This sample document is the work product of a coalition of attorneys who specialize in venture capital financings, working under the auspices of the NVCA. See the NVCA website for a list of the Working Group members. This document is intended to serve as a starting point only, and should be tailored to meet your specific requirements. This document should not be construed as legal advice for any particular facts or circumstances. Note that this sample presents an array of (often mutually exclusive) options with respect to particular deal provisions.

Last updated on January 7, 2004 TERM SHEET

Preliminary Notes

This Term Sheet maps to the NVCA model documents, and for convenience the provisions are grouped according to the particular model document in which they may be found. Although this Term Sheet is perhaps somewhat longer than a "typical" VC Term Sheet, the aim is to provide a level of detail that makes the Term Sheet useful as both a road map for the document drafters and as a reference source for the business people to quickly find deal terms without the necessity of having to consult the legal documents (assuming of course there have been no changes to the material deal terms prior to execution of the final documents).

Last updated on January 7, 2004 2

TERM SHEET FOR SERIES A PREFERRED STOCK FINANCING OF [INSERT COMPANY NAME], INC.

This Term Sheet summarizes the principal terms of the Series A Preferred Stock Financing of , Inc., a [Delaware] corporation (the “Company”). In consideration of the time and expense devoted and to be devoted by the Investors with respect to this investment, the No Shop/Confidentiality and Counsel and Expenses provisions of this Term Sheet shall be binding obligations of the Company whether or not the financing is consummated. No other legally binding obligations will be created until definitive agreements are executed and delivered by all parties. This Term Sheet is not a commitment to invest, and is conditioned on the completion of due diligence, legal review and documentation that is satisfactory to the Investors. This Term Sheet shall be governed in all respects by the laws of the [State of Delaware].

Closing Date: As soon as practicable following the Company’s acceptance of this

Term Sheet and satisfaction of the Conditions to Closing (the

“Closing”). [provide for multiple closings if applicable]

Investor No. 1: [_______] shares ([__]%), $[_________]

Investor No. 2: [_______] shares ([__]%), $[_________]

[as well other investors mutually agreed upon by Investors and the

Company]

Amount Raised:

Price Per Share:

Pre-Money Valuation: $[________], [including $[________] from the conversion of principal [and interest] on bridge notes].1 $[________] per share (based on the capitalization of the Company set forth below) (the “Original Purchase Price”). The Original Purchase Price is based upon a fully-diluted pre-money

valuation of $[_____] and a fully-diluted post-money valuation of

$[______] (including an employee pool representing [__]% of the

fully-diluted post-money capitalization).

The Company’s capital structure before and after the Closing is set

forth below:

Pre-Financing Post-Financing Investors: Capitalization:

1 Modify this provision to account for staged investments or investments dependent on the achievement of milestones by the Company.

Last updated on January 7, 2004 3

Security

Common – Employee Stock Pool Issued Unissued

[Common – Warrants]

Series A Preferred

Total

Dividends:

# of Shares

%

# of Shares

%

2

[Alternative 1: Dividends will be paid on the Series A Preferred on an as-converted basis when, as, and if paid on the Common Stock] [Alternative 2: Non-cumulative dividends will be paid on the Series A Preferred in an amount equal to $[_____] per share of Series A Preferred when and if declared by the Board.]

[Alternative 3: The Series A Preferred will carry an annual [__]% cumulative dividend [compounded annually], payable upon a liquidation or redemption. For any other dividends or distributions, participation with Common Stock on an as-converted basis.] 3

The Charter is a public document, filed with the [Delaware] Secretary of State, that establishes all of the

rights, preferences, privileges and restrictions of the Preferred Stock. Note that if the Preferred Stock does not have rights, preferences, and privileges materially superior to the Common Stock, then (after Closing) the Company cannot defensibly grant Common Stock options priced at a discount to the Preferred Stock.

2

In some cases, accrued and unpaid dividends are payable on conversion as well as upon a liquidation

event. Most typically, however, dividends are not paid if the preferred is converted. Another alternative is to give the Company the option to pay accrued and unpaid dividends in cash or in common shares valued at fair market value. The latter are referred to as “PIK” (payment-in-kind) dividends.

3

Last updated on January 7, 2004

4

Liquidation Preference:

In the event of any liquidation, dissolution or winding up of the Company, the proceeds shall be paid as follows:

[Alternative 1 (non-participating Preferred Stock): First pay [one]

times the Original Purchase Price [plus accrued dividends] [plus

declared and unpaid dividends] on each share of Series A Preferred.

