SEC: Startups Can Now Raise $50 Million in ‘Mini IPO’


wall_st_2_featuredMarch 25, 2015

The SEC on Wednesday approved game-changing final rules in the implementation of Title IV of the JOBS Act, known as “Regulation A+,” which will allow small businesses and startups to raise up to $50 million from “the crowd.”

As I reported more than a year ago, this little-known provision of the JOBS Act will allow a startup company or emerging business to hold a “mini IPO” from the general public, not just accredited investors, and should be a complete game-changer for the way businesses are funded.

When Congress passed the JOBS Act in April 2012, Regulation A+ was an attempt to fix Regulation A, a rarely-used provision of federal law that allowed companies to raise up to $5 million in a public offering. Regulation A was a bust because it required the company to register its offering in each state where it was to be sold. The cost of complying with each state’s “Blue Sky Law” was exorbitant, compared to more commonly used laws such as Regulation D that allowed a company to raise the same amount of money, or more, without having to pay for expensive state-by-state compliance.

Under the SEC’s new rules for Regulation A+, the amount that could be raised increases to $50 million and the need for state compliance has been eliminated. More importantly, Regulation A+ allows those funds to be raised from the general public, not just accredited investors like with Regulation D offerings.

The question that had everyone in the crowdfunding world holding their collective breath was simple: Would the SEC keep their proposed rules intact when its leadership voted, or would they succumb to the pressure of state securities regulators who were adamantly opposed to lessening of restrictions for their own selfish financial reasons? The answer is that the SEC stuck by their guns and allowed companies to raise Regulation A+ without having to go to each state and spend a fortune registering their offerings.crowd funding 033115 screen

Related: People Invest in People — an Overlooked Aspect of Private Investing

Another important issue the SEC decided involved who can invest in these offerings. The JOBS Act limited Regulation A+ offerings to “qualified investors” which led some to argue that only “accredited investors” would be allowed to invest. Accredited investors are those individuals who earn more than $200,000 per year or have a net worth of greater than $1,000,000. However, the SEC broadly defined the term “qualified investors” under Regulation A+ to allow anyone to invest, albeit with some limitations as to the amount.

For those worried about protecting investors from fraud, Regulation A+ only allows investors to invest 10 percent of the greater of their annual income or net worth in these securities. The SEC has also implemented other strong investor protections such as “bad actor” background checks on the companies offering the securities, and disclosure of the company’s financial information as part of the offering.

The Regulation A+ rules can be read in full here. There are hundreds of pages, so get ready for a long read or a fast way to bore yourself to sleep. Having read the entire thing, I can tell you with confidence as a crowdfunding attorney that Regulation A+ has a chance to dramatically change the way small and emerging businesses raise capital in America.

The rules released by the SEC today now have to be published in the Federal Register before they become law, which takes about 60 days. As soon as that happens, entrepreneurs will have the ability to raise millions of dollars from “the crowd” in a simplified and comparatively affordable offering using Regulation A+.

Related: Real-Estate Crowdfunding Set to Top $2.5 Billion This Year

Kendall Almerico
Contributor
Crowdfunding Attorney and JOBS Act Expert

AngelList Tells SEC New Fundraising Rules Will Kill Startups


imagesCAMR5BLR Einstein Judging a FishStartups could face a “death sentence” one year ban from fundraising if they violate awkward new general solicitation fundraising rules, AngelList co-founder Naval Ravikant wrote in a letter to the SEC this week. Ravikant says the Regulation D and Form D changes that go into effect soon are designed for Wall Street, not Silicon Valley, and must change or they’ll harm rather than help startups.

Last month the SEC voted to implement some parts of the JOBS Act, including lifting the ban on General Solicitation. This allows startups and funds to openly advertise that they’re looking for investors, rather than quietly using private communication to solicit money. The theory is that this will make it easier for startups to raise money, build companies, and create jobs.

The problem is that the SEC also decided to add a bunch of red tape to the fundraising process too. This includes notifying the SEC 15 days prior to fundraising, filing all changes to written investor materials to the SEC, and providing verbose disclosures whenever soliciting funding. As TechCrunch contributor and Seattle lawyer William Carleton wrote, ”the SEC’s proposed new Reg D rules and filing requirements, if adopted, will make general solicitation more of a burden than an efficiency.”

Ravikant shares Carleton’s opinion, and delivered to it to the SEC in more forceful terms, hoping the rules can changed.

“We are concerned that the newly proposed Form D filing rules could create disastrous unintended consequences for the startup community…Rules that may be easy for Wall Street are a death sentence for startups…Since young companies are responsible for most of the job growth in the US, we believe this is against the spirit of the JOBS Act” Ravikant writes.

He explains that while Wall Street actors are used to this level of formality and have lawyers to navigate it, they would cause big problems for budding companies. Startups likely can’t afford expensive legal counsel to help them avoid breaking the rules, yet “the very severe penalty for non-compliance (not fundraising for a year) is a death penalty for a not-yet-profitable business.”

sec-sealStartups are often in a constant state of fundraising as they test the waters of investor interest. That makes it tough to know when to file the start-of-fundraising notice, and could force them to turn away spontaneous opportunities. As startups often iterate quickly and evolve the messaging to investors by updating their websites, filing each of these changes with the SEC would be a huge hassle. And it would nearly impossible to fit a proper disclosure into a tweet soliciting investment.

Some of these rules are designed to protect inexperienced investors that would be allowed to fund companies if the equity crowdfunding portion of the JOBS Act is finally implemented. Right now only accredited investors, people with over $1 million in personal wealth, are allowed to invest. They’re generally tougher to dupe into sham investments. But if average Joes can invest, they may need greater protections afforded by tighter regulations.

