Convertible loan notes gone wrong
A hair and beauty start up came to us with an investor ‘starter pack’ which included a convertible loan note agreement, new articles and a shareholders’ agreement drafted by an investment company. We were asked to review and comment but the documents had already been signed. Our client was horrified at what the investor start pack meant in practice.
The problem was the agreements were between two businesses and it was likely any court would have expected the directors to have been aware of their commitment before signing. The only way out was to negotiate a settlement and find ways of making it attractive for the investment company to agree to early repayment of the convertible loan which released the business from its debt.
Convertible loan notes
We found that buried in the small print was a conversion rate of 175% of the loan amount, the redemption rate was also 150% of the loan amount. The interest rate was 8% per annum, if there was a conversion or redemption this annual interest rate was paid, irrespective of whether the conversion or redemption occurred on January 1 or December 31.
The investment company had given itself a discretionary conversion and redemption rights on any kind of actual or anticipated insolvency event, issuance of any shares, change of control, breach of any documents in the investment pack including the shareholders agreement or articles of association.
The Company had no right to terminate, convert or redeem the convertible loan note.
Shareholders’ Agreement/Articles of Association
The investment company was given entrenched directorship rights, which meant their nominated directors could not be removed without the investment company’s consent. There was weighted voting so that the investment company had the final say on any decisions of the board of directors (and practically, the day to day running and management of the business). The business was effectively prohibited from hiring staff, buying equipment and even paying bills without the investor’s consent.
Compulsory transfers of shares were imposed on the founder shares. The provisions meant that the founders were locked them in for two years. Following the lock period in the founders were subject to such wide ‘bad leaver’ provisions for practical purposes almost all circumstances of leaving meant a sacrifice of their entire shareholding for pennies.
Full pre-emption rights restricted issuance of new shares and transfer of founder shares.
Restrictive covenants were imposed against the founders for two years after they ceased to be shareholders. The restrictions included full non-competes, non-solicitations and non-dealings, essentially restricting them out of the UK hair and beauty market.
No such restrictions were applicable to the investment company who could invest freely into competitive businesses.
What happened next
The Company was trapped in a spiders’ web of investment. The Company needed further investment but the investment company would not give further advances. The investment company could ‘pull the plug’ on the initial funds at any point as it was fairly easy to “manufacture” a breach of the documents which were pro-investor. There was no chance of attracting new investors with such a cumbersome and expensive cloud hanging over the business.
We helped the Company negotiate it way out of the investment. We were able to get the total repayment cost discounted by half with staged repayments, over the course of 18 months to allow the Company to financially recuperate.