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venture capital lawyers

We help companies, venture capital firms and family office investors across Southeast Asia with all types of funding rounds, including seed and angel rounds, VC financings, private equity investments, and pre-IPO rounds. Our capital raising work includes drafting and negotiating term sheets, convertible notes, subscription and shareholders’ agreements, venture debt documents and other standard investment documents, along with transaction mechanics (legal due diligence, approvals and closings).

We advised on over 80 Southeast Asia financing deals in 2020 alone. These deals ranged from small seed investments to significant series B and C financing rounds led by globally recognised VCs. This deal flow gives us great market knowledge of the latest investment trends in the region which we monitor in our Map of the Funding Terms.

agreeing terms

Because we see a large number of deals, we can provide useful behind the scenes input to companies as they negotiate headline terms with investors, including the investment amount, the pre-money valuation and whether the investment is to be tranched.

Once the big ticket items are agreed in principle, we help companies negotiate the detail of the term sheet.  The key economic and control terms are agreed in the term sheet, making it the most important phase of an investment deal.

formal documents

The style and friendliness of investment documents varies widely depending on the type of investor.

We draft and negotiate all of the types of documents used by seed, angel, VC, corporate, venture debt, private equity and pre-IPO investors.  We know the negotiating parameters that investors are likely to bring to the negotiation table and we share this knowledge with our clients.

We also promote better investment documentation and practices to founder and investor communities.

investors

We act for a number of venture capital funds, family offices and corporate venture teams on investments in Southeast Asian tech companies. We have dealt with virtually all of the professional tech investors active in the region.

"Kindrik Partners were invaluable in moving the deal forward as efficiently as possible by keeping the negotiations centred on the critical commercial points, and by providing insight as to what was common market practice in these areas."

patrick gentry, ceo, sprout solutions

venture capital resources

seed investment term sheet

Word version PDF version

This is a simple term sheet for use when a startup is raising capital from seed investors in Southeast Asia. It sets out the terms agreed between the company and the investors prior to preparing the formal agreements. Generally in this type of capital raising the formal agreements will be a subscription agreement – see the template southeast asia seed subscription agreement – and a shareholders’ agreement – see the template southeast asia seed shareholders’ agreement. The term sheet is not legally binding (other than the confidentiality obligations in part B); it simply sets out the terms agreed in relation to an investment.

There are no standard terms that apply to investment by seed investors – these types of investments can often be relatively informal and may not always include the investor protection provisions required by professional investors on larger series A investment rounds. We recommend that you read our guides to raising seed capital in southeast asia.

using our templates

Use of a template by business users is free of charge and is subject to you agreeing to our template terms of use.

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convertible note (KISS terms)

Word version PDF version

what this is

This note is a convertible instrument that is intended to be used by a startup to document a seed investment from a third party investor or a bridge financing from existing shareholders.

The terms of the note are substantially based on the keep-it-simple-security created by 500 Startups and include some of the investor friendly provisions typically included in convertible seed investments in the US and as adopted for other global markets.

how it works

This note anticipates that the investment amount is drawn down in one lump sum and is unsecured. The investment amount:

  • automatically converts to equity on the date of a qualifying capital raise
  • is repayable (potentially at a multiple of the outstanding amount) or convertible at the investor’s discretion on the occurrence of a liquidity event
  • is repayable or convertible at the investor’s discretion at any time following maturity.

This note also anticipates that it may be one of a series of identical notes entered into as part of a seed investment round. In that case, some decisions that relate to the investment round as a whole are to be made by a majority of the investors, rather than by an individual investor.

related guides

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We also have another popular variation of the convertible note – our SAFE convertible note template.

The terms of the note are substantially based on the simple agreement for future equity created by the US accelerator, Y-Combinator.

using our templates

Use of a template by business users is free of charge and is subject to you agreeing to our template terms of use.

