Why Your Company Won't Get Venture Capital Financing

A few weeks ago, I discussed several different methods of financing a new business or providing for the ongoing capital requirements of an existing business (click here to read the blog). I touched on the difficulties inherent in trying to get bank or venture capital (“VC”) financing, and promised to discuss those issues further in a future blog. Not one to break a promise, this is that blog.

Let’s start with bank financing before we get to VC financing.  I’ll be blunt: generally speaking, most start-ups aren’t bankable (meaning they’re not good candidates for a bank loan). Banks tend to require an operating history, several years of audited tax returns, net operating income at a specific multiple of the anticipated debt service, accounts receivable or hard assets that can be pledged as security, and spectacular credit scores by the principals. Not to mention personal guarantees. If your company (or you, as the case may be) isn’t/aren’t able to produce most or all of these things, guess whose house is going to be mortgaged as collateral on the loan (assuming you’ve got equity in your house)?

That said, there are certainly lending programs at most banks that are geared towards specific types of startup businesses. Dental and medical practices come to mind, which are bankable for a variety of reasons that are beyond the scope of this blog. However, most new businesses simply won’t qualify for bank financing, particularly in light of the new-found lending conservatism brought on by the latest recession. 

Which brings us to VC, and why your odds of getting VC financing are slim.

Venture capital financing is, for the most part, limited to Silicon Valley technology wonks whose companies can deliver scalable businesses, proprietary technology (i.e., patented or patentable), and a minimum 35% pro forma return on equity with an ironclad exit strategy in 5 years or less. In other words, unless you’ve got a biotech, software, or alternative energy company with a defensible patent (VCs hate competition), you’re unlikely to be attractive to a VC firm.

Additionally – and I can’t overemphasize this – VCs are looking for stellar management whom they trust implicitly. The way they get to trust you is by knowing you. And the way they get to know you is by being introduced to you by someone they already trust. So if you’ve got a couple Wharton MBAs and a Stanford electrical engineer with 4 fuel cell patents to his credit on your executive management team, and you know a guy who works for Draper Fisher Jurvetson, congratulations! You might actually stand a chance of getting a VC firm to actually read your business plan. Continuing the theme, it also wouldn’t hurt if you’ve run and successfully sold or gone public with a previous company. And made lots of money for your previous investors in the process.

Finally, it’s useful to recognize that most VC investments don’t occur at the startup phase, but rather in a later round of financing, and most often in an amount equal to several million or tens of millions of dollars. This means that even if you do eventually get VC financing, you’d still need to rely on the 3 F's in the earlier stages of financing your business. Now, I realize that the idea of getting an infusion of capital amounting to several million dollars from a VC would make the principals of most small to medium sized businesses salivate, but consider this: could you produce a realistic business plan and a full set of pro forma spreadsheets demonstrating to the VCs how you plan to turn an $8,000,000 investment in your construction framing business into a $4,000,000 profit, PLUS return of their initial investment, PLUS a successful IPO or sale of your company, all in 36 months? Probably not. 

The simple math of the matter is that very few people, or companies, will qualify for VC financing. Factor in the sheer volume of business plans and elevator pitches that the typical VC sees and hears in a given year, and the fact that the volume of all VC financing has been severely reduced as a result of the recession, and the odds of a successful VC investment in your company become slimmer still. Which is why I pointed out in my last blog that the most likely source of funds for your business is the 3 Fs.

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You're Observing Corporate Formalities, Aren't You?

 

The first response I usually get from most businesspeople when I mention “corporate formalities” is a puzzled look. Which is not surprising, since the term is rarely used except by lawyers.  The second response is invariably a request by my clients for another cup of my famous high-octane coffee, since the mere mention of “corporate formalities” usually results in the realization that the meeting isn’t over yet (the end of a meeting with me being the highlight of most of my clients’ days). Fortunately, high-octane coffee is plentiful around my office. In extreme cases, I can even produce a finger or two of single-malt scotch if I notice my client snoring and slumped over in their chair mid-discussion.

But I digress. “Corporate formalities” is a term with which you ought to become familiar if you intend to run, or are already responsible for running, a business.

The reason I even bring this arcane term of art up is because of an admonition I included in my last blog (which you can access by clicking here. In that blog, I suggested that even if you make proper filings with the appropriate State agencies to set up your company, you would still not be adequately protected from company liabilities if you failed to also adhere to “corporate formalities” and maintain proper corporate records. So, what did I mean by that?

Let’s discuss a major misconception about “incorporating” (which is a term I use to mean forming any corporate entity, whether an LLC, corporation, partnership, or something else).  The misconception is that all one need do to obtain the “magic bullet” of limited liability is to file a document with the proper State agency, and voila! -- instant “teflon” for the company’s owners.  But the reality is quite different.

You see, incorporating involves a trade-off between you and the State (you didn’t really think that the State was going to give you a freebie, did you?). In exchange for limited liability for the owners of a company, the State insists that the company adhere to certain laws, keep certain records, and adhere to certain procedures.  Those laws, records, and procedures include the following:

  • The company must keep a separate bank account, and cannot commingle its funds with its owners’ funds and bank accounts. (Note that this is more straightforward in theory than in practice. I’ve seen numerous businesses get tangled up in banking and segregation of funds issues that could potentially lead to loss of the owners’ limited liability).
  • The company must make certain information public, such as the identity of the owners, the address of its corporate headquarters, and the identity of its agent for service of process.
  • The company must carefully authorize and document all actions taken by the company, usually in the form of signed resolutions (this is one of the most frequently overlooked corporate formalities, and potentially one of the most serious if the company is ever sued by a shareholder, employee, or customer).
  • The company must not engage in activities that are extraneous to its corporate purpose, or that properly belong to the owner or owners (e.g., don’t have your company pay for your tickets to Tahiti, or take on any tasks related to your spouse’s widget factory).

The bottom line is that the failure of your company to adhere to corporate formalities can result in a “disregard” of the corporate form by a court if your company is ever sued. Legally, this is known as “piercing the corporate veil,” and it’s a disaster by any measure. How? Well, if the court awards damages to the person suing your company, it means that YOU, as an owner of the company, are personally liable for those damages. It could also result in fraud and shareholder actions being upheld against you, and the literal unraveling of your company. 

Finally, let’s take the example of a corporate acquisition: your company has been approached by a competitor with a buyout offer, or you decide that, after 15 years in business, you want out and you want to sell your company. As a mergers and acquisitions attorney, I can tell you that the first thing the lawyers on the other side are going to ask for are your corporate books and records. Because the acquirer wants to know what they’re acquiring, and they want to ensure that they’re not inheriting any potential liabilities that they don’t want to inherit. Inadequate books and records can quickly scuttle a potential deal.

Again, I would urge you to ask yourself the following question: Is the modest cost of keeping adequate corporate books and records worth the potential personal liability, or the risk of scuttling a potentially lucrative sale of the company? Only you, as the business owner, can answer this question.

Has your company properly adhered to corporate formalities? Need help getting your corporate house in order? Give me a call.