The Lost Art of a Good Business Plan

We are very pleased to announce that Erik Nelson, President of Coral Capital Partners recently had the following article, “The Lost Art of a Good Business Plan” published in the Summer/Fall 2014 Digital Edition of Micro-Cap Review Magazine.  We have reprinted the article below for your review, and a printer friendly copy is available here.

The Lost Art of a Good Business Plan

By Erik Nelson

I feel that it is more important than ever to have a good business plan.   It is a primary means by which potential investors and investment bankers will evaluate a company as an investment. It will become a key tool for management in evaluating the success of the business operations. The value of a well written business plan cannot be over stated. It will benefit both management and investors in the company. During the nearly 20 years since I founded Coral Capital Partners, I have written dozens of business plans and read probably several hundred more. I can honestly say that writing a good business plan is a lot harder than it sounds.

There have been a lot of changes to the capital raising process over the course of the last several years. I feel that the two most significant changes involve the implementation of FINRA Regulatory Notice 10-22 in April of 2010 that requires broker/dealers raising funds for a company in a private placement conduct reasonable due diligence on the client company and its existing shareholders. The second (2nd) major development is the JOBS Act signed into law almost 2 years later in April of 2012. The JOBS Act is designed to make it easier for companies to raise capital; while FINRA 10-22 increases the scrutiny that companies seeking to raise capital will be subject to. This effectively means more competition for companies that are seeking to raise capital, and a higher bar for those seeking to raise capital through broker/dealers.

I think writing a good business plan requires a good understanding of the business and the market for its goods and services. I do not think a software program, regardless of how good it is, can write this. A good business plan requires a human touch. Unfortunately the vast majority of business plans I have read have failed to cover the basics. It is almost as if writing a good business plan has become a lost art; so I thought now would be a good time to take a look at what makes a business plan good.

A good business plan needs to be able to deliver the key points, providing a solid understanding of business, its products, as well as the market the company marketing its products and services towards. The business plan should provide a solid description of who is running the company, as well as its financial prospects. The vast majority of the business plans I have reviewed come up critically short in at least two or more of these important areas, and higher number fail to address at least one key area. I think that is important that we take a look at the key sections of the business plan and what should be included.

Executive Summary: The Executive Summary should be 2 pages in length. This is your best chance to grab the reader’s attention and convince them to spend their hard earned time to read the rest of the business plan. The Executive Summary needs to cover the following areas, devoting 1 to 2 paragraphs to each. It should provide a description of the company, state “the purpose of the business plan,” describe the company’s products and services as well as the market potential for those products and services, provide a brief management description, and a financial snap shot. A lot of business plan writers omit the paragraph on “the purpose of the business plan;” they simply feel it is not necessary. I disagree. I think it is very important to let the reader know why the plan was written and who it was written for. Is the business plan a document designed for professional investors to evaluate the company as a potential investment; or is it a tool for management to guide the growth and development of the business? These two different purposes can create a dramatic difference in the way the plan is written, and in how it is interpreted. It is very important to avoid any excessive fluff or hype in the Executive Summary, or you will lose the interest of the reader; be as straight forward and up front as possible. Remember, the Executive Summary is your best opportunity to grab the reader’s attention and get them interested in reading the remainder of the business plan.

Company Description: The Company Description section of the business plan should provide a good description of the business, an overview of its products and services, its sales and marketing model, as well as other important information that allows the reader to understand the business is going to do and how it plans on doing it. The remainder of the business plan will provide greater detail on what is covered in the Company Description.

Market Analysis: This section of the business plan provides an in depth look at the market for the company’s products and services. It should discuss how big the market is, who the competition is, and the potential for the company to penetrate this market with its products and services.

Product & Services: This section of the business plan provides an in depth look at the product and services of the company. It should discuss how its products are different from those of its competitors, why the company believes its products and services will be more desirable.

