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Equity Fundraising: A guide for private companies

08 February 2019

What is equity fundraising? Equity fundraising involves a company issuing new shares in itself to investors in exchange for money. The company gets the money to use in its business and the investor aims to receive dividends and/or sale proceeds if the company is sold.

A (very brief) summary of the law on offering shares to investors

Amongst other restrictions, companies are not able to offer their shares to people unless the contents of the documents under which those shares are offered have been approved by a person who is themselves authorised by the Financial Conduct Authority or the offer falls within certain exemptions.

It is important for a company considering equity fundraising to know that companies are not free to offer to sell their shares to anyone they like whenever they like. A raft of financial services regulation has developed to protect investors, and in particular “retail investors” (the person in the street), from buying shares that are not suitable for them or where they do not understand the risks.

Two popular exemptions allow shares to be offered to people who meet certain criteria which make them “high net worth individuals” (i.e. they can afford to lose the money they are investing) or which make them “sophisticated investors” (i.e. they have made these sorts of investment before and understand the risks) and these are often relied on by private companies.

Can you raise money from friends and family?

When your company needs money, it is natural to want to turn to your existing network of friends and family. However, there is a general misconception that there are no restrictions on offering shares to friends and family. From a legal perspective, this is not the case, friends and family are subject to the same protections as any other investor. So, for example, if the offering document is not approved by an authorised person, they must be a “high net worth individual” or “sophisticated investor” if shares are to be offered to them.

Who invests, when and how?

Seed Capital and Angel Investors:

Seed capital is the money used at an early stage to get your company going. Founders can provide seed capital themselves or obtain it from friends and family (provided that they fall within the necessary exemptions). However, if external funding is needed, a common source is angel investors.

The programme Dragons Den provides an excellent example of who angel investors are and what they do. They are typically wealthy individuals (i.e. they fall within the “high net worth individual” exemption) who are willing to invest in early stage companies that excite them.

How do you access angel investment?

A company will need to approach one of the various clubs and networks of angel investors around the country. The first thing to do is find where they meet and ask to go along to pitch to them. Different investors will have different types of business that they like to back so it is important to try to get in front of the right person.

What does the investment process look like?

Before investing, the investor will want to carry out due diligence on the company. When they have decided to invest, the parties will enter into an agreement under which the investor subscribes for shares. This agreement may also give the investor a say in how the company is run (for example, a place on the board or a veto on whether the company undertakes certain significant transactions).

What will your company look like after the investment?

This will often be the first time that the founders have had an “outsider” involved in their company. It will be an important step for founders as they will now be subject to more scrutiny and will be answerable to an investor who wants to protect their investment.

Venture Capital

Once a company has grown too large for angel investors, the next step is to approach venture capital firms. Venture capital firms make money by investing in growing companies. As with angel investors, different venture capital funds have different sectors that that they focus on. Tech and life sciences companies are particularly popular with venture capital companies as their businesses are typically built around intellectual property (which creates a barrier to entry) and are scalable.

How do you access venture capital?

Accessing venture capital funding may seem more daunting than approaching angel investors as the amounts of money are larger and the venture capitalists are more sophisticated. However, it is important to remember that there are people within these organisations whose job is to go out and find growing companies to invest in.

An alternative to approaching individual venture capital funds directly is to engage a corporate finance advisor to approach investors for you. For a fee (typically being a percentage of the amount raised), they will use their network of contacts to identify venture capital funds that might invest.

What does the investment process look like?

The investment process will be very similar to the process for angel investors. There will be a period of due diligence followed by the parties signing an agreement under which the venture capital fund subscribes for shares and is granted rights that will help it protect its investment.

What will your company look like after the investment?

As with angel investors, the company will now have one or more sophisticated investors who have a say in how the company is run and want to protect their investment. The freedom of the founders will be further restricted but the investors may be able to bring additional expertise, contacts and prestige.

Equity Crowdfunding

Equity crowdfunding could be relevant at any stage of a company’s growth.

The word “crowdfunding” itself does not carry any special meaning. At its most basic level “crowdfunding” just means raising money from two or more people. From a legal perspective, equity crowdfunding platforms (i.e. websites that enable companies to offer shares to investors) are subject to the same financial services regulation as anyone else (and a few extra ones just for them).

"The models and mechanics of crowdfunding platforms vary widely. For example, some reach only people who fall within the “high net worth” and “sophisticated investor” exemptions whereas others enable them to offer investments to certain “retail investors"

The internet and technology have enabled crowdfunding platforms to navigate the applicable financial services regulation in a way that allows companies whose shares are offered on them to reach out to a wider pool of potential investors than would be possible if they had to approach each person separately. The models and mechanics of crowdfunding platforms vary widely. For example, some reach only people who fall within the “high net worth” and “sophisticated investor” exemptions whereas others enable them to offer investments to certain “retail investors” (who it would previously have been difficult for private companies to access at all).

How do you access equity crowdfunding?

Crowd funding platforms actively seek suitable companies for their platforms. As with angel and venture capital investments, different platforms emphasis different sectors, different sizes of fundraise and different types of investor. A company considering raising funds through a crowdfunding platform should think carefully which platform it uses.

What does the investment process look like?

Equity crowdfunding differs from angel and venture capital investments in that it is the crowdfunding platform (rather than the individual investors) that are likely to carry out due diligence on your company before granting you access to their platform.

It will also be the crowdfunding platform that co-ordinates the execution of the investment documents.

What will your company look like after the investment?

The effect of being able to go out to a wider pool of investors is that, if they invest, your private company may have an unusually large number of shareholders. Some platforms seek to deal with this by holding shares as nominee for all the investors who invest through the site. This provides a single point of contact when it is necessary to pass resolutions. However, notwithstanding these arrangements, there will still be a large number of people who see themselves as shareholders and managing the relationship with this wider pool of investors will take more effort than for a small closely aligned shareholder group.

EIS & Seed EIS tax relief criteria

An early stage company considering a fundraising should be aware of the Enterprise Incentive Scheme (EIS) and Seed Enterprise Investment Scheme (Seed EIS). These schemes are designed to encourage investment in early stage companies by offering very generous tax reliefs to investors in those companies. In order for the investors to benefit from these tax reliefs, the company itself (rather than the investor) must demonstrate that it meets the necessary criteria and obtain approval from HMRC.

A full discussion of the criteria for EIS and Seed EIS is beyond the scope of this guide. However, an indication of the types of company these schemes are aimed at can be seen by looking at some of the main qualification criteria.

For Seed EIS

  • The maximum that can be raised is £150,000.
  • The company must not have gross assets of more than £200,000.
  • The company must have less than 25 full time employees.
  • The company must have been trading for less than two years.

For EIS

  • The maximum that can be raised through EIS investments is £5,000,000 per year and £12,000,000 in total.
  • The company must not have gross assets of more than £15,000,000 before the shares are issued (and not more than £16,000,000 after the shares are issued).
  • The company must have less than 250 full time employees.
  • The investment must be made within 7 years of the company’s first commercial sale.

(there are separate, more generous rules for knowledge intensive companies that carry out a lot of R&D or innovation)

Source: HM Revenue & Customs Venture Capital Trusts Statistics

For further advice on the above topics, please call us on 01483 543210 or alternatively email enquiries@barlowrobbins.com

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