Regulation Crowdfunding

Transcription

1 Regulation Crowdfunding November 9, 2015 On October 30, 2015, more than three years after the passage of the Jumpstart Our Small Business Startups Act of 2012 (the JOBS Act ) the U.S. Securities and Exchange Commission (the SEC ) adopted rules that implement the crowdfunding provisions of Title III of the JOBS Act. Title III of the JOBS Act and the SEC s rules promulgated thereunder (referred to herein as Regulation CF ) have been called some of the most sweeping changes to U.S. securities laws since the passage of the Securities Act of 1933 (the Securities Act ). They permit, for the first time, small business issuers to generally solicit investments in their securities using public advertising, and permitting investment by both accredited and non-accredited investors. Intended to spur investment in small business start-ups, Title III of the JOBS Act was a bi-partisan effort that attempts to apply the power of crowds made possible by the Internet to the market for startup for capital. This white paper summarizes Regulation CF in a manner intended to provide assistance to small business owners and professionals who may consider conducting a fundraising through Regulation CF. General Requirements An issuer may sell securities in reliance on Section 4(a)(6) provided that: 1) The aggregate amount of securities sold to all investors by the issuer in reliance on Section 4(a)(6) during the 12-month period preceding the date of the offer or sale, including the securities offered in such transaction, shall not exceed $1,000,000; 2) The aggregate amount of securities sold to any investor across all issuers in reliance on Section 4(a)(6) during the 12-month period preceding the date of such transaction, including the securities sold to such investor shall not exceed: a) The greater of $2,000 or five percent of the lesser of the investor s annual income or net worth if either the investor s annual income or net worth is less than $100,000; or b) 10 percent of the lesser of the investor s annual income or net worth, not to exceed an amount sold of $100,000, if both the investor s annual income and net worth are equal to or more than $100,000. 3) The transaction is conducted through an intermediary that complies with the intermediary rules of Regulation CF and the transaction is conducted exclusively through the intermediary s platform; and 4) The issuer complies with the requirements in Section 4A(b) of the Securities Act (including filing certain information, including results of operations and financial statements, with the SEC and making such information available to potential investors, not advertising the deal terms, complying with broker and promoter disclosure requirements), provided that the failure to comply with Rule , (a)(3) and (b) shall not prevent an issuer from relying on the exemption in Section 4(a)(6). 1

2 Prohibited Issuers The exemption provided in Regulation CF cannot be used by any issuer that: 1) Is not organized under the laws of any state or the District of Columbia; 2) Is a reporting company under Section 13 or Section 15(d) of the 1934 Act; 3) Is an investment company as defined in Section 3 of the Investment Company Act of 1940; 4) Is disqualified under the disqualification provisions in Section (a); 5) Has sold securities in reliance on Section 4(a)(6) and has not filed with the Commission and provided to investors the ongoing annual reports required by Regulation CF during the two years immediately preceding the filing of the required offering statement; or 6) Has no specific business plan or has indicated in its business plan is to engage in a merger or acquisition with an unidentified company or companies. Disclosure Requirements An issuer relying on the exemption in Regulation CF must file with the Commission and provide to investors and the relevant intermediary the following information: a) The name, legal status, physical address and website of the issuer; b) The names of the directors and officers of the issuer, all positions and offices with the issuer held by such persons, the period of time in which such persons served in the position or office and their business experience during the past three years. c) A description of beneficial owners of 20% or more of the issuer s outstanding voting securities; d) A description of the business of the issuer; e) The current number of employees of the issuer; f) A discussion of the material factors that make an investment in the issuer speculative or risky; g) The target offering amount and the deadline to reach the target offering amount, including a statement that if the offering does not meet the minimum offering amount that no securities will be sold in the offering and any investment commitments will be cancelled and any committed funds will be returned; h) Whether the issuer will accept investments in excess of the target offering amount and, if so, the maximum amount the issuer will accept; i) A description of the purpose and intended use of the offering proceeds; j) A description of the process to complete the transaction or cancel an investment commitment, including a statement that investors may cancel an investment commitment until 48 hours prior to the scheduled closing, that the intermediary will notify investors when the target offering amount has been met, that the closing may be accelerated if the issuer reaches its target offering amount sooner than expected, if an investor does not cancel its investment commitment as required that the funds will be released to the issuer at the closing; k) A statement that if an investor does not reconfirm his investment commitment after a material change is made in the offering that the investor s investment commitment will be cancelled and the committed funds will be returned; l) The price to the public of the securities or the method for determining the price; m) A description of the ownership and capital structure of the issuer, including the details of the securities being offered and the details of each other class of security of the issuer; 2

