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One of the most critical questions in startup decision-making is probably, “What is the best legal structure for my business?” The entity you eventually select will have legal, operational and financial implications, so choosing the right fit for your business is a crucial step.

There is no doubt that a lot of blood, sweat and tears, along with a little bit of luck here and there, will pave the way for success. However, giving proper attention to choosing the right business structure will provide the foundation for this success as you move forward.

Why is it important to choose the correct structure for my business?

Selecting the right structure is vitally important, not only in terms of legal and operational risk, tax obligations, asset protection, legal costs and your clientele, but also in terms of accommodating future growth. Changing legal structure down the line is possible but it can be extremely complex, so making the right decision in the early days will save you a whole lot of stress.

The choice of corporate structure may seem overwhelming and each with their own pros and cons. Here we are going to explore the options of a dual company structure, comprising both holding company and operating company, SPV and offshore option.

Company Structure Diagram Example

What is a holding company and why would you need it?

The core purpose of a holding company is to control another company rather than engage in business endeavours. In doing so, holding companies own the important business assets on behalf of the operating company so they can keep your golden nest egg safe and secure.

Because the operating company deals with all aspects of contract management, employee hiring and client relations, they bear the burden of liability. While this structure may be a costlier option, the benefits of minimising shareholder risk as well as protecting business assets and interests tips the balance in terms of negatives and positives.

Clearly, certain types of business will benefit from this structure over others:

• • Intellectual Property – Your business may own extremely valuable IP (trademarks, patents, branding or copyright) so it makes sense to protect this via an IP holding company.
  • Trade Risk – Asset protection is a major concern when operating in a high-risk sector, such as a heavily regulated industry, which is addressed by establishing a holding company.
  • External Investment – A dual company structure is a very attractive proposition for external investors due to the separation of their investment from the operating company’s trading risk.

Do Special Purpose Vehicles (SPVs) offer a better solution for my business?

SPVs are passive holding companies, that offer an extremely flexible solution to structuring your asset holding and investments. The ability to isolate financial and legal risk by ring-fencing specific assets and liabilities is an attractive proposition for many business types, uses and industries. Further, as SPVs are corporate vehicles, they can be used to establish subsidiaries, project or JV vehicles.The benefits of an SPV are clear in terms of minimising financial risk, direct asset ownership, tax savings (dependent on where the vehicle is created) and a straightforward process in terms of setting up the SPV. Looking ahead to the future, be mindful of potential regulatory changes that may impact your operations if you select this structure.

What do I need to consider in terms of ownership structure?

Founders should have a clear vision of their ownership structure at business inception and look at how this will be regulated going forward. Establishing the right shareholdings for your business in the early days will help avoid potential issues down the line. If you are intending to use equity to raise funds, beware of over-promising or over-issuing shares, setting overly generous investor terms and remember that shareholders may come and go.Business governance is another key factor. How the business is run, who makes the big decisions and how disputes are dealt with should be defined and documented. This is usually done via a shareholders’ agreement, supplemented by the memorandum and articles of association. From a shareholder/investor viewpoint, it’s important to lay out how and when they can exit and establish an appropriate ownership structure if the goal is to IPO or sell the company.

Which jurisdiction is the best home for my business?

Choosing the best jurisdiction very much depends on where you plan to conduct your core business activities, the location of your investors and where the company will be managed from. In this article, we are focusing on the UAE, BVI and Cayman, which are popular jurisdictions for start-ups, but many other options are available too, such as Cyprus, Belize, Singapore and the Bahamas.

Before you select your holding company jurisdiction, consider:

• Taxation – Explore tax obligations, particularly if there any double taxation agreements (DTAs) impacting the holding company and any subsidiaries or operating entities.
• Economic substance – Address any compliance matters with economic substance regulations, which require a company to have both economic and commercial substance in the jurisdiction.
• Nature and location of underlying assets – Choosing the most appropriate jurisdiction will depend on the nature of your underlying assets, i.e., equity holding, IP, leasing or financing.
• Access to professional/financial services – Assess whether the geographical location is accessible to shareholders and directors, if robust legal systems are in place as well as any cost or governance requirements you need to meet.
  Holding companies in the UAE are typically set up in free zones (primarily ADGM, DFIC, DMCC, RAK or JAFZA) but, following changes to commercial company ownership, you can also opt to launch on the mainland in Dubai, Abu Dhabi or one of the remaining emirates. The UAE is politically stable, well-positioned globally and has a strong economy. Offering tax benefits, asset protection, 100% ownership, flexible corporate laws and robust support services it almost seems like a no brainer!