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cap table – discounted debt conversion

Excel version

This template cap table is intended for use when considering a potential equity investment in a company (whether from existing shareholders, external investors, or both). The template works when the number of new shares to be issued is calculated:

  • based on a specific investment amount at a specific pre-money valuation of the company e.g. an aggregate investment of $500,000 at a pre-money valuation of $2m
  • on a fully diluted basis i.e. all unexercised options (if any) are treated as existing shares in the company for the purpose of calculating the number of new shares to be issued
  • no anti-dilution rights are triggered by the issue of the new shares
  • all shares issued in consideration for the conversion of debt to equity are issued at a discount to the price per share paid by the cash investors. If all of the debt is converting at the same price per share paid by the cash investors please use our template investment capitalisation table for debt converting without a discount
  • the investment is made on a fully diluted basis, i.e. if a new employee share option plan (ESOP) is established as part of the investment round, the dilutionary effect of the ESOP is borne entirely by the founders and any other existing shareholders, and not by the investors. This is the most common approach.

using our templates

Use of a template by business users is free of charge and is subject to you agreeing to our template terms of use.

raising capital for your startup: convertible notes vs equity

If you are considering raising money for your startup in Southeast Asia, there are two main ways you can do it: either by giving away equity in exchange for money, or by using convertible notes. In this guide we explain how each approach works and the pros & cons of the different methods.

Other resources in our series on convertible notes:

what is a convertible note?

In simple terms, a convertible note is a loan that converts to equity when you do your next fundraising round – a qualifying capital raise. In other words, investors will loan money to a startup, and then rather than get their money back with interest, the investors will receive shares in the next round. Originally used more for bridging rounds, where money was given to make it to the next funding round, convertible notes are now very common in seed rounds.

There are two key features of a convertible note. One is that a convertible note will usually convert at a discounted price to the next round price. In other words, founders are trying to incentivise investors by saying, “if you invest in us today [when we’re a riskier bet], we’ll give you 20% off when it comes time to our Series A round”.

The second key feature is its valuation cap, which protects investors by putting a ceiling on the conversion price of the note and lets the investors share in any significant increase in valuation (that might have come as a result of their investment of money and resources).

types of convertible note

There are two main forms of note used in Southeast Asia: the KISS-style note used by 500 Startups, and the SAFE note based on the note developed by Y Combinator.

Under the KISS convertible note, the note is repayable on the maturity date (typically 18-24 months from the date of the convertible note) if it has not already converted to shares. The investor can also choose to be repaid the investment amount (or a multiple of the investment amount) on a liquidity event.

A SAFE note, on the other hand, is not repayable at the end of a fixed period, and the company must only repay the note if an insolvency event occurs, or if the investor chooses to be repaid on a liquidity event rather than convert their note. A SAFE is essentially a quasi-equity instrument, whereas as KISS is quasi-debt, because there is a contingent repayment obligation.

The KISS and the SAFE notes also differ in the ways that they can convert.

A KISS note converts:

  1. automatically when the company raises its next round (the qualifying capital raise);
  2. at the investor’s election when a liquidity event occurs (like the sale of the company); or
  3. at the investor’s election at the maturity date.

On the other hand, a SAFE note converts automatically when the company raises a qualifying capital raise, or if the investor so chooses on a liquidity event. The investor cannot force conversion after a fixed period.

There are also different types of SAFE notes, namely the pre-money SAFE and the newer post-money SAFE recently developed by Y Combinator. The difference between these is a substantial topic in and of itself – we recommend checking out some of the blog articles that others have written about it, like this one.

what is an equity investment?

Unlike a convertible note, under an equity investment, the investor receives shares in the company at the time of their investment. Where the investor is an institutional VC, those shares will typically be preference shares, which may carry the types of preferential rights we discuss in this guide.

pros and cons: benefits of convertible notes

From a founder’s perspective, the biggest benefit of convertible notes over an equity financing is speed. The note is generally a single document with simpler terms to negotiate, and without lots of conditions, representations and warranties.

In addition, the KISS and other most convertible notes are designed to be executed by individual investors, so it is possible to receive funds without closing with all investors simultaneously – a ‘rolling close’.

Here are some other benefits to using convertible notes:

  • they postpone the difficult discussion about the company’s valuation. It is hard to value startups early on. Deferring the valuation until a larger equity round is raised is one way to address this (this doesn’t apply if you are using a post-money SAFE).
  • they have a lower cost to execute. Convertible notes are simple and flexible. It involves a single document, whereas even small equity investments can involve a subscription agreement, shareholders’ agreement and a new constitution.
  • there are fewer representations and warranties. Subscription agreements often include multiple representations and warranties which are inappropriate for an early stage startup. A convertible note generally includes only a handful of very focused warranties.
  • they concede much less control. Noteholders typically receive little (if any) control over the company, e.g. no veto or director appointment rights. This works well with the need for startups to pivot and to raise the next round of funding without investor interference
  • less administrative burden. The fewer shareholders you have, the less shareholder notices and other company secretarial formalities you have to deal with.

