Venture Capital Investing: New NVCA Models, and New Challenges for Foreign Investors in Early-Stage U.S. Companies - Cleary Gottlieb
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AL E R T M E M O R AN D U M
Venture Capital Investing: New NVCA Models,
and New Challenges for Foreign Investors in
Early-Stage U.S. Companies If you have any questions concerning
this memorandum, please reach out to
your regular firm contact or the
October 7, 2020 following authors
Between July 28, 2020 and September 1, 2020, the
ABU DHABI
National Venture Capital Association (the “NVCA”)
released updates to its model legal documents for use in Chris Macbeth
+971 2 412 1730
venture capital financing transactions. This memorandum cmacbeth@cgsh.com
will explain the changes to these model forms and some of
Adam Jamal
the reasons for, and implications of, such changes. +971 2 412 1705
ajamal@cgsh.com
As background, the NVCA is an organization based in the U.S. whose George Taylor
members include venture capital firms, investors and professionals +971 2 412 1708
gtaylor@cgsh.com
involved in investing private capital in early-stage companies. In an effort
to promote consistent, transparent investment terms and efficient W ASHIN GT ON , D.C.
transaction processes, the NVCA has created model legal documents for
venture financing transactions, and these models have been widely used in Paul Marquardt
the U.S. +1 202 974 1648
pmarquardt@cgsh.com
Chase D. Kaniecki
+1 202 974 1792
ckaniecki@cgsh.com
Hani Bashour
+1 202 974 1934
hbashour@cgsh.com
NEW YORK
William L. McRae
+1 212 225 2188
wmcrae@cgsh.com
clearygottlieb.com
© Cleary Gottlieb Steen & Hamilton LLP, 2020. All rights reserved.
This memorandum was prepared as a service to clients and other friends of Cleary Gottlieb to report on recent developments that may be of interest to them. The information in it is therefore
general, and should not be considered or relied on as legal advice. Throughout this memorandum, “Cleary Gottlieb” and the “firm” refer to Cleary Gottlieb Steen & Hamilton LLP and its
affiliated entities in certain jurisdictions, and the term “offices” includes offices of those affiliated entities.ALERT MEMORANDUM
Overview of the NVCA Model Forms
Questions of Law and Jurisdiction
The NVCA periodically updates its model form
The model forms are configured for C corporations documents, with the most recent update (prior to the
formed in Delaware, which has been the preferred latest changes in 2020) occurring in early 2018. The
jurisdiction of incorporation in venture capital, NVCA’s updates to the model forms attempt to:
accounting for the vast majority of such companies.
1. track developments in applicable law;
This preference is driven in part by the rich
database of Delaware judicial precedent, 2. reflect market practice at a particular time with
particularly pertaining to corporate and business drafting options to facilitate negotiations and
law matters. Given that venture-backed companies allow parties to efficiently achieve a closing of a
typically view their primary liquidity event as an transaction; and
initial public offering (an “IPO”), the selection of
3. reflect “best practices” in the industry
Delaware as the jurisdiction of incorporation also
(establishing, or established by, industry norms).
takes into account the benefits and flexibility that
Delaware law offers to companies seeking IPOs The suite of NVCA documents that have been updated
(and between 80-90% of companies undertaking since July 28, 2020 includes annotated models of the
IPOs in recent years have been C corporations in following:
Delaware). Delaware limited liability corporations
(“LLCs”) may provide an attractive alternative to 1. Term sheet;
companies or investors in certain circumstances, 2. Certificate of Incorporation (“COI”);
although to date, the NVCA has not published
model forms configured for LLCs. 3. Share Purchase Agreement (“SPA”);
Note that even for companies incorporated in 4. Investors’ Rights Agreement (“IRA”);
Delaware, certain California corporate laws may 5. Voting Agreement (“VA”);
apply to the extent such companies are deemed to
have significant operations or shareholders located 6. Right of First Refusal and Co-Sale Agreement
in California. In particular, the California (“ROFRCA”);
Corporations Code (the “CCC”) may cause tension
7. Management Rights Letter;
with, or contradict, the requirements of the
Delaware General Corporation Law (the “DGCL”). 8. Indemnification Agreement; and
This memorandum seeks merely to point out this
potential challenge for “quasi-California” 9. Limited Partnership Agreement insert (“LPA
companies and does not offer a comprehensive Insert”).
analysis on the considerations. “Quasi-California”
This memorandum will focus on the changes to the core
companies and their investors should take special
financing documents themselves, including the SPA,
care to understand how provisions of the CCC and
IRA, VA and ROFRCA, as well as the COI and
DGCL may operate together and how such
differences need to be addressed in the
proposed LPA Insert.
documentation to ensure that the provisions of the The model forms’ drafting options serve as a helpful
financing documents operate as intended by the basis to start negotiations, but they should be tailored to
parties. meet deal-specific requirements. Increasing care should
be given as time elapses following the NVCA’s last
update to the model forms, as applicable law, regulation
and market practice continue to develop.
