CROWD-FUNDING IN BUSINESS VENTURES: RAISING CAPITAL FROM THE PUBLIC

Transcription

1 CROWD-FUNDING IN BUSINESS VENTURES: RAISING CAPITAL FROM THE PUBLIC First Run Broadcast: March 18, :00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes) Crowd-funding is an innovation under securities law that allows companies to raise capital from small investors using certain online platforms. Companies are able to raise capital from investors that would not otherwise qualify to participate in securities offerings. The idea behind the new law is to open new sources of capital for companies that are too small for public offerings and too big for private offerings. Disclosure and solicitation rules vary from existing securities law, but there are still substantial regulatory requirements that must be satisfied or give rise to liability for the issuer and others. This program will provide you with a practical guide to the new crowd-funding law, the types of companies for which crowd-funding will work best, the practical process of working with online platforms to raise capital, and how crowd-funding law alters existing securities law requirements. Review of crowd-funding law and how it alters existing securities law for capital raising Types of companies and circumstances (including nonprofit ventures) in which crowdfunding is best suited Restrictions on offerings amount of offering, eligibility of investors, disclosures Crowd-funding process and relationship of issuer, online platform and investors Liability issues for issuer, its officers and directors Comparison of disclosure and solicitation under crowd-funding law to offerings under Section 506(c) Speaker: Jeffrey A. Koeppel is a corporate securities attorney with more than 30 years experience in complex commercial transactions and capital raising in public and private markets for established companies and entrepreneurs. He has developed substantial expertise in advising companies on crowd-funding, and speaks nationally and maintains a blog on the topic. Earlier in his career, he served as senior attorney-adviser in the Corporate Finance Division of the U.S. Securities and Exchange Commission. Mr. Koeppel received his B.S. from the University of Maryland, his J.D. from Baltimore Law School, and his M.S. in finance from Loyola University in Maryland.

2 VT Bar Association Continuing Legal Education Registration Form Please complete all of the requested information, print this application, and fax with credit info or mail it with payment to: Vermont Bar Association, PO Box 100, Montpelier, VT Fax: (802) PLEASE USE ONE REGISTRATION FORM PER PERSON. First Name Middle Initial Last Name Firm/Organization Address City State ZIP Code Phone # Fax # Address Crowd-funding In Business Ventures: Raising Capital from the Public Teleseminar March 18, :00PM 2:00PM 1.0 MCLE GENERAL CREDITS VBA Members $75 Non-VBA Members $115 NO REFUNDS AFTER March 11, 2014 PAYMENT METHOD: Check enclosed (made payable to Vermont Bar Association) Amount: Credit Card (American Express, Discover, Visa or Mastercard) Credit Card # Exp. Date Cardholder:

3 Vermont Bar Association CERTIFICATE OF ATTENDANCE Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: March 18, 2014 Seminar Title: Location: Credits: Crowd-funding In Business Ventures: Raising Capital from the Public Teleseminar 1.0 MCLE General Credit Luncheon addresses, business meetings, receptions are not to be included in the computation of credit. This form denotes full attendance. If you arrive late or leave prior to the program ending time, it is your responsibility to adjust CLE hours accordingly.

4 Jeffrey A. Koeppel Kirk Halpin & Associates, P.A Ten Oaks Road, Suite 150 Clarksville, Maryland Direct Dial: March 18, 2014 (c)jakoeppel

5 The basic definition of crowdfunding is the raising of a large amount of capital from a large number of small donors or investors. Crowdfunding is as old as time, starting with taxation and tithing. Modern day equivalents include 501(c)(3) organizations (PBS, Red Cross), organized religion, political campaigns and kyes (Korean lending circles, pronounced kays ). The concept comes from the combination of microfinance and crowdsourcing. (c)jakoeppel