Sales & Marketing: This section of the business plan discusses how the company is going to create awareness of its products and services, as well as how the sales process is going to work. It should address how many people will be involved in the process, what are the expected advertising channels, and other information necessary to gain an understanding how it is going to generate its revenue.

Organization and Personnel: This section of the business plan discusses the organizational structure of the company, the staffing requirements, as well as a general description of the key positions and management. It generally includes an organization chart. This is generally not a lengthy section of the business plan as its purpose is to provide a general idea of how the company will be managed and staffed.

Management: This section of the business plan lets the reader know who is the management of the company. It generally provides a brief description of their work experience and educational history. This portion of the business plan has taken on increased importance with the more stringent emphasis on proper due diligence in the market place.

Current Ownership: This is where who currently is an owner or shareholder of the business is disclosed. This section is becoming much more important than in the past. With the heightened due diligence requirements, it is now more important than ever that potential investors are informed who the major shareholders of a business are.

Funds Required and Their Use: This section of the business plan lets the reader know how much money the company believes it needs to implement its business plan. Very importantly it should let you know how the company plans on spending the money it raises.

Financial Projections and Assumptions: This section of the business plan is where you lay out your assumption that were used to build the financial model and your projected financial statements for the business. It is crucially important the financial assumptions are as accurate as possible. It is equally important that all three (3) of the major financial statements, Income Statement, Balance Sheet, and Statement of Cash Flow is included

Exhibits: This is your chance to show the outside information that backs up your statements and claims in the business plan. Do not be afraid to include exhibits that will help make the case for your business.

With the discussion above, I have attempted to provide a good outline of what goes into a good business plan. I would like to point out that companies and industries are not all created the same, and as a result there will always be a reasonable amount of customization that goes into a good business plan, everyone is going to be slightly different in some form or another. Also, it is very important that the business plan is not overly promotion in its statements on the product or its potential sales. I have read countless business plans where the company said that it was going to introduce a never before seen product, become a world leading company overnight, and never have any competition. These sort of overblown claims are an obvious red flag for any experienced investor or investment banker. It is much better to be straight forward and realistic with your statements. I am personally much more comfortable reading a business plan about a company that is going to enter a very large, growing industry, grab a tiny share of it, and make money for its shareholders than I am with a company that thinks it will be the next Apple, Inc. in 24 months. Finally, a good business plan doesn’t necessarily guarantee you will raise money or make a good investment; but it sure can help put the odds in your favor. As always, if you have any questions about anything in this article, please feel free to contact our offices. We are here to help.

About Coral Capital Partners and Erik Nelson

Erik Nelson is the President of Coral Capital Partners, an independent consulting and advisory firm focused on companies and participants in the lower and middle markets. Coral Capital Partners provides cost effective solutions to real world issues and situations. Coral Capital Partners, Inc. provides services to Investment Banks, Private Equity Funds, investors, and both privately held and publicly traded companies, as well as various stakeholders in those organizations. This has included international public companies with operations on three (3) continents to smaller privately held domestic companies. Our experience in the areas of corporate advisory, due diligence reviews, and regulatory compliance allows for a cost effective and efficient solution to the issues at hand. Please feel free to visit our web site at: www.coralcapital.com or call our offices via. telephone # (404)-816-9220 to see how we may be of assistance.

 

SEC Obtains Final Judgment in AutoChina Market Manipulation Case

SEC Obtains Final Judgment in AutoChina International Market Manipulation Case

Back in 2012 we wrote about the Securities Exchange Commission’s (SEC) action against AutoChina International Limited in a blog titled “Market Manipulation and ‘Noneconomical Trading.‘”  We found that case particularly interesting because in its complaint the SEC went as far as to define noneconomical trading, washed trades, and matched orders.  For those who are unfamiliar with those terms,  the SEC defined them as follows:

Matched Order:  In this complaint,  the SEC defines a “matched order” as when trades are coordinated for the purchase or sale of a security.  Essentially an order is placed with the knowledge that another order (or orders) of substantially the same size, at substantially the same time, and at substantially the same price, has been or will be entered.