2ALERT MEMORANDUM
I. Key Takeaways — Offers option to waive statutory inspection rights
under Section 220 of the DGCL, allowing
As discussed in greater detail below, the 2020 changes companies to tailor information and inspection
have been driven by a variety of developments, rights granted to certain shareholders (and thus
including: reduce potential claims from shareholders relating
CFIUS1 to demands for access to books and records).
— New approaches to address the evolving CFIUS — Memorializes language for fixed rate, preferential
review landscape, which sees an expansion of dividends for preferred stock holders.
situations where venture-backed companies and Clarifications and drafting improvements
their investors may need to seek approval from, or
— Moves away from considering direct listings (i.e.,
make filings with, CFIUS.
listings of the company’s shares on an exchange
Law and market practice without the use of an underwriter) as a likely exit
— Updates to governance provisions to reflect strategy, perhaps with the view that underwritten
Delaware case law, curtail certain powers of the listings are (and will continue to be) the dominant
board of directors and expand stockholder approach to public offerings (although recent
protective provisions. examples of direct listings and rule changes may
actually suggest a different trend, further discussed
— Updates to certain representations, warranties and below).
covenants necessitated by the adoption of, or
update to, certain laws, such as, in the data privacy — Amendments to registration rights mechanics
space, the California Consumer Privacy Act designed to bolster protections and optionality for
(“CCPA”) and General Data Protection Regulation investors.
(“GDPR”). — Improvements to company representations to
— Expansion of provisions relating to Qualified facilitate investors’ diligence, and corrections to
Small Business Stock (“QSBS”), reflecting an prior drafting that may have caused confusion.
increasing awareness of the tax benefits potentially
available to early investors in a qualifying
business. II. General Themes
— Updates to the “market stand-off” (or “lock-up”) Governance provisions
provisions relating to underwritten offerings, in
particular to propose a “staged release” approach Board powers
for lock-up restrictions, which could both increase — There is increased attention to the decision by the
investors’ liquidity while minimizing potential Delaware Chancery court in Sinchaereonkul v
liability for the company and its directors and Fahnemann, C.A. No. 10543-VCL (Del. Ch. Jan.
officers under Section 11 of the U.S. Securities 22, 2015), that differential voting rights for
Act of 1933, as amended (the “Securities Act”). In directors of a Delaware corporation must be set
addition, the provisions have been updated to forth in the COI, rather than any other document.
reflect the Financial Industry Regulatory Authority As such, the NVCA has helpfully pointed out that
(“FINRA”) rules applicable to the underwriting special care should be taken while reviewing
banks (and replacement of the New York Stock documentation, particularly when the IRA or other
Exchange (“NYSE”) rules).
1
the Committee on Foreign Investment in the United States.
3ALERT MEMORANDUM
documents contemplate voting rights of the — The DGCL requires, at a minimum, that 1/3 of the
directors. total directors of a company be present to constitute
a quorum for board meetings. This means that for
companies whose bylaws provide for more than 3
Questions of Law and Jurisdiction
directors and for which only 1 such director is
Note that voting mechanics is one potential appointed at a given time, a quorum cannot be
situation where a difference in approach between achieved. As such, the COI includes an additional
the CCC and DGCL may be problematic for right of the board to, out of administrative
“quasi-California” companies. Pursuant to Section convenience, appoint additional directors in the first
214 of the DGCL, if a corporation wants to permit instance to ensure that board meetings can be held.
cumulative voting, it must include an express Consider this together with the VA, which has
provision to this effect in its certificate of removed the requirement that stockholders shall
incorporation . However, under Section 2115 of the vote to ensure the size of the board remains a given
CCC, corporations are required to permit size.
cumulative voting, even if the right is not
— Language requiring that board observers act “in a
specifically contemplated in the constitutional
documents of the company. Therefore, if a
fiduciary manner” with respect to all information
stockholder seeks to exercise its right to cumulate provided to it has been removed. We believe this
votes where such right is not contemplated in the was a correction, as board observers are not subject
company’s certificate of incorporation, the to the same fiduciary duties as directors under
company may find itself forced to violate the CCC Delaware law, and confidentiality obligations will
if it denies the exercise of such right, or violating need to be imposed instead by contract.
Section 214 of the DGCL if it allows it.