6 Microfinance lending small sums to a number of people to facilitate business. Made famous by Nobel Prize winner Mohammed Yunus and his Grameen Bank. Crowdsourcing birthed by the internet and best exemplified by Wikipedia. It s where a task is broken into parts that are performed by various persons typically remotely (e.g., open source software). (c)jakoeppel

7 There are currently four basic types of crowdfunding: Donation make a donation for a good cause; you get a good feeling inside for doing good. Reward make a donation for a project you wish to help; you get a gift. Also known as pre-sales where your money buys a product (e.g., a digital watch, a CD or DVD). Loan make a direct loan to another individual or entity; get repaid with interest. Equity for the payment you get an interest in the potential profits of the enterprise. (c)jakoeppel

8 Most of the notable crowdfunding projects to date have been Rewards or Pre-Sales, including: Movies such as Veronica Mars - $5+ Million; Wish I Were Here - $2+ Million; The Canyons - $159,000+ Video games Star Citizen - $38 Million; Torment - $4 Million; Project Eternity -$3.9 Million Products Pebble Watch - $10 Million; Reaper Miniatures - $3.9 Million; Occulus Rift - $2.4 Million; Scanadu Scout - $1.6 Million. (c)jakoeppel

9 Massolutions, a crowdfunding consultancy, reported in 2013 (latest report): Crowdfunding platforms raised $2.7 billion (an 81% increase) and successfully funded more than 1 million campaigns in Massolution forecasts an increase in global crowdfunding volumes in 2013, to $5.1 billion. (c)jakoeppel

10 According to Massolution, crowdfunding by type in 2012, compared to 2011, garnered: Donations and Reward grew by 85% to $1.4 Billion (worldwide) Lending grew by 111% to $1.2 Billion Equity grew by 30% to $116 Million. (c)jakoeppel

11 Probably the leading crowdfunding website is KICKSTARTER, a rewards/pre-sales funding portal. Kickstarter Stats: (as of March 11, 2014): $1 Billion total dollars pledged to Kickstarter projects (KS gets 5% fee=$50m; Amazon 3-5%) 57,575 Successfully funded projects 5,761,229 Total backers 1,707,149 Repeat backers 13,934,069 Total pledges 43.56% Success Rate (c)jakoeppel

12 There are a multitude of crowdfunding websites, including RocketHub, CrowdRise, Seed & Spark, IndieGoGo, Univest, GoFundMe, Kiva.org, and others. Terms vary: Some require that targeted funding goals are hit before funds are released; others don t. Some websites specialize in certain industries. Some are peer-to-peer lenders, others are rewards/pre-sales. However, NONE SELL EQUITY INTERESTS TO THE CROWD (i.e., to unaccredited investors ). (c)jakoeppel

13 Is illustrated by a recent campaign by two ad executives, Michael Migliozzi II and Brian William Flatow, who tried to raise $300 million to buy Pabst Brewing using BuyABeerCompany.com website. They promised investors "certificates of ownership" and beer with a value equal to the amount invested. Although their lawyer claimed that they were actually conducting an online experiment, they reportedly received $200 million in pledges in the six-month period before the SEC shut them down. (c)jakoeppel

14 A security is defined by the courts as: (1) an investment of money (2) in a common enterprise (3) with an expectation of profits (4) arising solely from the efforts of the promoter or a third party. SEC v. W. J. Howey Co., 328 U.S. 293, 298 (1946). The Securities Act of 1933 (the Act ) defines a security as: any note, stock, treasury stock, security future, security-based swap, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profitsharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option or privilege entered into on a national securities exchange relating to foreign currency, or, in general any interest or instrument commonly known as a security, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the foregoing. (c)jakoeppel

15 Donation Since there is no expectation of any type of return, clearly not a security. Reward/Pre-Sale The quid pro quo for this transaction is the reward or product; no financial reward; presumes that the reward/product has a fair value somewhat equal to the payment. Loan - if interest is paid and/or a note is given, likely a security. (Reves v. Ernst & Young, 494 U.S. 56 (1990)). Equity clearly a security. (c)jakoeppel

