shares of Series A Preferred;
(iv) purchase or redeem or pay any dividend on any capital stock prior to the Series A Preferred, other than stock repurchased from former employees or consultants in connection with the cessation of their employment/services, at the lower of fair market value or cost; other than as approved by the Board, including the approval of ______ Series A Director(s); or
(v) create or authorize the creation of any debt security if the Company’s aggregate indebtedness would exceed $____other than equipment leases or bank lines of creditother than debt with no equity featureunless such debt security has received the prior approval of the Board of Directors, including the approval of ______ Series A Director(s);
(vi) increase or decrease the size of the Board of Directors.
Optional Conversion: Each share of the Series A Preferred shall be convertible, at the option of the holder thereof, at any time, into such number of shares of Common Stock as is determined by dividing the Series A Original Purchase Price by Series A Preferred Conversion Price (as defined below) in effect at the time of conversion. The “Series A Preferred Conversion Price” shall initially be equal to $____ (the Series A Original Purchase Price). Such initial Series A Conversion price is subject to adjustments for stock dividends, splits, combinations and similar events and as described below under “Anti-dilution Provisions.”
In the event that the Company issues additional securities at a purchase price less than the current Series A Preferred Conversion Price, such conversion price shall be adjusted in accordance with the following formula:
Alternative 1: “Typical” weighted average:
CP2 = CP1 * (A+B) / (A+C)
CP2 = New Series A Conversion Price
CP1 = Series A Conversion Price in effect immediately prior to new issue
A = Number of shares of Common Stock deemed to be outstanding immediately prior to new issue (includes all shares of outstanding common stock, all shares of outstanding preferred stock on an as-converted basis, and all outstanding options on an as-exercised basis; and does not include any convertible securities converting into this round of financing)
B = Aggregate consideration received by the Corporation with respect to the new issue divided by CP1
C = Number of shares of stock issued in the subject transaction
Alternative 2: Full-ratchet – the Series A Preferred Conversion Price will be reduced to the price at which the new shares are issued.
Alternative 3: No price-based anti-dilution protection.
下列发行不导致反稀释调整：The following issuances shall not trigger anti-dilution adjustment:
(i) securities issuable upon conversion of any of the Series A Preferred, or as a dividend or distribution on the Series A Preferred; (ii) securities issued upon the conversion of any debenture, warrant, option, or other convertible security; (iii) Common Stock issuable upon a stock split, stock dividend, or any subdivision of shares of Common Stock; and (iv) shares of Common Stock (or options to purchase such shares of Common Stock) issued or issuable to employees or directors of, or consultants to, the Company pursuant to any plan approved by the Company’s Board of Directors including at least _______ Series A Director(s) (v) shares of Common Stock issued or issuable to banks, equipment lessors pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Directors of the Corporation , including at least _______ Series A Director(s).
Each share of Series A Preferred will automatically be converted into Common Stock at the then applicable Series A Preferred Conversion Price in the event of the closing of a firm commitment underwritten public offering with a price of ___ times the Original Purchase Price (subject to adjustments for stock dividends, splits, combinations and similar events) and net/gross proceeds to the Company of not less than $_______ (a “QPO”), or (ii) upon the written consent of the holders of ______% of the Series A Preferred.
Unless the holders of ______% of the Series A elect otherwise, on any subsequent down round all Major Investors are required to participate to the full extent of their participation rights (as described below under “Investor Rights Agreement – Right to Participate Pro Rata in Future Rounds”), unless the participation requirement is waived for all Major Investors by the Board (including vote of a majority of the Series A Directors). All shares of Series A Preferred of any Major Investor failing to do so will automatically lose anti-dilution rights lose right to participate in future rounds convert to Common Stock and lose the right to a Board seat if applicable.
赎回权: Redemption Rights:
交割后第五年开始，经至少%的A系优先股股东选择， A系优先股股东可以要求公司以可合法分配资金以原始购买价加所有累积未付股息 赎回其所持有的A系优先股。 赎回将在三年内分阶段等额完成。如符合规定比例的A系优先股股东提出赎回请求，其他所有A系优先股都将被可赎回除明确选择放弃上述权利的A系优先股股东外。
The Series A Preferred shall be redeemable from funds legally available for distribution at the option of holders of at least ______% of the Series A Preferred commencing any time after the fifth anniversary of the Closing at a price equal to the Original Purchase Price plus all accrued but unpaid dividends. Redemption shall occur in three equal annual portions. Upon a redemption request from the holders of the required percentage of the Series A Preferred, all Series A Preferred shares shall be redeemed (except for any Series A holders who affirmatively opt-out).