Stockholder protective provisions
In line with the NVCA’s approach to provide more
— There are changes narrowing the scope of certain optionality for protections of preferred stockholders, the
board reserved matters, which reflect the continuing list of matters requiring consent of the preferred holders
shift in the power balance from the board of has been expanded, in particular to include the
directors towards companies’ management and following:
founders, including:
• any “merger or consolidation”, an undefined
• Removal from the list of board reserved matters concept which would capture a broader range
certain related party transactions between the of situations than covered in the “Deemed
company and its directors, officers and Liquidation Event” concept (which is typically
employees (in particular, those which are not a tailored formulation of company merger and
contemplated in the underlying transaction, are sale events that give rise to redemption),
more than $60,000 per year or are otherwise not including mergers without any independent
in the ordinary course). economic substance but rather effected for the
• Increase of the monetary threshold for strategic sole purpose of subverting the terms of the
relationships involving payment, contribution or shares of preferred stock;
assignment—originally set at $100,000, but now • changes to capital stock other than to shares
suggested to be a value set between $500,000- that will rank junior to the preferred shares in
$1 million. terms of rights, preferences and privileges;
4ALERT MEMORANDUM
• changes to equity compensation plans, options written statements and industry standards and
or other grants pursuant to such plans; and recognizing a broader scope of activities in which
the company may be considered to engage with
• changes to number of votes cast by each
“personal information”. There is an additional
director, and any changes inconsistent with the
representation about the occurrence of accidental,
redemption mechanics.
unlawful or unauthorized actions relating to both
“personal information”, as well as unauthorized
access to or disclosure of the company’s
Changes driven by applicable laws
confidential information (which means companies
— In the IRA, optional language is included whereby will need to disclose any such incidents against this
holders waive any rights under Section 220 of the representation).
DGCL to inspect the company’s books and records.
The IRA provides robust information and
inspection rights contractually, but these are Other general improvements, clarifications
available primarily to “Major Investors” (i.e., or developments in practice
investors who own a certain, typically large amount
of stock). This is likely the result of evolving case Representations, Warranties and Covenants
law in recent years regarding what constitutes — A number of changes to the representations and
“books and records” and a “proper purpose”, which warranties seem aimed at driving the diligence
has increased legal burden on companies. process for potential investors. For example:
— Due to increasing awareness of significant tax • A blanket company representation is proposed,
benefits relating to QSBS, as well as complexities confirming that all common stock and stock
in determining eligibility for QSBS tax treatment, options held by service providers are subject to
the SPA and IRA include expanded provisions a customary vesting schedule (over 4 years with
relating to QSBS, including a detailed information a 1 year cliff). This is a simpler approach than
reporting form to be completed by the company for previously contemplated, which required that
the investors’ benefit. This inclusion suggests that the company provide comprehensive
the NVCA is attempting to strike a balance between capitalization information of the company
enabling tax benefits for certain shareholders while (including details on outstanding common stock
ensuring that the burdens of maintaining QSBS and all stock options (as well their vesting
status do not unduly dominate corporate policy. schedules)), which investors would need to sift
Note that the QSBS regime can be very through.
advantageous for founders or other qualifying early
stage investors who, if holding the company’s stock • The representation relating the company’s use
for a specified period, may be exempt from having and distribution of open source code has been
to pay U.S. federal income tax on realized gain up expanded by the inclusion of a more robust (and
to a certain amount, but may not be relevant to up-to-date) formulation of what “open source
investors who are not subject to U.S. tax on capital code” entails.
gains from the sale of stock in the first instance. — An additional company representation and
— Reflecting the evolution of data privacy practice covenant has been added confirming that the
and laws, including the CCPA and GDPR, the company is not a “U.S. real property holding
company’s data privacy representation has been company” (a “USRPHC”) as defined in the Internal
expanded, requiring companies to comply not only Revenue Code of 1986, as amended (the “Code”),
with their own written policies, but also their public and the company will be required to confirm
5ALERT MEMORANDUM
whether an investor’s interest constitutes a U.S. real Initial Public Offerings
property interest upon request. Although not
— The NVCA has stripped out provisions and
commonly an issue in venture capital investments,
guidance relating to direct IPO listings (i.e., listings
the inclusion of the representation is customary and
done without the assistance of underwriters), and
reflects market practice (particularly if there are
focuses on underwritten IPOs. From discussions
foreign investors involved in the financing, as they
around the 2018 update of the model forms, we
may be subject to a tax withholding requirement for
would expect the rationale for this to be that direct
transferring interests in a USRPHC). The inclusion
listings are not common. However, while IPOs are
of the covenant is in response to changes in tax law,
still dominated by traditional underwritten
requiring venture capital funds to report to a
offerings, there has in fact been a noticeable uptick
transferring limited partner the extent to which a
in direct listings since 2018 (e.g., Spotify, Slack,
sale would generate U.S. tax obligations.
