PRELIMINARY STEPS TO RAISING EQUITY CAPITAL

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Eugenia Hodge
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1 PRELIMINARY STEPS TO RAISING EQUITY CAPITAL

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3 ) TABLE OF CONTENTS I. II. III. IV. Introduction 3 Identification of the Target Investors 3 Select the Appropriate Vehicle to Facilitate the Offering 4 'Types ofsecurities Offered 4 A. Debt Obligations 5 1. Bonds (Secured Debt Obligations) 6 2. Debentures (Unsecured Debt Obligations) 6 3. Consideration Respecting Issuance of Debt Obligations 7 B. Equity Securities 7 1. Right to Vote 7 2. Dividends 8 3. Participation in Growth of the Issuer 8 4. Preferred Shares Explained 9 C. Consideration Respecting Issuance of Securities 9 1. Selecting an Issuance Price 9 2. Stated Capital Concerns Right offirst Refusal et al Amendment of Constating Documents 10 V. Develop a Business Plan 10 )

5 3 PRELIMINARY STEPS TO RAISING EQUITY CAPITAL I. INTRODUCTION So your client wants to raise equity capital to fund the start-up of their new venture, or to perhaps fund the next phase of their existing venture. What preliminary steps should you be discussing with them before charging into undertaking a securities offering? In my experience, I've learned that a lot of time and expense can be saved, and client's frustration minimized, if you discuss with them first the following conceptual matters in order to facilitate the proper structuring of an equity offering for them: 1. Identify who their target investors are; 2. Select the appropriate vehicle to facilitate the offering; 3. Identify the type of security to be offered; and 4. Develop a business plan. The results from these discussions do not mean that the structure of your offering will be written in stone, but it will provide a useful grounding of information that will enable you to focus on successfully completing an offering for your client. To a certain degree, each of these matters is interrelated and a change of the client's position on one may necessarily require you to reanalyse the client's position on one or more ofthe others. II. IDENTIFICATION OF THE TARGET INVESTORS: Identifying the target investors will provide you with preliminary insight into what structure, type of security and offering document may be needed. For example, if the client intends only to raise start-up capital from friends, family and business associates, or wishes to raise additional capital from existing investors, you know that there are specific exemptions available under applicable securities laws to facilitate such types of offerings and you can guide the client through the balance of the preliminary matters with that information in mind. Similarly, if a client intends to go to the public to raise capital, you know right away

6 4 that you are probably looking at either an Offering Memorandum exemption or a Prospectus offering, and you can guide the client accordingly. When identifying who the target investors are, it is also important to determine where each of those investors is located. Remember that, irrespective of where the issuer is located, the issuer will need to comply with the applicable securities laws of the jurisdiction(s) where each of its investors reside in conducting its offering (See Pearson v. Boliden Limited (2002 BCCA 0624)). Harmonization efforts have gone a long way to making this an easier minefield to navigate in Canada, but if your client proposes having non-canadian resident investors you will likely need to identify this concern right up front and either convince the client to forgo non-canadian resident investment or take steps to determine what the applicable securities legislation requirements will be in the jurisdiction where the non-canadian resident investors live. When identifying who the target investors are, it will also be necessary to explore what type of security or investment such potential investors are likely to be willing to acquire. More on this is discussed below, under the heading Type of Security to be Offered, but suffice it to say that a sophisticated or accredited investor is likely only going to be interested in a security that provides them with a rate of return whereas there is often considerably more flexibility when structuring a security to be offered to the general public or family, friends and business associates. III. SELECT THE APPROPRIATE VEHICLE TO FACILITATE THE OFFERING: If your client is an existing entity, then it is likely a foregone conclusion that the basic structure of the entity won't change and, subject to possibly amending the Articles or Constating Documents of the issuer to facilitate the offering, you'll just be using the existing entity. However, if you're working with a group of promoters who have come to you to enlist your expertise in identifying the appropriate vehicle from which they will launch their offering, you'll need to give consideration to various matters such as administrative ease of use, tax ramifications to investors and marketability. Common vehicles used to facilitate offerings of securities include: Corporation;