The balance of any proceeds shall be distributed to holders of

Common Stock.]

[Alternative 2 (full participating Preferred Stock): First pay [one]

times the Original Purchase Price [plus accrued dividends] [plus

declared and unpaid dividends] on each share of Series A Preferred.

Thereafter, the Series A Preferred participates with the Common

Stock on an as-converted basis.]

[Alternative 3 (cap on Preferred Stock participation rights): First

pay [one] times the Original Purchase Price [plus accrued dividends]

[plus declared and unpaid dividends] on each share of Series A

Preferred. Thereafter, Series A Preferred participates with Common

Stock on an as-converted basis until the holders of Series A

Preferred receive an aggregate of [_____] times the Original

Purchase Price.]

A merger or consolidation (other than one in which stockholders of

the Company own a majority by voting power of the outstanding

shares of the surviving or acquiring corporation) and a sale, lease,

transfer or other disposition of all or substantially all of the assets of

the Company will be treated as a liquidation event (a “Deemed

Liquidation Event”), thereby triggering payment of the liquidation

preferences described above [unless the holders of [___]% of the

Series A Preferred elect otherwise].

Voting Rights: The Series A Preferred Stock shall vote together with the Common

Stock on an as-converted basis, and not as a separate class, except

(i) the Series A Preferred as a class shall be entitled to elect

[_______] [(_)] members of the Board (the “Series A Directors”),

(ii) as provided under “Protective Provisions” below or (iii) as

required by law. The Company’s Certificate of Incorporation will

provide that the number of authorized shares of Common Stock may

be increased or decreased with the approval of a majority of the

Preferred and Common Stock, voting together as a single class, and

without a separate class vote by the Common Stock.4 For California corporations, one cannot “opt out” of the statutory requirement of a separate class vote by Common Stockholders to authorize shares of Common Stock. 4

Last updated on January 7, 2004 5

Protective Provisions: So long as [insert fixed number, or %, or “any”] shares of Series A

Preferred are outstanding, the Company will not, without the written

consent of the holders of at least [__]% of the Company’s Series A

Preferred, either directly or by amendment, merger, consolidation,

or otherwise:

(i) liquidate, dissolve or wind-up the affairs of the Company, or

effect any Deemed Liquidation Event; (ii) amend, alter, or repeal

any provision of the Certificate of Incorporation or Bylaws [in a

manner adverse to the Series A Preferred];5 (iii) create or

authorize the creation of or issue any other security convertible

into or exercisable for any equity security, having rights,

preferences or privileges senior to or on parity with the Series A

Preferred, or increase the authorized number of shares of Series

A Preferred; (iv) purchase or redeem or pay any dividend on any

capital stock prior to the Series A Preferred, [other than stock

repurchased from former employees or consultants in connection

with the cessation of their employment/services, at the lower of

fair market value or cost;] [other than as approved by the Board,

including the approval of [_____] Series A Director(s)]; or

(v) create or authorize the creation of any debt security [if the

Company’s aggregate indebtedness would exceed $[____][other

than equipment leases or bank lines of credit][other than debt

with no equity feature][unless such debt security has received the

prior approval of the Board of Directors, including the approval

of [________] Series A Director(s)]; (vi) increase or decrease the

size of the Board of Directors.

Optional Conversion: The Series A Preferred initially converts 1:1 to Common Stock at

any time at option of holder, subject to adjustments for stock

dividends, splits, combinations and similar events and as described

below under “Anti-dilution Provisions.”

In the event that the Company issues additional securities at a

purchase price less than the current Series A Preferred conversion

price, such conversion price shall be adjusted in accordance with the

following formula:

[Alternative 1: “Typical” weighted average:

CP2 = CP1 * (A+B) / (A+C)

Anti-dilution Provisions:

Note that as a matter of background law, Section 242(b)(2) of the Delaware General Corporation Law provides that if any proposed charter amendment would adversely alter the rights, preferences and powers of one series of Preferred Stock, but not similarly adversely alter the entire class of all Preferred Stock, then the holders of that series are entitled to a separate series vote on the amendment. 5

Last updated on January 7, 2004 6

CP2 = New Series A Conversion Price

CP1 = Series A Conversion Price in effect immediately

prior to new issue

A = Number of shares of Common Stock deemed to be

outstanding immediately prior to new issue (includes

all shares of outstanding common stock, all shares of

outstanding preferred stock on an as-converted basis,

and all outstanding options on an as-exercised basis;

and does not include any convertible securities

converting into this round of financing)