Palantir and Asana), which may have contributed to
— To complement a standard company representation, the NYSE’s decision to make a number of rule
a covenant has been added in relation to the changes that were ultimately approved by the SEC
company’s compliance with the U.S. Foreign on August 26, 2020—immediately after the NVCA
Corrupt Practices Act of 1977, as amended (the began releasing its updated model forms. Following
“FCPA”). This covenant was included in earlier the new SEC rules, our view is that the use of direct
versions of the model IRA, and removed during the listings will continue to increase.2
2018 update (without explanation, but potentially
— The NVCA has suggested that companies consider
due to low adoption given that early-stage
a “staged release” for investors from lock-up
companies face practical challenges in
restrictions to mitigate the impact of a longer lock-
implementing a costly and time-consuming
up period and deflationary pressures on a
compliance program such as for the FCPA). Its re-
company’s stock price that are often brought about
inclusion remains bracketed, suggesting that this
by all of the locked-up investors being released
should be a negotiated option—one which needs to
simultaneously. In addition, if certain investors are
be considered in light of the company’s size and
indeed released and sell under Rule 144, this can
international footprint.
protect the company and its directors and officers
— As cybersecurity becomes an increasing focus for from liability under Section 11 of the Securities Act
companies globally, a covenant has been added that (for false or misleading statements) which would
includes prescriptive options, with a baseline otherwise apply if shares are acquired in connection
requirement that the company (i) implement access with the company’s registration statement.
controls on protected data, (ii) design reasonable
— The lock-up restriction provides for additional
safeguards designed to protect the confidentiality,
standard carve-outs, including for shares of
integrity and availability of its technology and
common stock acquired in the IPO or on market
systems, and (iii) undertake to implement periodic
after the IPO, and sales pursuant to a trading plan
updates and training programs for its employees.
under Rule 10b5-1.
2
For further details on the changes and implications of the direct listing regime, please see our latest alert memorandum
published on this subject on our website at: https://www.clearygottlieb.com/news-and-insights/publication-listing/direct-
listings-20-primary-direct-listings.
6ALERT MEMORANDUM
Registration Rights has removed a pro-company alternative drafting
option which would allow the company to decline
— There have been a number of drafting
such a request simply if the CEO believes it may be
improvements in the registration rights provisions,
“materially detrimental to the company and its
which offer more practical default approaches for
stockholders for such registration”. Other typical
investors on previously negotiated points. For
limitations remain, but are much more objective
example:
and specifically described (e.g., there must be
• The NVCA now suggests that investors seek to material interference with an M&A transaction,
use actual cut-off dates for exercising demand registration would result in premature disclosure
registration rights as opposed to time periods that the company has a bona fide reason to keep
that are tied to the date of the applicable IRA. confidential, or registration would render company
The NVCA noted that this is intended to prevent unable to comply with securities laws). The
inadvertent perpetual roll-forwards. removal of the pro-company alternative is likely a
• Form S-3 demand registration rights are subject result of it not being widely accepted in practice.
to two thresholds: (i) a specified percentage of — Companies are required to give notice to their
holders must make the demand, and (ii) the shareholders of any company-initiated registration,
anticipated aggregate offering price needs to be which investors have an option to piggyback on.
of a sufficient size (which was increased from a However, the NVCA has expanded the scope of
range of $1 million – $3 million to a range of potential exceptions, which may now include IPOs
$3 million – $5 million). The NVCA now and demand registrations (in addition to
suggests removing the floor for requisite votes registrations relating to the grant of securities to
from holders, as the monetary threshold is employees and SEC Rule 145 transactions).
increasingly seen as sufficient (and Form S-3
— Holders are indemnified against damages arising
demand rights are not a large imposition to begin
from the company’s untrue statements or omissions
with). While the monetary thresholds for
of material facts in any registration statement, or
Form S-3 demand registrations have increased,
violation of applicable securities laws, except when
note that the monetary threshold for Form S-1
such deficiency is caused by the company’s reliance
demand registrations remains the same
on actions or information furnished by the holders
($5 million – $15 million).
or underwriters that itself contains omissions.
• Holders are not required to make Holders are able to restore indemnification
representations, warranties or indemnities in protection if information they fail to furnish is
relation to a potential registration, except as they subsequently corrected prior to or concurrently with
relate to such holder’s ownership and authority the sale of registrable securities.
and capacity to enter into the underwriting
— The termination of registration rights have been
agreement or intended method of distribution. In
more narrowly tailored, contributing to the
addition, the IRA now confirms that the liability
survivability of holders’ rights. In particular:
of such holders are several and not joint, and
limited to an amount equal to the net proceeds • Registration rights may be terminated upon only
from the offering it receives. This approach was those “Deemed Liquidation Events” that result
often negotiated in practice, and it is now simply in holders receiving consideration in the form of
codified as a drafting option. cash and / or publicly traded securities, or if
holders otherwise continue to receive
— Companies still have an ability to decline a demand
comparable registration rights from the
registration request to avoid certain materially
detrimental effects to the company, but the NVCA
7ALERT MEMORANDUM
acquiring or surviving company, as the case may — Continuation of equivalent information rights post-
be. acquisition where consideration received is private
shares of purchaser stock.
