The 4-1-1 On Crowdfunding

The rules governing the way my consultancy and other intermediaries raise capital have changed in both substantive and procedural ways. For years now, we have worked in the deal-making space, helping to raise much-needed equity capital for many businesses. The bulk of that financing – that is to say, the financing that had not been secured from close angel investors, or from the friends and families of the #entrepreneurs - had come from either institutions or accredited investors. The latter investor type, accredited investors, are those individuals or married couples with a net worth in excess of $1 million. In accordance with old rules, those were the only players in the game. Intermediaries shopping private placements, or making public offerings, were not permitted to market startup equities to, or raise funds from, non-accredited investors, the other 98% of folks. Now things are different.

In 2012, passage of the Jumpstart Our Business Startups Act (commonly known as the #JOBSAct) set the stage for how small businesses and their solicitors could raise equity investments from the non-accredited, alongside the more affluent investors, and in its own effort to protect this new class of investors from unnecessary risks, the Securities & Exchange Commission crafted a series of new rules and procedures that took effect over recent weeks. 

This primer is intended to make clear the new landscape of equity #crowdfunding, as well as to offer cursory guidance on how fundraising, hereinafter, will be carried out. 

Let’s start with the basics. 

The new rules set in place by the #SEC will allow small businesses to raise as much as $1 Million over a twelve-month funding period, and those same rules do open a wide door for non-accredited investors to take part in these #fundraising opportunities. Nevertheless, the decision-makers in these small businesses and their intermediaries must remain mindful that these opportunities cannot be initiated without a good share of paperwork, mandatory disclosures and filings, and upfront expenses. What’s more, these fundraising opportunities are subject to scrutiny based on the oversight provided by the SEC and FINRA. Consequently, every effort must be made to work within the parameters given. 

What you should know:

• Title III of the JOBS Act does allow small businesses to solicit equity crowdfunding from non-accredited investors over a fundraising-campaign period. That period is twelve months, based on the SEC rules.

• The maximum amount of capital a company can raise, based on these rules, is $1 Million over the fundraising campaign.

• Companies seeking to raise funds from non-accredited investors are restricted to no more than 500 non-accredited investors. Should the number of non-accredited investors exceed this threshold, the SEC will require that the company go public. Also, any #TitleIII company with assets of more than $25 Million will be required to go public. (Taking a business public is a topic for a different memo.)

• Non-accredited investors are allowed to invest between $2,000 and $100,000 in a Title III company during its fundraising campaign.

• In order to raise funds during the twelve-month period, a small business eligible for a Title III designation can only use two intermediary platforms to make solicitations. First, a company can retain a broker-dealer that is a FINRA-registered group or individual who, among other services, structures the offering, drafts all necessary investment and marketing documentation, and provides investment-management services during the fundraising campaign, while also working with and securing investors. Alternatively, a company can utilize a funding portal, which acts as an independent clearinghouse, whereupon startups can be matched with prospective investors, after they have upload all proper documentation about their company and the offering. (Unlike broker-dealers, funding portals, by law, cannot insert themselves into the deal-making process. They do not structure or draft the offering documentation, and they cannot help to identify investors or to lend advice.)

• There must be a 21-day “cooling off” period for prospective investors. That is, the Title III company and its solicitors must wait no less than this period before closing any investment pledge made during the fundraising campaign.

The procedure for initiating equity crowdfunding:

• First, the intermediary is required to conduct thorough background checks on the decision-makers of the company, as well as perform audits of the operations and financials of the company, in order to verify that there are no irregularities.

• The broker-dealer or lawyers for the company must prepare the proper offering documentation for the fundraising campaign. These materials are inclusive of, but not limited to, business plans, offering memorandums, subscription agreements, operating agreements, and so on.

• The intermediary must file a Form C with the SEC, announcing plans to raise capital under the Title III designation.

• It is imperative to remember that, at no point, can the company’s decision-makers or its intermediaries promote the fundraising campaign before the campaign actually commences!

• Once the nod is given by the SEC, the Title III company can commence the fundraising campaign over the approved period of time. 

• The intermediary or representatives of the company must provide regular updates on fundraising efforts to the SEC, in addition to making these updates readily available on the company’s website.

For any investor, identifying start-up businesses with a strong likelihood of success is not an easy endeavor. Even venture capitalists, the most seasoned of all startup investors, encounter high failure rates – as many as 3 of every 4 VC-backed companies. On a larger scale, according to Bloomberg, 80% of all new #businesses end up shuttered. Consequently, the chances of a non-accredited investor identifying and investing early in the next big real-estate deal, Google, Amgen, or Panera Bread could be quite slim. Nonetheless, should a non-accredited investor never have had the opportunity to identify and invest in such opportunities, then the chances of being part of something great would have surely been nonexistent. 

The SEC has established a framework, however stringent, by which equity crowdfunding can be made a meaningful conduit for investment. Still, the onus is on the investor. It is important that #nonaccreditedinvestors, much like their more affluent counterparts, give very careful and informed consideration to any opportunity before them, by conducting thorough research and due diligence of their own. Spotting a bad investment early on can save an investor thousands of dollars and many regrets. And by that same token, it is important for dealmakers to use these new rules to deliver to the market only those opportunities worthy of investor’s hard-earned money.