Washed Trade:  In this complaint,  the SEC defines a “washed trade” as trades where there is no change in beneficial ownership.  Essentially when you sort through the accounts the same person either owns the accounts, or the companies behind the accounts, or provided the money to the front people whose names the accounts are in.

NonEconomical Trading:  In this complaint, the SEC defines “noneconomical trading” as trading for which there is no economic rationale.

On June 27th, the SEC announced that the court entered a judgment against AutocChina and its senior executive, ordering them to pay a $4.35 million penalty.  A copy of that litigation release can be found at:  http://www.sec.gov/litigation/litreleases/2014/lr23033.htm

We did review the court filings in this case, and it looks like the defendants entered into consent judgements, and the SEC’s litigation action remains pending against 10 other defendants.  Our guess is that it will not go well for the other defendants in this case, due to the company and its primary executive consenting to a judgment being entered against them.

One of the things that we initially liked about this litigation was that the SEC actually defined specific forms of market manipulation, something that we find lacking in far too many of the complaints filed by the SEC.  One issue we have with various securities regulations, is that far too often they not well defined or vague.  We understand that this may provide the SEC with a certain advantage when it comes to enforcement.  However, we also think it creates disadvantages as well.  One of these disadvantages is that a lack of clearly defined or vague regulations leaves them open to a wide range of interpretations and uneven applications across the various regional offices of the SEC.  In some instances this may even lead to situations where newer staff members may not properly understand or know the rules and regulations they are expected to enforce.  I can clearly remember one situation where I was speaking with a SEC staff attorney in the enforcement division regarding some trading activity we both were examining and I stated that it was clearly an example of “parking stock,” to which he replied “what is that?” To my surprise he admitted that he had never heard the term before, or had any idea what it was.

For those who are unfamiliar with the term ‘parking stock,’ it is generally defined as occurring when party has a second party temporarily buy stock that it is unable to buy then sell those shares back to the 1st party or one of their clients.  This may be done for a variety of reasons, including evading margin requirements and attempts at illicit market stabilization activities.  A good example of this is when a stock promoter is unable or unwilling to use his own capital to buy a company’s shares and instead has one of his supposed clients buy the shares, with an understanding that the promoter will find a another buyer to buy the shares within a few days.  Usually the promoter will guarantee to buy the shares at a profit or make the client whole on any losses.  Usually the promoter is doing this in an attempt to stabilize the price of the company’s shares in the market.

What I feel is important, is that in more of the complaints that the SEC files, it needs to clearly define what it considers to be violations of its various rules and regulations.  The more clearly they defined, the harder time the bad actors in the industry will have in evading them.

www.coralcapital.com

If you have any questions about the above blog post, please feel free to visit our web site, www.coralcapital.com and check out we have to offer.  Feel free to contact us if you have any questions.  We can be reached at 404-816-9220 and are always willing to speak with you.

About Coral Capital Partners

Coral Capital Partners is an independent consulting and advisory firm focused on companies and participants in the lower and middle markets. We partner with our clients to provide cost effective solutions to real world issues and situations. Our experienced team brings a diverse set of skills that allows us to service a wide variety of needs.  Our area of services and expertise focuses on bringing services and solutions to our clients that are normally only available to much larger firms.  Coral Capital Partners, Inc.  provides services to Investment Banks,  Private Equity Funds, investors, and both privately held and publicly traded companies, as well as various stakeholders in those organizations.  This has included international public companies with operations on three (3) continents to smaller privately held domestic companies.  Our experience in the areas of corporate advisory, due diligence reviews, and regulatory compliance allows for a cost effective and efficient solution to the issues at hand.  Please feel free to contact our offices to see how we may be of assistance.

We do applaud the SEC ‘s efforts to police this type of activities.