pros and cons: disadvantages of convertible notes

However, there are some downsides to convertible notes from a founder’s point of view:

  • KISS convertible notes are debt. The clock starts running towards repayment on the maturity date. If you have not completed a qualifying capital raise by that date, the debt needs to be repaid. While it is uncommon for investors to enforce that right and force the winding up the company if the debt cannot be repaid, you may have to renegotiate some form of refinancing with note holders at which point you will be seriously on the back foot. However, this does not apply to SAFE notes which are quasi-equity.
  • preference shares generally issued on conversion. Most convertible notes convert into the class of shares issued to the investors on the next round of financing. In Southeast Asia, this means preference shares. As a result, convertible note investors have the double protection of both a price discount on conversion, plus the liquidation preference negotiated by the subsequent investors
  • detached investors. Convertible notes often don’t include information or participation rights in later financings. This means convertible note investors are not as involved in the business as they might be by owning equity. But, startups need all the help they can get, so make sure that your note holders are real supporters of the business and can potentially help bring in the next round of funding

Notes remain a very effective tool due to how quickly deals convertible note deals can be closed – we have seen convertible note financing rounds closed in Southeast Asia in a few days. For startups looking to raise money fast and get on with growing the business, this speed remains a key factor.

New to Kindrik Partners? View other resources in our series on capital raising in Southeast Asia:

8 key features of convertible notes in southeast asia

introduction

Many seed investment rounds in Southeast Asia complete using convertible note instruments like the 500 Startups Keep-It-Simple-Security (KISS). These are unsecured debt instruments that convert to equity when a company completes its next equity raising.

In this guide we cover the 8 key features you should know when working with a KISS convertible note. From our experience, the KISS is the most common type of convertible note used in Southeast Asia. If you are contemplating a seed round, we suggest you upskill on this document by downloading a version of the KISS adapted for Southeast Asia from our website.

There are other forms of note in use in Southeast Asia, including US style documents. With these documents, US specific provisions need to be amended, e.g. removing US securities law and taxation language which shouldn’t be relevant for a non-US issuer.

an overview of how convertible notes work

Convertible notes anticipate that the investment amount is drawn down either in a lump sum on one date or, more likely, over a period of time. The investment amount typically automatically converts to equity on the date of a qualifying capital raise at a discounted price to the next round price, but subject to an overall valuation cap.

If not already converted, the debt may be repayable (potentially at a multiple of the outstanding amount) or convertible at the noteholder’s discretion:

key features of convertible notes in southeast asia

Investment Amount The amount to be invested by the investor (noteholders)
Series Notes of a particular series are issued on the same terms. Typically, you may have a period of time to issue further notes on the same terms without seeking the consent of existing noteholders. The total investment amount is sometimes drawn down in a lump sum on one date or over a period of time with multiple closings
Interest This is the annual rate at which interest accrues on the note whilst it is outstanding. In Southeast Asia, the rate varies, but usually is a low amount, e.g., 1% or 2%
Maturity Date This is the date on which the debt is due for repayment. This should be a reasonable period of time from the date of the note, so that the company can achieve the qualifying capital raise (see below) to trigger conversion. In Southeast Asia, periods to maturity are generally set at 18 months and can be longer. Usually, if the company is unable to raise money before maturity, the majority of noteholders can elect for the debt to convert to shares rather than demanding repayment
Qualifying Amount The investment amount of the notes will automatically convert into shares at the time of the company’s next capital raise. There is normally a minimum amount that must be raised to trigger conversion (called a qualifying capital raise), which is set to ensure that the raise is a legitimate company financing, not a device to trigger conversion
Discount Assuming the company’s next financing round is a qualifying financing, the notes will automatically convert into shares often at a discount to the share price paid in that financing. The discount is intended to compensate investors for the risk they take on by investing at an early stage. In Southeast Asia, this discount is typically 15-25%. This follows Silicon Valley norms
Valuation Cap This addresses an initial concern that investors had with the KISS style and other convertible notes – that the company’s valuation could increase significantly and they would only have the protection of the discount to the price of the next funding round. The valuation cap effectively caps the price at which investors pay for their shares when the note converts. If your company raises a financing round at a $5 million pre-financing valuation but the convertible notes have a $2 million valuation cap, your note holders will effectively receive a 60% discount to the price that the new investors are paying. So consider a valuation cap carefully as it can have a significant dilutive effect on the next round of financing if set too low
Majority-in-Interest This term simply means those noteholders holding a majority of the total investment amount of the series. It is useful to incorporate this concept into the document so that key decisions are taken, or rights waived, not by individual investors but on a majority rules basis

Interested in learning more about the mechanics of the convertible note, or have a term sheet that you want us to take a look at? Get in touch.

a primer on post-money SAFEs in Singapore

In the last few years, convertible notes have been frequently used on Singapore financings. Perhaps less common has been the use of SAFEs – the instrument created by Y-Combinator (YC) several years ago. However SAFEs are on the increase on fundraising deals across Southeast Asia.

