You have attracted investor in a startup. What documents should be issued in the first place?

Vasily Nikolaev

Founder and CEO of the platform to work with IT-specialists Rubrain.com.

Arthur Shmoylov

Lawyer Company "Tomashevskaya and partners."

Alex Kotomin

Lawyer Company "Tomashevskaya and partners."

Often start-ups at the beginning are as follows: two programmers sitting in a cramped little room, which concentrated on "sawing" code on computers. More than they have in the state of no one. On some tasks they occasionally attract freelancers, and on statements do not reflect at all. But after a while they realize that you need to develop, and this requires money.

By happy coincidence they find an investor who is willing to invest the money and even offers to process the necessary paperwork your lawyer. The parties sign the contract, but just at the moment when the first start-up is beginning to bear profitAnd business - to grow, the founders suddenly find the first surprises, not always pleasant.

The thing is that, not understanding, they signed a contract containing onerous terms and conditions. We will understand, on what to pay attention to avoid unpleasant situations, and what documents can regulate relations startups and investors.

Term Sheet, or an agreement of intent

This is the first document that carries your verbal agreement with the investor on the paper. Usually it indicates the amount of investment, the size of which will receive an investor, the investor's rights in respect of shares of the company, your rights, particularly further financial and legal documentation.

It would be good at this stage to understand, will you choose a loan agreement or option contract, as well as to what jurisdiction will be running your company and where your intellectual property will be issued if it is there is.

If your project is focused only on the Russian market, for example, you produce samovars, be registered in Russia. If you have an IT project with which you want to go global market, Consider where to store the intellectual property and where it is easier to pay taxes. To do this, turn to lawyers engaged in consultations on intellectual property and having experience in structuring cross-border transactions.

Service in offshore jurisdictions of Cyprus, the Cayman Islands is cheaper, but the price should not be the sole criterion for your choice.

In any case, you should focus on the jurisdiction governing the principal market on which the company expects to sell products or provide services.

Term Sheet, as a rule, is not legally binding and can be quite a small document - only a few sheets of A4. However, as a minimum, all participants must sign it, and at best, you may still have to pay attention to conditions, which, if necessary, one of the parties still can then say in court. they usually refer to confidentiality and exclusivity agreements deal. For example, the agreement of intent is written, you can apply in parallel to another investor or not.

Examples of such conditions are met:

Selection of further documents will depend on the financing model you choose, together with the investor. In any case, all legal documents are written to finance, and they should be fairly specific - research & development, hiring employees and so on.

Legally, as recorded by the use of the investment restrictions, that is, a framework for which the start-up, get the money, can not go. Violation of agreements threatens to return on investment, or immediate conversion of funds into stocks and shares of companies.

Treaty on convertible loans

Convertible loan gives the investor the ability to quickly make an investment without spending much time on negotiating the terms of his participation in the company. In fact, the investor gives the company a loan a sum of money, and in return gets the right to return or that amount, together with interest, or a certain number of shares of the company. The number of shares is calculated based on the company's assessment of the date of issuance of the loan.

Do not forget about the limitations: this agreement is reasonable to make in the event that your business is not in Russia, and for example, in England, the US or any offshore location. Currently in Russia the mechanism of transfer of shares from the founders to investors does not work well.

Option or option agreement

This is an alternative to a contract for a loan, which is suitable for those companies that are registered in Russia.

On June 1, 2015 in the Civil Code two new articles: Put OptionCt. 429.2 of the Civil Code on the conclusion of the contract and an option contractCt. 429.3 of the Civil Code. It combines these documents that the parties agree on the conditions which shall be to execute at once, and in the future. Differences that gets the party entitled thereto.

At the conclusion of the contract option on one side of the Agreement shall provide the other party the right to award one or more contracts on the terms of certain options. As a rule, it is provided for a fee. But on one side of the option agreement on the terms stipulated by this agreement, shall have the right to require prescribed period from the other side commit certain actions (payment of a sum of money, transfer of property and etc). If the entitled party does not make a claim within the specified period, an optional contract is terminated.

Option agreement, in contrast to the option does not require the conclusion of the basic contract. He gives the right to demand the execution upon the occurrence of certain circumstances.

Usually implemented two versions of the option - providing a way out of the company or, on the contrary, the establishment of control over it. In the first case, the business owners or investors of the option acquires the right to sell shares in the future the company or the share in the authorized capital at a predetermined price upon the occurrence of certain circumstances. In the second case is considered a different situation - the ability to gain control over the acquired company in the event that corresponds to the profitability of the customer's expectations. Then the entitled party receives the right to buy the remaining shares at the disposal of the counterparty or the share capital. The price is also calculated in advance.

shareholders' agreement

Imagine the situation. You have just graduated from a prestigious university and founded a startup. Themselves lead the team as CEO, found an investor. Investor reacted with understanding to the fact that the company did not immediately bring a profit, and has agreed to give you six months to develop. At the very beginning on the joys you have signed with lawyers pile of papers, and then plunged into the work. From an investor you have evolved a great relationship, and he did not interfere in the activities of a startup. And one morning, coming into the office, you find that the CEO have not you, as a completely different person.

What did you do wrong? Why does this situation occurred? The answer is simple: by signing the shareholders agreement, you do not pay attention to the key point - whether the right of the investor to appoint a CEO.

Regulate the relationship between the shareholders in the company intended to the shareholders' agreement. According to this document the parties agree, how to manage, how to distribute the profits, if they undertake to nominate candidates to the board. As prescribed:

• who can dismiss the key leaders;
• who can appoint CEO and CFO or involve financial supervisor;
• What questions should be decided by the board of directors only, and which has the right to decide for himself the CEO;
• which documents can request a particular shareholder, and how often.

Drawing up and approval of the document usually takes a few weeks. It is between all or several shareholders and regulates all the basic questions of life.

Business plan

This is an optional supplement to the shareholder agreement. In this document, the company paints what means and what it intends to spend. To reduce the risk, in some cases, investors set the criteria for rejection of business plan. For example, if the company deviates by more than 30%, the investor can demand the return of the investment or the transfer of control.

Documents confirming the registration of intellectual property

At start-ups is always an acute problem of intellectual property. It is either not registered properly or was not correctly transferred from the company's developers. For example, freelancersWho send you the code - it's just the producers of the intellectual property itself.

Before starting to develop it is necessary to conclude an agreement on the implementation of the works (or services) and prepare terms of reference: how work is done and what is its outcome. And then every freelancer to sign the act Handover. And then it is a proof for investors that the code belongs to your company. After the transaction, he is put on the balance of the legal entity.

Title deed

If at the time of the transaction with the investor you are married, sign a spouse an agreement under which he or she does not object to the sale of shares in the company or transactions.

No matter what you have in the property until only a couple of computers. This sample document whose signing, however, is often neglected. But the couple may get a divorce and start to divide the joint property. Or spouse declares that originally was against the deal, the Court recognizes it as invalid and requires you to return the stake to the investor.

In practice, many start-ups collapse because of disagreements between the founders and investors. To avoid this, always check for potential partners and approach to the selection of investors not only in terms of future bailouts, but the commonality of views on the further development business. And my feelings Reinforce legal documents.