Nivi · April 28th, 2009
How do you quickly turn a signed term sheet into cash in the bank? I’ve seen entrepreneurs do it in one week and I’ve seen them do it in four weeks.
How do you do it as quickly as possible?
- Complete all business diligence before you sign a term sheet.
- Set a firm closing date for your lawyers and justify it with something like, “I’m leaving the country on that date.”
- Have a strong BATNA that keeps the other side moving quickly.
Listen to our podcast below for the details.
Nivi: I was talking to a couple of entrepreneurs today about how to expedite the closing process. Closing is when you go from a signed term sheet to money in the bank.
You are taking the signed term sheet, which is really just a letter of intent; it is for the most part non-binding, except for some confidentiality and no shop clauses, and turning it into a set of closing documents and money in the bank.
Closing can take anywhere from one week, to four weeks, to six weeks, depending on the complexity of the closing. There are some things that you just can’t speed up. There may be legal diligence that needs to be done that just can’t be expedited. It takes time to get it done.
Other than those issues that you can’t really speed up any faster than they are going, it is really up to the entrepreneur to set the timetable for closing. You can set things up so it gets done in a week and you can set things so it gets done in four weeks.
My preference is to get it done quickly for a few reasons. One: It just reduces the risk of not closing. Two: The faster you get it done the quicker you can get back to building your business. Three: It is just good experience and practice to move things forward during negotiations with your lawyers, with the other side’s lawyers, and with the other side.
There are three parts to closing quickly. One: What you do before you sign the term sheet. Two: After you sign a term sheet, what you do on your end to make sure things are moving quickly. Three: After you sign a term sheet what you do to make sure the other side is moving quickly. Lets cover each of those parts.
Before you sign the term sheet
First lets talk about what you do before you sign a term sheet. Number one, most term sheets have a clause or term in there that indicates what the expected closing date is so your lawyers, the other side’s lawyers, and the other side can all work together towards that date.
My next suggestion is to conduct all your business diligence before you sign the term sheet so there is no business diligence left to do once you have signed the term sheet, during the closing process.
A lot of startups, I think, make the mistake of signing a term sheet too quickly before the investors have made the decision to really invest in the company. And they are just locking the company up with the term sheet, taking the company off the market so they can do their real diligence.
I would prefer to get all the business diligence done before I sign the term sheet. And we have a blog post on this, look it up. It is called, Complete business diligence before you sign a term sheet. We have also got another blog post called, Discuss your plans before signing a term sheet.
You also want to complete as much legal diligence as makes sense and is possible before you sign a term sheet as well. Why leave some legal risks? Why take yourself off the market and expose yourself to the risks that there is some legal issue that is going to trip up the financing. You want to get as much of that done before you sign the term sheet as well. You can find more info on that in the blog post. For most seed stage investment there is not a lot of complexity in your legal documents, whether it is IP or existing contracts, or what have you.
And top tier investors aren’t going to try to push business diligence to after a signed term sheet, in general. And if they do they are pretty up front about it and there is usually a good reason why. If you are working with a good firm you will get the business diligence done before you sign a term sheet anyway. And if you are a seed stage startup without a lot of complexity the legal work is pretty turnkey, which means that you can get it done quickly. And it is really up to you to determine how long it is going to take. These financing closings take as long as you let them take.
How do you expedite the closing process? There are two parts to this. The first part is making sure your lawyers move quickly. The second part is making sure the other side moves quickly. The other side consists of the fund and their lawyers.
Moving quickly on your end
First lets talk about making sure your side moves quickly. You should understand that you are in a very high leverage position with respect to your lawyers. Your lawyers have taken the risk of working with you while you were an unfunded, seed state startup with a lot of risk that you would go out of business.
They perhaps deferred fees, or gave you reduced rates. And they took on the risks of working with you with the hopes that you would be come a venture backed startup and grow on to great success and do a lot of business with them. Which is exactly what is starting to happen to you at this point in time, you are getting venture backed. You have a signed term sheet.
Your lawyers are in a pretty precarious position. They have taken a lot of risks and that risk is starting to bear fruit. But they are in a position where they are not locked-in in any way. You are not locked-in with them so you can terminate them at any point in time still. If you terminate them they have taken a bunch of risks, worked for reduced rates, deferred fees, and they weren’t interested in working with you while you were a seed stage company. They just did that to build the relationship so that you could work with them when you were a venture back startup spending lots of money on legal fees. If you terminate them, they won’t be able to reap what they sowed. So they’re in a precarious position. You have a lot of leverage over them.
The first thing to do to expedite the closing process is talk to my lawyers and tell them — if you haven’t already, which hopefully you’ve done — is tell them you’re going to measure them in four ways. High quality advice, one. Two, the speed at which they get things done for you. Three, the number of errors in the work product. Four, cost.
Next, you tell your lawyers that you want to have an extremely firm date for the closing process. You can take the Steve Blank approach there, if you like, and tell them that prior to that date, if they need help you are available to help them out, but when that date comes you don’t want any excuses. Right? If they come at you with excuses by that date, it’s really a fireable offense.
The best way to justify an extremely firm date is with a justification. People like to have reasons for why you want them to do things. So come up with a reason why the closing needs to happen by such and such date. For example, “I’m going on vacation on that date, I’m having a baby, I’m leaving to go to a business meeting in a foreign country, we need the money to make a payment, we need the money to hire somebody.” Just get with your team, brainstorm a solid reason why it absolutely has to be closed by that date.
That’s the end of the story of making your side move quickly. Ultimately, it’s really in the interests of your lawyers to actually get it done quickly. We’ve seen too many law firms get fired after a closing because the closing wasn’t done quickly enough, there were too many errors and the entrepreneurs were not happy with it. I think it’s important and good for the law firm for you to communicate what your metrics for success are. Finally, your lawyers are not computers, right? They’re humans. So don’t take the tone of the discussion here too literally. You want to treat them with grace and humility and make them excited to work with you.
Making the other side move quickly
The other piece of the puzzle is getting the other side to move quickly on the closing and getting the other side’s lawyers to move quickly on the closing. In general, if you’re closing with a good firm, a good fund, they also want to close quickly. They don’t have any interest in a slow closing process. It’s just a question of getting their lawyer’s bandwidth.
The best advice I have to get the venture fund, or investors and their lawyers to move quickly, is to have a great BATNA. That’s really the only advice I have for you there. Preferably you’re in a situation where your BATNA has said something like, “If the other side blinks during the closing process, call me.” You want to have a BATNA that’s still chomping at the bit to invest in your company.
I’m not suggesting that you break any no shop clauses or anything like that, or confidentiality agreements that you have in your term sheet. What I am suggesting is prior to signing a term sheet, you want to have a BATNA that is chomping at the bit and will be interested in investing in your company even if the term sheet blows up after it’s signed. They’re chomping at the bit, like I said, they’ve said something like, “If the other side blinks during closing, call me.”
If they haven’t said something like that, you can say something like that. When you call the investors that you’re not going to take money from and tell them that you’re going to sign a term sheet with someone else, you can tell them, “If there’s any problem during the closing process you are going to be my first call. I’m not expecting any problems during the closing process, but in the odd case that there is a problem during closing and we decide to pull the plug, you are going to be my first call.”
So you’re setting things up to have a great alternative if things blow up during closing, and you’re providing yourself with an excuse. You’re saying, if things do blow up it’s not going to be them pulling the plug, it’s going to be me pulling the plug.
Take it away Kazumi.