16 The Securities Act of 1933 (the Act ) says that a company cannot sell securities unless the sale of securities is registered with the Securities and Exchange Commission ( SEC ) or there exists an exemption from registration. Regulation D, promulgated under the Act, exempts certain types of private offerings if certain conditions are observed, including that there be no general solicitation or advertising of the offering. (This rule has recently been amended next slide). According to the SEC, 95% of Reg. D offerings used Rule 506. Rule 506 has historically permitted sales to an unlimited number of accredited investors and up to 35 non-accredited investors. For 2009, 2010, 2011 and 2012, approximately $607 billion, $1.003 trillion, $850 billion and $899 billion, respectively, was raised using Reg. D. (c)jakoeppel

17 As of September 2013, the U.S. Securities and Exchange Commission amended Regulation D to permit companies engaged in the private placement of securities to advertise and engage in general solicitation under Rule 506. If done, the issuer must now take reasonable steps to verify that all purchasers are accredited investors. (SEC Release , July 10, 2013). A sister regulation was adopted the same day that required that issuers ensure that there were no covered persons involved in the transaction who had engaged in disqualifying acts, or else the exemption from registration would be lost. (SEC Release ). (c)jakoeppel

18 The new SEC rules relating to Reg. D private placements resulted in some confusion as companies began, on September 23, 2013, advertising their offerings on the internet. For example, AngelList posted 1,360 companies on its website that day. ( This made it appear that these equity offerings were being crowdfunded, when, in fact, only accredited investors could participate. (c)jakoeppel

19 The definition of accredited investor comes from Rule 501 of Regulation D: a bank, insurance company, registered investment company, business development company, or small business investment company; an employee benefit plan, within the meaning of the Employee Retirement Income Security Act, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million; a charitable organization, corporation, or partnership with assets exceeding $5 million; a director, executive officer, or general partner of the company selling the securities; a business in which all the equity owners are accredited investors; a natural person who has individual net worth, or joint net worth with the person s spouse, that exceeds $1 million at the time of the purchase, excluding the value of the primary residence of such person; a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year; or a trust with assets in excess of $5 million, not formed to acquire the securities offered, whose purchases a sophisticated person makes. (c)jakoeppel

20 Principles-Based Method nature of purchaser; info you have about purchaser; minimum amount of offering; how investor was solicited very subjective, SEC could disagree; Verification Methods for income, IRS income reports (W-2, 1040, K-1); for net worth, recent (3 mos.) bank statements, brokerage statements, certificates of deposit, tax assessments, credit report; or Third Party Verification - from attorney, accountant, broker that has taken reasonable steps to verify that the purchaser is an accredited investor within the last three months and has determined that such purchaser is an accredited investor. (c)jakoeppel

21 Don t say Charlie Sheen. A bad actor is a covered person who has engaged in a disqualifying act. A covered person includes: the issuer and any predecessor of the issuer or affiliated issuer; any director, executive officer, other officer participating in the offering, general partner or managing member of the issuer; any beneficial owner of 20% or more of the issuer s outstanding voting equity securities, calculated on the basis of voting power; any investment manager to an issuer that is a pooled investment fund and any director, executive officer, other officer participating in the offering, general partner or managing member of any such investment manager, as well as any director, executive officer or officer participating in the offering of any such general partner or managing member; any promoter connected with the issuer in any capacity at the time of the sale; any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with sales of securities in the offering (a compensated solicitor ); and any director, executive officer, other officer participating in the offering, general partner, or managing member of any such compensated solicitor. (c)jakoeppel