If you decide to go down the SPV route via ADGM, you will find a flexible, straightforward option that is attractive to a broad range of businesses and individuals. Bear in mind that there is a requirement for SPVs to show a connection or ‘nexus’ to ADGM, the UAE and/or the GCC region in addition to no option to conduct operations or appoint staff members with this vehicle.

If you are looking to launch offshore, then BVI and the Cayman Islands offer similar advantages in terms of tax neutrality, flexible and modern corporate laws, sophisticated service providers and well-respected judiciaries. The core differences between the two are that BVI can be more cost-effective and flexible, whereas Cayman is well-known to private equity investors due to the high volume of publicly listed companies it attracts.

Can I use my holding company to operate my business?

Holding companies are not allowed to engage in any standalone commercial activities, so you would not be authorised to produce or sell any goods or services with this structure. Therefore, you would need to incorporate an additional ‘operating’ company. Consequently, it is costlier to implement and maintain but an operating company provides the ability to trade, secure contracts, hire staff and engage with clients as a subsidiary of the holding company.

Key takeaways

• Structuring your business correctly at the outset is one of the most important things you can do to help prevent issues down the line and is the foundation for success.
• Do your research, consider whether a dual company structure, SPV or an offshoring solution would be the best fit for your start up and future operations.
• Secure professional legal advice to make sure you make the best choice for your business and relieve the pressure of navigating the trickier aspects of your startup’s inception.

Raising capital for a startup in times of economic expansion and prosperity is tricky enough, and in periods of economic downturn, it’s even harder. An investor’s appetite for investment and risk lowers considerably as they adjust their priorities in such circumstances, and they are also more careful in ensuring their investments provide a good return on investment (RoI).

Now, every company is unique, and each will face different challenges, so the impending recession won’t affect everyone in the same way. However, common questions arise from entrepreneurs in this situation: how can I secure funds in difficult times? How do I deal with the prospect of lower valuations? What is the best approach when my clients become cautious in their buying decisions? Are there any opportunities for growth?

For startups, the ability to recalibrate in difficult circumstances is critical. While it may seem somewhat counterintuitive to move forward in an economic downturn, here are some of the ways that this can be achieved. After all, economic downturns are an opportunity for resilient startups to really shine, and separate themselves from the crowd. Here’s how:

1. Redefine what success means – Founders need to adopt a different approach when navigating an economic downturn. While success for your startup may have once been equated to becoming a unicorn, it’s perhaps time to redefine what exactly success is.

Looking back to previous downturns and what happened to tech companies listed on NASDAQ and the S&P500 paints an interesting picture. Stocks went from bullish markets and sky-high share prices right down to fair market value or bear markets as they are sometimes described. Now, it’s not necessarily a bad thing when markets go bearish, as it provides the opportunity to reevaluate what the real fair market value of your shares is, and it also gives you a chance to correct and rethink the process. Essentially, it allows us to figure out what is the real value of what we are buying.

Such circumstances also provide an opportunity for founders to ask, “Am I raising at the right value, or is my valuation inflated and full of hot air?” After all, company valuations should only be a side factor- it’s more important to be open to change and resilient as you advance forward. Focus on establishing a sustainable company that is unit economic-positive, prioritize your customer’s wants and needs, while also maximizing opportunities to scale up and grow. Of course, the key to successfully spinning all these plates in your startup’s journey is in having the right team, board, and partners by your side. Their contributions will help you balance these many challenges, and stay on course to follow your guiding star.

2. Keep a closer eye on your financials – Ensuring you have robust control of your cash burn is vital during a recession, as, inevitably, client growth slows, and fundraising becomes more difficult. Controlling costs and examining the level of RoI on all business activities, with a view to extending runway, can help startups to navigate this turbulence.