A Few Thoughts on Looser Pays Bylaws

A Few Thoughts on Looser Pays Bylaws

A recent article in the May 19th edition of the Wall Street Journal titled “Loosing a Shareholder Lawsuit Could Soon Become More Expensive” caught our attention.  The article discussed a May 8th decision by the Delaware Supreme Court on ATP Tour, Inc. v. Deuscher Tennis Bund over bylaws that shift the attorneys’ fees and costs to the loosing party. This has recently been referred to as Looser Pays Bylaws.  The May 8th ruling resulted from a dispute between a private company and one of its shareholders, however lawyers believe the ruling would apply to any company incorporated in Delaware.

A number of the articles we reviewed in preparation for the writing of this blog article discussed the potential impact this ruling would have with respects to public companies and class action lawsuits.  The consensus is almost unanoumous that Looser Pays Bylaws will reduce the number of shareholder class action lawsuits. Many of these lawsuits are frivolous and without merit, and end up being settled for less than the cost of successfully defending the lawsuit in court.  Now, with the current ruling by the by the Delaware court, the lead plaintiffs in a class action lawsuit could find themselves on the wrong end of a judgment for legal fees if they fail to win their lawsuits.  This risk alone, will immediately start to reduce the number of class action lawsuits filed against public companies.  The critics of this decision, which are mostly plaintiff’s lawyers who like to file shareholder class action lawsuits that are typically settled with sizable payments for legal fees, claim that this ruling will make it easier for corporate managers to engage in bad conduct, because the threat of a lawsuit by shareholders is greatly reduced.  I disagree.  I think that this ruling makes it so that corporate management knows that if they behave badly, and a shareholder successfully wins a lawsuit, they will end up paying the shareholders legal bills as well as their own.  Therefore if the company management has behaved badly, the shareholder/plaintiff will have a better chance of a recovery that also covers his legal fees.  Here is why we tend to believe that this will be the case.

The majority of our work is with companies that are not among the Fortune 500. Some of these companies have D&O insurance, and some do not.  For those companies that do not have D&O insurance the prospects of paying their own legal fees, damages, and the winning party’s legal fees is a strong deterrent against behaving badly.  For those companies that have D&O insurance, the shareholders and the attorneys representing them understand that they will get paid following a successful lawsuit.  Let me give you a good example of this based upon our own experience.

Our Experience:

A very common issue involving smaller public companies is that some will issue stock as payment for services to consultants or employees.  These shares are issued with a restrictive legend stating that they have not been registered under the Securities Act of 1933.  However, as long as the company maintains its reporting status with the Securities Exchange Commission (SEC) they can typically have the restrictive legend removed after a six (6) month holding period in accordance with Rule 144 of the Securities Act.  Disputes involving requests to have a restrictive legend removed and a company’s refusal to do so are governed by section 8-403 of the Uniform Commercial Code (UCC).

We have had numerous conversations with shareholders of public companies where the company is refusing their request to have the restrictive legend removed, and allow the shareholder to have free trading shares.  The Uniform Commercial Code (UCC) is very clear on this, and it would be highly unusual for a shareholder to loose a lawsuit involving UCC 8-403.  However, the management of companies that engage is such behavior are essentially telling these shareholders that the stock they own is not worth the legal fees to file and win the lawsuit, or they can run up their legal fees and make it cost prohibitive for them to pursue their claims against the company.  In many of the instances we have consulted on, the shareholders have simply walked away, and written off their shares.  However, that is not always the case.