The hope is that more focused rules that actually guard amateur investors could be put in place alongside true crowdfunding so the frictions described here wouldn’t be necessary.

After breaking down the threats to startups in his letter, Ravikant provided the SEC with a list of remedies:

  1. “Allow third parties to do the filing on issuer’s behalf via API” provided by sites like AngelList
  2. “Allow the company (or a third party like AngelList) to hold the financing materials so the SEC can access them” via a permalink URL to an updated set of materials
  3. “Only require legends and disclosures when terms are communicated” instead of in tweets, public statements, or other time fundraising is more casually mentioned
  4. “Drop the 15-day-in-advance before financing rule entirely” and use the existing file-after-the-fact system
  5. “Don’t impose death penalties for noncompliance. Instead, reduce the costs of compliance” and keep more Form D information confidential so startups don’t have to reveal sensitive information too early
  6. “Don’t be overly broad in the penalty application” by only punishing the violator, not surrounding businesses and funding platforms that support them.

The question now is whether the historically slow-moving SEC will budge on these rules, despite the sound logic behind Naval’s suggestions.

SEC Lifts Ban On General Solicitation, Allowing Startups To Advertise That They’re Fundraising


Contributors - CrowdFunding Incubator LLC - CFI - Douglas E_ CastleThe SEC has just voted 4 to 1 in favor of implementing section 201(a) of the JOBS Act, which lifts the ban on general solicitation and permits startups, venture capitalists, and hedge funds to openly advertise that they’re raising money in private offerings. While it may pose added risk of investors being misled, it should make it significantly easier for companies to raise capital to start or continue financing a business.

The rule change washes away some limitations on advertising of fundraising that have been in place for 80 years. President Obama signed the Jumpstart Our Business Startups Act in April 2012 but now the removal of the ban on general solicitation is finally going into effect.

Previously, the idea was that companies could go public if they wanted to openly raise money. However, the intense regulation and scrutiny around IPOs has dissuaded some private companies from offering their stock to the public. Poor IPO performance for some fast-growing technology companies and well as improved secondary markets like SecondMarket have pushed startups to stay private for longer. Four times as much money was raised last year through private offerings than IPOs.

Due to the general solicitation ban, hedge funds, VCs, and startups had to quietly raise that money, soliciting by word of mouth and other forms of private communication. Now they could buy ads or openly announce that they’re seeking investors alongside using the traditional quiet method.

Investment is still limited to accredited investors worth more than $1 million liquid net worth, and fundraisers must take reasonable steps to ensure investors are in fact accredited. To help the SEC collect data on how investment will change, fundraisers have to file a Form D with the SEC at least 15 days before they begin general solicitation, and amend that Form D to state that they’re done soliciting within 30 days of finishing.

General solicitation will fuel a new cottage industry of investor matching-making sites that aim to broaden the investment pool to financial whales outside the insular world of Silicon Valley.

“Today, with the ban in place, only the most well-known investors get access to the best deal flow, making it more difficult for accredited investors across the country to invest in top deals,” writes Ryan Caldbeck of crowdfunding website, Circleup, to us in an email. Many sites businesses, like FundersClub, Circleup, Angelist, and Wefunder, help investors find startups to invest in, but have been severely restricted in how they could promote opportunities

“With General Solicitation it will be much easier for investors to find companies they are passionate about supporting,” writes Mike Norman of crowdfunding website, WeFunder, to us in an email. The new rule will hopefully open up the capital-starved startup market to the majority of investors. According to WeFunder’s website, only 3% of the US’s 8 million accredited investors are active in the tech startup space.

“This is creating a large void in the investment community whereby dissatisfied sophisticated investors are clearly looking to alternative investment options for lower fees, more options, etc. Crowdfunding portals will create a way for accredited investors to find additional deal flow,” writes David Loucks of the healthcare investment bank, Healthios.

The SEC is still to rule on the most significant of all provisions: crowdfunding. The Jumpstart Our Business Act (JOBS) of 2013 was supposed to permit everyone from Bill Gates to soccer moms to take an equal stake in hot new startups, not just accredited investors. But the implementation of unaccredited crowdfunding has been delayed by SEC politics and mini-scandals. If crowdfunding is allowed, it could pump even more capital into the startup ecosystem.

Crowdfunding is mostly being stalled by fears that vulnerable elderly couples watching a late night-infomercial will be duped into handing over their nestegg to stupid investments or nefarious actors. While fraud and bankruptcy is a concern, Kiva co-founder, Jessica Jackley, who also founded the now-defunct crowdfunding portal, Profounder, says “I’m less concerned about abuse and more concerned about how well the new crowdfunding platforms will educate new investors — and entrepreneurs — on their investments,” she writes to us in an email.

“No matter how you present an opportunity, investing, especially for equity, is complex. This law requires significant information disclosure and I hope that that info is shared in a way that people can understand and make decisions around.”

For instance, a bill pending in North Carolina mandates that investors be warned in plain English “I acknowledge that I am investing in a high-risk, speculative business venture, that I may lose all of my investment and that I can afford the loss of my investment.”

With general solicitation now allowed, startups may be able to raise money more quickly and from a wider range of investors than before. That could create more companies, further fracturing top engineering and product design talent. It can take a lot of great minds in one room to solve big problems, and some believe more startup capital thereby leads to smaller ideas. Alex Mittal, CEO of FundersClub, says “A lot of noise is about to be introduced to the private markets, and distinguishing signal from noise will become critical for investors, and standing above the crowd will become critical for startups.”

Still, the ability to advertise fundraising could spawn high-impact startups that never would have existed, and they might even spring up in areas where there are no investors within earshot — aka outside of Silicon Valley.