Two years ago, YC reinvented the SAFE and launched what is now known as the ‘post-money’ SAFE. And just last month they released beta versions of the “Valuation Cap, no Discount” post-money safe and side letter specifically for companies registered in Singapore. You can access these here.

quick reminder – what’s a SAFE?

A simple agreement for future equity – in short, it’s an instrument convertible into shares similar to a KISS or convertible note. What’s different with a SAFE is that it doesn’t typically have any interest accruing, nor any maturity date and repayment obligation. They are therefore seen as a founder friendly investment tool to raise capital.

Like KISSes and other convertible notes, SAFEs typically convert into shares on the basis of a conversion price which is usually an agreed discount to the price of the next equity round, but which is subject to an overall valuation cap – i.e. whichever gives the lower price for investors.

so, what changed with the ‘post-money’ SAFE?

post-money SAFEs don’t dilute each other (bad news for founders)

The main change is that the new SAFE uses a post-money valuation cap instead of pre-money. The drafting change is fairly subtle to see: the definition of Fully Diluted Capital in the SAFE is amended to reflect the new principle. However, the impact can be significant. It means that the company’s valuation for calculating the conversion is “post” (i.e. after) the conversion of any other SAFEs or convertible instruments issued by the company, but prior to the valuation of the company immediately after the equity financing round. This results in further dilution for founders on conversion and potentially to any other investors that do not hold post-money SAFEs.

Just to be clear and to dispel a myth, by ‘post-money’, this is post all other SAFEs and convertible notes, but not post the next equity financing as well, as some founders have asked. That really would cause dilution!

Under post-money SAFEs, the post-equity financing option pool is no longer factored into the pre-money calculations, which actually benefits founders from a dilution perspective. Under the original SAFE, option pool expansions resulted in SAFE investors receiving additional shares. However, overall this doesn’t balance out the additional dilutive effect outlined above.

you’ll only feel the impact with multiple rounds of SAFEs

It is worth pointing out that for a company that only ever raises one SAFE investment round, a post-money SAFE has no real impact. Rather, it comes into play when more than one series of SAFEs or other convertible notes are issued. In Singapore, we perhaps see this less commonly than say in the US where substantial amounts are often invested using SAFEs and other convertible instruments, and not only in the first round of investment.

easier to calculate cap table (good news for founders)

YC’s view at the time of launching the new SAFE was that it makes the maths simpler for everyone and creates more certainty over ownership and dilution. Which is probably true. But if you issue more than one round of SAFEs or other convertible notes, and you use post-money SAFEs, founders will likely experience more dilution on conversion than they would have done under the original YC SAFE, simple as that.

In light of this, if presented with a post-money SAFE, founders may want to negotiate up the valuation cap to mitigate against the dilutive impacts potentially coming into effect.

what else did YC change?

The original YC SAFE granted holders a pro-rata right on the next financing round. The new SAFE doesn’t automatically include this. Instead, YC put out a separate side letter on their website under which these additional pro-rata rights might be granted.

Also, the old SAFE could only ever be amended by the holder. The new SAFE on the other hand permits amendments by written consent from a majority of SAFE holders. This is something we think is valuable on all convertible instruments, i.e. the holders effectively make decisions on a consensus basis, avoiding one single small investor taking a different view holding things up.

other key points to remember about a SAFE

Not specific to the new post money version, but whenever drafting or reviewing a SAFE, keep these tips in mind:

  • Look out for most favoured nation (MFN) provisions. These enable early investors to have the benefit of any rights granted to future SAFE holders which might be more beneficial. If nothing else, it can be a burden reissuing new SAFEs on these better terms to lots of prior investors.
  • SAFEs typically convert automatically on completion of the next equity financing. There should ideally be no minimum amount to be raised to trigger this automatic conversion under a SAFE. Some investors like to include a threshold to ensure it is a legitimate fundraising round. Always be careful you do not go too high with this so as to prevent automatic conversion of the SAFE.
  • A SAFE (like all convertible instruments) should include language to the effect that, on conversion, holders will only have the benefit of their lower conversion price for the purposes of liquidation preference and anti-dilution rights. This can be achieved through issuing a separate class of “shadow” preferred shares, or just by drafting carefully the relevant provisions in the constitution and shareholders agreement put in place on the equity round.

round up

If you are presented with any kind of SAFE right now, it will most likely be the post-money version, so come and have a chat to us.

