Crowdcheck Blog

I’ve never been a fan of the “the SAFT is a security but the token isn’t” theory. As a refresher, the Simple Agreement for Future Tokens (“SAFT”) is an investment contract where funds will be used by the issuer to develop its blockchain platform and issue digital tokens that can be used on that platform as repayment for the SAFT. If you are selling contracts to obtain tokens which will eventually do a thing, but can’t yet, on a platform that is yet to be built, chances are those tokens issued to repay the SAFTs are securities. That being the case, if you are issuing SAFTs or SAFEs  (Simple Agreement for Future Equity) or any form of convertible instrument that…

With the approval by the House of Representatives of the Senate version of S. 2155, a number of financial regulatory reform measures were sent to the President’s desk for signature and became law on May 24. While some of these measures, especially those related to banking, are more controversial, there are a few provisions related to US securities law that have received broad support. These changes include allowing issuers to better use smaller national stock exchanges, increasing the Investment Company Act exemption threshold for venture capital funds, increasing the annual limit for exempt issuances for employee stock plans, and allowing Exchange Act…

As of Friday night, when the SEC’s EDGAR system went to bed, there had been 61 filings of Form C-AR made (with the rest due Monday for all companies with a 12/31 fiscal year-end). This is the form that companies have to file to keep their investors updated when they have sold securities under Regulation Crowdfunding. Form C-AR requires updated information about the company’s business and its financial performance and, most importantly, the provision of financial statements. The information that companies need to provide on Form C-AR is set out in Rule 202(a) under the Securities Act and can be found here. Only 13 of those 61 companies to have filed a Form C-AR…

As previously identified in a CrowdCheck investor alert here, a significant number of companies that have raised funds under Regulation Crowdfunding are no longer in business. That is to be expected. Early stage companies have a high rate of failure, and investors should understand that risk before investing. It is a general principle that a business failure itself is not fraud. Maybe revenues never grew the way the company thought. Perhaps larger competitors entered the space and out-competed the company. Maybe the company could not effectively scale its operations to bring down its cost of revenue. These, and an almost infinite variety of factors, can lead to…

All companies that accept investments under Reg CF need to provide an annual update to their investors, to be filed on the SEC’s EDGAR system on Form C-AR and posted on the company's own website.  It’s really important that as an investor, you know what the company has done with your money in any given year. We searched for all companies that completed a successful fundraising (filed a Form C-U), from the date Regulation CF launched in 2016 to April 30, 2017, and found 29.3% of them did not file a Form C-AR or post an annual report on their website, meaning approximately one in three investors did not receive any updates from the company they invested in. In…

We are doing a new series on Investor Alerts, focusing on what investors should pay particular attention to when investing in early stage companies. Today’s issue is whether a company is in Good Standing. The SEC has highlighted this issue as one of the red flags  that the offering might be scam. Every company must file and pay annual taxes in order to maintain its good standing in the state in which it was incorporated. If a company is not listed as active or in good standing, it could have wide-ranging implications, including not being able to enforce its contracts, and not being able to issue shares. We analyzed companies that had launched a Reg CF offering…

No, not a novel by Gabriel Garcia Marquez, but some musings on an aspect of the more complicated aspects of securities law relating to what needs to be registered under the Securities Act of 1933, part of what we law bores refer to as “the metaphysics.” Some investments happen in two stages. You buy convertible notes and then they convert into shares. You are issued warrants and you exercise those warrants. You get the idea. The important thing from the point of view of registration under the Securities Act is that there are usually two separate transactions, and you have to examine both of those transactions to make sure each is registered under the Securities…

CrowdCheck CEO Sara Hanks spoke with Adam Gower of the NREForum Crowd Fund Project Podcast to talk compliance with online capital raising, JOBSAct regulations, securities crowdfunding and more. Listen here or choose a service to download the podcast. http://nreforum.org/sara/    

We keep saying that ICOs have not changed the securities laws and there’s no real magic to how to apply existing securities laws to ICOs. We are sure you’ve read our memo on the topic. That’s certainly true when it comes to “bounty” or referral programs in the ICO space. In these programs, people get coin or tokens for spreading the word about an ICO offering. Normal securities laws apply. ICOs have not warped the space-time continuum so as to apply the Securities Act of 1933 differently than other classes of securities. This means, if your coin or tokens are securities: The companies (and we hope you have formed an actual company) issuing the coin or token…

While Section 4(a)(6) of the Securities Act and Reg CF preempt state regulation of offerings under Reg CF, states are still permitted to require notice filings be made. For Reg CF, rather than all 50 states plus the District of Columbia and other territories being able to require notice filings, only the state of the principal place of business of the company, and the state in which more than 50% of the securities are sold in the offering (if any) may require notice filings. Based on the manner most state securities laws are written, many states must enact specific rules to require notice filings. Some state laws provide for notice filing requirements without…