Private Equity Stocks

Using the words Venture Capital and Private Equity are usually used together, however there is only one category of private equity, and that is venture capital. Private Equity has different risks. For example, some companies will go through growth changes overtime and this usually requires capital in various different amounts. This capital is also coming from multiple sources. Each stage during a company’s growth is looked at as a “risk continuum”. If your company is young and is barely generating a cash flow, then it become a high risk to fund. Typically a company in this situation would be required to obtain capital from family or friends or angel investors. Once the company starts generating revenue, then the risk becomes much less.

Venture Capital is usually for established products or services that are looking to get out into the market. Various investors are always seeking for the newest and greatest product that consumers will absolutely love. Some of the major computer companies have used venture capital to fund their operation. This type of funding is looked at as a private partnership. Venture Capitalists will provide the equity financing that is needed in exchange for a stake. They usually will play a day to day role for guidance in order for the investment to take off within a few years. Most of venture investments do not make it far but for the ones that do, they can bring a huge return making their overall investment back and then some.

There are other private equity options such as LBOs and Mezzanines. These are often used once the company has grown some and is a little more secured. They may require some debt and equity however the overall risk is much lower with a low fail rate.

LBO stands for Leveraged Bayouts. They are one of the most common loans that are used for private equity. A company obtains a loan from a private equity firm which is then secured by cash or company assets. Sometimes the LBO is sold in several pieces and any cash that is generated would be used as a down payment for high leverages. This type of process was very big a couple decades ago however now LBO deals are more focused on purchasing businesses with the intent to add value to the companies assets rather than having the company sell pieces of their structure.

Mezzanines Financing is just a private loan. This type of loan either comes from a commercial bank or a venture capital firm that specializes in Mezzanines. They usually include subordinanted loans or common stocks. When you don’t take on a full equity position, then a firm that specializes in mezzanine debt can decrease its risk. This is based on capital preservation.

In order to engage in a private equity or venture capital partnership, the investor should be accredited. Sometimes even the net worth must exceed a million dollars. For investors who’s net worth is a little lower, then they have the option for exchange trade funds. Exchange Traded Funds are a Private Equity Index. There is a list of numerous publicly traded companies that will invest into private equity.

Overall private equity has several forms and venture capital is just one of those that can assist a company during different growth stages. It’s all based on how the market is turning and the existing cycles.

Private Equity/Venture Capital Funding Of Business: Fuel For Healthy Start-Ups And Its Challenges

While an idea may be the genesis of an entrepreneurial venture, it’s the economic viability that defines its success. Drawing an analogy from the above statement, it is fair to state that while starting up a venture may be convenient to achieve, expansion of the business requires certain funding requirements apart from the initial seed capital. One of the common methods of infusing additional capital into the business is seeking external third party’s investment through private placement. Being less compliance-oriented from a regulatory standpoint, such investments in the equity share capital of the company are commonly preferred through private equity funds or venture capital funds. The entity making such investments may be referred to as the “Investor” for purposes of further discussions.

Third Party Investments:

Seeking third party’s investment in the business is a viable option for the industry and there are several professionally managed private equity funds and venture capital funds that are willing to fund the business through investments in the company (“Company”). Investments are typically structured through subscription in the equity or preference share capital of the Company and shares are usually issued at a premium. The Investor prefers to have a representation in the Board of Directors of the Company through its nominee director(s) having certain affirmative voting rights on critical financial and management issues related to the Company.

Investment Terms:

The issues related to the share holding pattern, issue price of the shares issued to the Investor, control and management of the Company, reserved matters requiring affirmative voting rights of the Investor (or its representatives), representation on Board of Directors, etc., are addressed in detail in the Joint Venture and Shareholders’ Agreement (“Investment Documents”) that are executed in relation to the investment. While the funding provides the necessary fuel for growth and expansion of the Company, there are some important terms that should be careful in negotiating while seeking investment including:

• Affirmative Voting Rights.

The Company should carefully administer the affirmative voting rights exercised by the Investor. Investors generally require a catalogue of reserved matters where no action or decision can be taken either at the shareholders meeting or the board meeting unless it has received the affirmative vote of the Investor (or its representatives). It is important to carefully review the list of reserved matters so that it does not impede the day-to-day operations and flexibility of the promoter group to take decisions with regard to management and operation of the Company. Ideally, only those actions such as approval of the annual audited financial statements; issue and transfer of shares; alteration of the Memorandum of Association or the Articles of Association or change in the Company’s objectives; transfer of substantial assets, etc., should require affirmative vote of the Investor.

• Lock-in for Promoter Group.

Investors usually require the promoter group of the Company to not transfer in any manner (be it by way of sale, pledge, mortgage, etc.) part or whole of their respective shareholdings in the Company. Such restriction may be either until dilution of Investor’s share holding to a specific % in the issued, subscribed and paid-up share capital of the Company, or for a pre-agreed time period (“Lock-In Period”). Compliance with this provision is made a condition precedent to the registration of any transfer of any shares of the promoter group by the Company. Post expiry of the Lock-In Period, any transfer of shares to a strategic buyer requires a notice for right of first refusal to the Investor. Usually Investors impose this obligation only on the promoter group and not on themselves and may also retain a right of co-sale of their (Investor’s) own shares to strategic buyer on similar terms and conditions. The obligation on the promoter group not to sell its own shares to a strategic buyer in absence of sale of the Investor’s rights, becomes an onerous obligation and sometimes difficult to implement.

