Aug 8 2005

Term Sheet: No Shop Agreement

As an entrepreneur, the way to get the best deal for a round of financing is to have multiple options.  If you’ve been a studious reader of our term sheet series, you are painfully aware that there are many other terms – beside price – that help define what “the best deal” actually is.  However, there comes a point in time where you have to choose your investor and shift from “search for an investor” mode to “close the deal” mode.  Part of this involves choosing your lead investor and negotiating the final term sheet with him.

A “no shop agreement” is almost always part of this final term sheet.  Think of it as serial monogamy – your new investor to be doesn’t want you running around behind his back just as you are about to get hitched.  A typical no shop agreement is as follows:

No Shop Agreement:  The Company agrees to work in good faith expeditiously towards a closing.  The Company and the Founders agree that they will not, directly or indirectly, (i) take any action to solicit, initiate, encourage or assist the submission of any proposal, negotiation or offer from any person or entity other than the Investors relating to the sale or issuance, of any of the capital stock of the Company or the acquisition, sale, lease, license or other disposition of the Company or any material part of the stock or assets of the Company, or (ii) enter into any discussions, negotiations or execute any agreement related to any of the foregoing, and shall notify the Investors promptly of any inquiries by any third parties in regards to the foregoing.  Should both parties agree that definitive documents shall not be executed pursuant to this term sheet, then the Company shall have no further obligations under this section.”

At some level the no shop agreement – like serial monogamy – is more of an emotional commitment; it’s very hard to “enforce a no shop agreement” in a financing, but if you get caught cheating, your financing will probably go the same way as the analogous situation when the groom or the bride to be gets caught in a compromising situation.

At some level, the no shop agreement reinforces the handshake that says “ok – let’s get a deal done – no more fooling around looking for a better / different one.”  In all cases, the entrepreneur should bound the no shop by a time period – usually 45 to 60 days is plenty (and you can occasionally get a VC to agree to a 30 day no shop.)  This makes the commitment bi-directional – you agree not to shop the deal; the VC agrees to get things done within a reasonable time frame.