3 n) The name, SEC file number and CRD number of the intermediary through which the offering is being conducted; o) A description of the intermediary s financial interest in the issuer s transaction and in the issuer, including details regarding the intermediary s compensation, financial interest (if any) in the issuer, and the intermediary s fees; p) A description of the material terms of any indebtedness of the issuer; q) A description of any exempt offerings conducted by the issuer during the past three years; r) A description of any material related party transactions closed since the beginning of the issuer s last fiscal year to which the issuer was a party and the amount involved in the transaction (which materiality defined by amounts in excess of 5% of the amount raised by the issuer in reliance on Regulation CF) and with related parties defined as the directors or officers of the issuer, beneficial owners of 20% or more of the issuer s securities, promoters of the issuer, and family members of any of the foregoing; and s) A discussion of the issuer s financial condition including, to the extent material, liquidity, capital resources and historical results of operations. The issuer must also provide financial statements for the issuer. The requirements for those financial statements vary depending on the target offering amount for the issue (in combination with all offerings made by the issuer under Section 4(a)(6) during the preceding 12-month period). For issuers with offerings of $100,000 or less, the financial statements must be for the most recently completed year and must be certified by the issuer s chief executive officer. For issuers with offerings of more than $100,000 but not more than $500,000, the financial statements must be reviewed by a public accountant that is independent of the issuer. (If the issuer has audited financial statements the issuer must provide the audited financial statements.) For issuers offering more than $500,000 the issuer s financial statements must be audited by a public accountant that is independent of the issuer. The issuer must also disclose any matters that would have triggered disqualification under Section (a) but occurred before the effective date of Regulation CF. But, an issuer that fails to make such disclosure will not be prevented from relying on the exemption in Section 4(a)(6) if the issuer establishes that it did not know and, in the exercise of reasonable care, could not have known of the existence of the undisclosed matter or matters. The issuer must also provide: a) Updates regarding the progress of the issuer in meeting the target offering amount (which updates must be provided through the intermediary as required by Rule ); b) Where on the issuer s website investors will be able to find the issuer s annual report and the date by which such report will be available on the issuer s website; c) Whether the issuer or any of its predecessors previously failed to comply with the ongoing reporting requirements of Rule ; and d) Any material information necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. (Rule ) 3

4 Ongoing Reporting Requirements After the consummation of an offering exempt under Regulation CF, the issuer must file with the Commission an annual report along with financial statements certified by the issuer s chief executive officer and various statements regarding the business of the issuer. (Rule ) Filing Requirements An issuer intending to rely on Regulation CF for an exempt offering must: 1) File a Form C offering statement with specified information; 2) File amendments to its Form C offering statement when required; and 3) File progress updates when required by Regulation CF. (Rule ) Advertising Regulation CF contains specific restrictions on how issuers may advertise the existence and terms of their crowdfund offerings. An issuer may not, directly or indirectly, advertise the terms of an offering under Regulation CF except for a notice that advertises the terms of the offering and that directors investors to the intermediary s platform and includes no more than the following items of information: 1) A statement that the issuer is conducting an offering under Regulation CF, the name of the intermediary through which the offering is being conducted and a link directing the potential investor to the intermediary s platform; 2) The terms of the offering; and 3) Factual information about the legal identify and business location of the issuer, limited to the name of the issuer, the address, phone number and website of the issuer, the address of a representative of the issuer and a brief description of the business of the issuer. This requirement limits written advertising to factual statements that meet the requirements of the rule. Notwithstanding this general limitation, however, an issuer and persons acting on behalf of the issuer, may communicate with investors and potential investors about the terms of the offering through communication channels provided by the intermediary on the intermediary s platform, provided that an issuer identifies itself as the issuer in all communications. Persons acting on behalf of the issuer must identify their affiliation with the issuer in all communications on the intermediary s platform. Presumably, this additional pathway for advertising is intended to permit direct communications and non-written presentations (such as webinars) that are provided on the intermediary s platform and that comply with the remaining provisions of the rule. (Rule ) Promoter Compensation Regulation CF contains specific requirements pertaining to compensation paid by an issuer to promoters of the issuer. In general, an issuer may compensate or commit to compensate, any person to promote the issuer s offerings made in reliance on Regulation CF but only if the issuer takes reasonable 4

