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Do you really need a solicitor for financing your business- Our honest guide: Part 2

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Article 16 mins read Updated on 23 January 2024 Partner - Corporate As your business evolves, securing the right financing becomes paramount. While setting up your company might seem straightforward, the complexities multiply significantly when you begin seeking investment. Understanding the various funding options and their implications is crucial for sustainable growth. This article is for business owners, founders, and entrepreneurs looking to finance their ventures. You’ll explore the fundamental differences between debt funding and equity financing, delve into a range of available options, from bootstrapping and personal savings to crowdfunding, angel investment, and venture capital, and understand the associated legal and tax considerations. We'll also highlight when and why seeking expert legal advice for each funding model is essential to protect your business. Navigating the fundraising landscape can be complex, and ensuring your business is legally sound throughout the process is key. For comprehensive guidance tailored to your specific funding needs, our team of funding round lawyers are ready to assist you. There are two fundamental ways of securing financing for your business: debt and equity. Generally speaking, you will nearly always need a business solicitor for equity financing, but not always for debt funding. Although we would always advise that you seek legal advice before entering into any debt funding documents in order to ensure that you are fully informed on the risks involved and obligations on the company. Debt funding is when your business borrows money from a lender, which will then have to be repaid, usually with interest. The advantages of debt funding are that: • The business owner retains control and interest in the company, and so profits more from any future sale or profits of the company, without equity shareholders laying claim to it., • The business owner also has control over how the debt funding is spent within the business. That said some debt funding is advanced for a specific purpose and the documents must be checked that there is no restriction on the use of the funds advanced., • It’s quick and relatively easy to get debt funding compared to equity funding., • The debt repayments are usually a known amount over a fixed term, allowing budget planning, and may also be tax‑deductible. The disadvantages are: • The debt must obviously be repaid and relies on sufficient cashflow to do so., • In addition, debt may restrict a company’s financial activities, increase its risk portfolio in the eyes of other lenders or investors, and may require company assets to be pledged as security for the loan. Equity funding is when you sell an interest (usually shares) in your business. The company’s value must be known, which is much more complex with start-ups, as there are often challenges in agreeing a valuation of the shares given that the company may not have anything tangible or a proven track record, other than a business concept. The advantages of equity financing are that: • There are no monthly loan repayments to be made from your cashflow, freeing up profits to be used elsewhere., • For early-stage businesses, equity investment typically comes in much larger amounts than that available via debt financing., • With equity funding, it’s more of a relationship than a simple transaction, so your business could benefit from mentoring, experience and business contacts, rather than just the cash. The disadvantages are that: • It takes more effort and time to raise capital than debt financing., • You’ll also be sharing ownership (and potentially decision‑making and thus control) with equity investors., • There is a greater administrative and reporting burden with equity finance to provide regular updates to investors, hold shareholders meetings and voting on certain company actions. Let’s start with the simplest and most straightforward sources for financing a business, progressing onto more complex business finance sources. • Bootstrapping – organic growth This can be difficult unless your business is a type which receives payment before it buys stock to fulfil orders, or deliver any goods or services. Quite simply, you start your business, and the profit you make on the first payment you receive can then be put straight back into the business for the next transaction. It’s slow going, but there is little to no risk and you won’t be paying anyone back for it. • Your savings Of course, the simplest way to finance your new business is to put your personal savings into it. But you may still need supplementary funding if your savings aren’t enough and your savings are not necessarily protected against any losses that may arise as a result of the failure of your business. As with organic growth, it may be a harder and slower route, but it doesn’t involve debt or issuing equity in your business. • Family If you have generous family, or even friends, willing to finance your new business, then this can be a great option. Money from family can take the form of either debt or equity financing. The interest on any such loan will likely be lower, and the terms less demanding, than a traditional source of funding such as a bank loan. Or, if you have set up a