Raising capital or obtaining a loan is often a crucial step for businesses, whether you’re just starting out or looking to expand. But before you dive into securing funds, it’s essential to understand the legal requirements that come with raising capital or taking out a loan. This process can involve complex regulations, and failing to follow the rules could lead to serious legal and financial consequences.

In this blog post, we’ll break down the legal requirements you need to be aware of when raising capital or obtaining a loan, all in plain language that anyone can understand—whether you’re a new entrepreneur or an experienced business owner.

Raising Capital: What You Need to Know

Raising capital means obtaining money to fund your business by selling equity (ownership in the company) or taking on debt. Many businesses raise capital by selling stock, taking on investors, or issuing bonds. If you’re considering raising capital through equity or debt financing, there are specific legal steps you’ll need to follow.

1. Understand Securities Laws

When you raise capital through equity financing (selling shares in your business), you’ll likely be dealing with securities laws. Securities laws exist to protect investors and ensure transparency in financial markets. In the U.S., the Securities and Exchange Commission (SEC) regulates the sale of securities.

Here’s what you need to know about securities laws:

  • Registering with the SEC: If you’re raising capital by selling shares, you may be required to register with the SEC. However, many small businesses qualify for exemptions from full registration. For example, the SEC’s Regulation D allows certain businesses to raise money without the need for a public offering.
  • Private Placements and Exemptions: If you don’t want to go through the full registration process, you might qualify for a private placement exemption. This allows you to sell shares to accredited investors (wealthy individuals or institutions) without needing to register your securities with the SEC. Each exemption has specific requirements, so it’s essential to understand which rules apply to your business.
  • State Blue Sky Laws: In addition to federal laws, each state has its own securities regulations known as Blue Sky laws. These laws are designed to protect investors from fraud and ensure transparency. You’ll need to comply with both federal and state regulations when raising capital.
  • Disclosure Requirements: Whether you’re registering with the SEC or qualifying for an exemption, you must provide accurate and complete information about your business to potential investors. This includes detailed financial statements, a description of your business’s risks, and other relevant information. Transparency is key—failing to disclose important details can lead to legal trouble.

2. Issuing Stock or Equity

If you plan to raise capital by selling shares of your company, it’s important to follow the correct legal procedures:

  • Create a Shareholder Agreement: When issuing stock to investors, you should create a shareholder agreement. This legal document outlines the rights and obligations of both the company and its shareholders. It covers topics like voting rights, dividend policies, and the process for transferring shares.
  • Cap Table Management: As you sell shares, it’s important to keep an accurate cap table (capitalization table), which tracks the ownership percentages of all shareholders. This document helps ensure transparency and legal compliance when managing your company’s equity.
  • Corporate Governance: If you’re raising capital through equity, your company’s structure and governance must comply with corporate law. This involves establishing a board of directors, holding regular shareholder meetings, and maintaining accurate records of corporate decisions.

3. Protecting Your Investors

When raising capital, you have a legal duty to protect your investors. This includes:

  • Fiduciary Duty: As a business owner or executive, you have a fiduciary duty to act in the best interest of your shareholders. This means making decisions that are fair, transparent, and designed to benefit the company and its investors.
  • Anti-Fraud Laws: The SEC enforces anti-fraud laws, which prohibit businesses from misleading investors or providing false information. Failing to disclose material facts or engaging in deceptive practices can result in severe penalties, including fines or even jail time.

Obtaining a Loan: What You Need to Know

If you’re not ready to sell equity or you prefer not to, obtaining a loan is another common way to raise capital. Loans involve borrowing money from a lender (such as a bank or investor) and paying it back with interest. While obtaining a loan is generally more straightforward than raising capital through equity, there are still important legal requirements to be aware of.

1. Understand the Loan Agreement

A loan agreement is a legally binding contract between you and the lender. It outlines the terms of the loan, including the amount borrowed, interest rate, repayment schedule, and any penalties for defaulting on the loan. Make sure to:

  • Read the Agreement Carefully: Review the loan agreement carefully before signing it. Ensure that you understand the terms, including the interest rate, repayment schedule, and any additional fees.
  • Negotiate Terms: In some cases, you may be able to negotiate the terms of the loan with the lender. This can include negotiating a lower interest rate, adjusting the repayment schedule, or reducing fees.
  • Collateral: Some loans may require collateral (assets such as property or equipment) to secure the loan. If you default on the loan, the lender has the right to seize the collateral.

2. Comply with Banking and Lending Laws

Lenders, including banks, are regulated by strict banking and lending laws designed to protect borrowers. When you apply for a loan, these regulations ensure that lenders treat you fairly and that the loan terms are transparent. Some legal considerations include:

  • Truth in Lending Act (TILA): This federal law requires lenders to disclose important information about the loan, such as the annual percentage rate (APR) and the total cost of the loan, before you sign the agreement. This transparency helps ensure that borrowers fully understand the terms they’re agreeing to.
  • Equal Credit Opportunity Act (ECOA): This law prohibits lenders from discriminating against borrowers based on race, religion, gender, age, or other protected characteristics. It ensures that all borrowers have an equal opportunity to obtain credit.
  • State Lending Laws: In addition to federal regulations, each state has its own lending laws that regulate loan terms, interest rates, and protections for borrowers. Make sure to understand your state’s specific lending requirements before applying for a loan.

3. Maintain Good Financial Records

When you apply for a loan, lenders will typically ask for detailed financial records to evaluate your ability to repay the loan. Make sure your business has up-to-date and accurate financial statements, including:

  • Balance Sheet: Shows the company’s assets, liabilities, and equity.
  • Income Statement: Provides an overview of the company’s revenue and expenses.
  • Cash Flow Statement: Demonstrates how much cash is flowing in and out of the business.

Having organized financial records not only helps you secure a loan but also keeps your business in good financial health.

Final Thoughts

Raising capital and obtaining loans are essential parts of growing a business, but they come with legal requirements that should not be overlooked. Whether you’re raising funds through equity or debt financing, understanding and complying with securities laws, lending regulations, and your fiduciary duties to investors will help you avoid legal issues and protect your business.

If you’re unsure about the legal requirements for raising capital or obtaining a loan, it’s always a good idea to consult with an attorney or financial advisor. They can guide you through the process and ensure that your business stays compliant with all applicable laws and regulations, allowing you to focus on building and growing your company.

Reach out to us today to schedule you free business consultation.