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Yesterday the SEC adopted rules intended to facilitate intrastate and regional securities offerings.  The SEC made general updates and modernized old Rule 147, the safe harbor exemption for intrastate securities offerings under Section 3(a)(11) of the Securities Act. The SEC also adopted a new exemption in Rule 147A, which differs from Rule 147 primarily in that it expressly permits general solicitation and does not require the issuer to be formed in the same state as its principal place of business and investors.  This should allow Rule 147A to work more effectively with state-level crowdfunding exemptions.  (We have previously blogged about the challenges of crowdfunding under Rule 147.)

The SEC also revised Rule 504 to increase the aggregate offering amount limitation from $1m to $5m and to add “bad actor” disqualifications (aligning it with recent updates to Rule 506). In addition, the SEC repealed the little used and now largely redundant to Rule 505.

These rules have various effective dates tied to publication of the rules in the Federal Register, which will likely occur next week:

  • Revised Rule 147 – 150 days after publication in the Federal Register
  • New Rule 147A – 150 days after publication in the Federal Register
  • Revised Rule 504 – 60 days after publication in the Federal Register
  • Repeal of Rule 505 – 180 days after publication in the Federal Register

Continue Reading New SEC exemption rules for intrastate and regional offerings

blake_jackson.jpgCONTRIBUTED BY
Blake William Jackson
blake.jackson@dlapiper.com

Many startup companies want to change the world with their great new ideas – but, in an effort to raise funds, some jeopardize their ability to protect those great new ideas with patents. This doesn’t have to happen. With a little foresight, startups seeking funding can avoid the patent pitfalls.

A typical startup story may go like this: A few entrepreneurs form a startup company because they have developed a great new idea for the next “must-have” product. To raise funds, the entrepreneurs ask relatives, take out a small loan or turn to a crowd-source funding program like Kickstarter. These crowd-source funding sites allow the startup to disclose its new ideas to the public and raise funds by allowing anybody to give money to the startup in return for some small benefit. Such small benefits can be anything the startup chooses, ranging from promotional items, to a beta product the startup is still developing, and even to pre-sale orders of the finished products whose development is being funded and that will eventually be mass marketed.

After its crowd-source funds dwindle, the startup then looks to more substantive investors to grow the business. It is at this point that startup entrepreneurs may first think about patent protection – often because of inquiries from potential angel and venture capital investors. It is also at this point that the startup may learn that it is too late to properly protect its great new ideas with patents. A startup that has reached this point without protecting its patents may pay the price in diminished support from potential angel and venture capital inventors, not to mention the long-term loss of protection that a patent portfolio could provide.
Continue Reading Startups seeking crowdfunding: Avoiding patent pitfalls

CONTRIBUTED BY Trent Dykes and Nathan Luce

Earlier today, the Securities and Exchange Commission (SEC) took an important step in making securities-based crowdfunding a reality for many small companies with the release of its proposed rules governing crowdfunding. The proposed rules, called “Regulation Crowdfunding,” were drafted in connection with Title III of the JOBS Act. Whereas traditional crowdfunding involves a company offering things like advanced product or information releases, premium services or the ability to contribute to a given cause in exchange for an investment, Regulation Crowdfunding would allow those same companies to issue actual securities (i.e., debt or equity) in exchange for investments—a dramatic shift from what has become fairly common practice on websites such as Kickstarter or Microryza over the past few years.

The SEC’s Regulation Crowdfunding proposal would implement rules governing the offer and sale of securities under new Section 4(a)(6) of the Securities Act of 1933 (Section 4(a)(6)). The proposal also provides a framework for the regulation of registered funding portals and brokers, whom issuers must use as intermediaries in their crowdfunding efforts pursuant to Section 4(a)(6). In addition, the proposal would exempt securities sold pursuant to Section 4(a)(6) from the registration requirements of Section 12(g) of the Securities Exchange Act of 1934.
Continue Reading Overview of Proposed SEC Crowdfunding Rules

Megan Muir.jpgCONTRIBUTED BY
Megan Muir

The Jumpstart Our Business Startups Act (the JOBS Act), enacted in April this year, makes a variety of significant changes to securities laws, some of which relate to early-stage entrepreneurs, startup companies and venture capitalists concerned about fund raising with respect to their portfolio companies.

In this article, I address provisions of the JOBS Act most applicable to startup companies and venture capitalists that fund them. In this piece, I will not be covering other changes in the Act such as broker/dealer regulations, “Reg A+”, or the changes to research reporting and analyst rules.

IPO On-Ramp

The JOBS Act contains various changes to the requirements for a company listing its shares in its initial public offering, referred to as the IPO “on-ramp” provisions. These changes should assist emerging companies as they consider an IPO as a strategy to raise funds for growth while creating liquidity for their venture capital and other investors. The key IPO on-ramp provisions, which went into effect immediately in April, are identified below.Continue Reading JOBS Act: What Matters Most for Startups and VCs

In today’s age of social media success stories, there is something superficially interesting about crowdfunding as a high-level idea. There has certainly been no shortage of attention to crowdfunding in the press and from business people. But in looking at the new JOBS Act exemption for crowdfunding, I see lots of reasons to avoid using it. While this list could be expanded – and will need to be revised as the SEC adopts rules to implement the new exemption – to get things started I offer up these ten reasons to avoid crowdfunding.
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Continue Reading Top 10 Reasons to Avoid Crowdfunding

John Melloy’s article entitled “The Dictators of Silicon Valley: Facebook, Google Stripping Shareholder of Power” highlights an interesting trend among tech companies that have gone public in the past several years – implementing dual-class voting structures. The general idea behind these dual-class voting structures is to keep control in the hands of the individuals (usually the founders) who supposedly know what is best for the company and to shield a company from potential public company shareholder activism and hostile takeovers. Control is maintained by either giving the founder shares more votes per share than the shares issued to the public (or issuing non-voting shares to the public) – for example, founders would hold Class B common stock entitled to 10 votes per share, while the general public would hold Class A common stock entitled to one vote per share.
Continue Reading Dual-class voting; A trend toward eliminating shareholder rights?