Advertise without Going Public

Often times, a company trying to raise money from investors will have a hard time raising money from their current network. It’s at this point they call me and say

“Can we advertise?”

Generally speaking, no.

Under Regulation D of the Securities Act of 1933, which governs private offerings, does not allow any type of general solicitations. It also is restrictive of the type of investors that may invest in your company, and the amount of money you may raise.
So, if you have a private placement memorandum, and no one is biting, what is a company to do to get investors without going public? I have been suggesting the Small Conditional Offering under Regulation A.

A Regulation A filing will allow you to do advertising without going through the usual rigors of a public filing. Some of the features:
1.) A company can raise up to $5,000,000 in a 12 month period.
2.) In “test the waters” states, company’s may even advertise their securities (with the appropriate disclaimer) before they have even filed with the SEC.
3.) No audit is needed.
4.) There is no restriction on the type of investor you may solicit (i.e. accredited vs. unaccredited)
5.) There are no ongoing reporting requirements.

However, as with everything in life, there are some drawbacks:
1.) They are complicated. The review process of a Regulation A filing can be just as arduous as a regular public filing.
2.) You need an attorney to file. These aren’t easy filings and it’s best to not go it alone Further, a Regulation A filing requires the opinion of an attorney even though it does not require audited financial statements.
3.) There is no telling how long it will take to get through the SEC channels. Also, you have to get it through each state in which you want to advertise. This may be easier if you are able to do “regional review” and hit many states at once.
4.) Regulation A filings are paper filings. So, anytime you receive a round of comments from the SEC, corrections must be made and sent through the mail. This is unlike any other type of filing which uses the “EDGAR” system.

Interested in doing a Regulation A offering? I am not trying to be overly suggestive, but I know an attorney you could call…..

Hey! I am looking for investors!!

I must hear the phrase "I am looking for investors" every. single. day.

What most innocent folks don't know is that they are violating securities laws by uttering those very words. Now these normally law abiding citizens don't mean to offend the SEC or their local, friendly state securities board, but unfortunately, they are, because they may just have made an offer to sell securities.

The definition for a "security" was outlined in SEC V. HOWEY CO., 328 U. S. 293 (1946):

"Under Section 2(a)(1) of the Securities Act of 1933, “unless the context
otherwise requires,” the term “security” includes
any note, stock, treasury stock, security future, bond, debenture,
evidence of indebtedness, certificate of interest or participation in
any profit-sharing agreement, collateral-trust certificate,
preorganization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for
a security, fractional undivided interest in oil, gas, or other mineral
rights, any put, call, straddle, option, or privilege on any security,
certificate of deposit, or group or index of securities (including any
interest therein or based on the value thereof), or any put, call,
straddle, option, or privilege entered into on a national securities
exchange relating to foreign currency, or, in general, any interest or
instrument commonly known as a “security”, or any certificate of
interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing."

This means that any time you ask for money, that you will have control over, to gain a profit for the "investing" party, you have sold a security. It does not matter if you term it as a loan or as a "percentage of the profits." It's a security.

What about a partnership?

Is the individual (or company) investing as a "partner" only investing money and has no control over the company or the money? It's a security.

What if it's only a small investment?

It's a security - it could be $10 - it's a security.

What if I tie the investment to real estate?

It does not matter, if there is no control over the estate or the underlying investment, it's a security. As a matter of fact, the Howey case that defines a security, was about land: the defendants in the case had sold one acre parcels of land to the investors. The investors were on the title of the land, but the defendants had also said to the investors "purchase this land and we will farm the land, sell the fruit from those farming efforts, and give you the profits." This was deemed a security.

So how can a small business owner avoid such malfeasance? Well, for starters, they can check out future blogs....(and that's what we call a "cliffhanger" in the biz...)