股份买卖协议书 Stock Purchase Agreement
陈述与保证: 公司提供标准的陈述与保证. 由公司创始人对技术所有权等提供陈述与保证. Representations and Warranties: Standard representations and warranties by the Company. Representations and warranties by Founders regarding technology ownership, etc..
完成交割的条件: 完成交割的标准条件，包括: 完成相应的财务和法律的尽职调查，股票的发行符合州证券法(Blue Sky laws)的规定，赋予了A系优先股权利和优待的公司章程的进行了登记备案,以及公司律师出具了法院意见函等事项。 Conditions to Closing: Standard conditions to Closing, which shall include, among other things, satisfactory completion of financial and legal due diligence, qualification of the shares under applicable Blue Sky laws, the filing of a Certificate of Incorporation establishing the rights and preferences of the Series A Preferred, and an opinion of counsel to the Company.
律师及费用: Counsel and Expenses:
Investor/Company counsel to draft closing documents. Company to pay all legal and administrative costs of the financing at Closing, including reasonable fees (not to exceed $______)and expenses of Investor counsel, unless the transaction is not completed because the Investors withdraw their commitment without cause .
公司律师：Company Counsel: 投资人律师: Investor Counsel:
投资人权利协议 INVESTOR RIGHTS AGREEMENT
All shares of Common Stock issuable upon conversion of the Series A Preferred and any other Common Stock held by the Investors will be deemed “Registrable Securities.”
请求登记权: Demand Registration:
Upon earliest of (i) three-five years after the Closing; or (ii) six months following an initial public offering (“IPO”), persons holding ______% of the Registrable Securities may request onetwo (consummated) registrations by the Company of their shares. The aggregate offering price for such registration may not be less than $5-10 million.
S-3表格式登记权: Registration on Form S-3:
如果公司可进行S-3表格式登记, 且可登记证券的发行总额至少为1-5百万美元,则持有 10-30%的可登记证券者有权要求公司以S-3 表格式进行登记.
The holders of 10-30% of the Registrable Securities will have the right to require the Company to register on Form S-3, if available for use by the Company, Registrable Securities for an aggregate offering price of at least $1-5 million.
附带登记权: Registrable Securities
Piggyback Registration: The holders of will be entitled to “piggyback” registration rights on all registration statements of the Company, subject to the right, however, of the Company and its underwriters to reduce the number of shares proposed to be registered to a minimum of 30% on a pro rata basis. In all events, the shares to be registered by holders of Registrable Securities will be reduced only after all other stockholders’ shares are reduced.
The registration expenses (exclusive of stock transfer taxes, underwriting discounts and commissions will be borne by the Company. The Company will also pay the reasonable fees and expenses, not to exceed $______, of one special counsel to represent all the participating stockholders.
Investors shall agree in connection with the IPO, if requested by the managing underwriter, not to sell or transfer any shares of Common Stock of the Company (excluding shares acquired in or following the IPO) for a period of up to 180 days following the IPO (provided all directors and officers of the Company and 1 – 5% stockholders agree to the same lock-up). Such lock-up agreement shall provide that any discretionary waiver or termination of the restrictions of such agreements by the Company or representatives of the underwriters shall apply to Major Investors, pro rata, based on the number of shares held. A “Major Investor” means any Investor who purchases at least $______ of Series A Preferred.
Earlier of 5 years after IPO, upon a Deemed Liquidation Event, or when all shares of an Investor are eligible to be sold without restriction under Rule 144(k) within any 90-day period.
No future registration rights may be granted without consent of the holders of a majority of the Registrable Securities unless subordinate to the Investor’s rights.
管理权和知情权: Management and Information Rights:
A Management Rights letter from the Company, in a form reasonably acceptable to the Investors, will be delivered prior to Closing to each Investor that requests one.
Any Major Investor (who is not a competitor) will be granted access to Company facilities and personnel during normal business hours and with reasonable advance notification.
公司应当向主要投资人提供: The Company will deliver to such Major Investor
(i) annual, quarterly, and monthly financial statements, and other information as determined by the Board; (ii) thirty days prior to the end of each fiscal year, a comprehensive operating budget forecasting the Company’s revenues, expenses, and cash position on a month-to-month basis for the upcoming fiscal year; and (iii) promptly following the end of each quarter an up-to-date capitalization table, certified by the CFO.
