意，在[具有包销承诺的]有保荐人的公开发行交割时，每股A系优先股将自动以当时适当的转换率转换为普通股。（适用普通股股息，分割，合并及类似调整业务）
出资人参与交易:
[Pay-to-Play: 除非董事会决定[含[多数]A系董事投 票决定]允许[主要]投资人放弃参与
权，在之后的公司再融资交易中，所
有[主要]投资人都必须充分行使其参与权(如下文“投资人权利协议—按比例参与未来交易”所述)[除非[]%A系优先股股东投票同意不按此方案处理]，否则任何未行使上述参与权A系优先股8的[主要] 投资人所持有的全部A系优先股都将[丧失反稀释权利][丧失未来交易参与权][如果可适用，转换为普通股并丧失董事席位]9。
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.7
[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 Director[s])]. All shares of Series A Preferred8 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].9
The per share test ensures that the investor achieves a significant return on investment before the Company can go public. Also consider allowing
a non-QPO to become a QPO if an adjustment is made to the Conversion Price for the benefit of the investor, so that the investor does not have the power to block a public offering.
7
Alternatively, this provision could apply on a proportionate basis (e.g., if Investor plays for ? of pro rata share, receives ? of anti-dilution
adjustment).
8
If the punishment for failure to participate is losing some but not all rights of the Preferred (e.g., anything other than a forced conversion to
common), the Charter will need to have so-called “blank check preferred” provisions at least to the extent necessary to enable the Board to issue a “shadow” class of preferred with diminished rights in the event an investor fails to participate. Note that as a drafting matter it is far easier to simply have (some or all of) the preferred convert to common.
9
赎回权10:
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]11。
Redemption Rights:10 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)].11
Redemption rights allow Investors to force the Company to redeem their shares at cost [plus a small guaranteed rate of return (e.g., dividends)]. In
practice, redemption rights are not often used; however, they do provide a form of exit and some possible leverage over the Company. While it is possible that the right to receive dividends on redemption could give rise to a Code Section 305 “deemed dividend” problem, many tax practitioners take the view that if the liquidation preference provisions in the Charter are drafted to provide that, on conversion, the holder receives the greater of its liquidation preference or its as-converted amount (as provided in the NVCA model Certificate of Incorporation), then there is no Section 305 issue.
10
Due to statutory restrictions, it is unlikely that the Company will be legally permitted to redeem in the very circumstances where investors most
want it (the so-called “sideways situation”), investors will sometimes request that certain penalty provisions take effect where redemption has been requested but the Company’s available cash flow does not permit such redemption - - e.g., the redemption amount shall be paid in the form of a one-year note to each unredeemed holder of Series A Preferred, and the holders of a majority of the Series A Preferred shall be entitled to elect a majority of the Company’s Board of Directors until such amounts are paid in full.
11
陈述与保证:
股份买卖协议书
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]. 12
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。
Representations and
Warranties: Conditions to Closing:
Stock Purchase Agreement
Standard representations and warranties by the Company. [Representations and warranties by Founders regarding [technology ownership, etc.].12 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.
[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 $[_____])and expenses of Investor counsel[, unless the transaction is not completed because the Investors withdraw their commitment without cause]13.
Company Counsel: [ Investor Counsel:
[
]
]
完成交割的条件:
律师及费用:
Counsel and [投资人/公司]的律师起草交割文件。
公司[在交割时]，应当支付因融资产生Expenses: 的所有法律和行政花费，包括合理专业服务费用（投资人律师费由公司承担部分不得超过$ [ ]）和其他费用[由于投资人无故撤销其承诺而使得交易未完成的除外]13 。
公司律师：[ ]
投资人律师: [ ]
Note that while it is not at all uncommon in east coast deals to require the Founders to personally rep and warrant (at least as to certain key matters,
and usually only in the Series A round), such Founders reps are rarely found in west coast deals.
12
The bracketed text should be deleted if this section is not designated in the introductory paragraph as one of the sections that is binding upon the
Company regardless of whether the financing is consummated.
13
投资人权利协议
INVESTOR RIGHTS AGREEMENT
登记权： Registration Rights: 可登记证券：
由A系优化股转换后可发行的普通股Registrable 的全部股权和[投资人持有的其他普通Securities:
股]将被视为“可登记证券”14. 请求登记权:
最早在（i）交割后[3-5]年；或
Demand （ii）首次发行新股（“IPO”）后的Registration:
[6]个月的内,持有 [ ]%的可登记证券者可要求其持有股份的公司进行[一][二]次(完备的)注册登记。每次登记的发行总额不可少于[五百万至一千万]美元。
S-3表格式登记权: 如果公司可进行S-3表格式登记, 且 Registration 可登记证券的发行总额至少为[1-5百on Form S-3: 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.
附带登记权:
可登记证券持有人具有在公司证券注 Piggyback 册登记表之上的附带登记权，但该项Registration:
权利受限于于公司及其承销人的如下权利：公司及其承销人有权将预计登记出售的股票份额在各预计出售人将
14
Note that Founders/management sometimes also seek registration rights.
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.”14 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 [one][two] (consummated) registrations by the Company of their shares. The aggregate offering price for such registration may not be less than $[5-10] million.
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 $[1-5 million]. The holders of Registrable Securities will be entitled to “piggyback” registration rights on all registration statements of the Company, subject to the right, however, of the Company and its underwriters to reduce the number of shares proposed to be registered to a minimum of
费用:
股权锁定:
终止条款:
按比例减少至最低为[30]%比例。但是只有在其他股东所持股份减少之后，可登记证券持有人所要登记的股份才能减少.
所有登记费用（包括股份转让税,承销
折扣和代理费用）由公司承担。公司同时应支付一位代表全体参与股东的律师的费用[不超过﹩ ] 以及其他合理费用。
在首次发行新股（IPO）时, 若经首席 承销人要求，投资人应当同意，在首次发行新股（IPO）后的180天内不出售或转让公司的任何普通股股份[不包括在首次发行新股（IPO）期间或其后买入的股份）]（条件是，公司的所有董事，主管以及[1-5]%的股东也同意受同一股权锁定协议约束）。
此股权锁定协议一经达成，即表明，对于公司或承销人代表制定的此协议的限制条款作出任何放弃或终止措施,都应符合基于所持股份按比例计算的[主要]投资人的意见。“主要投资人”是指持有A系优先股的份额至少为$[ ]的任何投资人。
本协议因发生下列情形之一而终止: 首次发行新股（IPO）后([5]年)内； :发生视为清算事项；或
Expenses:
Lock-up:
Termination
[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