7 5 ) Limited Partnership; Trust; Co-operative. In choosing the appropriate vehicle to facilitate the offering, you'll need to evaluate the pros and cons of each type of vehicle and decide on one that best suits your clients needs. IV. TYPES OF SECURITIES TO BE OFFERED: There is virtually no limit to the amount of creativity you can put into the type of security that can be offered. There must, however, be a balancing between the amount of creativity you put into devising a security and how willing investors are going to be to purchase that security. Typically investors will be leery about investing in something they don't understand, and there is no point in creating a complex security if the client can't sell it. The types of securities offered can generally be divided into two main categories: Equity. Debt and A. DEBT OBLIGATIONS: Debt securities are essentially a promise of the issuer to repay an investor at a prescribed interest rate. Debt securities can have two forms, secured and unsecured. Secured debt obligations are typically called bonds. Unsecured debt obligations are typically called debentures. In either case, in consultation with the client, you would need to determine the amount and frequency with which interest is to be paid on the debt obligation and the maturity date on which the principal would be repaid. Debt obligations typically have maturity dates of 5, 7 or 10 years, but can have whatever maturity date you wish. Interest can either be paid at the time of maturity, or alternatively, paid in monthly, quarterly, or annual instalments to the maturity date. The decision as to what to offer investors, including the interest rate, frequency of payment of interest, and maturity date requires a balance between the practical aspects ofwhat the issuer can ) reasonably offer and what investors want or need to see in order to invest. If desired, debt

8 6 obligations can also have attached to them a right to convert the outstanding balance at maturity to equity securities of the issuer on such terms as may be set out in the conversion right (ie a 1: 1 or 2: 1 conversion ratio), and assuming the issuer has sufficient classes of equity securities to permit such conversion. 1. Bonds (Secured Debt Obligations): Bonds are typically more marketable than debentures as bonds provide the investor with a degree of comfort as the investor knows that the repayment of the principal and interest under the Bond is secured by the assets of the issuer. Bonds are also more expensive for an issuer to market as the issuer must also pay for the cost of putting the security in place. If there are more than a few investors, it will be administratively cumbersome to deal with a grant of security to each investor and accordingly a commercial trustee would need to be retained to hold the security in trust for the investors. Typically the grant of security is limited solely to personal property, but can extend to a grant of a security interest in land if the issuer desires. Usually such security is subordinate to the primary financial lenders of the issuer, and the consent of the primary lenders to the grant of such subordinated security in the assets of the issuer would need to be obtained before the issuer entered into negotiations with a trust company. If the issuer defaults in payment of interest or principal to the bondholder, the bondholder then calls upon the Trustee to realize upon the security given by the issuer. 2. Debentures (Unsecured Debt Obligations): Debentures typically take the form of a simple promise to pay the amount loaned. These promises to pay are often evidenced by a Promissory Note of the issuer to the investor. The Promissory Note typically sets out the terms of repayment of the principal and interest. If the issuer defaults in the payment of principal or interest, the note holder would have a claim against the issuer for the sum owed, but would not be able to seize any of the assets of the issuer to satisfy such debt, without having first obtained a judgment of a Court confirming the obligation of the issuer to pay such debt.

9 7 3. Considerations Respecting Issuance of Debt Obligations: Irrespective of whether bonds or debentures were issued, for the purposes of the issuer's debt to equity covenants with its primary financial lenders, the issuer would need to obtain an assurance from its primary lenders that they would consider such subordinated debt as equity for the purposes of any debtequity covenants of the issuer with such primary lenders. These debt obligations will likely also show up as a long term liability on the financials of the issuer, provided the bondholders did not have an early right of redemption to call for repayment of such debt obligation. B. EQUITY SECURITIES: Equity securities, unlike debt obligations, typically provide investors with an ownership interest in the business. Equity securities are commonly called shares or units of the issuer and can typically be broken up into two categories: Common and preferred. A review and possible amendment of the issuer's articles or constating documents may be necessary in order to establish the right equity security for an offering. 1. Right to Vote: When dealing with corporations, both common and preferred shares can carry with them a right to vote at meetings of shareholders, or be precluded from voting at meetings of shareholders. Non-voting shares are typically issued to "silent" partners, being those investors who are willing to contribute to the capital of the issuer but do not wish to participate in the business or affairs of the issuer. For corporations, it should also be noted that, notwithstanding that a class of shares may be designated as non-voting in the Articles of the corporation, such shares nevertheless have a statutory right to vote on matters affecting the rights attached to such shares, such as a subsequent request to amend the Articles. If the vehicle selected to conduct the offering is a Limited Partnership, care must be taken to limit the scope of any voting rights intended to be attached to the Units of the Limited Partnership, so that the issuer doesn't inadvertently cause the limited partners to lose their limited liability status by permitting them, through their voting rights, to be seen as taking part in the control of the Limited Partnership (See Section 64 of The Partnership Act (Saskatchewan)).

