Is Reg D Suitable for My Company?

Regulation D (Reg D) is a set of rules established by the U.S. Securities and Exchange Commission (SEC) that allows companies to raise capital without registering their securities for public sale and is related to, but different than other JOBS Act regulations. Reg D also establishes certain disclosure requirements that companies must comply with when selling securities under this type of offering and offers several advantages for companies seeking to raise capital, these include:

 

  • Ability to raise capital from accredited and some nonaccredited investors
  • Reduced disclosure requirements, and faster access to capital
  • No limits on offering sizes

 

However, there are also certain drawbacks associated with Reg D. For example, companies must comply with state regulations that may require disclosure of notices of sale or the names of those who receive compensation in connection with the sale. Additionally, the benefits of Reg D only apply to the issuer of the securities, not to affiliates of the issuer or to any other individuals who may later resell them.

 

What is Reg D?

 

Reg D is a set of rules established by the SEC to help companies raise capital without registering their securities for public sale. The regulations are designed to make it easier for businesses to access capital markets and take advantage of potential investors who were not previously able to invest in private offerings.

 

Under Regulation D, companies are allowed to raise capital without registering their securities with the SEC under rule 506. Under Rules 506(b) and 506(c), companies are not limited to the amount of capital that can be raised. However, offerings under rule 506(b) cannot use any form of general solicitation, which means they need to rely on their networks of accredited investors. In addition, 506(b) offerings can have up to 35 nonaccredited investors.

 

Who Can Benefit from Reg D?

 

Reg D can benefit both companies and investors. Companies can access capital markets without registering their securities for public sale, a great alternative to a cost-intensive IPO. Issuers can also raise the capital they need to grow and expand their business, as well as fund future rounds of fundraising that may be accomplished through a Reg CF or a Reg A+ offering.

 

For investors, Reg D offers the opportunity to invest in companies with potentially higher returns than other investments due to the increased risk associated with such investments. The majority of investors must meet specific criteria (such as having an annual income of over $200,000) to be considered accredited investors.

 

Is Reg D Suitable For My Company?

 

The answer to this question depends on several factors, such as your company’s financial situation and whether you can meet the disclosure requirements under Reg D. Companies that may benefit from a Reg D offering include:

 

  • Start-ups or development-stage companies
  • Growing businesses needing additional capital
  • Companies looking to access capital more quickly than they could through a traditional public offering

 

Reg D can be beneficial for companies, as well as accredited investors who meet specific criteria. While there are potential risks associated with a Reg D offering, it may be suitable for your company if you can meet the disclosure requirements and familiarize yourself with the relevant regulations. Ultimately, it is important to consult a qualified securities lawyer to determine if Reg D is the right option for your company.

 

The SEC Can Stop Your Regulation A Offering At Any Time

The SEC has two powerful tools to stop your Regulation A offering anytime.

Rule 258

Rule 258 allows the SEC to immediately suspend an offering if

  • The exemption under Regulation A is not available; or
  • Any of the terms, conditions, or requirements of Regulation A have not been complied with; or
  • The offering statement, any sales or solicitation of interest material, or any report filed pursuant to Rule 257 contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements made, in light of the circumstances under which they are made, not misleading; or
  • The offering involves fraud or other violations of section 17 of the Securities Act of 1933; or
  • Something happened after filing an offering statement that would have made Regulation A unavailable had it occurred before filing; or
  • Anyone specified in Rule 262(a) (the list of potential bad actors) has been indicted for certain crimes; or
  • Proceedings have begun that could cause someone on that list to be a bad actor; or
  • The issuer has failed to cooperate with an investigation.

If the SEC suspends an offering under Rule 258, the issuer can appeal for a hearing – with the SEC – but the suspension remains in effect. In addition, at any time after the hearing, the SEC can make the suspension permanent.

Rule 258 gives the SEC enormous discretion. For example, the SEC may theoretically terminate a Regulation A offering if the issuer fails to file a single report or files late. And while there’s lots of room for good-faith disagreement as to whether an offering statement or advertisement failed to state a material fact, Rule 258 gives the SEC the power to decide.

Don’t worry, you might think, Rule 260 provides that an “insignificant” deviation will not result in the loss of the Regulation A exemption. Think again: Rule 260(c) states, “This provision provides no relief or protection from a proceeding under Rule 258.”

Rule 262(a)(7)

Rule 262(a)(7) is even more dangerous than Rule 258.

Rule 258 allows the SEC to suspend a Regulation A offering if the SEC concludes that something is wrong. Rule 262(a)(7), on the other hand, allows for suspension if the issuer or any of its principals is “the subject of an investigation or proceeding to determine whether a. . . . suspension order should be issued.”