按比例参与未来交易权: Right to Participate Pro Rata in Future Rounds:
All Major Investors shall have a pro rata right, based on their percentage equity ownership in the Company (assuming the conversion of all outstanding Preferred Stock into Common Stock and the exercise of all options outstanding under the Company’s stock plans), to participate in subsequent issuances of equity securities of the Company (excluding those issuances listed at the end of the “Anti-dilution Provisions” section of this Term Sheet and issuances in connection with acquisitions by the Company). In addition, should any Major Investor choose not to purchase its full pro rata share, the remaining Major Investors shall have the right to purchase the remaining pro rata shares.
需经投资人和董事会明确同意之事项: Matters Requiring Investor Director Approval:
So long as ______% of the originally issued Series A Preferred remains outstanding the Company will not, without Board approval, which approval must include the affirmative vote of ____ of the Series A Director(s):
make any loan or advance to, or own any stock or other securities of, any subsidiary or other corporation, partnership, or other entity unless it is wholly owned by the Company;
make any loan or advance to any person, including, any employee or director, except advances and similar expenditures in the ordinary course of business or under the terms of a employee stock or option plan approved by the Board of Directors;
guarantee, any indebtedness except for trade accounts of the Company or any subsidiary arising in the ordinary course of business;
make any investment other than investments in prime commercial paper, money market funds, certificates of deposit in any United States bank having a net worth in excess of $100,000,000 or obligations issued or guaranteed by the United States of America, in each case having a maturity not in excess of two years;
incur any aggregate indebtedness in excess of $______ that is not already included in a Board-approved budget, other than trade credit incurred in the ordinary course of business;
enter into or be a party to any transaction with any director, officer or employee of the Company or any “associate” (as defined in Rule 12b-2 promulgated under the Exchange Act) of any such person except transactions resulting in payments to or by the Company in an amount less than $60,000 per year, or transactions made in the ordinary course of business and pursuant to reasonable requirements of the Company’s business and upon fair and reasonable terms that are approved by a majority of the Board of Directors;
hire, fire, or change the compensation of the executive officers, including approving any option plans;
change the principal business of the Company, enter new lines of business, or exit the current line of business; or
sell, transfer, license, pledge or encumber technology or intellectual property, other than licenses granted in the ordinary course of business.
竞业禁止协议: Non-Competition and Non-Solicitation and Agreements:
Each Founder and key employee will enter into a one year non-competition and non-solicitation agreement in a form reasonably acceptable to the Investors.
保密及知识产权转让协议: Non-Disclosure and Developments Agreement:
Each current and former Founder, employee and consultant with access to Company confidential information/trade secrets will enter into a non-disclosure and proprietary rights assignment agreement in a form reasonably acceptable to the Investors.
Each Board Committee shall include at least one Series A Director.
The Board of Directors shall meet at least monthlyquarterly, unless otherwise agreed by a vote of the majority of Directors.
The Company will bind D&O insurance with a carrier and in an amount satisfactory to the Board of Directors. In the event the Company merges with another entity and is not the surviving corporation, or transfers all of its assets, proper provisions shall be made so that successors of the Company assume Company’s obligations with respect to indemnification of Directors.
员工期权: Employee Stock Options:
A系优先股投资以前，______股份应被纳入期权储备，以创设______股未分配期权。 All employee options to vest as follows: 25% after one year, with remaining vesting monthly over next 36 months.
Immediately prior to the Series A Preferred Stock investment, ______ shares will be added to the option pool creating an unallocated option pool of _______ shares.
关键员工保险: Key Person Insurance:
公司以董事会同意的数额为创始人列出每个创始人的姓名申请人寿保险.受益方为公司. Company to acquire life insurance on Founders name each Founder in an amount satisfactory to the Board. Proceeds payable to the Company.
首次发行新股IPO Directed Shares:
To the extent permitted by applicable law and SEC policy, upon an IPO consummated one year after Closing, Company to use reasonable best efforts to cause underwriters to designate 10% of the offering as directed shares, 50% of which shall be allocated by Major Investors.
合格小规模商业股(QSB): QSB Stock:
Company shall use reasonable best efforts to cause its capital stock to constitute Qualified Small Business Stock unless the Board determines that such qualification is inconsistent with the best interests of the Company.