10 8 Units of Trusts can carry the right to vote on whatever matters are identified in the Declaration of Trust or other constating document. If you happen to be dealing with a New Generation Co-operative, keep in mind the provisions of Section 40 of The New Generations Co-operatives Act (Saskatchewan), which limits ownership of preferred shares held by anyone person to no more than 10% of the total number of preferred shares that carry the right to vote on the election of directors or 25% of the total number of any non-voting preferred shares of the co-operative. 2. Dividends: There is considerable flexibility in structuring of dividends. Dividends can be structured such that they are left in the discretion of the directors, or alternatively the Articles can set out a fixed dividend that is to be paid annually on each class of share. Further, dividends can be cumulative or non-cumulative. Cumulative dividends are dividends that, in the event the issuer does not have sufficient cash to pay a dividend, would be declared anyway and would accrue in favour of the shareholder until such time as the issuer had the cash to pay the dividend. Non-cumulative dividends are dividends that would cease to be payable by the issuer in the event the issuer did not have the cash to pay the annual dividend. The rate of dividend, if not left to the discretion of the directors, can be fixed in the Articles as a means of providing potential investors with some assurance as to the rate of return they may receive on their investment. 3. Participation in Growth of the Issuer: Common shares do not have a fixed redemption value and therefore allow the shareholder to participate in the assets of the issuer on its liquidation and windup. The value of the common shares accordingly changes with the value of the issuer. Preferred shares typically have a fixed or prescribed redemptive value in the Articles of the issuer (i.e. each preferred share has fixed value of $1.00) and accordingly do not generally participate in the growth of the issuer.

11 9 4. Preferred Shares Explained: Preferred shares carry a preferential right over common shares in that they are typically paid out first before any payments are made to holders of common shares. This preferential treatment can extend both to payment of dividends and payment on liquidation of the issuer. Preferred shares typically also include a right of the holder to call upon the issuer to repurchase the shares of the holder subject to certain statutory liquidity tests being met by the issuer (often referred to as a right of redemption). Similarly, the issuer often has a reciprocal right that allows the issuer to repurchase the shares of the shareholder, without the consent of the holder, and provided the issuer has met the statutory liquidity tests (often referred to as a right of retraction). The right of redemption and/or retraction is a useful method of marketing a share offering as it provides the holder with a potential exit strategy under which they know their shares can be repurchased. It should be remembered that typically there is no market for shares of non-listed companies and accordingly shareholders purchasing shares of non-listed companies need to be aware that, as there is no market for their shares, they may not be able to resell their shares. C. CONSIDERATIONS RESPECTING ISSUANCE OF SECURITIES: 1. Selecting an Issuance Price: The price at which your client's securities are to be offered is something that they will need to give careful consideration to. For a start-up entity, the decision is usually arbitrarily determined, but care must be taken to select a value that makes for easy calculation of the purchase of blocks of securities, and does not price the issuer out of the market in which it seeks to raise capital. For an existing entity, the valuation of its securities for a new treasury offering must be considered more carefully as the Board will have obligations to the existing security holders as well as a desire to attract new investment. Often the Board will be best protected by seeking the advice of an independent business valuator on whose opinion the Board can rely. It should also be remembered that the value attributed to an issuer's share capital from the issuer's most recently completed financial statements may not be a realistic indication of the actual value of those securities, as such value does not necessarily reflect the value of the business as a going concern.

12 10 2. Stated Capital Concerns: For corporations, if a subsequent equity offering of the same class of shares was conducted having a subscription price different than that of the initial offering, it should be remembered that the stated capital of that class of shares will be averaged to include the issuance price of both offerings. This may have an adverse impact on some shareholders as their paid up capital can be eroded in such circumstances. Typically investors are only worried about the stated capital of their shares in the event a return of capital was being contemplated. 3. Rights of First Refusal et al. If the client is an existing entity, a review of any shareholder agreements and the constating documents of the issuer is necessary in order to identify early on any rights of first refusal, preemptive rights or other rights granted to existing security holders that either need to be rescinded, amended or otherwise dealt with in order to ensure that such issues don't impede the conduct of the offering. 4. Amendment ofconstating Documents: If the articles or other constating documents of the issuer need to be amended to facilitate the offering, the clients should be advised of this as soon as possible and plans made to coordinate the most efficient method of effecting those changes. For existing entities, this is sometimes more difficult as approval from existing security holders may need to be sought to effect the proposed change to the constating documents. V. DEVELOP A BUSINESS PLAN Before you attempt to obtain any type of financing through selling securities or otherwise, you should develop a sensible and realistic business plan. This plan should describe in detail: The basics, including name of the business, the incorporating or organizational jurisdiction, the business and registered office address and the like; A history of your business; The product or service you sell; What and where your market is;

13 11 Who your competition is; The risk associated with your business; Your managers and their backgrounds; The financial condition of your business; The proposed project and its costs; A budget which includes sources of funds to complete the project and how the funds will be used; Requirements for operating capital; and The expected effect of the completion of the project on your business. If you do not know how to create a business plan, you should seek assistance. Other Lawyers, accountants and business consultants should be able to help you with this. Other sources of information are Saskatchewan Industry and Resources at and the Canada Saskatchewan Business Service Center at

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