5 steps to ensure that the person promoting the offering clearly discloses the receipt, past or prospective, of such compensation with any communication it makes. The promoter must make all of its communications to prospective investors through communication channels provided by the intermediary on the intermediary s platform. One of the rationales for this rule is that, by requiring promoters to communicate to prospective investors solely through communication channels on the intermediary s platform, the rule ensures that all such communications will be channeled through the intermediary. By doing this the rule is trying to ensure that a record is established of all investor communications so that parties will be able to prove the existence of those communications at a later time in the event of a dispute. (Rule ) Requirements for Intermediaries Regulation CF requires all transactions involving the offer or sale of securities in reliance on Section 4(a)(6) to be conducted through an intermediary and exclusively through the intermediary s platform. An intermediary may be either a broker registered under Section 15(b) of the Exchange Act or a funding portal registered under Section A platform means a program or application accessible via the Internet or other similar electronic communication medium through which a registered broker or funding portal acts as an intermediary. No director, officer or partner of an intermediary may have a financial interest in an issuer that is conducting a Section 4(a)(6) offering through its intermediary s platform, or receive a financial interest in an issuer as compensation for the services provided to the issuer in connection with Section 4(a)(6) offering. An intermediary may not have a financial interest in an issuer that is offering or selling securities in reliance on Section 4(a)(6) through the intermediary s platform unless: 1) The intermediary receives the financial interest from the issuer as compensation for the services provided to the issuer in connection with the Section 4(a)(6) offering; and 2) The financial interest consists of securities of the same class and having the same terms, conditions and rights as the securities being offered or sold in the Section 4(a)(6) offering through the intermediary s platform. (Rule ) Measures to Reduce Risk of Fraud Regulation CF contains specific requirements pertaining to an intermediary s role in reducing the risk of fraud. In general, an intermediary must have a reason for believing that an issuer seeking to offer and sell securities in reliance on Section 4(a)(6): (a) complies with the requirements in Section 4A(b) of the Securities Act and Regulation CF; and (b) has established means to keep accurate records of the holders of the securities being offered and sold through the intermediary s platform. If an intermediary has reason to believe that the issuer (or any of its representatives or security holders owning more than 20 percent) is subject to a disqualification under Section or presents the potential for fraud or otherwise raises concerns about investor protection, then such intermediary must deny access to its platform. (Rule ) 5

