Your Series A term sheet will be one of the most important documents your startup ever receives. It’s also one of the most misunderstood. Many founders focus on valuation and miss the provisions that actually determine economics in exit scenarios, dilution in down rounds, and who controls the company when things get hard.
This guide covers the most common—and most dangerous—red flags in Series A term sheets, from the perspective of an Illinois startup lawyer who has reviewed hundreds of them.
Red Flag #1: Full Ratchet Anti-Dilution (vs. Weighted Average)
Anti-dilution provisions protect investors when the company raises at a lower valuation (a “down round”). The two main types:
- Weighted average anti-dilution (broad-based): The conversion price of preferred stock adjusts downward in a formula that accounts for the size of the down round and the total shares outstanding. This is the market-standard, founder-friendly approach.
- Full ratchet anti-dilution: The conversion price of preferred stock automatically drops to the price of the new round, regardless of how many shares are issued. This heavily punishes founders in any down round and is considered investor-hostile toward founders.
What to do: Push back on full ratchet. Broad-based weighted average is market standard. Narrow-based weighted average is a middle ground.
Red Flag #2: Participating Preferred Without a Cap
Liquidation preference determines what investors get paid first in an exit. The key distinction:
- Non-participating preferred: Investors choose between getting their liquidation preference (1x, 2x, etc.) OR converting to common and participating in the upside pro-rata. Standard for VC deals.
- Participating preferred: Investors get their liquidation preference first AND then participate pro-rata in remaining proceeds alongside common shareholders. They “double-dip.”
- Participating preferred with a cap: Investors participate until they’ve received a defined multiple (e.g., 3x). A cap limits the double-dip.
- Fully participating preferred (no cap): Investors double-dip with no limit. In a medium-sized exit, founders and employees may receive very little.
What to do: Non-participating preferred is the market standard for Series A from top-tier VCs. If you’re being offered participating preferred, understand the math. A 1x non-participating preference is very different from a 1x fully participating preference at a $50M exit.
Red Flag #3: Liquidation Preference Above 1x
A 1x non-participating liquidation preference means investors get their money back before common holders in an exit. That’s reasonable. A 2x or 3x preference means investors get 2–3x their investment before founders see any proceeds. This significantly alters exit math and is common in down rounds or when investors feel they’re taking outsized risk.
What to do: 1x non-participating is standard. Any multiple above 1x requires careful analysis of exit scenarios. Model what founders receive at your realistic exit range before accepting.
Red Flag #4: Broad Protective Provisions
Protective provisions give preferred stockholders veto rights over certain company decisions. Standard protective provisions cover reasonable items (new senior stock, changes to preferred rights, M&A). Overly broad protective provisions extend to operational decisions:
- Any debt above a nominal threshold (restricting your ability to take on working capital lines)
- Hiring or compensation decisions above a low dollar amount
- Capital expenditures above a low threshold
- Entering new lines of business
- Related-party transactions (can be reasonable, but scope matters)
What to do: Protective provisions should protect investors from having their investment fundamentally altered—not give them day-to-day operational control. Negotiate carve-outs for ordinary course business decisions.
Red Flag #5: Pay-to-Play Without Understanding the Consequences
Pay-to-play provisions require existing investors to participate in future rounds proportionally (maintain their pro-rata ownership) or lose certain rights—such as anti-dilution protection, board seats, or preferred status conversion. If an investor can’t or won’t follow-on, they face penalties.
Pay-to-play protects founders from investors who won’t support the company in future rounds. But harsh pay-to-play terms can also discourage early investors who were valuable in the beginning from participating in the cap table going forward.
Red Flag #6: Right of First Refusal + Co-Sale on Secondary Transfers
A right of first refusal (ROFR) allows investors to buy shares before founders sell them to third parties—limiting founder liquidity. A co-sale (tag-along) right allows investors to sell their shares alongside founders in secondary transactions.
Both are standard. The red flags:
- ROFR at original investment price rather than market price
- Co-sale that covers employee sales (restricting secondary liquidity programs)
- Drag-along that can be triggered by investors at any time, on any terms, with minimal founder protection
Red Flag #7: No Cutback on Section 280G Gross-Up
Section 280G of the IRC imposes excise taxes on “parachute payments” in acquisitions. Some investors push for founders to receive gross-ups—payments to cover the excise tax—which can be very expensive for the company and reduce acquisition proceeds for everyone. Others include cutback provisions that reduce payments to just below the 280G threshold instead of grossing up. Understand the mechanics before agreeing.
Red Flag #8: Excessive Information Rights
Standard information rights include annual audited financials, quarterly unaudited financials, and annual budgets. Overly broad information rights that require real-time or daily financial reporting, unlimited inspection rights, or management time-consuming reporting requirements can create operational burden—particularly problematic if an investor has a conflict of interest.
FAQ: Series A Term Sheet Red Flags
Should I negotiate the term sheet before or after getting a lawyer involved?
Get a lawyer involved before signing a term sheet. The term sheet is binding in some provisions (exclusivity, confidentiality) and sets the framework for the definitive documents. Understanding the implications before you commit is far better than trying to renegotiate after signing.
Can I negotiate a term sheet against a top-tier VC?
Yes—especially on structural terms. VCs negotiate term sheets all the time and expect founders to understand what they’re agreeing to. A well-advised founder who understands market standards is treated with more respect, not less. The negotiating points are different at each stage, but founders with alternatives (competitive term sheets) have the most leverage.
Fitter Law helps Illinois startups review Series A term sheets, model exit scenarios, and negotiate investment documentation. View our startup law packages.