limited company, such family and friends may be willing to invest in your business in exchange for shares in your company, rather than provide funds by way of a loan. As with any investment, any investor should be made aware of the risk associated with the investment. • Personal credit: overdrafts and credit cards It’s risky, but it can be done – and has been done by many an entrepreneur. Using your overdraft or credit card is ok if you need a reasonably small amount of money for a short period of time. Of course, it’s not a good idea if you think you will be late with payments or may miss them: the interest is high as a medium‑to‑long term borrowing option and missing payments can affect your personal credit rating. • Crowdfunding or crowdsourcing Crowdfunding platforms have become very popular in the UK and there is now a broad range of platforms on which to raise funding, from simple donations to equity investment. Popular crowdfunding sites have included Crowdfunder, Crowdcube, Seedrs, Kickstarter, GoFundMe, and Just Giving. While social media can blow up any projects which capture the public’s heart, be aware that sometimes crowdfunding can raise all‑or‑nothing – with up to 80% of businesses being withdrawn from a platform after failing to raise their target amount. Further crowdfunding platforms will have an investment criteria that will need to be satisfied before the investment proceeds and can include detailed reporting requirements. • Grants and community schemes Often administered by local authorities, and sometimes region or industry‑specific, grants can give a useful financial bonus to businesses with a social or community benefit. They often come with access to business advisors and mentors, helping to foster regional economic growth with rounded support rather than just the cash. The selection process is rigorous though, as it is often ‘giving away’ public money as grants rather than loans to be paid back. Technically it is neither debt nor equity financing and can require some matched investment in order for the grant to be released. • Bank financing The most conventional way of financing your new business, a bank loan can be a simple way of getting together the money you need to get started and begin your first phases of growth. You’re not giving away shares in your business, but you are taking on debt, against which either your personal or business assets may be secured, and you may be required to provide a personal guarantee. However, the terms and payments will be clear from the outset, allowing you to budget and plan consistently. • Peer lending Peer to peer lending (P2P lending) is a form of debt financing. It uses the internet to match up borrowers with people or organisations who have money to lend – some of the most well‑known platforms are FundingCircle, Zopa, Money & Co., and RateSetter. The benefit for the lender is the high interest rate (often better than traditional savings options), but with the risk of losing their money, if it isn’t paid back by the borrower. As a funding option for businesses, peer lending is useful if you don’t have access to traditional sources of funding – but the interest repayments could be higher. • Joint ventures Incredibly popular in property development, finding a joint venture partner can be a useful way to raise finance if one party already has the cash. It’ll usually be a form of equity finance, with a partner putting up the money in exchange for shares in the new joint business. You both get to maintain your existing business entities while you agree to work together for a certain project or period of time – and leverage each party’s skills or assets to get the joint business off the ground and achieve growth. As with other funding options that pair your business with an investment partner, it can take time and effort to source the right joint venture partner with capital, and draw up the most beneficial type of agreement. • Business angels Another source of equity funding, business angels are entrepreneurs and investors who will agree to provide funding for your business in exchange for shares in the company. Investment amounts can vary greatly, as can the terms of a business angel’s investment. Just like venture capital, it can be difficult and time‑consuming to find the right business angel for you and your business, but you stand to benefit from a business angel’s business expertise and advice, as well as their investment. Useful places to start are the UK Business Angels Association and the UK Angel Investment Directory. There are also numerous regional business angel associations and networks too. You may find that accepting angel investment can result in your share cap table becoming overcrowded with numerous investors investing smaller amounts. Further angel investors often invest in companies that can offer them SEIS and/or EIS relief on their investment so the company will need to obtain advance assurance from HMRC in this regard. • Venture capital In our Venture Capital FAQs we explore more about venture capital, but it’s important to mention that not all companies are suitable candidates for venture capital funding. Venture capital funding can run into the millions, so you’ll need to be a high‑growth company with potential for massive return‑on‑investment (ROI) for your investors. Venture capital funding is usually given in exchange for shares in a limited company and is the hardest