As an entrepreneur, you may also face the prospect of raising capital at a lower valuation. While this is not an ideal situation, investors will be more impressed by a sustainable company that delivers added value to customers over one with an inflated company valuation for no good reason. Perform due diligence on investors, and have the mindset that investors should be pitching to you for your big idea, and not the other way around. This will ensure you attract the right investor who is aligned with your mission and vision for the business.

If you have two or more years of runway, then it’s even more important to play hard and not be defensive. If your business has a healthy balance sheet, then cutting spend may compromise the momentum of your startup. Executing and adapting your strategy in line with customer behavior can provide competitive edge. Competitors may be extremely cautious during the economic downturn, so being aggressive in terms of raising capital could offer the opportunity to boost your presence as well as increase market share.

3. Prioritize your clients - The customer is king. Providing customers with what they want and when they want it is the primary way to retain key clients, as well as to sow the seeds for future client growth. Growth in the client base will inevitably slow during a downturn, so it’s vital to be laser-focused on the finer details, and listen intently to your customers.

Pivoting your business toward new markets and products and/or services is another way to address the impact of an economic downturn. Consult with new, existing, and potential clients via focus groups, pop-up surveys, and beta testing, and then focus on optimizing product-market fit. Plugging this research into your product roadmap is a great tactic both in the short term as well as in realizing your long-term product vision.

4. Unlock M&A potential – It’s generally accepted that mergers and acquisitions (M&A) and other deal activities are likely to nosedive during a recession. However, focusing on an offense-driven M&A can lay the foundation for a startup’s success as the economy recovers. Being acquired by a complementary business, or acquiring one, is a great way for a startup to increase the scale and (potentially) scope of the business, in addition to providing the opportunity for a subsequent divestiture or spinoff.

Declining valuations and failing startups will provide resilient entrepreneurs with the opportunity to integrate target acquisitions, with potentially outstanding teams and valuable client networks up for grabs. For startups that are reasonably strong financially and strategically, taking advantage of the downturn is a great way to enhance your portfolio, and start unlocking the potential of M&A.

5. Grow efficiently - Critical to achieving success in today’s business environment is to constantly look at ways you can do things better. Taking time to analyze and evaluate your core business processes will provide the opportunity to boost efficiency and effectiveness.

In the fast-paced startup world, this can often be overlooked or pushed to the back of the priority list, but in the long term, it can provide you with improved business agility and competitive edge. Look at improving your recruitment processes, streamline/optimize the client pipeline, and promote best practice approaches across the team.

6. Attract and retain key talent - Economic downturns inevitably lead to hitting the brakes on recruitment and compensation, but actually it may be the best time ever to capitalize on these areas. The good news is that as many organizations let go of talented staff and batten down the hatches on their talent pipeline, the playing field is left open for you. Now is the time to tap into this wider pool of talent.

Investing and engaging with existing employees who offer value to the organization is also critical. Creating a positive employee culture may by trickier in times of remote working, but these efforts can be extremely valuable in leaner times. If you don’t have the cash on hand for any recruitment activities, employee incentives can provide a great solution, such as offering more equity in relation to salary.

Talent acquisition also extends to your senior leadership team. The number of outstanding C-level executives available due to redundancies or seeking new challenges is also an amazing resource. It’s important to review your executive teams’ skills, capabilities, and performance, while also being on the lookout for talented leaders who will make a positive impact on your business.

To summarize, here what’s you need to remember as you and your startup move ahead in our current circumstances:

As Winston Churchill famously said: “Never waste a good crisis.” Use this crisis to really look at your business, and then, enhance your playbook. Investors will view this as an extremely valuable asset.

Research has found that companies make more dramatic gains or losses during downturns than during stable periods– remember that Uber and Airbnb were both founded during the last financial crisis.

Founders need to adopt a different skillset when navigating a recession. Rather than focusing on growth, it’s important to have refined and precise control and management of the business.