• Exit Options.

Also discussed under the Investment Documents, are issues related to exit to the Investor from the Company. All the above terms and conditions are subject to mutually negotiated and agreed terms and conditions. Usually an Investor would negotiate for combination of more than one alternative option to exit the Company, typically being any one of the following options:

• Public Offering.

The Investor can seek the Company to achieve a Public Offering and obtain listing of its shares on any recognized stock exchange(s) in India or abroad which provides the right and/or ability to the Investor to divest or sell its shares on expiry of a pre-agreed term from the closing date of the investment.

For purposes of a Public Offering, the promoters usually agree and undertake to offer their shares for restriction on their transfer, as applicable to “promoters” under the applicable Security and Exchange Board of India (“SEBI”) guidelines, and ensure that the share holding of Investor is not subject to any such restrictions. In the event of a Public Offering, the parties will need to modify the Investment Documents to facilitate the Public Offering and make it compliant under any SEBI guidelines or applicable laws.

• Buy-Back of Shares.

In the event the Company is unable to undertake the Public Offering, the Investor may negotiate for the option (to be exercised at its discretion) to require the Company to buy back any or all of the Investor’s equity shares at a price which may be pre-agreed or at the then prevalent fair market price. Usually the Investor negotiates for a price which may be a multiple of the subscription price for its shares, plus all declared but unpaid dividends thereon or then applicable fair market price, whichever is higher. In case of foreign Investors, the price would additionally need to be ascertained in terms of the methods of calculation prescribed by the Reserve Bank of India (“RBI”) from time to time.

• Put Option.

In the event the Company is not able to effect a buy back as aforesaid, the Investor may require the promoters to acquire all of the Investor’s shares and on the exercise of such option, the promoters would be obligated to purchase and acquire the Investor’s shares at a price which may be based on an internal rate of return of X% compounded annually on the value of the aggregate amounts invested by Investor towards the subscription/purchase of Investor’s shares, or the fair market value thereof, whichever is higher (subject to guidelines of the RBI in case of foreign Investors).

• Strategic Sale with Drag Along Rights.

The Investor may also seek to exit by procuring a strategic buyer to purchase its shares. If the buyer wishes, as part of the same transaction, to also acquire the entire (100%) share equity capital of the Company, the Investor may negotiate for a right to require the promoters to sell to such buyer in connection with such sale, such number of the shares as the buyer may specify.

• Investor Mandatory Put Option.

If the promoter(s) fail(s) to buy all of the shares held by the Investor and in case the Company is unable to implement the buy-back option and the Investor fails to find a strategic buyer desirous of acquiring the shares of the Investor, then sometimes the Investor negotiates for a provision that entitles it to a ‘Investor Mandatory Put Option’ and obtain specific performance to enforce the obligations of the promoter(s) to ensure the Investor’s exit. This is an option which is a must avoid for the Company as it imposes onerous contractual obligations on the promoters.

• Liquidation/Winding up of the Company.

In the event the promoters are unable to provide an exit for the Investor as aforesaid, the parties may agree that the Company would be immediately wound up and no party would have any objection to such winding up, and the winding up proceeds shall be distributed to the then existing shareholders, including the Investor (subject to any statutory liabilities and payments). The Investor may negotiate that it be paid out of the winding up proceeds, prior to and in preference over any distribution of any other shareholders.

As is evident from the foregoing discussions that though the funding is necessary for taking the franchise business to the next growth level, any Investor funding arrangement should be carefully structured and legally vetted to ensure that it does not take away the management powers of the promoter group and imposes stringent & compulsory exit options on the promoters group.

Private Equity vs. Venture Capital

What is the difference between Venture Capital and Private Equity?

The text book answer that would be given by most B-School professors is that venture capital is a subset of a larger private equity asset class which includes venture capital, LBO’s, MBO’s, MBI’s, bridge and mezzanine investments. Historically venture capital investors have provided high risk equity capital to start-up and early stage companies whereas private equity firms have provided secondary traunches of equity and mezzanine investments to companies that are more mature in their corporate lifecycle. Again, traditionally speaking, venture capital firms have higher hurdle rate expectations, will be more mercenary with their valuations and will be more onerous in their constraints on management than will private equity firms.

While the above descriptions are technically correct and have largely held true to form from a historical perspective, the lines between venture capital and private equity investments have been blurred by increased competition in the capital markets over the last 18 – 24 months. With the robust, if not frothy state of the capital markets today there is far too much capital chasing too few quality deals. The increased pressure on the part of money managers, investment advisors, fund managers and capital providers to place funds is at an all time high. This excess money supply has created more competition between investors, driving valuations up for entrepreneurs and yields down for investors.

This increased competition among investors has forced both venture capital and private equity firms to expand their respective horizons in order to continue to capture new opportunities. Over the last 12 months I have seen an increase in private equity firms willing to consider earlier stage companies and venture capital firms lowering yield requirements to be more competitive in securing later stage opportunities.

The moral of this story is that if you are an entrepreneur seeking investment capital your timing is good. While the traditional rules of thumb first explained above can be used as a basic guideline for determining investor suitability, don’t let traditional guidelines keep you from exploring all types of capital providers. While some of the ground rules may be changing your capital formation goals should remain the same: entertain proposals from venture capital investors, private equity firms, hedge funds, and angel investors while attempting to work throughout the entire capital structure to seek the highest possible valuation at the lowest blended cost of capital while maintaining the most control possible.