Crowdcheck Blog

(This is the first of what will be a series of blogs addressing ICO offerings made in compliance with securities laws. Click here to view our memo that will cover the topic more extensively.) CrowdCheck is working on a Regulation A ICO. That means we are in effect trying to push a five-dimensional  square peg into a two-dimensional hole that was dug in the 1930s (please refrain from trying to find me better analogies). There are a lot of issues that have to be addressed. One we are looking at at the moment is Section 12(g) of the Securities Exchange Act. Section 12(g) says that if you have assets of $10 million and a certain number of “holders of record” of a…

Every company offering securities to investors under Regulation Crowdfunding (“Reg CF”) is required to provide financial statements that are prepared in accordance with generally accepted accounting principles. For offerings seeking over $107,000, those financial statements are required to be reviewed by an independent public accountant (second helpings under Reg CF may require financial statements audited by an independent public accountant for raises of more than $535,000 in the prior 12 months). While most companies have correctly complied with the review or audit requirement, some companies have failed to engage accountants that are actually independent,…

Our memo regarding issuer-dealer registration for companies considering an offering under Tier 2 of Regulation A has been updated with the inclusion of Nebraska following recent pronouncements from its Department of Banking and Finance. The updated memo can be obtained here, https://www.crowdcheck.com/sites/default/files/Reg%20A%20Issuer-Dealer%….

Some folks, especially traditional securities lawyers, have recently been startled by flashy ads on the TV and radio for offerings of securities, specifically Regulation A securities in start-ups. We’ve had a number of calls, and there have even been some newspaper articles, asking “They can’t do that, can they?” They can. This is not the stuffy old traditional IPO world. This is Reg A, dudes and dudettes, where the rules are different and any start-up company that can afford it (ha!) can make sizzling ads that send potential investors rushing to buy their shares. Provided they comply with two simple rules (and watch the timing because the rules change once the…

You are almost at the home stretch in your Regulation CF offering; however, there are still a few more formalities that need to occur.  First, you will need to identify who will be signing on your Form C.  The SEC requires the following individuals to sign: Individual who will sign on behalf of the company Principal executive officer or officers Principal financial officer Controller or principal accounting officer Majority of members and/or directors of the company Second, you should have a filing day plan.  Each of these individuals will be “signing” a document that will be filed with a federal agency. Which means they are acknowledging responsibility for…

There’s a right way to do everything, even failing to file with the SEC. We experienced this recently, when one of our Regulation A clients was unable to make its annual 1-K filing covering the year 2016. We’d been watching their progress carefully, and so a few days before this year’s filing deadline of May 1, we picked up the phone and asked the regulators about the best way to handle the situation and to position ourselves to get back into compliance as soon as possible. First rule of holes: when you are in one, stop digging. In the Regulation A context, this means not making any offers or sales of securities when you don’t have an exemption from SEC…

So, one year ago today, Regulation CF went into effect. Small companies can make offerings up to $1 million (recently increased to $1.07 million) and roughly 325 companies have made Reg CF offerings so far. Roughly 80 companies have filed Form C-U to notify the SEC of the conclusion of their offering (they can also use Form C-U to report progress of the deal, so the raw numbers need refining). Another 50 or so companies have taken advantage of the fact that the SEC tells us that multiple closings are permitted once a company reaches its target offering amount, and so have received funds but have ongoing offerings. We’re talking about modest success so far.…

Since Regulation CF went live in May 2016, there have been approximately 280 companies that have made offerings made in reliance on it. Of these, only 51 or so have filed a Form C-U to show they have met their target offering amount and closed. It might be argued that this approximately 20% success rate itself indicates that there is no limitless pot of money awaiting companies who make it through the Form C disclosure process. However, it is early days yet, and many potential investors do not even know of Reg CF’s existence. Many companies are still in the offering process. It may also be the case that the crowd is showing discrimination – maybe some of the…

If you are about to launch a crowdfunding offering under Regulation CF, you should make sure you know when your financial statements will go “stale” (i.e., become too old). Under the disclosure requirements of Regulation CF, to “conduct” an offering (meaning to have an offering open and able to take investments) you must be using financials that are no older than a year and 120 days(link is external) since your previously completed fiscal year.  This means, if your fiscal year is a calendar fiscal year, and you are using December 31, 2015 financials, the offering can only stay open until May 1 of this year (120 days since the end of the 2016 fiscal year,…

So far, Regulation Crowdfunding appears to be doing what it was always intended to do. Small businesses are able to raise funds to begin or expand their business operations. Some companies could be categorized as innovative growth companies, others more main street. In any case, a common theme is that issuers are in need of cash and see crowdfunding as a method that provides additional benefits over traditional loans or angel investment – if those options were even available to the issuer to begin with. As offerings under Regulation Crowdfunding can take a few months, often with substantial upfront costs, many issuers find themselves in the position of needing…