Consider how much cash runway you have available, whether your growth strategy is cash-efficient, evaluate the strength of your product-market fit, look at what your competitors are doing, and make positive internal changes in terms of employees, processes, and projects.

Focus on establishing a sustainable company that is unit economic-positive, prioritize your customer’s wants and needs, while also maximizing opportunities to scale up and grow.

AUTHOR BIO

Suraya Turk is the Managing Partner of Legal Circle, a UAE-based law firm uniquely positioning itself as a frontrunner in the area of technology in the vital sectors. Legal Circle provides startups, SMEs, multinational companies, and government entities with practical and innovative legal and commercial solutions to navigate and develop the regulatory landscape. As a former Managing Director of international and local law firms in the UAE, and prior to that as an Australian qualified lawyer, Suraya has led law firms and legal specialist teams. She is currently leading and cementing Legal Circle’s strong reputation for being an agile, nimble, adaptive, and innovative law firm which provides practical legal and innovative commercial solutions for clients. legalcircle.co

According to a recent survey, approximately 9 out of 10 business startups fail in the first year, and one of the most common reasons for this is a lack of funds. So, are you wondering whether it is the right time to raise funds for your startup? The answer will be different for every company. The first place to start is to ask yourself what you need the funds for, and then decide which funding option is most suitable for your business. If you’ve decided it might be the time to raise funds, then here is your guide to tackling the question of capital raising.

TIMING IS EVERYTHING

In business, timing is everything. Many people think timing is down to luck, but nothing could be further from the truth. If you can harness timing to your advantage, it is a critical success factor in terms of establishing sustainable operations and growing your startup. If you are considering whether it is the best time to start raising capital, it’s time to ask some direct questions:

• Have you run out of cash to continue to self-fund your startup?

• Are you reluctant to risk your personal assets, such as leveraging a home mortgage?

• Are you looking to avoid additional risk by using new lines of credit?

BOOTSTRAPPING

Don’t just raise capital because you are a startup. It should be because you want to increase the value of the business and facilitate growth. Bootstrapping may be a better option if you are already growing well from existing and projected revenue from your customers or clients. Cash from external investors may not be the best plan in this scenario, as they will dilute your equity stake. Bootstrapping also gives you time to build traction, gain higher valuation, and demonstrate growth.

However, if bootstrapping is not an option, and it’s definitely time to raise funds, its important to make sure you are in a strong position to attract investors. Make them feel that they will be missing out if they do not invest in your startup. Consider raising funds when you are celebrating a business win or milestone that you can boast about to a potential investor.

Related: Capital Gains: How Digital Entrepreneurs Can Master The Essential Art Of Fundraising

WHAT DO INVESTORS WANT TO SEE?

Ready to start pitching to investors? Building a basic financial model for your startup is crucial. This model will provide a roadmap in terms of cash required for your next business milestone and future business targets. You will also be able to pinpoint your short- and long-term capital needs.

Understanding your startup’s growth, projections, and legal structure, delivered in a punchy pitch, is also important. Investors will need to understand your vision, projected growth and opportunities, and legal structure they are investing in, delivered in a concise and engaging pitch that they won’t forget.

CHOOSING THE RIGHT INVESTOR

Investors provide a vital monetary injection, but they can also bring fresh ideas, concepts, and their unique life experiences to the table. Key questions to consider when choosing an investor include:

• Can friends or family meet your funding requirements?

• Do you need a more significant investment via formal series rounds?

• Would your business benefit from a professional network, including legal and financial professionals as well as an inspirational mentor?

• Does your investor provide opportunities for growth and expansion?

Successful startups typically have a network of industry professionals they can reach out to in order to support them through the development period. In the UAE, this includes investor communities, startup hubs and angel investors. Tapping into these resources will help you answer these questions and choose the right funding option for your startup.

So, how can startups structure their raise? Here are a few options:

FAMILY & FRIENDS Many startups look close to home by raising capital from family and friends. This funding route is pretty common in the early stages of a business startup, but it can also be an option in later stages. Your family and friends will be emotionally invested in you, and they are likely to value your success over any returns on their investment. However, making sure you give them a fair deal is important, as they are not professional investors.