 

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a primer on venture debt in southeast asia

Venture debt is fast becoming an alternative or complementary path for startups looking to get capital to accelerate their growth. Our guide covers what it is, the different forms of venture debt, why to use it compared to bank debt or equity financing, and key terms to consider.

download the guide

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read our venture capital case studies and deal announcements

kindrik partners advises e-commerce aggregator rainforest on US$36m seed round

Our Southeast Asia team have advised e-commerce aggregator Rainforest on its recently completed seed funding round. The round was led by Nordstar with Insignia Ventures Partners also participating. The round includes $6.5 million in equity financing and a $30 million venture debt component from an undisclosed American debt fund.

Rainforest was founded in January 2021 by JJ Chai, Jason Tan and Per-Ola Röst. The founders are alumni of some of Southeast Asia’s top startups including Carousell and Fave (who have also been our clients).

Rainforest acquires direct to consumer (DTC) e-commerce brands who sell through Amazon marketplace. It is focused on ‘rolling up’ APAC-based microbrands and has acquired three brands so far. The funding will be used to add more brands sold through Amazon’s B2B service Fulfilled By Amazon (FBA) to Rainforest’s portfolio.

Partner Lee Bagshaw says of the deal, “It was a pleasure to help Rainforest with their seed funding round. The team’s previous experience in rapidly scaling digital companies is second to none and we look forward to seeing Rainforest’s progress having raised sizable funding.”

Read our other recent deal announcements here.

kindrik partners advises indonesian startup shoplinks on US$900k seed round

Our Southeast Asia team has advised Shoplinks, an Indonesian FMCG precision marketing platform, on its recent US$900,000 seed round. The round was led by Cocoon Capital and the Indonesian Women Empowerment Fund.

Shoplinks offers FMCG brands a marketing platform that distributes personalised coupons to shoppers through both online and offline channels in Indonesia. Founded in 2019 by serial entrepreneurs Teresa Condicion and JD Lee, the company aims to create a solution for brands that optimises their promotional budgets and reduces wasted budget from lack of personalisation of coupons to shoppers. In Indonesia, the lack of digitalisation in mom-and-pop stores and supermarkets often made it difficult for brands to effectively reach their customers, a situation that was compounded with the Covid-19 pandemic. Today, Shoplinks partners with brands such as Proctor & Gamble, Unilever, and Johnson & Johnson, processing thousands of coupon redemptions every month.

With its new round of funding, the company intends to increase its market presence in Indonesia before expanding into other Southeast Asian markets. The funds will also be used to grow its team and invest in product development.

Partner Lee Bagshaw says of the deal, “Indonesia’s online and offline retail opportunity is one of the largest in the world and is ripe for digital disruption. We look forward with interest at how Shoplinks will use their latest round of funding to accelerate digital transformation in the region.”

Read our other recent deal announcements here.

Kindrik Partners advises edamama on series A raise

We’re pleased to have advised Philippine based e-commerce platform edamama on its US$20 million series A funding round led by Alpha JWC. Existing investors Gentree Fund, Robinson Retail Holdings, Innoven Capital, Kickstart Ventures and Foxmont Capital Partners also participated in the round.

edamama is a parenting-focused platform that offers customers a personalised shopping experience designed to simplify decision-making for parents. Following its launch in May 2020, the company has grown rapidly by providing families across the Philippines a safe and trustworthy way to digitally access an extensive range of parenting products through its proprietary technology. In addition to its innovative product offerings, edamama also provides an online gift registry and subscription services for essentials.

The company plans to use the funding to expand its operations, ramp up delivery solutions, and enhance its content and community. It also plans to open offline stores and scale its own private label portfolio.

Partner Lee Bagshaw says:

“edamama launched during the strict Covid lockdown imposed in the Philippines at a time where consumers were shifting from brick-and-mortar stores to e-commerce platforms. The business has continued to grow rapidly by establishing a reputation for providing affordable and quality products. We are delighted to have advised the company on their latest fundraise, one of the largest series A financings ever completed in the Philippines.”

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