Angel Insights Blog

By: Dror Futter, Legal and Business Adviser to Startups, Venture Capital Firms and Technology Companies
This article originally appeared in Crowdfund Insider.

Imagine a Baskin Robbins where you can get any flavor you want, as long as it is vanilla. Based on recent data provided by the National Venture Capital Association in partnership with Aumni, the market for venture capital deal terms seem to be that kind of store. 

In connection with the release of an updated version of its Series A Model Term Sheet last year, the NVCA included survey results provided by Aumni based on data from “100,000 venture transactions, representing over 40,000 investors with a combined network of over $1 trillion in assets under management.”   This summer, Aumni released an updated version of the data companion that includes 2020 data and more data fields.

Roughly 40%  of the data fields included in the Aumni survey relate to the frequency with which certain deal terms are found in financing transactions.  For example: “What is the frequency of 1x preferences?”  The results are reported by funding round.  While most experienced players in the space likely already know the market norms for each of these deal terms, what is truly striking is the degree of conformity.  Most deal terms are present in  80-90%+ of financings.

In the chart below, I summarize the deal terms findings of the survey with respect to frequency, as well as the 2020 findings compared to the historic numbers.

Key takeaways:

• Well Defined Playing Field – The venture capital playing field is a well defined playing field.   Since the early 2000’s the industry has coalesced around a standard set of deal documents that, with relatively minor modification, are used in the overwhelming majority of venture equity financings in the United States
• Little Deal Term Variability – Even within a well defined field, deal terms have narrowed even further so that on key terms, many of which influence return economics, in most cases 80-90%+ of financings include the same terms.
• Company Favorable Terms – Where terms can reasonably be viewed as more pro-company or more pro-investor, the deal term norms skew heavily in favor of the company friendly alternatives.  Although the survey does not break out years except for 2020 (and also does not disclose how far back the survey data goes), from my experience, the same survey a decade ago would have shown much more variability.
• Minimal Variation by Round – The lack of variability by financing round is striking.  Early on it can be hard to clearly pick winners and losers.  By later stages some ventures clearly establish themselves as stars and others as struggling.  While this distinction still influences valuation, it does not seem to be influencing deal terms in most financings.
• Changing Basis for Evaluating Investors – I used to give a talk entitled “Not all Term Sheets Are Equal.”   This was directed to entrepreneurs and encouraged them to focus not just on valuation, but on other deal terms that could impact economics.  Giving that talk today, I would retitle it “It’s the Valuation Stupid” – because all the other deal terms are likely to be pretty much the same.  Actually, I would still give the talk under the same title, but now focus on what else the investors bring to the table in terms of expertise, experience and network, rather than deal terms.
• Covid, What Covid? – Turns out that Covid had a minimal impact on deal terms and to the extent it did, it was usually company friendly.   This reflects the reality of venture finance over the last 18 months, where after a short initial stutter, pretty much every segment of the venture industry moved upwards and to the right.

Deal terms serve at least two purposes.  First, they provide a means of mitigating risk and enhancing reward to investors.  For example, increasing the liquidation preference to 2x increases (but far from guarantees) the likelihood that an investor will emerge from an investment with at least a 2x return.  Second, deal terms are a way for investors to distinguish themselves from other investors in competitive situations – by accepting more risk and eliminating investor enhancements.

In the current “Lake Wobegon” market, where “all the terms sheets are above average” in terms of their company friendliness, founders have the luxury of focusing on valuations and collateral benefits offered by different potential investors.  On the investor side, offering company-friendly uniform terms to companies of all stripes should have the effect of depressing valuations of many companies since these terms on the whole offer fewer investor protections and enhancements.   Of course, depressed valuations are not exactly a “thing” in the current venture market.  It will be interesting to see how this combination plays out going forward for investor returns.

About the Author:

Dror Futter is a venture capital and technology partner at the Rimon PC law firm. He represents startups and investors in financing transactions, technology companies in commercial transactions and serves as an external general counsel to growth stage companies. During his fifteen years as in-house counsel he was the General Counsel of  Vidyo, Inc., a venture-backed videoconferencing company, and New Venture Partners, a venture fund focused on corporate spinouts. Prior to that, Mr. Futter was Counsel to the CIO of Lucent Technologies, as well as supporting parts of its sourcing organization.