A Primer — Legal Considerations When Raising Capital From Individuals

Joseph R. Soraghan

By Joseph R. Soraghan

On occasion, entrepreneurs seek to raise capital from individual investors. But whenever an entrepreneur sells an interest in his company, whether it is common stock (equity/ownership) or notes (debt) or any other investment, that interest is a security, and the securities laws apply, even if he is offering only to FF & F (family, friends and fools).

Federal law and the law of all but two or three states, separately, include securities laws which must be complied with when making requests for investments. However, all those laws, as a class, have some common general principles.

First, every offering of a security must either be registered under both federal and state law, and an exemption from federal law, and the law of every state where any investor resides, must be available and provable by the entrepreneur. To prove that an entrepreneur is liable, an investor only needs to show that he was sold investments in the company, and that the company did not register the sale with both the federal government and with the state where he resides. And registration is almost always impossible for entrepreneurs. Therefore, the entrepreneur must prove he has exemptions under federal and all the relevant state laws.

General Principles for an Offering to be Exempt: Both federal and almost all state laws have their own securities exemption requirements. They usually fall into common categories. For an offering to be exempt, the federal law and/or laws of almost all states:

  1. Require smallness! The company must place limits on the number:
    a. of persons who purchase shares;
    b. sometimes, of persons contacted.
  2. Require the company to have reasonable grounds to believe, before it contacts a prospect, that the prospect is wealthy and investment-sophisticated (“suitability”).
  3. Forbid “general solicitation,” i.e., advertising, mass mailings, large group meetings, telephone campaigns, etc.

In addition to these restrictions, both the federal government and almost every state have additional requirements and filings which are unique to them.

Is a Private Placement Memorandum (“PPM”) Required? To meet the requirements for an exemption, if raising less than $1,000,000 in a twelve month period, a PPM is generally not required to meet exemption requirements. However, if the entrepreneur seeks to raise more money and to do so from any unaccredited investors (this usually means persons with less than $1,000,000 net worth) a PPM is required and it must meet specific, sometimes expensive, requirements.

However, even if a PPM is not required to qualify for an exemption, the offering entrepreneur must be able to show that he has told the investor everything which the investor reasonably needs to know in making his investment (in order to meet the “anti-fraud” securities law requirements. Therefore, it is best to have a disclosure document for all offerings in order to establish that the company has informed all offerees of all material risks. Frequently this need not be a long, involved document, and may consist largely of materials which already exist, such as financial statements, descriptions of the company, etc.

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