What is Equity CrowdFunding?
Equity CrowdFunding the process whereby people (the “crowd”) invest in an unlisted company (a company that is not listed on a stock market) in exchange for shares in that company.
WHAT IS 'REGULATION A' ?
An exemption from the registration requirements mandated by the Securities Act, applicable to small public offerings of securities that do not exceed $5 million in any 12-month period. A company that uses the Regulation A exemption for a securities offering must still file an offering statement with the Securities and Exchange Commission. While Regulation A offerings share some characteristics with registered offerings, they have some distinct advantages over full registration. Raise up to $50,000,000 in a 12 month period for Tier II and $20,000,000 for Tier I. In exchange Act there is no reporting requirements until the company has more than $10 million in assets. You need to budget for Campaign development, marketing and promotion, legal and accounting fees.
What is Equity CrowdFunding under Reg A+ Tier II and Tier I?
Here are the highlights of the new Regulation A+ exemption:
- High Maximum Raise: Issuers can raise up to $50,000,000 in a 12 month period for Tier II and $20,000,000 for Tier I.
- Anyone can invest: Not limited to just “accredited investors” – your friends and family can invest. Tier 2 investors will, however, be subject to investment limits described below.
- Investment Limits: For Tier II, individual non- accredited investors can invest a maximum of the greater of 10% of their net worth or 10% of their net income in a Reg A+ offering (per offering). There is no limit for accredited investors in Tier II. There are no investment limits under Tier 1.
- Self-Certification of Income / Net Worth: Unlike Rule 506(c) under Title II of the JOBS Act, investors will be able to self-certify their income or net worth for purposes of the investment limits so there will be no burdensome documentation required to prove income or net worth.
- You can advertise your offering: There is no general solicitation restriction so you can freely advertise and talk about your offering, including at demo days, on television, and via social media.
- Offering Circular Approval Required: The issuer will have to file a disclosure document and audited financials with the SEC. The SEC must approve the document prior to any sales. The proposed indicate that the Offering Circular will receive the same level of scrutiny as a Form S-1 in an IPO. This is the biggest potential drawback of using Reg A+.
- Audited Financials Required: For Tier 2, together with the Offering Circular, the issuer will be required to provide two years of audited financial statements. Tier 1 offerings require only reviewed financials (not audited).
- Testing the Waters: An issuer can “test the waters” and see if there is interest in the offering prior to spending the time and money to create the Offering Circular. This would be “Preview” mode on SeedInvest where investors can express interest, but can’t yet invest. This is important so that companies don’t have to gamble on their fundraise and can see if there is interest prior to investing in legal and accounting fees.
- Ongoing Disclosure Requirements: For Tier 2, the issuer will be required to make an annual disclosure filing, a semi-annual report, and current reports, each of which are scaled back versions of Form 10-K, Form 10-Q and Form 8-K, respectively. These reports will also require ongoing audited financials. These disclosures can be terminated after the first year if the shareholder count drops below 300. There are no ongoing disclosure requirements for Tier 1.
- State Pre-Emption: As discussed above, the old Regulation A (now Tier I) was never used because it required registering the securities in every state that you make an offer or sales. New Reg A+ Tier 2 preempts state law – again – this is huge. Tier 1 Reg A+ again does not have state pre-emption but will be a testing ground for NASAA Coordinated Review.
- Shareholder Limits: In a welcome departure from the proposed rules, it appears that the Section 12(g) shareholder limits (2,000 person and 500 non-accredited investor) will not apply to Reg A under certain circumstances. This fixes a major problem from the proposed rules which would have limited the potential for very small investments (i.e. $100).
- Unrestricted Securities: The securities issued in Reg A+ will be unrestricted and freely transferable, though many issuers may choose to impose contractual transfer restrictions. Many believe this will pave the way for a secondary market for these securities in the form of Venture Exchanges.
- No Funds: Investment companies (i.e. private equity funds, venture funds, hedge funds) may not use Reg A to raise capital.
- Integration: There are several safe harbors so it seems that you can use Reg A+ in combination with other offerings. There are safe harbors for the following:
No integration with any previously closed offerings
No integration with a subsequent crowdfunding offering
No integration where issuer complies with terms of both offerings independently – can conduct simultaneous Reg D – 506(c) offering.