ANGEL INVESTORS Networking will help you meet angel investors, who typically invest smaller amounts of capital into various startups. Angels will have different goals, possibly rapid growth or cutting-edge projects as well as risk-adjusted returns, particularly in the current economic climate. Focus on developing a demonstrable product or service, strong support team, and well-thoughtout financial plan.

INSTITUTIONAL VENTURE CAPITALISTS (VCs) Approaching a venture capital fund may be the best option if you have left the seed round, and your business is still growing. VCs can provide a large-scale investment in exchange for an equivalent level of control in terms of your business. Attracting an experienced and visionary VC requires the ability to demonstrate rapid growth, traction and the potential for scalability.

CORPORATE VENTURE CAPITALISTS/INVESTORS Many larger companies directly invest corporate funds into external startup companies. They operate in the same way as institutional VCs, but often tend to invest in companies they wish to acquire in the future.

OVERSEAS VENTURE CAPITALISTS Seeking out international investment from the US, UK, and Europe can offer you limitless possibilities in terms of market size and capacity. This typically happens once you have moved past the development phase to the later stages of funding. A good approach here is to look at your future target market, and network with international investors in this industry. You also need to consider the difference in legal systems, particularly in terms of due diligence and business negotiations, as well as addressing cost and tax implications of a potential relocation to the VC’s country of origin.

THE LAST WORD

Raising capital is an exciting time for your business. Embrace this challenge as you take your business forward to its next stage of growth and development. When raising capital, you need to determine:

• Current levels of risk

• Growth projections • Structure of the raise

• Investment terms and the level of investor control

Critical to your success will be the ability to connect with the right professionals who can share your vision, and deliver the right type of expertise.

Over the past few years, the UAE has become a rising star in the global market, attracting wide-ranging businesses across diverse sectors, and sending a strong message to global investors, business owners and companies. The strategic location connecting East to West, its rich growth opportunities, and its impressive response to COVID-19 crisis is one of many reasons the UAE is the #1 global destination for business startups.

Embarking on your startup journey is an exciting adventure, but you are often balancing the learning process with looking to the future in terms of growing and expanding your business. It’s difficult to juggle these equally important priorities, and easy sometimes to drop the ball. Here we have the top six tips to help you avoid some of the most common mistakes we have seen startups make in the UAE:

1. Create, evaluate, and refine your entrepreneurial roadmap Establishing a business roadmap for your business is vital. Firstly, it’s important to have a clear vision in terms of what problem your product, service, or technology solves. Understanding customer needs is the driving force here. Many entrepreneurs have created amazing products or services that they think provide a solution, but if your customer doesn’t need it, then they aren’t going to buy it. Investors will also be looking to see whether your business can scale up and provide them with increasing returns, so your roadmap needs to factor in plans in terms of your future growth and expansion. Start small, building a product concept that works for your target market, then shape this by identifying any issues and opportunities to optimise your concept.

There are various exit strategies that you can factor into your business roadmap. You may consider a merger and acquisition (M&A) deal. This is a great way in which startups can bundle up their services and sell to potential investors. The transformation of a company via a merger (either vertical or horizontal) also provides an opportunity to target a larger market share. An initial public offering (IPO) is another option. This offers the most liquid funding source to a company -the public markets- as well as providing a boost to your corporate identity and public profile. However, you need to balance this with the fact that the market reacts quickly to bad news, so be prepared for this eventuality. There are also cost implications in terms of upfront fees and ongoing compliance costs.

Successful entrepreneurs don’t repeat their mistakes, they simply learn from them. Monitoring your performance and being able to adapt your strategy and roadmap is vital. Typically, client acquisition rates, revenue and profitability should be measured, but also look at the bigger picture in terms of return on investment, cost control, audit performance and customer retention levels.

2. Choose the best corporate structure There are many ways to structure your business, depending on your business goals. The business infrastructure you choose impacts your legal risk, tax obligations, level of asset protection, and legal costs. Choosing the right structure early on ensures that you save both time and money in the long run.

