Those not familiar with the definition of a sophisticated investor may think of such people as those with a superior intellect to the masses. Or maybe as that guy you see reading the Financial Review at breakfast on a Saturday morning.
A quick check on some local stock forums indicates more confusion. One member defines a sophisticated investor as adviser speak for “I cant be bothered explaining the concept to you, if you dont understand the investment then this isnt for you” or “I dont know how it works so rather than embarrass myself I’ll have you believe this isn’t for you”. Another made comment that it “Can also mean HIGH RISK–best avoided” and “To become involved in Sophisticated Investments may I suggest wearing your best attire. I noticed a mass of sophisticated investors at the Melbourne Cup!”.
One forum participant “got serious” and stated that sophisticated investors are “Investment savvy” and “generally have a sound knowledge of the investments they are involved in. I guess to become one of these people you would gain as much knowledge and then a track record in an investment field or fields”.
I can tell you now that the correct definition of a sophisticated investor is “none of the above”. The bloke reading the Fin Review may well be a sophisticated investor but it’s not because he reads the Fin. ‘Sophisticated Investor’ actually has a statutory definition under Chapter 6D of the Corporations Act. A sophisticated investor is defined where:
At the same time, you can also see that a sophisticated investor is not exactly an investor who is sophisticated. I’ve known some pretty whacky marketing and business development execs earning a lot more than $250k per anumm. These people I would never give a single dollar of my savings to manage though. Certain AFL footballers also come to mind.
So why does an exemption exist for a sophisticated investor?
If a full disclosure document was required for every offering of equity/debt funding in private and listed companies then our biggest companies would be law firms, not banks. In fact, some in this category actively discourage regulation and consider any legislative disclosure to be an unwanted cost and a pain in the proverbial all together.
There are a lot of savvy individual investors who actively participate in capital raising’s for private companies without protection from the Corporations Act. This works in your favour as an entrepreneur or SME business owner that is trying to raise capital. That’s not to say it makes in any easier. It just means that you might not have to put together a lengthy and detailed disclosure document and it may be the case that you find investment via a series of private discussions. It can also mean you are getting more than a cheque – think knowledge, industry contacts, partnerships, etc.
To say that finding these people is ‘never easy’ would be an understatement. If you have a viable product or service though then it becomes much easier. In fact a sophisticated investor will probably find you first. If you are a Pty Ltd company trying to raise capital for your business then your only option is to comply with the 20/12 rule or to raise capital from sophisticated investors. So it is imperative that you take note of this group of investors as they might be the difference between global or local, exceptional or mediocre, new or old. Happy networking.
The fab four
Before I begin, it is worth clarifying exactly who can and can’t go about raising capital in Australia. Public companies (i.e. Ltd companies with more than 50 non-employee shareholders) can raise funds from the general public by issuing securities. Private companies (i.e. Pty Ltd companies that have less than 50 non-employee shareholders) can raise funds from:
As a general rule, if you are a Public Ltd company offering securities for sale then you must provide a disclosure document of some sort to potential investors. A disclosure document is the broad term used to describe all regulated fundraising documents for the issue of securities (for example shares or debentures).
There are four types of disclosure document:
A prospectus is the standard disclosure document for Ltd companies and has the broadest information requirements. If a prospectus offers securities that are listed on the ASX then it may not need to contain as much information as a normal prospectus. If a lot of information has already been provided to the public via an exchange like the ASX then a company can issue what is known as a short from prospectus. For more information please see ASIC Regulatory Guide 56 Prospectuses.
Offer information statements
An offer information statement (OIS) has lower disclosure requirements but can only be used for capital raising’s of no more than $10 million, that is, including any earlier raising’s under an OIS. If you want to use an OIS you must be able to include a copy of an audited financial report with a balance date no more than six months old.
A profile statement is a document setting out limited key information about the company and the offer. Companies can only use profile statements where ASIC has approved their use. There are currently no approved uses for profile statements so this one is a bit pointless.
What does it all mean?
Entrepreneurs and SMEs raising less than $2 million, in a 12 month period, among 20 shareholders or less, are not required to issue a disclosure document. The same is true if you are raising any amount of capital from sophisticated investors or other certain classes of investors. Despite this, prospective investors will still want to see some type of document like an Information Memorandum before they open up negotiations to provide capital. A Ltd company raising anything less than $10 million will need to provide an offer information statement. A full prospectus is required for Ltd companies raising any amount above $10 million whether publicly listed or publicly unlisted.
This article is general in nature and cannot be regarded as legal advice. It is general commentary only. You should not rely on the contents of this article without consulting professional advice from a corporate lawyer or adviser.