of all funding sources to secure, but it can be vital to making it big. Venture Capital investment often includes preferential rights in favour of the investor including preference shares. You will need to consider the terms of the investment to make sure they are suitable for you and your existing shareholder group. • Convertible loan notes Sometimes it can be very difficult for a start‑up to establish a valuation for the business so early on. However, due to their limited trading history, a new business may also be ineligible for traditional loans. This is where convertible loan notes come in. Convertible loan notes are a hybrid of debt and equity financing, although often still contain an interest element on the loan. The business gets a loan from the lender which can be converted into equity (rather than being repaid) – usually at a discounted share price, and on a trigger event like an exit (sale), further funding round or initial public offering (IPO). Convertible loan notes are particularly handy because they can be used across multiple investors, making it quicker and simpler for a business to draw down than the usual equity investment methods. They’re particularly attractive to investors because they bring additional security to the investment should the business fail, as in such cases the loan will be subject to repayment. Convertible loan notes are becoming much more common than in previous years. Investments as convertible loan notes are not eligible for SEIS or EIS relief and therefore may not be appropriate for all investors. • Advanced Subscription Agreements An investment under an advanced subscription agreement is similar to a certain extent to convertible loan notes, with the exception that the amount invested is not subject to repayment and there is no interest on the amount invested. Instead the amount invested under an advanced subscription agreement will be applied for shares on the occurrence of a trigger event, similar to that of a convertible loan note. The advantage of investment under an advanced subscription agreement is that it is eligible for SEIS/EIS relief subject to it being drafted in line with the guidance from HMRC. It’s important to note that there are many factors which can affect your business’s tax bills. The way your finance and funding comes into your business could be one of them. The type of legal structure you choose for your business could be another. This is why it can be really important to get independent legal advice from a tax lawyer – just to ensure you’re not paying too much tax, or, worse, to avoid being saddled with a surprise tax bill that legal advice could have prepared you for. Option Process Do you need a solicitor? If so, for what? Bootstrapping: organic growth Your business receives advance payment before outlaying anything for your products or services. Profits go into the next stage of the business. No, aside from any other legal advice you might need in the everyday course of running your business. Your savings Save your own money, put it into the business. No, but you might want to consider which legal structure of business can provide the best protection for your liability, and for which you can maximise the amount of profits you keep. Family Family and/or friends may lend or give you the money to fund a particular aspect of your business. Possibly, especially if it’s friends rather than family, or a less immediate family member, who is putting up the money. It’s advisable to have some kind of legally binding agreement in place, which is drafted (or at the very least checked) by a business solicitor, just in case things go awry. If friends/family are being issued with shares in the company in exchange for their investment it is recommended that a solicitor is instructed to draft the necessary paperwork. Don’t fall into the trap of leaving your business legally unprotected just because you have a close relationship. It is often the closest of family relationships that turn sour in business. Personal credit: loans and overdrafts) Take money as and when you need it from credit cards and overdrafts (within your credit limits) to be paid back later. No. But you may wish to seek advice from a financial advisor. Crowdfunding or crowdsourcing Pitching for funding from many individuals on a platform – either donation or rewards‑based, or investment in the form of equity (ie. shares) or debt (ie. a loan). It depends on the platform and the legal agreements on each one. You won’t normally need a solicitor for donation or rewards‑based crowdfunding. However, if you have intellectual property, it is best to get this legally protected before you make your idea public on a crowdfunding site – for this you will need an IP solicitor. Read the terms and conditions of any crowdfunding platform very carefully. Loan‑based and investment‑based types of crowdfunding are regulated by the Financial Conduct Authority because investors expect a financial return. Donation and reward‑based crowdfunding isn’t regulated. In the case of debt‑based crowdfunding, where you will be paying back the cash, or where you will be issuing shares in your company, it’s very important that you protect your business against claims from investors for poor disclosure or poor due diligence. You will need to ensure that any shares that are issued have followed the correct legal procedure and that the correct paperwork is in place to document