B = Aggregate consideration received by the Corporation

with respect to the new issue divided by CP1

C = Number of shares of stock issued in the subject

transaction]

[Alternative 2: Full-ratchet – the conversion price will be reduced to the price at which the new shares are issued.] [Alternative 3: No price-based anti-dilution protection.] The following issuances shall not trigger anti-dilution adjustment:6

(i) securities issuable upon conversion of any of the Series A

Preferred, or as a dividend or distribution on the Series A

Preferred; (ii) securities issued upon the conversion of any

debenture, warrant, option, or other convertible security;

(iii) Common Stock issuable upon a stock split, stock dividend,

or any subdivision of shares of Common Stock; and (iv) shares

of Common Stock (or options to purchase such shares of

Common Stock) issued or issuable to employees or directors of,

or consultants to, the Company pursuant to any plan approved by

the Company’s Board of Directors [including at least [_______]

Series A Director(s)] [(v) shares of Common Stock issued or

issuable to banks, equipment lessors pursuant to a debt

financing, equipment leasing or real property leasing transaction

approved by the Board of Directors of the Corporation [,

including at least [_______] Series A Director(s)].

Mandatory Conversion: Each share of Series A Preferred will automatically be converted

into Common Stock at the then applicable conversion rate in the

event of the closing of a [firm commitment] underwritten public

offering with a price of [___] times the Original Purchase Price

(subject to adjustments for stock dividends, splits, combinations and

similar events) and [net/gross] proceeds to the Company of not less Note that additional exclusions are frequently negotiated, such as issuances in connection with equipment

leasing and commercial borrowing. 6

Last updated on January 7, 2004 7

than $[_______] (a “QPO”), or (ii) upon the written consent of the

holders of [__]% of the Series A Preferred.7

[Pay-to-Play:

[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 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:10

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.

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. 109

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

Last updated on January 7, 2004 8

Representations and Warranties: Standard representations and warranties by the Company.

[Representations and warranties by Founders regarding [technology

ownership, etc.].12

Conditions to Closing: 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: Counsel and Expenses:

Registration Rights:

Registrable Securities: 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 Demand Registration:

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

14 Note that Founders/management sometimes also seek registration rights.

Last updated on January 7, 2004 9

Registration on Form S-3: Piggyback Registration: Expenses:

Lock-up:

Termination:

Last updated on January 7, 2004 aggregate offering price for such registration may not be less than $[5-10] million. A registration will count for this purpose only if (i) all Registrable Securities requested to be registered are registered and (ii) it is closed, or withdrawn at the request of the Investors (other than as a result of a material adverse change to the Company). 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]. There will be no limit on the aggregate number of such Form S-3 registrations, provided that there are no more than [two] per year. 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 [30]% on a pro rata basis and to complete reduction on an IPO at the underwriter’s discretion. 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 period. No future registration rights may be granted without consent of the holders of a [majority] of the Registrable Securities unless 10

subordinate to the Investor’s rights.

Management and Information

Rights: A Management Rights letter from the Company, in a form reasonably acceptable to the Investors, will be delivered prior to

Closing to each Investor that requests one. 15

Any Major Investor [(who is not a competitor)] will be granted

access to Company facilities and personnel during normal business

hours and with reasonable advance notification. The Company will

deliver to such Major Investor (i) annual, quarterly, [and monthly]

financial statements, and other information as determined by the

Board; (ii) thirty days prior to the end of each fiscal year, a

comprehensive operating budget forecasting the Company’s

revenues, expenses, and cash position on a month-to-month basis for

the upcoming fiscal year; and (iii) promptly following the end of

each quarter an up-to-date capitalization table, certified by the CFO.

Right to Participate Pro Rata in

Future Rounds: All [Major] Investors shall have a pro rata right, based on their percentage equity ownership in the Company (assuming the

conversion of all outstanding Preferred Stock into Common Stock

and the exercise of all options outstanding under the Company’s

stock plans), to participate in subsequent issuances of equity

securities of the Company (excluding those issuances listed at the

end of the “Anti-dilution Provisions” section of this Term Sheet and

issuances in connection with acquisitions by the Company). In

addition, should any [Major] Investor choose not to purchase its full

pro rata share, the remaining [Major] Investors shall have the right

to purchase the remaining pro rata shares.