Consider where to set up in terms of location. Does a mainland location offer you a better option in terms of trading with the local market? Is a freezone more cost-effective and flexible in terms of tax exemptions and zero-currency restrictions? Perhaps starting an offshore entity is a great way to expand operations, without any heavy administrative obligations?

Your corporate structure is also important. Holding companies offer the benefits of asset security, centralized control and flexible growth structure. An operating company/subsidiary takes on the trading responsibilities and day-to-day running of the business, including contractual obligations. This means that if a customer has a claim against the business, the claim will be against the operating company. Think carefully about the goals of the business in terms of protecting assets and mitigating risk.

Finally, identify if you need a more flexible structure that is suited to startups operating across multiple lines and verticals, or a more consolidated approach that will enable the achievement of expansion plans across the region or globally. The solution is for businesses to find a balance between flexibility and structure- enabling them to reach their full potential and maximize their footprint.

3. Establish the right team, and mitigate risks Henry Ford’s quote, “If everyone is moving forward together, then success takes care of itself,” sums up perfectly the power of teamwork. When you start up your business venture, it’s very easy to fall into the trap of doing everything yourself to avoid spending money, and so, eventually, you burn out. The point to remember is if you don’t create a team you can delegate to, it’s difficult to maintain increased productivity, client satisfaction, and overall business success. Establishing the right team, and inspiring them to work together to execute your vision, and be part of your success is critical.

Don’t rule out outsourcing as another option. Outsourcing can give you the benefit of more time to focus on your core business activities, improved cost-efficiency, and flexibility to increase resources. Ensure that you appoint reliable firms aligned to your vision, and are able to represent your brand as if it were their own.

Most importantly, whether it is an employee or outsourced services, ensure you have a robust employment agreement or service level agreement (SLA) with providers to mitigate the risks of competition, conflict, or non-performance, and avoid losing money or potentially suffering any reputational damage.

4. Avoid raising funds too early Timing is everything in business, and being patient and conservative with your fundraising strategy is actually likely to secure you more funding. So, when is the right time to raise funds? We recommend when you have a proof of concept, gained some traction in your market, generated revenue, and secured brand recognition. It is your job to convince an investor that you are the next big thing and worthy of their investment. Deliver a refined business model or product offering that is scalable with the right investment, and make the investor feel like they are missing out if they don’t jump on board.

Many entrepreneurs fall into the trap of blowing all their money before they have even started; for this reason, only a small amount of startups ever make it big. Bootstrapping may seem a tough prospect, but developing your company without external funding is an invaluable business skill. Building your startup with minimal resources and lean approaches will make you appreciate the value of capital when you do secure the funds. You will also avoid the nightmare of dealing with angry investors!

5. Avoid giving away too much, too soon, by managing your cap table As a founder, you should consider how an investment will impact your shareholding as well as the dilution of the percentage of your ownership. It is important to evaluate what you really need in terms of funds, before giving away too much equity. Remember, you are the one who is putting their heart and soul, along with a lot of blood, sweat, and tears, into the business, so it makes sense that you retain a high level of control in the early days. Further down the line, you will inevitably have less control, but at least, at that time, you will be rewarded in terms of negotiating a higher price.

An easy way to mitigate against excessive dilution is to have a cap table, which is essentially a spreadsheet listing all the companies shares, investors, and indicates percentage of ownership in the company, as well as showing dilution over time. We recommend cap tables be created first before other documents to help you in negotiations with investors, and assessing the impact of your deals. Be prepared for cap tables to become quite complex after a few rounds of financing.

6. Use professional help It’s easy to draft your own legal documents, use online templates, or sign agreements without checking the fine print. The impact of this may not be much at the beginning of your startup journey, but down the line, you could encounter difficulties in terms of an exit event, business termination, or liquidation. Correctly executing a legal document is a formality, but it is key to creating a legally binding arrangement and avoiding disputes or risk of a court finding a contract unenforceable, or not legally binding.

Navigating startup challenges and obstacles may seem daunting, but following reliable and professional advice will help you avoid time and money in the long run, and avoid mistakes your predecessors have made. Establish your goals, seize the day, and take action. The exciting part of business is the unknown and the opportunity to continually learn and grow across your startup journey.