Representations and Warranties

1 link


Updated August 29, 2023
Angel Investing

You’re reading an excerpt of Angel Investing: Start to Finish, a book by Joe Wallin and Pete Baltaxe. It is the most comprehensive practical and legal guide available, written to help investors and entrepreneurs avoid making expensive mistakes. Purchase the book to support the authors and the ad-free Holloway reading experience. You get instant digital access, commentary and future updates, and a high-quality PDF download.

Representations (or reps) and warranties can cover a broad range of topics in a financing transaction and they typically get more thorough as the amount of money gets bigger. In general terms, a representation is an assertion that the information in question is true at the time of the financing, and the warranty is the promise of indemnity if the representation turns out to be false. For example, a company might rep that they have no unpaid salaries, or that they are not currently being sued. We address two more specific reps below.

If you want to get a taste of probably the most typical sort of representations and warranties companies give in private financings, you can review the representations and warranties in the Series Seed documents.

Cap Rep

A capitalization rep or cap rep is a representation and warranty in a securities purchase agreement in which the company makes assurances to you about its ownership and capital structure. For example, the company may represent and warrant that it has authorized 10M shares of common stock and that it only has 2M shares outstanding. If they are wrong, the investor can sue for damages and remedies.

The cap rep is critical in a fixed-price financing. If the company does not give you a cap rep, how do you know much of the company you will own? This is true even in a convertible debt financing, although a cap rep is less common in those documents because the amount of the company you will own as a result of those transactions will be governed by a valuation to be determined later, or a valuation cap set forth in the convertible note.

Financial Statements Rep

Whenever you make an investment, you would prefer the company make a representation and warranty about the company’s financial statements. As an aside, you should take a look at those statements to see how much cash is left in the bank and what if any outstanding debts exist.

Key Definitive Document Agreements

We’ve discussed some of the definitive documents specific to the different types of angel investment types above. Below are definitive document agreements that can be associated with a broad range of financings.

Voting Agreement

A Voting Agreement is an agreement between the voting stockholders of a company in which the parties agree to vote their shares in a particular fashion to ensure that certain persons or their designees are elected to the board of directors. The agreement must be signed by the stockholders, because under corporate law it is the shareholders who elect the directors of the company; if your agreement is just with the company your right will not be enforceable.

You’re reading a preview of an online book. Buy it now for lifetime access to expert knowledge, including future updates.
If you found this post worthwhile, please share!