[So long as [__]% of the originally issued Series A Preferred

remains outstanding] the Company will not, without Board

approval, which approval must include the affirmative vote of

[____] of the Series A Director(s):

(i) make any loan or advance to, or own any stock or other

securities of, any subsidiary or other corporation, partnership, or

other entity unless it is wholly owned by the Company; (ii) make

any loan or advance to any person, including, any employee or

director, except advances and similar expenditures in the

ordinary course of business or under the terms of a employee

stock or option plan approved by the Board of Directors;

(iii) guarantee, any indebtedness except for trade accounts of the

Company or any subsidiary arising in the ordinary course of

business; (iv) make any investment other than investments in 15Matters Requiring Investor Director Approval: See commentary in introduction to NVCA model Managements Rights Letter, explaining purpose of such letter.

Last updated on January 7, 2004 11

prime commercial paper, money market funds, certificates of

deposit in any United States bank having a net worth in excess of

$100,000,000 or obligations issued or guaranteed by the United

States of America, in each case having a maturity not in excess

of [two years]; (v) incur any aggregate indebtedness in excess of

$[_____] that is not already included in a Board-approved

budget, other than trade credit incurred in the ordinary course of

business; (vi) enter into or be a party to any transaction with any

director, officer or employee of the Company or any “associate”

(as defined in Rule 12b-2 promulgated under the Exchange Act)

of any such person [except transactions resulting in payments to

or by the Company in an amount less than $[60,000] per year],

[or transactions made in the ordinary course of business and

pursuant to reasonable requirements of the Company’s business

and upon fair and reasonable terms that are approved by a

majority of the Board of Directors];16 (vii) hire, fire, or change

the compensation of the executive officers, including approving

any option plans; (viii) change the principal business of the

Company, enter new lines of business, or exit the current line of

business; or (ix) sell, transfer, license, pledge or encumber

technology or intellectual property, other than licenses granted in

the ordinary course of business.

Non-Competition and Non-

Solicitation and Agreements:17

Non-Disclosure and

Developments Agreement: Each Founder and key employee will enter into a [one] year non-competition and non-solicitation agreement in a form reasonably acceptable to the Investors. Each current and former Founder, employee and consultant with access to Company confidential information/trade secrets will enter

into a non-disclosure and proprietary rights assignment agreement in

a form reasonably acceptable to the Investors.

Each Board Committee shall include at least one Series A Director.

The Board of Directors shall meet at least [monthly][quarterly],

unless otherwise agreed by a vote of the majority of Directors. Note that Section 402 of the Sarbanes-Oxley Act of 2003 would require repayment of any loans in full

prior to the Company filing a registration statement for an IPO. 16Board Matters:

Note that non-compete restrictions (other than in connection with the sale of a business) are prohibited in California, and may not be enforceable in other jurisdictions, as well. In addition, some investors do not require such agreements for fear that employees will request additional consideration in exchange for signing a Non-Compete/Non-Solicit (and indeed the agreement may arguably be invalid absent such additional consideration - - although having an employee sign a non-compete contemporaneous with hiring constitutes adequate consideration). Others take the view that it should be up to the Board on a case-by-case basis to determine whether any particular key employee is required to sign such an agreement. Non-competes typically have a one year duration, although state law may permit up to two years. 17

Last updated on January 7, 2004 12

The Company will bind D&O insurance with a carrier and in an

amount satisfactory to the Board of Directors. In the event the

Company merges with another entity and is not the surviving

corporation, or transfers all of its assets, proper provisions shall be

made so that successors of the Company assume Company’s

obligations with respect to indemnification of Directors.

Employee Stock Options: All employee options to vest as follows: [25% after one year, with

remaining vesting monthly over next 36 months].

[Immediately prior to the Series A Preferred Stock investment,

[______] shares will be added to the option pool creating an

unallocated option pool of [_______] shares.]

Key Person Insurance: Company to acquire life insurance on Founders [name each

Founder] in an amount satisfactory to the Board. Proceeds payable

to the Company.

To the extent permitted by applicable law and SEC policy, upon an

IPO consummated one year after Closing, Company to use

reasonable best efforts to cause underwriters to designate [10]% of

the offering as directed shares, 50% of which shall be allocated by

Major Investors.]

Company shall use reasonable best efforts to cause its capital stock

to constitute Qualified Small Business Stock unless the Board

determines that such qualification is inconsistent with the best

interests of the Company.]