In late 2007, Coral Capital Partners was engaged to provide a variety of services to Sun River Energy.  By April of 2008, we had completed the primary tasks for which we had been engaged, however Sun River Energy was unable to pay us our agreed upon cash fee.  In the summer of 2008, we agreed to accept stock in lue of the cash.  Over the course of 2009 and 2010 we sold a portion of the shares we received, and then asked that the restrictive legend be removed from our remaining certificates so we could sell our remaining shares.  Well, new management had taken over the company is the summer of 2010, and they refused. We were prepared to litigate, as this is a very simple dispute involving Section 8-403 of the Uniform Commercial Code (UCC).  The value of our stock at the time far exceeded the estimated litigation expenses.  A rather simple decision.  Well, Sun River Energy struck first with a frivolous lawsuit that basically included every wild claim they could think of to accuse of having done.  Their goal was simple;  run up our legal fees as much as possible prior to the trial in order to make the lawsuit unprofitable for us.  Sun River Energy backed away from a majority of their claims during the discovery process, admitting there was no basis for them during depositions.  Sun River then dropped all of its claims against us immediately before trial; and as a result they were Dismissed With Prejudice at trial by the judge.  We prevailed at trial, the Judge entered a judgment in our favor against Sun River Energy on October 23, 2014.  Following the ruling, Sun River stipulated to paying a portion of our legal fees, but not all of them.  Fortunately we have very good attorneys, and everyone is being taken care of fairly.

Sun River Energy is a company with a history of litigation against its own shareholders.  The management of Sun River Energy has chosen to litigate against many of its shareholders who simply wanted to sell the shares of Sun River Energy (in the public market) that  they legally owned and were entitled to sell.  By our count, there has been at least seven (7) shareholder lawsuits involving Sun River Energy; the majority of which have involved shareholders were simply looking to have the restrictive legends removed from their certificates, as they were legally entitled to do.  Our discovery indicated that their could have potentially been a significant number of additional lawsuits over this same issue by many other shareholders, had they chosen to engage in the fight against Sun River.  The simple truth of the matter is that many of these shareholders would have litigated if there had been a better chance of having their legal fees covered.

We litigated against Sun River Energy in the Colorado District of the Federal Court system, and we won a clear victory and judgment in our favor.  We have spoken with many of the other shareholders who found themselves in lawsuits with Sun River.  Almost all of these other shareholders cited growing legal fees as a reason for settling lawsuits they strongly believed they could win at trial.  This is a real shame, and a real issue for shareholders with legitimate claims against a company.  We reviewed the other shareholder lawsuits, and we believe that everyone of them would have resulted in a victory similar to ours. While not every management team behaves rationally or with good intentions, the management of Sun River Energy might have behaved differently facing the prospects of several millions of dollars in legal fees for pursing lawsuits it could not win.

Final Thoughts:

The Delaware Supreme Court clearly ruled that the fee shifting provision of the ByLaws was facially valid, as neither the DGCl or any other Delaware statute forbids its enactment.  Additionally, and what we consider to be very important, the court stated that “no principle of common law prohibits directors from enacting fee-shifting bylaws.”  As we read the courts ruling, we believe that fee shifting ByLaws  can be enacted by a company that is incorporated in any state as long as that state does not prohibit them.  We feel that this is very important and has the potential to change shareholder litigation nationwide, not just in Delaware.

We feel that fee shifting provisions of ByLaws are an important part of good corporate governance, and shareholder protection.  We feel that they are a victory for good behavior, and a blow against bad behavior and frivolous litigation.  Ultimately it is better for all of us if more companies adopt these provisions.

www.coralcapital.com

If you have any questions about the above blog post, please feel free to visit our web site, www.coralcapital.com and check out we have to offer.  Feel free to contact us if you have any questions.  We can be reached at 404-816-9220 and are always willing to speak with you.

About Coral Capital Partners

Coral Capital Partners is an independent consulting and advisory firm focused on companies and participants in the lower and middle markets. We partner with our clients to provide cost effective solutions to real world issues and situations. Our experienced team brings a diverse set of skills that allows us to service a wide variety of needs.  Our area of services and expertise focuses on bringing services and solutions to our clients that are normally only available to much larger firms.  Coral Capital Partners, Inc.  provides services to Investment Banks,  Private Equity Funds, investors, and both privately held and publicly traded companies, as well as various stakeholders in those organizations.  This has included international public companies with operations on three (3) continents to smaller privately held domestic companies.  Our experience in the areas of corporate advisory, due diligence reviews, and regulatory compliance allows for a cost effective and efficient solution to the issues at hand.  Please feel free to contact our offices to see how we may be of assistance.