That’s right: Rule 262(a)(7) allows the SEC to suspend an offering merely by investigating whether the offer should be suspended.

Effect on Regulation D

Suppose the SEC suspends a Regulation A offering under either Rule 258 or Rule 262(a)(7). In that case, the issuer is automatically a “bad actor” under Rule 506(d)(1)(vii), meaning it can’t use Regulation D to raise capital, either.

In some ways, it makes sense that the SEC can suspend a Regulation A offering easily because the SEC’s approval was needed in the first place. But not so with Regulation D, and especially not so with a suspension under Rule 262(a)(7). In that case, the issuer is prevented from using Regulation D – an exemption that does not require SEC approval – simply because the SEC is investigating whether it’s done something wrong. That seems. . . .wrong.

Conclusion

As all six readers of this blog know, I think the SEC has done a spectacular job with Crowdfunding. But what the SEC giveth the SEC can taketh away. I hope the SEC will use discretion exercising its substantial power under Rule 258 and Rule 262(a)(7).

 

This post was written by KorePartner Mark Roderick and the original post can be found here. Mr. Roderick is an attorney at Lex Nova Law, where he leads the firm’s Crowdfunding and Fintech practice. He writes a widely-read blog at CrowdfundingAttorney.com and is a featured speaker at Crowdfunding and Fintech events across the country, including New York, Texas, Chicago, and Silicon Valley. Mark is one of the most prominent Crowdfunding and Fintech lawyers in the United States. He represents portals, issuers, and others across the country and around the world.

Quarterbacks: Their Role and Why They’re Essential for Your RegA+ Raise

In the world of Reg A+, quarterbacks are essential to a successful offering. They play a critical role in the overall success of an offering, and their importance should not be underestimated. This article will explore the role of the quarterback and explain why they are so crucial for Reg A+. 

 

What is a Reg A+ Quarterback?

 

A quarterback works with issuers to advise and bring the necessary players to the table in a RegA+ offering. They are essential to ensure everything goes smoothly, lending their capital raising expertise to aid issuers on their capital raising journey. Without a quarterback, a company can easily overlook the nuances and complexities of securities regulations. A quarterback’s role is to manage and monitor the entire process. Doug Ruark, founder and president of Regulation D Resources Enterprises, Inc., defines the role of the quarterback as someone who has got to “work with clients that are looking to execute a securities offering, and need to get everything structured. Companies need to get all of their offering documents drafted, they need to go through the filing process with the SEC. And then, typically, a quarterback provides compliance support as they, company and quarterback, move forward and execute their offering”.

 

For a company to file with the SEC under RegA+, it must go through qualified testing. This is where a company’s financials, management team, and other factors are analyzed. A quarterback is essential in this process as they can provide valuable insight and knowledge about the company. Without a quarterback, a company may be at risk of not being fully prepared for this vital step.

 

The Importance of a Quarterback

 

A quarterback is a crucial part of any capital raising activity. They will be a valuable asset in the process and can help you avoid any costly mistakes. Some key QB responsibilities include:

  • Provide non-legal advisory services to management teams
  • Coordinate fundraising efforts with online platforms or crowdfunding portals
  • Facilitate communication between issuers and financial professionals like broker-dealers
  • Assist with due diligence
  • Work with marketing teams to establish marketing strategies
  • Other services to streamline the offering

 

Reg A+ Raises and QBs

 

By preparing well for a Reg A+ offering with a quarterback, companies can put their best foot forward and make a strong impression on potential investors. Having a well-coordinated team in place is critical, as is having all the necessary documentation and financials. Quarterbacks play an essential role in ensuring all the pieces are in place and working together smoothly so that when it comes time to present to investors, companies can do so with confidence. Quarterbacks can help their companies make a successful Reg A+ offering and attract the funding they need to grow by taking the time to do things right from the start.

 

What Due Diligence Do I Need for My RegA+ Offering?

If you’re thinking of conducting a RegA+ offering, you’ll need to do some due diligence first. This blog post will outline what you should investigate before proceeding with your offering. We’ll cover the key areas you need to look at, including the company’s financials, management, and business strategy. So if you’re ready to take the plunge into RegA+, make sure to read this post first.

Be a Diligent Issuer

Due diligence is an essential part of the securities offering process. Issuers must carefully examine all aspects of their business and operations to comply with securities laws and regulations. Due diligence aims to identify and assess any risks associated with the offering, including reviewing the company’s financial statements, business plan, and disclosures. Issuers must also consider potential risks related to proceeds, insider trading, and other potential conflicts of interest. Due diligence is vital for RegA+ issuers because it helps to ensure that the offering is compliant with securities laws and regulations. It also helps to protect the company and the investors by identifying any potential risks associated with the offering.