All rights under the Investor Rights Agreement, other than registration rights, shall terminate upon the earlier of an IPO, a Deemed Liquidation Event or a transfer of more than 50% of Company’s voting power.
RIGHT OF FIRST REFUSAL/CO-SALE AGREEMENT AND VOTING AGREEMENT
优先认购权/共同出售权: Right of first Refusal
如果公司和其他投资人都未行使优先认购权,，则该出售者在出售普通股之前，应通知其他投资人， 其他投资人享有按照出售者以及其他投资人所持有证券的比例出售股份的权力。Right of Co-Sale (Take-me-Along): Company first and Investors second (to the extent assigned by the Board of Directors,) have a right of first refusal with respect to any shares of capital stock of the Company proposed to be sold by Founders and employees holding greater than 5% of Company Common Stock (assuming conversion of Preferred Stock), with a right of oversubscription for Investors of shares unsubscribed by the other Investors.
Before any such person may sell Common Stock, he will give the Investors an opportunity to participate in such sale on a basis proportionate to the amount of securities held by the seller and those held by the participating Investors.
董事会: 在首次交割中，董事会应包括______名成员：（i）姓名作为主投资人 姓名 指派的代表
（v）______等虽未被公司雇用但被创始人和投资人董事一致认可的人员. Board of Directors: At the initial Closing, the Board shall consist of ______ members comprised of (i) Name as the representative designated by ____, as the lead Investor, (ii) Name as the representative designated by the remaining Investors, (iii) Name as the representative designated by the Founders, (iv) the person then serving as the Chief Executive Officer of the Company, and (v) ___ person(s) who are not employed by the Company and who are mutually acceptable to the Founders and Investorsto the other directors.
拖曳前行条款: Drag Along:
Holders of Preferred Stock and the Founders and all current and future holders of greater than 5% of Common Stock (assuming conversion of Preferred Stock and whether then held or subject to the exercise of options) shall be required to enter into an agreement with the Investors that provides that such stockholders will vote their shares in favor of a Deemed Liquidation Event or transaction in which 50% or more of the voting power of the Company is transferred, approved by the Board of Directors and the holders of a majoritysuper majority of the outstanding shares of Preferred Stock, on an as-converted basis.
All rights under the Right of First Refusal/Co-Sale and Voting Agreements shall terminate upon an IPO, a Deemed Liquidation Event or a transfer of more than 50% of Company’s voting power.
其他事项 OTHER MATTERS
创始人的股份: Founders’ Stock:
All Founders to own stock outright subject to Company right to buyback at cost. Buyback right for ______% for first 12 months after Closing; thereafter, right lapses in equal monthly increments over following ______ months.
限制出售及保密条款: No Shop/Confidentiality:
The Company agrees to work in good faith expeditiously towards a closing. The Company and the Founders agree that they will not, for a period of six weeks from the date these terms are accepted, take any action to solicit, initiate, encourage or assist the submission of any proposal, negotiation or offer from any person or entity other than the Investors relating to the sale or issuance, of any of the capital stock of the Company or the acquisition, sale, lease, license or other disposition of the Company or any material part of the stock or assets of the Company and shall notify the Investors promptly of any inquiries by any third parties in regards to the foregoing. In the event that the Company breaches this no-shop obligation and, prior to ______, closes any of the above-referenced transactions without providing the Investors the opportunity to invest on the same terms as the other parties to such transaction, then the Company shall pay to the Investors $_______ upon the closing of any such transaction as liquidated damages.
The Company will not disclose the terms of this Term Sheet to any person other than officers, members of the Board of Directors and the Company’s accountants and attorneys and other potential Investors acceptable to _________, as lead Investor, without the written consent of the Investors.
This Term Sheet expires on _______ if not accepted by the Company by that date.
本条款清单于200_ __ __由下列各方签字盖章：
EXECUTED THIS____ DAY OF _____
签名 SIGNATURE BLOCKS
Exhibit A 附件1
Capitalization and Financing Plan 资本结构表与融资计划
Series A Financing A系融资
Pre-Money Capitalization 融资前资本结构
Pre-Money Equity %融资前股本比例
Series A Financing A系融资
Post-Money Equity %融资后股本比例
balance of Plan reserve职工持股计划预留结余
increase to Plan reserve职工持股计划结余增量
Series A investors A系投资者
price per share每股价格