• Registration rights will be terminated in respect
of a holder when Rule 144 becomes an available — Clearer acknowledgement that investors permitted
option for such holder to effect a sale. However, to evaluate or invest in competitor companies.
a drafting option is included to confirm that such
termination shall only apply to a holder that
holds less than 1% of outstanding capital stock CFIUS-driven changes
of the company. This would preserve
Approach to CFIUS-related provisions in venture
registration rights for larger holders who may be
capital documents
subject to lock-ups and other constraints on
transferability. To understand the substantive changes in the NVCA
model forms driven by CFIUS considerations, it is
• Registration rights may be terminated following
helpful to first understand the evolution of the CFIUS
expiry of a 3–5 year period following the IPO (as
rules and the current paradigm, particularly as it relates
opposed to counting this from the date of the
to foreign investors in venture capital deals. The 2018
IRA, which will result in shorter survival periods
Foreign Investment Risk Review Modernization Act
in practice).
(“FIRRMA”) and implementing regulations made
significant changes to CFIUS procedures, most notably
Other changes introducing mandatory notifications.
— New standard drafting for preferred stock fixed rate The regulations are quite recent and continue to evolve,
dividends, which may be paid upon declaration of and it is too early to say that settled market practice has
the board, in preference to payment on other classes developed. However, the drafting options provided in
of stock, and in addition to pari passu / shared the NVCA forms should be considered an illustrative
dividends with holders of shares of common stock approach, and additional or different approaches may be
of the company. This concept has been utilized in appropriate in more complex cases.
practice already, with rates typically between 6%– The general approach of the NVCA forms is to address
8% of the applicable share purchase price, and the transactions in which foreign persons are not expected
drafting is merely a codification of what market to obtain governance rights in the target by providing
participants commonly negotiated. Note that in binding representations and covenants that CFIUS will
some cases, the company may limit preferred not have jurisdiction over an investment by any party in
holders to receive only the specific dividend (and a target company, meaning that foreign ownership and
not also participate in the subsequent pari passu / governance rights with respect to the company are
shared dividends), but this may not be particularly strictly limited. It would be a mistake, however, to view
problematic for preferred holders as many early- these provisions as driving the commercial
stage companies do not typically pay dividends in arrangements among the parties rather than reflecting
any case. and memorializing them; the question of what
— Expanded definition of “Immediate Family transaction is intended (in light of the costs and benefits
Members” to include life partners or similarly of a potential CFIUS notification) is prior to the
statutorily-recognized domestic partners, which question of whether the provisions are appropriate. It
reflects the evolving view on intimate relationships certainly is not the case that either the law or the market
in the U.S., and as a result, expands the scope of forbid foreign investors from acquiring influence over
potential permitted transferees or assignees. U.S. companies.
8ALERT MEMORANDUM
It is also important to note that these representations and in which a foreign government owns 49% or more of a
covenants are neither necessary nor sufficient to 25% or greater stake in other TID U.S. businesses.
eliminate risk of CFIUS intervention altogether— Failure to comply with the mandatory CFIUS
CFIUS’s jurisdiction is broad and highly discretionary, notification requirement is subject to penalties up to the
and therefore it is difficult to deal in absolutes. Parties value of the transaction. Further, and importantly for
may agree as a matter of diligence on what the facts are, non-U.S. investors in venture capital deals (which are
but how CFIUS will use its considerable discretion to typically conducted on an accelerated timeframe
apply its broadly written rules to those facts is less without conditions to closing), FIRRMA extended the
certain. Even where the parties agree that a CFIUS CFIUS review timeline and introduced a mandatory 30-
filing is unnecessary or undesirable, it may be more day waiting period for transactions that trigger a
appropriate to deal with the issue by diligence, mandatory CFIUS notification.
negotiation of governance provisions, and assessment
FIRRMA also expanded CFIUS’s jurisdiction over TID
of the transaction rather than conclusory contractual
U.S. Businesses. Under the previous rules, TID U.S.
provisions that treat questions of judgment as questions
Businesses were already an area of focus, and while the
of liability.
CFIUS regulations nominally speak of acquisitions of
If CFIUS does have jurisdiction over a transaction, that “control,” CFIUS has long had a broad interpretation of
fact is not necessarily fatal. Except for a relatively small the term in practice that reached acquisitions of as little
subset of transactions subject to mandatory as 15% with proportionate board representation. Under
notifications, CFIUS often does not review transactions FIRRMA, even below these levels, if a foreign investor
over which it may have jurisdiction, and parties may receives certain non-controlling rights
decide to proceed without a notification in appropriate (e.g., director/observer rights, access to material
cases. Even if a notification is required or advisable, it nonpublic technical information, or involvement—
may be rational to proceed with a transaction despite the which may include non-binding consultation—in
timing and cost considerations. decision-making related to the critical
technology/infrastructure/data), CFIUS may review the
transaction. On the other hand, FIRRMA also clarified
Evolution of the CFIUS rules and reaffirmed an exemption from CFIUS jurisdiction
In August 2018, shortly after the NVCA published the for passive foreign investment through U.S. private
prior versions of its model documents in early 2018, equity funds.