6 Account Opening Regulation CF contains specific disclosure requirements that intermediaries and issuers must comply with prior to opening any accounts and accepting any investment commitments from investors. No intermediary may accept an investment commitment until the investor has opened an account with the intermediary and the intermediary has obtained from the investor consent to electronic delivery of materials. All information required to be delivered by the intermediary under Sections through 305 (including educational materials, notices, confirmations, etc.) must be delivered through electronic means. The educational materials required to be delivered to investors must effectively and accurately explain in plain language: (i) The process for the offer, purchase and issuance of securities and the risks associated with a Section 4(a)(6) offering; (ii) The types of securities offered and sold in a Section 4(a)(6) offering and the risks associated with each type of security; (iii) The restrictions on the resale of a security offered and sold in a Section 4(a)(6) offering; (iv) The types of information that an issuer is required to provide, the frequency of the delivery of that information and the possibility that those obligations may terminate in the future; (v) The limitations on the amounts an investor may invest pursuant to Section (a)(2); (vi) The limitations on an investor s right to cancel an investment commitment and the circumstances in which an investment commitment may be cancelled by the issuer; (vii) The need for the investor to consider whether investing in a security offered and sold in reliance on Section 4(a)(6) is appropriate for that investor; (viii) That following completion of an offering conducted through the intermediary, there may or may not be any ongoing relationship between the issuer and intermediary; and (ix) That under certain circumstances an issuer may cease to publish annual reports and, therefore, an investor may not continually have current financial information about the issuer. In connection with establishing an investor s account, an intermediary must inform the investor that any person who promotes an issuer s offering for compensation must clearly disclose, in all communications on the platform, (a) the receipt of the compensation and (b) that such person is engaging in promotional activities on behalf of the issuer. Additionally, an intermediary must clearly disclose the manner in which the intermediary is compensated in connection with the Section 4(a)(6) offering. (Rule ) Intermediary Requirements Transactions An intermediary must make available to the Commission and to investors any information required to be provided under Section (Disclosure Requirements) and 203(a) (Form C-Offering Statement and Amendments). This information must (1) be made publicly available on the intermediary s platform, (2) be in a manner that reasonably permits a person accessing the platform to save, download, or otherwise store the information, (3) be available 6

7 for a minimum of 21 days before any securities are sold in the offering, and (4) remain publicly available on the intermediary s platform until the offering is completed or cancelled. Prior to accepting any investment commitment, an intermediary must: 1) Have a reasonable basis for believing that the investor satisfies the investment limitations established by Section 4(a)(6)(B) and this Regulation CF; and 2) Obtain from the investor: (i) a representation that the investor has reviewed the educational materials and understands the risks involved in the offering, and is in a financial condition to bear the loss of the investment; and (ii) a questionnaire completed by the investor demonstrating the investor s understanding of the Section 4(a)(6) offering. An intermediary must provide on its platform communication channels by which persons can communicate with one another and with representatives of the issuer about offerings made available on the intermediary s platform, provided: 1) If the intermediary is a funding portal, it does not participate in these communications other than to establish guidelines for communication and remove abusive or potentially fraudulent communications; 2) The intermediary permits public access to view the discussions made in the communication channels; 3) The intermediary restricts posting of comments in the communication channels to those persons who have opened an account with the intermediary on its platform; and 4) The intermediary requires that any person posting a comment in the communication channels clearly and prominently disclose with each posting whether he or she is a founder or an employee of an issuer engaging in promotional activities on behalf of the issuer, or is otherwise compensated, whether in the past or prospectively, to promote the issuer s offering. An intermediary must promptly, upon receipt of an investment commitment from an investor, give or send to the investor a notification disclosing: (1) the dollar amount of the investment commitment; (2) the price of the securities, if known; (3) the name of the issuer; and (4) the date and time by which the investor may cancel the investment commitment. An intermediary that is a registered broker must comply with the requirements of 17 CFR c2-4 ( Transmission or maintenance of payments received in connection with underwritings ). An intermediary that is a funding portal must direct investors to transmit the money directly to a qualified third party that has agreed in writing to hold the funds in escrow. A qualified third party includes certain registered brokers or dealers, banks or credit unions. An intermediary must, at or before the completion of a Section 4(a)(6) offering, send notice to each investor disclosing: (i) the date of the transaction; (ii) the type of security that the investor is purchasing; (iii) the identity, price, and number of securities purchased by the investor, and sold by the issuer in the transaction; (iv) if a debt security, the interest rate and the yield to maturity calculated from the price paid and the maturity date; (v) if a callable security, the first date that the security can be called by the issuer; and (vi) the source, form and amount of any remuneration received or to be received by the intermediary in connection with the transaction, including any remuneration received or to be received by the intermediary from persons other than the issuer. (Rule ) 7

