One of the key aspects in the process of raising capital by the issue of shares is disclosure to investors. The general rule is that disclosure is required unless one or more exemptions apply. The more commonly used exemptions include the small scale offering and offers to sophisticated investors.
If a disclosure document is required, then an offer for shares must be accompanied by a disclosure document. The most commonly used disclosure document is a prospectus. If a disclosure document is not used, companies commonly provide investors with an information memorandum instead.
Failure to comply with the disclosure requirements may result in the company and its directors being exposed to criminal liability, as well as compensation claims. The availability of the due diligence defence means that companies and their directors ought to implement a formal due diligence and verification process as part of the capital raising process.
The practical process of capital raising broadly involves a consideration of the structure and offer, preparation of the documentation, lodgement with ASIC (if required), making of the offer, holding monies prior to the issue of shares, and the issue of shares.
There are also a number of circumstances in which the issue of shares is restricted, such as if the minimum investment or quotation conditions are not met, the expiry of the disclosure document, imposition of an ASIC stop order, providing financial benefits to related parties and deemed variation of rights.
See Capital raising.