FIRRMA was signed into law. Among other things, Regulations released by the U.S. Department of the
FIRRMA introduced mandatory notifications and Treasury (the “Treasury”) implementing most of the
codified and clarified CFIUS practice over the decade FIRRMA provisions (the “Final Regulations”) became
or so since the previous significant reform, as well as effective on February 13, 2020. The 2020 NVCA model
expanding CFIUS’s already broad jurisdiction over forms were published after these Final Regulations, but
non-controlling investments in the technology, data, and before the latest rule on mandatory notification for
infrastructure sectors. critical technology transactions published by the
In particular, under FIRRMA, foreign investments in Treasury on September 15, 2020 (the “Critical
U.S. businesses involving specified “critical Technology Rule”). The Critical Technology Rule
technology”, “critical infrastructure” or “sensitive comes into force on October 15, 2020 and significantly
personal data” (“TID U.S. Businesses”) are now alters the scope of mandatory notification requirements
potentially mandatory. FIRRMA established mandatory for foreign investments into U.S. critical technology
filings for investments by any foreign person into U.S. companies. In particular, the Critical Technology Rule
businesses that develop, manufacture, or test “critical eliminates the focus on whether “critical technologies”
technology” as well as acquisitions by foreign persons are used, or designed for use, in specified industries, and
9ALERT MEMORANDUM
instead focuses on whether the specified technologies accustomed to completing venture capital deals at
are (1) subject to a subset of U.S. export controls (those relatively low cost.
other than the least restrictive set of dual-use controls)
and (2) require a license for export to the buyer. In other
words, the Critical Technology Rule expands Current mandatory filing requirements
mandatory filings in critical technology businesses to Following the latest CFIUS regulations coming into
all industry sectors if the target’s business involves force on 15 October, mandatory CFIUS filings will be
critical technology and that critical technology would required where a foreign investor seeks to have either
require a license or authorization for export (real, or of the following:
hypothetical) to the principal place of business or
country of nationality of the foreign person investor or (i) “control” over a U.S. business, broadly defined as
any foreign person holding 25% or more in the the power to determine important matters affecting
investor’s ownership chain (including holding the business (and in practice often viewed as
companies).3 This does not apply only to goods and anything outside the presumptive safe harbor for
technologies actually exported by the target, but those investments that are under 10% and wholly passive,
sold only in the U.S. market or even not sold at all (e.g., and therefore better understood as “substantial
proprietary manufacturing technologies that are only influence”), or a non-controlling stake in a U.S.
used internally by the target and would not be sold). In business for which such foreign investor will have
addition to expanding the scope of mandatory filings in a board or observer seat, the ability (de facto or
a way that could potentially be relevant to any venture contractual) to participate in substantive decisions
capital target in the U.S., the Critical Technology Rule regarding critical technology, or access to material
makes the CFIUS analysis much more complicated, as non-public technical information (“MNPTI”), if (a)
an export control analysis must first be conducted by the the target U.S. business produces, designs, tests,
target company.4 manufactures, fabricates or develops “critical
technologies” (technology subject to U.S. export
Although not directly relevant to the NVCA model form controls, other than the least-restrictive category
documents, for completeness we note that FIRRMA and applicable to dual-use goods), and (b) an export
subsequent implementing regulations also introduced license or other authorization would be required to
CFIUS filing fees for full CFIUS notices (short-form export the target company’s “critical technologies”
CFIUS declarations are not subject to fees). The fees for to the country(ies) of the investor(s) or any entity
a transaction valued at $5 million or more, but less than that directly or indirectly owns 25% or more of the
$50 million, are $7,500, but increase to $75,000 above investor (and the country(ies) do not qualify for one
$50 million, $150,000 above $250 million, and of the three license exceptions included in the
$300,000 above $750 million. The highest tier fee is Critical Technology Rule), or
unlikely to be relevant for venture capital investments,
but a fee of $75,000 or $150,000 (combined with the (ii) at least 25% of the direct or indirect voting equity
potential delay of a mandatory filing) may be a in a TID U.S. business where a foreign government
significant consideration for some foreign investors
3
Thus, all entities in the chain must be eligible for license-free export from the U.S. to avoid a mandatory notification. The
Critical Technology Rule also includes exemptions from the mandatory CFIUS filing requirement if the critical technology
qualifies for one of three license exceptions under the U.S. export control laws, including the license exception relating to
strategic trade, which broadly exempts many exports to specified U.S. allies and major defense partners.