8 Completion of Offerings, Cancellations and Reconfirmations Regulation CF contains specific requirements pertaining to an investor s ability to cancel its investment commitments. Generally, an investor may cancel an investment commitment for any reason until 48 hours prior to the deadline identified in the issuer s offering materials. During the 48 hours prior to such deadline, an investment commitment may not be cancelled except as provided in Section (c). If an issuer reaches the target offering amount prior to the deadline identified in its offering materials, the issuer may close the offering on a date earlier than such identified deadline, provided that: 1) The offering remains open for at least 21 days pursuant to Section (a); 2) The intermediary provides notice to any potential investors and investors that have made investment commitments, of: (i) the new deadline; (ii) the right of investors to cancel investment commitments for any reason until 48 hours prior to the new deadline; and (iii) whether the issuer will continue to accept investment commitments during the 48-hour period prior to the new deadline; 3) The new offering deadline occurs at least five business days after the required notice is provided; and 4) At the time of the new offering deadline, the issuer continues to meet or exceed the target offering amount. Section (c). During the 48-hour period prior to such deadline, an investment commitment may only be cancelled if there is a material change to the terms of an offering or to the information provided by the issuer. If there is a material change, the intermediary must give notice to any investor who has made an investment commitment and cancel such investment commitment unless the investor reconfirms his or her investment commitment within five business days of receipt of the notice. If the investor fails to reconfirm within the five days, the intermediary must, within the next five business days, (i) send notification that the commitment was cancelled, the reason for the cancellation and the refund amount that the investor is expected to receive; and (ii) direct the refund of investor funds. If material changes occur within five business days of the maximum number of days that an offering is to remain open, the offering must be extended to allow for a period of five business days for the investor to reconfirm his or her investment. If an issuer does not complete an offering, an intermediary must within five business days: 1) Send each investor a notification of the cancellation, disclosing the reason for the cancellation, and the refund amount that the investor is expected to receive; 2) Direct the refund of investor funds; and 3) Prevent investors from making investment commitments with respect to that offering on its platform. (Rule ) 8

9 Payments to Third Parties Regulation CF prohibits an intermediary from compensating any third party for providing the intermediary with information of any investor or potential investor that can be used to distinguish or trace such individual s identity. (Rule ) Funding Portal Regulation Regulation CF contains detailed requirements in Section for the registration of funding portals with the SEC. Those requirements include a requirement that funding portals be licensed through FINRA. FINRA has recently finalized its own rules for the licensure of funding portals. See Release No ; File No. SR-FINRA , Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change to Adopt the Funding Portal Rules and Related Forms and FNRA Rule 4518, 80 Fed. Reg (Oct. 28, 2015), available at 9

10 About Taylor English Duma LLP Taylor English Duma LLP is a full-service law firm built from the ground up to provide highestquality legal services for optimal value. The firm was founded in 2005 and its attorneys work each day to provide timely, creative and cost-effective counsel to help clients solve problems and achieve goals. Taylor English represents all types of clients from Fortune 500 companies to start-ups to individuals. More information can be found on the firm s website at Authors Jonathan B. Wilson is a member of the firm s Corporate and Business practice group and his practice includes corporate securities, corporate finance and governance, mergers and acquisitions, and intellectual property. Jonathan B. Wilson jwilson@taylorenglish.com Eric A. Tanenbaum focuses his practice on advising clients of all sizes on a variety of corporate matters, including mergers, acquisitions and dispositions, joint ventures, start-ups, franchising and general corporate representation. Eric A. Tanenbaum etanenbaum@taylorenglish.com Morris O. Little, Jr. is a corporate lawyer focusing in the areas of aviation, commercial lending, commercial and government contracting, health care, and hospitality, including alcohol licensing matters. Morris O. Little, Jr. mlittle@taylorenglish.com Kean J. DeCarlo is a leader in both the mechanical and medical technology sectors and actively counsels clients on patent, trademark, trade dress, licensing, unfair competition, copyright, trade secret, and Internet matters. Kean J. DeCarlo kdecarlo@taylorenglish.com