How to Document an Investment in a Company
Attracting the right investors is often critical to the success of a company, both when starting up and during growth and development. Any investment you bring in will need to be carefully considered and the terms properly documented.
The best way to document a company investment will depend on the situation, but the following are some of the key documents that will typically be needed when an investment is being made.
Outline terms of investment (heads of terms)
The basic terms of an investment will need to be negotiated and recorded in a document usually referred to as a ‘heads sheet’, ‘terms sheet’ or more generally as ‘heads of terms’.
This document is not legally binding but will act as a record of the key points that have been negotiated, including the value of the investment and what the investor will receive in return.
Also sometimes referred to as an ‘investment agreement’, this will set out the terms agreed in a more detailed and legally binding way. It will be based on what has been agreed in the heads of terms.
A shareholders’ agreement will cover issues such as the number of shares in the company the investor will receive, the price paid and their voting rights. It will also normally set out what will happen if the investor wishes to sell their shares and the process for bringing on board other shareholders in the future.
This is the legal agreement that a company will sell a certain number of its shares to an investor at a certain price and that the investor agrees to these terms. Once this is signed by both parties, the sale will become legally binding.
A common concern when starting a new business is what would happen if one of the founders or a major shareholder were to leave. This can often lead to the failure of a new business where the knowledge, skills and activities of individuals, founders and shareholders can be particularly critical.
Vesting provisions offer a form of protection against such a possibility by setting out that the shares assigned to a particular shareholder or investor will only pass to them (or ‘vest’) after certain milestones have been met. These milestones could be related to how long the shareholder or investor has been with the company, when key revenue targets are hit or any other goals the company wishes to set.
Vesting provisions are often included within shareholders’ agreements and are sometimes referred to as ‘vesting clauses’.
Articles of association
Every company needs articles of association – they are a legal requirement. They are essentially the rules by which a company will be run and cover matters such as how company directors will be appointed, how new shares will be issued and procedures for board meetings and shareholder decision-making.
A company’s articles of association need to reflect the interests and obligations of any shareholders and investors. When new investors come on board, the articles of association may need to be amended to reflect changing priorities or circumstances. They will also need to be carefully drafted to work with any shareholders’ agreements in place.
Speak to our Company Commercial team for advice on documenting company investments
To discuss documenting a company investment with our Company Commercial team, please get in touch.