When it comes to RegA+, issuers must conduct significant due diligence to ensure a successful offering to protect their interests and stakeholders. The first step in due diligence is the review of all documentation, including the offering circular and any other related materials. The goal is to get a complete understanding of the offering and to identify any potential risks. They can protect their interests and those of their stakeholders by doing so.

The next step is the assessment of activities. Issuers must assess their actions and identify any potential risks so they can ensure they meet regulatory requirements. They must also be clear in their marketing materials to ensure that they are not misleading potential investors.

The final step in due diligence is the review of marketing materials. Issuers must ensure that their marketing materials are not misleading and that they comply with all regulations. They can protect their interests and those of their stakeholders by doing so. If information is not accurate or is contradictory with information the issuer has published elsewhere, it can cause problems for the offerings.

Tips for Issuers

When you’re looking to conduct due diligence on your own business, it’s essential to have a clear plan of attack. Here are five things to keep in mind when preparing to complete due diligence for a RegA+ offering:

  1. Start by reviewing your business plan and finances. Make sure you understand your company’s goals and how it is making money.
  2. Look at your management team and Board of Directors. Ensure they are qualified and have the experience to run a successful business.
  3. Conduct a thorough review of your company’s operations. Make sure you understand your manufacturing process, marketing strategy, and sales channels.
  4. Keep your cap table up to date; ensuring it documents who holds shares in your company.
  5. Ensure you do not have information on your website that contradicts information in your offering documents.

These are just a few aspects that help you conduct due diligence more effectively and efficiently. Due diligence is an integral part of any business transaction, so it’s worth getting it done right.

Be Diligent with your Offering

When working with an attorney, you must provide them with all of the relevant information about your company and the offering. This includes both the business and financial aspects of your company and any legal issues or risks that you may be aware of. Attorneys will then use this information to help assess the offering and to identify any potential risks.

Auditors will also need access to all relevant information about your company and the offering. They will use this information to verify that everything is in order and that there are no financial risks associated with the offering. Auditors will also work with the attorney to identify any potential legal risks.

Working with both an attorney and an auditor during the due diligence process will help to ensure that your RegA+ offering is successful. By providing them with all of the relevant information, you can help reduce the risk of mistakes being made and help to keep everyone on track.

What is the Difference Between Fiduciary Responsibility and Regulatory Requirement?

By definition, a fiduciary is a person or an organization who holds a legal or ethical relationship of trust with another person or organization. Typically, this has to do with the responsibility or duty in a financial sense. As an adjective, it gets defined by the Oxford dictionary as “involving trust, especially with regard to the relationship between a trustee and a beneficiary.” The word gets most commonly used when stating that a company has a fiduciary duty to its shareholders. In practice, this means that the company has an ethical and legal responsibility to act in the best interest of its investors. For example, the company and its executives need to protect a shareholder’s financial investment in that company and is an example of a duty of loyalty. Included also is a duty of care, which indicates that a fiduciary will not back away from their responsibility.

 

Fiduciary duties do not just relate to the financial sector. For example, a lawyer has a fiduciary duty to their client to act in their best interest, but we will focus on the financial sector. Fiduciary responsibility in finance is a relationship between two non-governmental entities. In contrast, a regulatory requirement is a rule that a government or government-related organization imposes and enforces onto an organization.

 

Many governmental organizations impose regulations on the financial sector, like the Office of the Comptroller of the Currency or the Federal Reserve Board. The governmental-related organizations are the Financial Industry Regulatory Authority (FINRA) and Securities and Exchange Commission (SEC). We have previously discussed the regulations passed by both FINRA and the SEC in preceding blogs, which detail those processes well.

 

Both fiduciary responsibility and regulatory requirements can result in legal action if there is a breach in conduct, but the actors and stage are different. With fiduciary responsibility, the beneficiary of the fiduciary duty would file suit against the trustee in civil court who knowingly or unknowingly failed in their duty. This is a relationship between non-governmental actors, so in this case, a person litigating against an organization or vice versa.

 

On the other side, regulatory requirement gets dictated by a government entity like the SEC or OCC suing a company or individual for failing to comply with the law. This suit would land in criminal court, with punitive fines, damage to their reputation, and sanctioning. For example, in California, you need to be a registered broker-dealer for a Regulation A+ offering. If you decide as a company to ignore this law, the state regulator can, and will, require you to return all money raised, and you can get barred from raising money in the state. You will get labeled as a bad actor, which will damage the reputation of your business.

 

While fiduciary duty and regulatory requirements are different in terms of the responsibilities, actors, and negative consequences involved when failing to comply, they are critical to follow and maintain.