Berkonomics – Business Insights from Dave Berkus

There is a natural fear of giving too much information to investors after the initial investment is received.  CEO’s worry that investors will not keep the information confidential and that financial data will find its way into competitors’ hands.  Others worry that investors will latch onto individual line items within financial data and engage in inquisitions regarding telephone bills, marketing costs and other tactical line items in detailed financial statements.

First, let’s cover the absolute minimum legal requirement a company has to provide to its investors.  There must be an annual meeting of the shareholders, and that meeting must be announced with a written notice at least twenty days prior to the meeting. (There is a provision that a waiver of notice may be signed preventing this need, but it requires that all shareholders sign).

[Email readers, continue here...] At the annual meeting (which can be attended by phone), there are actions that require a vote of the shares present either by proxy or in person. These include election or re-election of board members if required by the bylaws of the corporation, approval of any increases to stock option plans (which would dilute the worth of shares outstanding), and approve any additions to the capital stock authorized to be issued.  Shareholders may vote on other issues during the year by written consent, including acquisitions, stock issuances, changes to the articles of incorporation and bylaws, and more.

But the question that is most often asked is: “How much financial information must be divulged?”  The answer is that the minimum requirement is to provide an income statement and balance sheet to all shareholders annually.  There is no requirement that either be detailed by general ledger account, and those statements should rarely be that detailed anyway.  Summarizing income statements with a line for revenues, cost of revenue, general and administrative expenses, sales and other direct costs – all leading to net income, would satisfy the legal requirement for statement of income and expense.

When a company accepts an investment from professional or organized investment groups – such as angel groups, venture capitalists or corporations, there is usually a document signed called an “investors rights agreement” that calls out additional financial and narrative reporting requirements due to that class of shareholder.  These could include the need for audited financials, monthly financial and narrative reporting and more.  That burden is an ongoing cost of taking the investment, much as a public company takes on the additional burden of governmental reporting, both adding to costs over time.

Good relations with investors can be maintained only by keeping current with information between the company and the investors.  If there is a concern over some investors gaining a competitive advantage, the amount of information may be reduced to the minimum for some classes of investors.  A good example of this is the information provided to common stock holders, many of whom may be former employees who have exercised stock options and moved on to join the ranks of the competition.

Of course, a public company is not entitled to pare its information to reduce exposure to competitors.  That is one of the many costs of becoming a public entity as many CEO’s have found and dealt with over the years.

Some businesses just can’t fit within the angel capital or friends and family model for raising funds.  Sooner or later these businesses will have to seek venture capital and accommodate the needs of the venture community in negotiating the terms of an investment.

First, VC’s in general cannot invest in ‘S’ corporations or limited liability companies (LLC’s).  This is only a minor problem in that both forms can convert easily into ‘C’ corporations at low cost and little consequence.

More importantly, VC’s will worry over a number of issues when looking at a company and deciding about an investment.  Is the price paid for shares by previous investors excessive, creating a post-money valuation too high for the actual value of the company?  If so, the VC will contemplate a “down round” – that is: offering an investment where previous investors find their investments instantly worth less than their original value, even if the investments were made at high risk and years earlier.  No one wants to face this, but the need for money and the possible overpricing of the first rounds may have created an unsustainable valuation.

[Email readers, continue here...]  Second, it is important in the first investment round to face the issues that may be required later by subsequent, more sophisticated, investors such as VC’s.  These include “tag along rights” which allow investors to sell some shares when others, such as management or founders, sell any shares.  Also included are “drag-along rights” in which minority shareholders may be forced to obey the vote of the majority in such important votes as to sell the company or take a round of financing at lower share prices.

Most VC’s today are becoming enlightened (as are organized angels), correctly forcing many decisions that might have been dictated by investment documents instead to the corporate board to decide.  This allows for a discussion – and perhaps a negotiation – between inside and outside board members in such instances, all for the good of the corporation, not just one class of shareholder.  You may recall that board members have a “duty of loyalty” to the corporation, not to their constituent investors.  This enlightened thinking reinforces that duty, even sometimes at the expense of profit to the VC’s.