Seeley & Berglass

ATTORNEYS AT LAW

855 Main Street                             3695 Post Road
Bridgeport, CT 06604                     Southport, CT 06890
New Haven, CT 06510
Tel (203) 562-5888
(203) 366-3939                             (203) 256-3252

 

 

Small companies considering raising capital
JOBS Act (Jumpstart Our Business Startups)
Bill Seeley
 
For companies interested in raising capital in private offerings, the provisions of the Jumpstart our Business Start-ups Act (JOBS Act) should be helpful.  It has been in effect since April 5, 2012, and is being hailed as a "pro-entrepreneurial piece of legislation. whose principal purpose is to drive the creation of jobs in the US by making it easier for US and non-US companies to access capital from private and public sources.
 

Generally all offerings and sales of securities must be registered with the SEC unless they are all sold within one state [in which case that state's requirement must be met] or they are sold in a transaction exempt from Registration. The current canon for such exempt offerings is Regulation D, promulgated by the Securities and Exchange Commission (SEC).

 

1. Revision of Rule 506. The Act requires the SEC within 90 days,  to revise Rule 506 promulgated under its Regulation D (an offering of unlimited amounts of securities under prescribed rules), and its Rule 144A, to remove the interdiction on general solicitation of prospective "accredited investors" and general advertising in private offerings made in accordance with the Rules. This should open up the web for the solicitation of potential investors who meet the test for "accredited investors". However, it remains to be developed how an issuer can verify that its electronic offering is being made only to "accredited investors".

 

2. Small Company Capital Formation.  The SEC is instructed, by Rule or Regulation, to add a class of securities exempt from the requirement of Registration with the following characteristics:

 

(a) Amount of securities that may be offered and sold publicly within a 12 month period from $5 million to $50 million.

 

(b) The securities will not be "restricted securities" (they can be resold without concern about qualifying as an "exempt transaction").

 

(c) Any person offering or selling these securities will still be liable for false and misleading statements, etc.  (SEC Act 12(a)(2).

 

(d) SEC is to promulgate rules pursuant to which issuers may solicit interest in the Offering prior to filing an "offering statement".

 

(e) Audited financial statements must be filed annually with the SEC.

 

(f) The SEC may require the filing electronically of an "offering statement", inclusive of audited financial statements and other disclosures.

 

(g) The SEC may provide, by Rule or Regulation, disqualification provisions similar to those in the Dodd Frank Wall Street Reform and Consumer Protection Act ("bad boy" provisions)

 

3. Crowdfunding [new term].  The Act  Introduces a new term, Crowdfunding", for a new category of  exemption from "Registration" in an offering securities. The basic terms for this category are as follows:

 

(a) total amount of the raise: up to  $1,000,000 in a 12 month period

 

(b) a single investor is limited to investing:

 

(1) no more than $2,000 or 5% of his annual income or net worth if either his income or net worth is less than $100,000; and

 

(2) if his income or net worth is greater than $100,000 he may invest 10% of that annual income or net worth.

 

(c) sales must be though qualified "intermediaries", e.g., qualified brokers or "funding portals". 

 

(d) The broker or qualified intermediary has filing requirements with the SEC and offering compliance requirements

 

855 Main Street 5th Floor                                                   3695 Post Road            
Bridgeport, CT 06604                                                         Southport, CT 06890
Fax (203) 337-4588                                                           Tel.(203) 256-3250
mail: wps@seeleyberglass.com                                         Fax (203) 256-3252

 

Bill Seeley assists clients in finding creative solutions which meet their individual needs and objectives. Please contact Bill Seeley for more information:

 

(203) 256-3250

wps@seeleyberglass.com