this. You should also be fully apprised of the effects and consequences of any shareholder agreements entered into as a result of any investment or loans secured via a crowdfunding platform – so it pays to instruct a solicitor if this is the route you’re following. Grants and community schemes Find a relevant community scheme or grant that is applicable to your geographical area, type of business or industry sector, and follow the guidelines to apply. No, but the selection process is so rigorous that it may pay to have a solicitor help you prepare any documentation to strengthen your case, and show that you are compliant with any regulatory requirements. Bank financing Prepare a thorough business plan and present it to the bank. No, unless you are required to provide a personal guarantee (when it is usually obligatory to seek independent legal advice) or if the loan amount is a considerable sum and requires the company to enter into complex legal documents. Then it is advisable to seek advice from a banking and finance solicitor. Joint venture You may already have business contacts (or personal contacts) who you can approach as joint venture partners. It is often a case of networking via events and social media. You may also be able to source a joint venture partner via a broker, or just by simply searching the internet for joint venture partners. Yes. It is wise to get legal advice when drawing up any joint venture agreements, especially if you don’t already have a long‑standing relationship with the potential partner. Peer lending Each platform is different, but it commonly involves filling out your company details, and sometimes some financial statements. You may also have to submit business plans. Typically the platforms run checks on the company and individuals involved and matches you with a relevant lender – which may be an organisation or an individual. Probably. Even if the platform or service you’re using to find a lending match has its own vetting service, it’s still advisable to have a corporate solicitor double‑check and advise on any agreements you enter into. Business angel There are a number of different directories and associations where you can find business angels, and the process often involves identifying suitable investors and pitching to them until you are successful in securing investment. Yes. As with most equity financing, it is strongly recommended that you get legal advice when drawing up new shareholder agreements. Venture capital It can be a long and arduous process, from finding venture capital firms that invest in your industry and business stage, to getting a warm introduction from a mutual connection, and discussing the details of the investment. For more information, read our Venture Capital FAQs. Definitely, yes. Whenever you are issuing equity in your company, it is vital to get legal advice on your position, alter any existing documents and agreements, and draft the new ones. It’s advisable to seek a law firm with experience in dealing with venture capital investment. Convertible loan notes With the exception of banks, community schemes/grants, and personal credit, it’s possible that any type of corporate investor would consider convertible loans. The process would therefore be similar to attracting other equity investors such as a business angel or venture capital firm, or possibly even peer lenders. Yes. The convertible loan note agreement (including the complication of issuing equity upon a certain trigger event) will definitely need detailed legal advice. We talked with famed businesswoman Nicola Horlick, CEO of Money&Co., about debt funding via peer lending, and why it’s so attractive to investors: ‘Following the credit crunch, it became even harder for small companies in the UK to borrow money from banks. Nine years later, it is still difficult. But over the last few years, a new way of borrowing has emerged – P2P lending. Money&Co. is a P2P business lender and our platform allows savers who want a better rate of return on their cash to lend to companies that need the money to grow. Our credit team carefully vets borrower applications and, so far, we haven’t had any bad debts, which is pretty incredible. However, it is inevitable that there will be bad debts and lenders need to make sure that they spread their risk by lending to a number of businesses.’ ‘In 2016, the government introduced a new type of ISA – the Innovative Finance ISA. This allows lenders to hold their loans in an ISA wrapper and receive their interest payments completely tax‑free. Money&Co.’s ISA yields around 7% per annum after fees, which is very attractive. We are now seeing a number of savers transferring their Cash ISAs, which yield around 1%, to Money&Co. They get a better return on their cash and companies get to borrow money, so everyone wins. On average, our loans are for four years, but we have a loan market embedded within our website, so lenders can sell before the end of the term of each loan if they wish to do so.’ ‘P2P lending cuts out the middle man (the bank), which must be a good thing.’ About our expert Partner - Corporate Jas qualified as a solicitor in 2006. She has 12 years' experience working almost exclusively with start up companies, high growth potential SMEs, along with venture capitalists, other investment platforms and individual and corporate investors. #J-18808-Ljbffr

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