22 To lose the exemption, the covered person must have committed a disqualifying act: Certain criminal convictions: the purchase or sale of a security, making a false filing with the SEC, or relating to the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities; Certain court injunctions and restraining orders: the purchase or sale of a security, making a false filing with the SEC or relating to the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities; Final orders of certain state and federal regulators: that bar the covered person from associating with a regulated entity, engaging in the business of securities, insurance or banking, or engaging in savings association or credit union activities or are based on fraudulent, manipulative, or deceptive conduct and were issued within 10 years of the proposed sale of securities; Certain SEC disciplinary orders: suspend or revoke the person s registration as a broker, dealer, municipal securities dealer or investment adviser, place limitations on the person s activities, functions or operations, bar the person from being associated with any entity or from participating in the offering of any penny stock; Certain SEC cease-and-desist orders: the scienter-based anti-fraud provisions of the federal securities laws, including, for example, Section 17(a)(1) of the Securities Act, Section 10(b) of the Securities Exchange Act and Rule 10b-5, Section 15(c)(1) of the Securities Exchange Act, Section 206(1) of the Investment Advisers Act and Section 5 of the Securities Act; SEC stop orders and orders suspending the Regulation A exemption; Suspension or expulsion from membership in a self-regulatory organization (SRO), such as FINRA, or from association with an SRO member; or U.S. Postal Service false representation orders. (c)jakoeppel

23 Ignorance - demonstrate you did not know and, in the exercise of reasonable care, could not have known that a covered person with a disqualifying event participated in the offering; Lose the exemption - if disqualifying act was AFTER Sept. 23, 2013; Disclose - the disqualifying act if BEFORE Sept. 23, 2013; Waiver - from the SEC through a no-action request for good cause ; or, Waiver from the court or regulator (in the order or afterwards) that says that there should be no disqualification. (c)jakoeppel

24 In order to prove you have exercised reasonable care and did not know of the disqualifying act, you must conduct a factual inquiry. The inquiry required depends on the facts and circumstances of the situation. SEC suggests: Knowledge of employees from hiring process and employment relationship; Factual inquiry by means of questionnaires or certifications; Contractual representations, covenants and undertakings; and/or Background investigation. (c)jakoeppel

25 Risk of SEC enforcement action. Internet sites that solicit investments can violate federal securities laws: By selling securities not registered under Sec. 5 of the Act (see above); By being an unregistered broker under Sec. 3(a)(5) of the Securities Exchange Act of 1934 ( Exchange Act ); By being an unregistered investment adviser under Sec. 202(a)(11) of the Investment Advisers Act of 1940; By being an unregistered securities exchange if they facilitate multiple sellers of a single security under Sec. 3(a)(1)of the Exchange Act; Or good old fraud allegations. (c)jakoeppel

26 A Brief History: A part of the Jumpstart Our Business Startups Act (JOBS Act). A bipartisan effort to permit more small businesses access the capital markets by decreasing the regulatory burden. A combination of six House bills, with significant investor safeguards added by the Senate. Signed by President Obama on April 5, Proposed regulations published by the U.S. Securities and Exchange Commission on October 23, Comment period on proposed rules ended February 3, Final rules expected third fourth quarter (c)jakoeppel

27 (c)jakoeppel

28 Simply stated: Issuer engages Funding Portal to act as an intermediary and to post Issuer s offering on the Portal s website. Issuer provides Portal with its disclosure about the company and the offering. Funding Portal hires the Escrow Agent to process subscription payments and stock issuances. Investor accesses the Portal website to obtain information about the Issuer and the offering. Investor decides to subscribe for Issuer s securities over the Portal; executes and delivers subscription documents to Portal and delivers $$ to Escrow Agent for the shares subscribed. Investor may rescind his/her subscription under certain circumstances and get a refund. If the targeted amount of the offering is raised by the deadline, Escrow Agent releases subscription funds to Issuer and provides stock certificates (paper or electronic) to Investor. If targeted amount is not raised by the deadline, Escrow Agent returns funds to Investor. (c)jakoeppel

