Gannons prepared our Investors Agreement which was clear and commercial. Our investors did not come back with many comments which was pleasing.
Methods of investment vary, and each method has benefits and disadvantages along with tax considerations.
Our job is to help maximise return on equity invested and reduce legal risks. Whether the investor agreement relates to a small or large investment, a one-off or a series of investments, we bring experience and expertise.
It is taken as read we can deal with the contract and supporting legal documentation but what we can also offer is guidance on how to maximise the commercial and tax position. Supporting companies and investors over the years has created the knowledge you need.
Please do call us to discuss your private equity investment. We are experienced in advising investors and companies seeking investment. We are always happy to provide an estimate of likely costs.
Structuring the equity investment
Methods of investment vary, possibly involving equity investment, debt or a combination of the 2. Each method has benefits and disadvantages along with tax considerations. The agreement reached will depend on negotiating positions and factors will typically include the attractiveness of the business, inherent and specific risks with the business, the amount being raised and the equity which is being offered and the likely rate of return. Our job is to take you through the issues and find workable creative solutions.
An investment can involve a fusion of:
- Ordinary shares;
- Preference shares;
- Convertible loan notes;
- Debt; and
- A charge over assets which can be very helpful if there is commercial property.
The rights attaching to any class of share must be set out in either the articles, shareholders agreement or an investment agreement. If preferences are not agreed the investor will be treated in the same way as ordinary shareholders.
In many companies, the ordinary shares carry the right to vote, receive dividends and a return of equity on a sale, liquidation or winding up. If an investor requires added rights ordinary shares can be issued along with preference shares. The idea is that the preference shares provide benefits for investors over and above the rights attaching to the ordinary shares.
Preference shares usually entitle the investor to:
- A right to first distributions: i.e more chance of their money back if the company does not achieve targets and is sold;
- Perhaps 6% to 8% interest on investment – known as the coupon rate; and
- A conversion option to ordinary shares, so gaining more equity upside on an exit event.
Typical investment agreement terms
The top points we see of importance for investor protection to include in the investment agreement based on experience are:
- Matters requiring investor approval;
- The level of control an investor can exercise;
- The investor’s ability to control the board;
- Level of warranties given by the investee company; and
- What happens if the investor wants out.
Investor control of decisions
Investor protection will be enhanced if major decisions require their approval – this is known as a power of veto. Options for investor control and/or veto often include :
- Significant acquisitions and disposals.
- Dividend declaration and payment.
- Material changes to the company’s business model.
- Significant investments and/or future fund raising.
- Long term or unusual contractual commitments.
- An investor representative to have a seat on the board. The constitution of the board can be set down in the investment agreement (or shareholders’ agreement). It is not uncommon for an investor to be granted the right to appoint a non-executive director. For example, in a technology company, the investor may seek to appoint an individual that has industry experience in launching products and taking them to market. That will help in realising a return.
Further rounds of financing
Further investment brings dilution of share capital and often attempts of new larger investors to take control. The influence the investor retains will depend upon the size of investment, value of the company for new finance rounds and terms set out in the investor agreement.
Future planning can leave the early stage investors in a stronger position.
Access to management information
The starting point us that shareholders have no right to management information. Therefore, information rights have to be set out in the investment agreement. Investor protection may include the right to see:
- Business plans;
- Management accounts;
- Board papers;
Contractual protection via warranties
Generally, it’s the investee company, the founders and directors who give the warranties. We can help you decide who should give warranties and the terms.
Common limitations on the warranties which may require negotiation include:
- The time period during which the investor can bring claims;
- The investor’s knowledge, whether implied or express;
- A cap on the total amount of warranty claims;
- A cap on any director’s liability. For example a limitation of three times salary or remuneration or a de minimis level that must be reached before the investor can claim.
Investor exit plan
On the way in an investor needs to think of the way out. Investment terms should deal with:
- Will the investor be entitled to sell shares before a trade sale?
- Will the investor be required to first offer shares to the company, or existing shareholders pro-rata?
- What price will the shares be sold for? Will there be a distinction in price for a “good leaver”, and “bad leaver”?
Whether investors should be in for the long term is becoming an increasingly popular debate. The questions have intensified as the average time it takes to build a business and achieve a trade sale is increasing
Protecting the investee company in the contract
The investee business should be thinking about :-
- Protecting confidential information -discussions with investors involving trade secrets and confidential information should take place under a confidentiality agreement. That will create a deterrent at the very least. This is in the investor’s interest as well as the company’s as you may not want other investors to know you are in talks.
- Heads of terms for the investment agreement.
- Incentivising the management team.
- Exclusive negotiating period – placing time limits on decisions can focus the mind.
- Is the investment conditional? – Typical conditions include the investee company’s directors signing new service agreements, approved by the investors, technology and IP protection or appointment of non executive directors.
- Restrictions on the investor – investors along with staff can damage the business by taking ideas to set up in competition. The investee business should consider putting some anti competition terms into the investment agreement to protect other investors and the business.There are no implied duties on investors. That means any restriction has to be documented and agreed in advance.
Each investment differs. However, from our experience we will know what conditions are required, and what are reasonable.
Is shareholder approval required?
Commonly, approval is required to increase share capital and amend the investee company’s articles of association. Articles of association are often drafted to compliment the investment agreement.
Special considerations for investment into technology and IP businesses
Part of the legal due diligence is to ensure the company owns the technology and intellectual property it claims to have invented or own. Issues often arise during the intellectual property due diligence. If they can be sorted out pre-investment this prevents “surprises” at a later date when the business may have been a success and the stakes are higher. For instance, sometimes the company thinks it has acquired its IP rights from a previous venture, but doesn’t have complete ownership.
Find out more about our experience and approach to advising investors or investees by reading :-
- Investor start up to exit case study
- Protecting investors who took a minority stake
- Adapting articles of association for various investment scenarios
- Private equity investment into a fast growing tech business
Prior to setting up Gannons, Catherine trained and practised in a large multinational law firm. She qualified 22 years ago. She is an extremely experienced and commercially minded solicitor.