4
In addition to expanding the mandatory filing regime, the new CFIUS regime has imposed a number of new features, which
are described in greater detail in our alert memorandum published at: https://www.clearygottlieb.com/news-and-
insights/publication-listing/cfius-shifts-focus-of-critical-technology-mandatory-notifications-to-export-controls.
10ALERT MEMORANDUM
has at least 49% of the direct or indirect voting
equity of such foreign investor. In an effort to address CFIUS risk, the NVCA model
forms contain:
Addressing CFIUS risk in the NVCA model documents
and potential issues — Representations by the target company that it
does not deal with “critical technologies”.
The NVCA approach is to include in deal documents a
— Covenants by the target company that no foreign
variety of representations and undertakings confirming person will have demand registration rights, hold
that the CFIUS mandatory filing criteria are not met more than 9.9% of the outstanding voting shares of
(with a particular focus, in the first instance, on the company (which may need to be expanded to
confirming that the target company is not engaged in aggregate multiple investors owned by the same
foreign government) or receive any “DPA
activities involving “critical technologies”), and
Triggering Rights” (i.e., rights that could result in
ensuring that a foreign person does not obtain any of the transferring “control” or non-controlling interests
rights that would trigger CFIUS jurisdiction. that could otherwise trigger CFIUS jurisdiction),
Determining whether or not these criteria are satisfied with a note that board observer rights may be
will require a holistic analysis on a case-by-case basis inconsistent with a “passive investment” for
CFIUS purposes.*, **
and is complicated by the fact that CFIUS’s analysis,
— Representations by the investors to confirm they
particularly with respect to control, is often opaque, are not a “foreign person”.
highly discretionary and sometimes inconsistent, and as — Covenants by the investors to notify the company
a practical matter it is not subject to meaningful external in advance of permitting an affiliated foreign
review. The other approach we have commonly seen is person from obtaining “DPA Triggering Rights”
a diligence-based approach in which each of the parties and, by key holders, not to transfer to a foreign
person if it would result in the transfer of a DPA
assesses the CFIUS risk and determine whether to Triggering Right, without board consent.
include CFIUS filing provisions in the agreement but do
not attempt to allocate liability should CFIUS seek a
filing. *The CFIUS regulations explicitly indicate that an
investment that affords the investor a board observer seat is
The approach adopted in the NVCA model forms not solely for the purpose of passive investment. This is
reflects an approach we have seen in the market that is important if an investor is trying to qualify for the CFIUS
safe harbor pursuant to which investments at 10% or less that
hyper-conservative in attempting to avoid any
are undertaken solely for the purpose of passive investment
possibility of CFIUS review, but we see a number of are presumptively (but not definitively) not subject to CFIUS
issues with this approach, especially for parties with review.
greater CFIUS experience: **The NVCA also suggests an optional obligation to notify
— CFIUS has, and historically has used, very broad investors and limit the rights of foreign investors if re-
categorization by the U.S. government or changes in
discretion in interpreting its own rules and in
business activities result in the company later being deemed
“stretching” to reach transactions that raise either to be engaged in “critical technologies”, with the aim of
political or national security concerns. CFIUS does preempting the need for any potential future filing. Unless
not provide reasoned decisions to the parties, and designed to apply to a company that currently has no foreign
judicial review is extremely limited and so far has investors but might do in the future, this provision appears to
misapprehend the nature of the mandatory CFIUS review,
not been a practical constraint. It also is often quite which is assessed at the time of investment (as was
unclear whether a U.S. entity might have some risk confirmed in the recent revisions to the critical technology
of being deemed a “foreign person” as a result of rules). Subsequent developments cannot render a previous
minority influence over the entity (for example, investment subject to notification.
board members appointed by non-U.S. persons or
11ALERT MEMORANDUM
foreign executives).5 CFIUS also has the ability to supporting analysis, including analysis of relevant
determine that a foreign party has de facto influence export control classifications (and, if relied upon,
regardless of its formal legal rights (for example, a eligibility for applicable license exceptions), but we
major investor in a private equity fund). As a result, would expect some target companies to push back
making definitive representations as to the ability of on this request because, in practice, many early
CFIUS to exercise jurisdiction over a transaction stage companies may not be prepared to conduct (or
can be quite problematic (and legal opinions will pay for) this analysis. Any such analysis would
generally be unavailable). need to be done in close cooperation with the
relevant personnel at the target company.
— It is also true that simply because a transaction
could be reviewed by CFIUS does not, unless the — The covenants that other, or future, investors will
parties fail to make a mandatory notification, mean not be permitted to acquire positions that could
that anything improper has occurred; it is quite trigger a CFIUS filing, or that holdings will not be
common for parties to investments that could transferred if a CFIUS filing could result, should be
theoretically be reviewed by CFIUS to decide that carefully considered. Some of the restrictions have
the risk of a review is minimal and proceed. It is an obvious economic impact, and if their effect is
also worth noting that if there is no CFIUS closing that the mere possibility of future CFIUS review
condition, the risk of CFIUS review falls primarily eliminates potential investors, they could in practice
upon the foreign investor (which may be forced to operate as a substantial constraint on future
give up governance rights or divest its stake to an fundraising or investor exits. Investors will also
acceptable buyer), not upon the company (which wish to consider the possibility that they themselves
will not be forced to return the funds post-closing), could receive foreign investment that could change
much less other investors. their status for CFIUS purposes.