29 Any person acting as an intermediary in a transaction involving the offer or sale of securities for others solely in a crowd funding transaction that does NOT: Offer investment advice or recommendations; Solicit purchases or sales offered on its website; Compensate employees, agents or others for such solicitation or based on the sale of securities; Hold, manage or handle investor funds or securities or Engage in other SEC-prohibited activities. (c)jakoeppel

30 To be exempt from having to register with the SEC as a broker-dealer, a Funding Portal must: Remain subject to the examination, enforcement and rulemaking authority of the SEC; Become a member of a national securities association and register with the SEC and a self regulatory organization (i.e., FINRA); Maintain a fidelity bond of at least $100,000; and Comply with the other provisions of the Crowd Fund Act. (c)jakoeppel

31 Can be a registered broker dealer or a funding portal; Must register with SEC and an SRO (FINRA, other?); Provide disclosures (risk) and education materials to investors; Obtain investor certifications regarding their income/investment; Perform background checks on issuer principals; File disclosure materials with the SEC and provide to investors; No distribution of proceeds to issuer unless hit target and permit investors to rescind their subscription; Protect investor privacy; Not pay finders (but can pay for referrals if do not identify investor and not tied to sale of security); No financial interest in issuer; Limit investors maximum annual investment in all issuers. (c)jakoeppel

32 Have a reasonable basis to believe that the Issuer complies with the Crowdfunding Regs; Have a reasonable basis to believe that the Issuer has means to keep accurate records of its stockholders; Provide Issuer documents to the SEC and investors at least 21 days before any sale occurs during which time commitments can be taken; Deny access to its platform if: Any issuers or its insiders is subject to disqualification; or It believes that the offering presents the potential for fraud or raises concerns regarding investor protection (broad?). (c)jakoeppel

33 Portal must obtain a rep and completed questionnaire from Investor that it has received the educational info (below), understands that s/he could lose his/her investment and can bear that loss. The materials should include: Description of the process and the risks involved; The types of securities offered and the risk of dilution; The restrictions on resale of the securities offered; What and when issuer information is required; Investor investment limitations; The limitations on the investor s right to cancel; and, The appropriateness of an investment. (c)jakoeppel

34 Website must show a broad selection of issuers using criteria consistently applied to all issuers (eg, type of securities, geographic location, business segment); Highlight offerings using objective criteria (type of securities, location, progress made in meeting target, minimum or maximum offering amount); Provide search functions to search, sort or categorize offerings using objective criteria; Provide communication channels for investors to communicate with each other and the issuer; and, Direct investors as to where to send funds. (c)jakoeppel

35 Funding portal must: Have written policies/procedures to achieve compliance with Federal/State securities laws; Comply with anti-money laundering statutes applicable to broker-dealers; Comply with privacy of consumer financial information statutes applicable to broker-dealers; Comply with Currency & Foreign Transactions Reporting Act of 1970; Permit examinations of its business by the SEC and FINRA; Maintain records of all: investors who buy or attempt to buy; issuers; communications; persons that use the communication channels to promote the issuer; notices to issuers and investors; agreements; transaction summaries; organizational documents. Records may be prepared or maintained by a third party. (c)jakoeppel

36 Cannot buy more than $2,000 or 5% of annual income or net worth, if both annual income and net worth < $100,000; Cannot buy more than 10% of annual income or net worth, up to $100,000, if either annual income or net worth $100,000; Must buy exclusively through a Funding Portal or broker dealer that complies with the Act; Can cancel commitment until 48 hours prior to the offering deadline; Issuer must comply with the Act and cannot sell more than $1 Million per year under this Rule. (c)jakoeppel

37 The Issuer is the company selling the stock to the Investor. It must: Provide basic disclosure about business to SEC and investors; Provide financial statements: if raising up to: $100,000 - tax returns and financials certified by CEO; $100,000 -$500,000, reviewed financials; or, over $500,000, audited financials; Disclose: risks, use of proceeds, targeted amount, deadline, price, portal payment, current ownership, capital structure, rights of existing holders, and updates; No advertising; only directions to funding portal website; Provide continuing annual reports with financials to investors and SEC; and, Comply with other SEC rules (when effective). Deals are all or none depending on hitting the target. (c)jakoeppel

