As a lawyer who has accompanied numerous start-ups through their first financing rounds, I can say that legal preparation is often the key to success. Careful legal structuring can make the difference between a successful deal and a stumbling block to further growth. In this blog post, I would like to highlight the most important legal aspects that startups should consider before their first investment round.
The right legal form as a foundation
Choosing the right legal form is of fundamental importance for start-ups planning an investment round. In practice, the GmbH has emerged as the preferred legal form. It offers a clear structure, limited liability and is known and accepted by investors. Alternatively, the UG (haftungsbeschränkt) can also be considered for very young start-ups, which requires less share capital. The articles of association should be thoroughly reviewed before an investment round and adapted if necessary. Particular attention should be paid to the following points: – Clear provisions on profit distribution and loss sharing
– Provisions on the transfer of shares
– Provisions on the withdrawal or death of a shareholder
– Non-competition clauses and confidentiality obligations
– Provisions on management and representation
Term sheet: setting the course for negotiations
The term sheet is the first formal step towards the investment. It sets out the main features of the transaction and serves as the basis for subsequent contract negotiations. Typical contents of a term sheet are – Valuation of the startup (pre-money valuation)
– Amount of the investment and the resulting participation quota
– Liquidation preferences
– Anti-dilution protection
– Information and control rights of the investor
– Vesting regulations for founder shares Although the term sheet is generally not legally binding, it should be negotiated with great care. The agreements made here form the basis for the subsequent contracts and are often difficult to revise.
Due diligence: preparation is everything
Once the term sheet has been signed, the investor will usually carry out due diligence. All relevant aspects of the startup are examined here – from finances and legal structures to technical details. Good preparation can speed up this process considerably and strengthen investor confidence. Typical audit areas in due diligence are – Corporate structure and documentation
– Intellectual property and industrial property rights
– Employment and service contracts
– Customer contracts and general terms and conditions
– Financial situation and forecasts
– Compliance and regulatory aspects It is advisable to set up a virtual data room in which all relevant documents are made available in a structured manner.
The investment documentation: the heart of the transaction
The actual investment documentation usually consists of several contracts:
Investment agreement
This agreement regulates the specific conditions of the investment, in particular: – Amount and timing of the capital contribution
– Issue of new shares
– Guarantees and warranties of the founders
– Conditions for the closing of the transaction
Shareholders’ Agreement
This governs the rights and obligations of the shareholders towards each other, including – Voting and veto rights
– Regulations for future financing rounds
– Exit scenarios (drag-along and tag-along rights)
– Non-competition covenants and confidentiality obligations
Amendment to the Articles of Association
The articles of association of the GmbH must be adapted to the new shareholder structure and the agreements with the investor.
Rules of procedure for the management
Rules of procedure are often agreed that specify the tasks and powers of the management.
5 Typical clauses and their meaning
Investment contracts often contain clauses that may seem complex for founders at first glance, but are of great importance:
Liquidation preference
This clause gives investors priority in the distribution of proceeds in the event of an exit. There are various forms, from a single (1x) to a multiple liquidation preference.
Anti-dilution protection
This clause protects investors from dilution in subsequent financing rounds at lower valuations. Common methods are the “full ratchet” and the “weighted average” adjustment.
Vesting
Vesting clauses stipulate that the founders’ shares must be “earned” over a certain period of time. This is intended to ensure that the founders remain on board in the long term.
Drag-Along and Tag-Along Rights
These clauses regulate the rights and obligations of the shareholders in the event of an exit. Drag-along obliges minority shareholders to co-sell, tag-along gives them the right to do so.
Conclusion
The legal preparation for an investment round is complex, but crucial for success. Careful structuring and negotiation of contracts can not only facilitate the process, but also set the course for future financing rounds and a successful exit. As an experienced lawyer in the field of startup investments, I advise founders to seek legal expertise at an early stage. Investing in good legal advice usually pays off several times over – be it through better conditions, avoided pitfalls or a smoother transaction process. Remember: every clause you negotiate today can have far-reaching consequences for the future of your start-up. A solid legal basis is not only important for the upcoming investment round, but also forms the foundation for the long-term growth and success of your company.