All rights under the Investor Rights Agreement, other than

registration rights, shall terminate upon the earlier of an IPO, a

Deemed Liquidation Event or a transfer of more than 50% of

Company’s voting power. Right of first Refusal/

Right of Co-Sale (Take-me-

Along):

SEC Staff examiners have taken position that, if contractual right to friends and family shares was granted less than 12 months prior to filing of registration statement, this will be considered an “offer” made prematurely before filing of IPO prospectus. So, investors need to agree to drop shares from offering if that would hold up the IPO. While some documents provide for alternative parallel private placement where the IPO does occur within 12 months, such a parallel private placement could raise integration issues and negatively impact the IPO. Hence, such an alternative is not provided for here. 18[IPO Directed Shares:18 [QSB Stock: Termination: Company first and Investors second (to the extent assigned by the Board of Directors,) have a right of first refusal with respect to any shares of capital stock of the Company proposed to be sold by Founders [and employees holding greater than [1]% of Company Last updated on January 7, 2004 13

Common Stock (assuming conversion of Preferred Stock)], with a

right of oversubscription for Investors of shares unsubscribed by the

other Investors. Before any such person may sell Common Stock,

he will give the Investors an opportunity to participate in such sale

on a basis proportionate to the amount of securities held by the seller

and those held by the participating Investors.19

Board of Directors: At the initial Closing, the Board shall consist of [______] members

comprised of (i) [Name] as [the representative designated by [____],

as the lead Investor, (ii) [Name] as the representative designated by

the remaining Investors, (iii) [Name] as the representative

designated by the Founders, (iv) the person then serving as the Chief

Executive Officer of the Company, and (v) [___] person(s) who are

not employed by the Company and who are mutually acceptable [to

the Founders and Investors][to the other directors].

Holders of Preferred Stock and the Founders [and all current and

future holders of greater than [1]% of Common Stock (assuming

conversion of Preferred Stock and whether then held or subject to

the exercise of options)] shall be required to enter into an agreement

with the Investors that provides that such stockholders will vote

their shares in favor of a Deemed Liquidation Event or transaction in

which 50% or more of the voting power of the Company is

transferred, approved by [the Board of Directors] [and the holders of

a [majority][super majority] of the outstanding shares of Preferred

Stock, on an as-converted basis].

All rights under the Right of First Refusal/Co-Sale and Voting

Agreements shall terminate upon an IPO, a Deemed Liquidation

Event or a transfer of more than 50% of Company’s voting power. Founders’ Stock:

All Founders to own stock outright subject to Company right to buyback at cost. Buyback right for [__]% for first [12 months] after

Closing; thereafter, right lapses in equal [monthly] increments over

following [__] months.

The terms set forth below for the Series [_] Stock are subject to a

review of the rights, preferences and restrictions for the existing

Preferred Stock. Any changes necessary to conform the existing

Preferred Stock to this term sheet will be made at the Closing.] [Drag Along: Termination: [Existing Preferred Stock20:

19

20 Certain exceptions are typically negotiated, e.g., estate planning or de minimis transfers Necessary only if this is a later round of financing, and not the initial Series A round.

Last updated on January 7, 2004 14

No Shop/Confidentiality: The Company agrees to work in good faith expeditiously towards a

closing. The Company and the Founders agree that they will not,

for a period of [six] weeks from the date these terms are accepted,

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] and shall notify the Investors promptly of

any inquiries by any third parties in regards to the foregoing. [In the

event that the Company breaches this no-shop obligation and, prior

to [________], closes any of the above-referenced transactions

[without providing the Investors the opportunity to invest on the

same terms as the other parties to such transaction], then the

Company shall pay to the Investors $[_______] upon the closing of

any such transaction as liquidated damages.]21 The Company will

not disclose the terms of this Term Sheet to any person other than

officers, members of the Board of Directors and the Company’s

accountants and attorneys and other potential Investors acceptable to

[_________], as lead Investor, without the written consent of the

Investors.

This Term Sheet expires on [_______ __, 200_] if not accepted by

the Company by that date. Expiration:

EXECUTED THIS [__] DAY OF [_________], 200[_].

[SIGNATURE BLOCKS]

It is unusual to provide for such “break-up” fees in connection with a venture capital financing, but might

be something to consider where there is a substantial possibility the Company may be sold prior to consummation of the financing (e.g., a later stage deal). 21

Last updated on January 7, 2004 15