38 The proposed Crowdfunding Rules have 22 disclosure items, including (some of the more atypical): Name of 20% or greater beneficial owners; Whether the issuer will accept oversubscriptions and how they will be allocated; How investors can cancel up to 48 hours before the deadline; How the securities are being valued today and how they may be valued in the future; Any matters that would have triggered disqualification if they had occurred after Sept. 23, 2013; and, Updates in the meeting of the target offering amount during the offering period. (c)jakoeppel

39 Securities purchased in a crowd funded transaction may NOT be transferred for 1 year after purchase, unless they are transferred: To the issuer; To an accredited investor; As a part of a registered offering; or To a member of the purchaser s family in the event of his/her death or divorce; Subject to other limitations to be imposed by the SEC. (c)jakoeppel

40 Foreign companies; Companies that already report under the Securities Exchange Act of 1934; Investment companies; Issuers or portals that are disqualified under SEC regulations (i.e, bad actors ). Blind pool or special purpose acquisition companies; or Other companies as the SEC determines by regulation. (c)jakoeppel

41 Purchaser in a crowd funded transaction may sue an issuer to recover the amount paid for the security plus interest, less any income received on the security, or for damages if s/he does not then own the security. Issuer is liable if it made an untrue statement of material fact or omitted to state a material fact required to make the statements, in light of the circumstances under which they were made, not misleading, provided purchaser did not know of the untruth or omission, and issuer did not know, and in the exercise of reasonable care, could not have known of such untruth or omission. Issuer includes directors, partners, principal executive, principal financial, controller and principal accounting officers of issuer AND any person who offers or sells the security in such offering. (c)jakoeppel

42 Crowd funded sales are exempt from State registration, documentation and offering requirements as covered securities and States may not charge filing fees, except for the State where the issuer has its principal place of business or any State where 50% or more of the purchasers reside. However, States may examine and take enforcement action against any Funding Portal that has its principal place of business in that State. States may also take enforcement action against an issuer, Funding Portal or other person with respect to fraud or deceit or unlawful conduct. (c)jakoeppel

43 Issuers and Funding Portals will generally be disqualified from using the SEC crowd funding rules if: The issuer has filed any registration statement that is/was subject to an SEC stop or refusal order, the issuer is subject to an order of a State securities, banking or insurance commission, or a Postal Service false representation order, has had a Reg. A offering suspended, has been convicted in the last 5 years of a false filing, of a crime involving the purchase or sale of a security, or of an injunction for the purchase or sale of a security; or, Its directors, officers or 10% beneficial owners, in the last 10 years, have been convicted of a crime relating to the purchase or sale of a security or false filing, a violation of any law prohibiting fraudulent, manipulative or deceptive conduct, or arising out of its business as an underwriter, broker, dealer or investment adviser, or in the last 5 years is subject to a court, SEC or U.S. Postal Service order enjoining certain practices relating the the purchase or sale of securities, has been suspended/expelled from a national securities exchange or barred from a State regulated entity or from engaging in the banking, insurance or securities (c)jakoeppel business.

44 The SEC? The State Securities Regulators? Silicon Valley? Wall Street? The Banking Industry? Kickstarter? Organized Charities? Others? (c)jakoeppel

45 VC rejects or inventors/scientists/business people who reject the VC model; Local established small businesses; Celebrities with name recognition; Persons with: Good, unique or enchanting ideas Talent that can connect with the public s current trends or fads A social media following The time and ability to create interested funders or an audience before they go to the funding portal Good causes that appeal to wo/man s better instincts to help each other. (c)jakoeppel

46 Feel free to send questions/comments to: Jeff Koeppel Phone: Crowdfunding Blog: (c)jakoeppel