— Representations are not a defense to CFIUS review In light of the absence of bright-line rules governing the
and of course have no impact on CFIUS. They CFIUS process, providing flat representations as to
simply assign liability to one party or another if whether CFIUS will have jurisdiction over a transaction
CFIUS makes an unexpected decision. (including whether a party may be deemed controlled
by a foreign person and whether agreed investment
— While small, passive transaction participants (or
rights may give rise to de facto control) may be
those without much experience with the CFIUS
problematic, whether it is the investor, company or the
process) may be content to make these
sponsor being asked to give such representations.
representations, larger and more sophisticated
Whether and why investments should be structured with
participants often view CFIUS matters as a question
the goal of completely eliminating the possibility of
for diligence and mutual risk assessment rather than
CFIUS review for any future investor is also unclear.
flat representations resulting in a breach of the
Parties should carefully consider the extent to which the
agreement if CFIUS—which ultimately is beyond
model provisions are necessary or appropriate for a
the control of any party—unexpectedly decides to
particular transaction rather than just copying and
review a transaction.
pasting the provisions into the relevant documents.
— Due diligence is necessary to ensure that the
company understands the scope of the
representations and has conducted the necessary
5
Purchasers should be aware that a U.S. entity can be a “foreign person” under the broad standards of “control” described
above, and a U.S. company with a significant foreign investor (even one well short of majority control) may not be able to
make this representation with confidence. The investor representation (that it is not a foreign person) is also broad enough to
cover consultation by the purchaser with any foreign person regarding any of the specified decisions regarding the company.
12ALERT MEMORANDUM
CFIUS considerations for funds
III. Unexpected Approaches
Absence of LLCA options
The NVCA has offered the LPA Insert, which
During the 2018 update, the NVCA drafters considered
offers approaches in the fund investment context
including a form or framework for an LLC agreement,
that:
as an alternative option to Delaware C corporations.
Permit the GP to take actions necessary or However, the NVCA has again chosen not to make
appropriate to ensure the partnership does not available such materials.
become a foreign person, and ensure the
LLCs offer a distinct advantage in flexibility—allowing
partnership’s investments are not covered
transactions, including by structuring the parties to customize the configuration of fiduciary duty
partnership or investments allocable to a mechanics, whereas in Delaware C corporations,
foreign LP in a manner that would reduce the fiduciary duties cannot be waived or circumvented
likelihood of the partnership being deemed to (although stockholders may, to some extent, achieve a
have entered into a transaction within the similar outcome by waiving claims in particular
jurisdiction of CFIUS. instances).
Require each LP to acknowledge that it has
provided, and will continue to provide, the GP However, certain tax considerations (including QSBS
with representations or information relevant to advantages6 for post-sale/IPO capital gains), combined
determining whether the LP is a foreign person. with greater familiarity and perceived simplicity, have
Foreign LPs must confirm that they do not have historically driven many venture-backed companies and
rights or powers that may be considered a
“DPA Triggering Right”. their investors to prefer Delaware C corporations.
Require each LP to notify the GP of any actions Even if there are good reasons to prefer an LLC, the
that may result in it becoming a foreign person, absence of NVCA LLC model forms to simplify
or may result in a foreign government holding
drafting and negotiation will likely reinforce this
a “substantial interest” in the LP. Further, LPs
must also cooperate with GP information preference.
requests and those of CFIUS or U.S. Removal of life sciences concepts
government authorities on matters related to
CFIUS. The NVCA removed milestone drafting options
However, LPs may be uncomfortable: (included in 2018 to allow investors in life sciences
transactions to condition their investment on specified
giving GPs discretion to alter the agreed milestones being achieved), plus related guidance on
structure and rights of a limited partnership that how to draft a “Use of Proceeds” section for life
were negotiated with CFIUS considerations in sciences companies, and an explanatory footnote on
mind; how to address a potential accounting issue that may
assuming contractual liability for issues that
arise in milestone based transactions. The NVCA has
are within the discretion of CFIUS or the
GP/company; and/or not yet offered an explanation for this reversal in
providing certain financial and other sensitive approach.
information (especially sovereign-related LPs). …
CLEARY GOTTLIEB
6
Note that special care should be given when assessing tax advantages, as there may be a misconception that only Delaware
C corporations can take advantage of the QSBS qualification, when in fact, LLCs have the potential to do so as well if
electing to be treated as corporations for U.S. federal income tax purposes (as opposed to partnerships).
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