But when it comes to marketing an offering of securities by a Title III issuer, things get complicated. That’s why this is three times longer than any blog post should be.
By Mark Roderick CrowdFunding Beat contributing editor and crowdfunding attorney with Flaster/Greenberg PC.
Why It Matters
Section 5(c) of the Securities Act provides that an issuer may not make an “offer” of securities unless a full-blown registration statement is in effect, of the kind you would prepare for a public offering.
No Demo Days
There are lots of exceptions to the general rule and Title III is one of them: you can make “offers” of securities without having a full-blown registration in effect, if you comply with the requirements of Title III.
On one hand that’s good, because if you market your offering as allowed by Title III, you’re in the clear. On the other hand, if you make “offer” of securities without meaning to, or without complying with the intricacies of Title III, you could be in trouble in two ways:
You might have violated section 5(c), putting yourself in jeopardy of enforcement action by the SEC and other liability.
By making an illegal offer, you might have jeopardized your ability to use Title III at all.
What is an “Offer” of Securities?
Section 2(a)(3) of the Securities Act defines “offer” very broadly, to include “every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value.” And the SEC has defined “offer” even more broadly than those words suggest. Going back to 1957, the SEC said that any publicity that could “contribute to conditioning the public mind or arousing public interest” could be treated as an “offer.”
These examples illustrate the spectrum:
A company continues to advertise its services as usual, keeping its plans for an offering under wraps, then files an S-1 registration statement.
A company steps up its public relations efforts before a new product announcement, which happens to coincide with a new public offering.
For six months before it files a registration statement, a company triples its advertising budget, trying to build brand recognition specifically with the investing public.
A company puts up a website announcing “Please buy our common stock!”
The SEC has adopted a number of rules describing behavior that will not be treated as an “offer” for purposes of section 5(c). For example, Rule 135 allows so-called “tombstone” advertisements of registered offerings, Rule 135c allows notices of private offerings by publicly-reporting companies, and Rule 169 allows factual business information released by an issuer that has filed or intends to file a registration statement. But all these rules apply only to companies that are or intend to become public or publicly-reporting. There are no equivalent rules dealing with the behavior of small companies.
A Different Definition for Small Companies?
With that background, advice given by the SEC in 2015 catches your attention:
Question: Does a demo day or venture fair necessarily constitute a general solicitation for purposes of Rule 502(c)?
SEC Answer: No. Whether a demo day or venture fair constitutes a general solicitation for purposes of Rule 502(c) is a facts and circumstances determination. Of course, if a presentation by the issuer does not involve an offer of a security, then the requirements of the Securities Act are not implicated.
The italicized statement is true, by definition. If there is no “offer,” the securities laws don’t apply. Even so, it’s hard to reconcile with the SEC guidance for public companies. A “demo day” is, by any definition, an event where companies make presentations to investors. Not to customers, to investors. If merely “conditioning the public mind” can be an offer, it is very hard to understand how presenting to a roomful of investors could not be an offer.
Trying to reconcile the two, you might conclude that the SEC is, in effect, using different definitions of “offer” depending on the circumstances. During the period surrounding a public offering of securities a stringent definition applies (the 1957 ruling involved the period immediately following the filing of a registration statement) while outside that period a more lenient definition applies. If that were true, those of us trying to advise Title III issuers would sleep better.
There are two glitches with the theory, however:
Maybe the SEC will view the period surrounding a Title III listing in the same way it views the period surrounding a public registration statement.
The preamble to the final Title III regulations actually cites Rule 169 and cautions that “The Commission has interpreted the term ‘offer” broadly. . . .and has explained that ‘the publication of information and publicity efforts, made in advance of a proposed financing which have the effect of conditioning the public mind or arousing public interest in the issuer or in its securities constitutes an offer. . . .’” That sure doesn’t sound like a more lenient rule for Title III.
The Title III Rule for Advertising
Title III is about Crowdfunding, right? Doesn’t that mean Title III issuers are allowed to advertise anywhere and say anything, just like Title II issuers?
A core principle of Title III is that everything happens on the portal, where everyone can see it, so nobody has better access to information than anyone else. A corollary is that that Title III issuers aren’t allowed to advertise freely. If a Title III issuer put information about its offering in the New York Times, for example, maybe readers of the New York Post (are there any?) wouldn’t see it.
A Title III issuer can advertise any where it wants – Twitter, newspapers, radio, web, etc. – but it can’t say any thing it wants. All it can do is provide a link to the Funding Portal with an ad that’s limited to:
A statement that the issuer is conducting an offering
The terms of the offering
Brief factual information about the issuer,e.g., name, address, and URL
In the public company world, those are referred to as “tombstone” ads and look just about that appealing. In the online world issuers can do much better. A colorful post on the issuer’s Twitter or Facebook pages saying “We’re raising money! Come join us at www.FundingPortal.com!” is just fine.
Insignificant Deviations From The Rules
Recognizing that Title III is very complicated and new, section 502 of the Title III regulations provides:
A failure to comply with a term, condition, or requirement. . . .will not result in the loss of the exemption. . . .if the issuer shows. . . .the failure to comply was insignificant with respect to the offering as a whole and the issuer made a good faith and reasonable attempt to comply. . . .”
The language is vague, as it has to be, but it certainly suggests that Title III issuers can make mistakes without losing the exemption. And there’s no reason why mistakes in advertising an offering should be treated more harshly than other mistakes.
The purpose of the advertising rule, as we’ve seen, is to ensure that every investor has access to the same information. If a Title III issuer mistakenly provides more information about its offering in a Facebook post than it should have, the infraction could be cured easily – for example, by ensuring that any information in the Facebook post appeared on the Funding Portal for at least 21 days before the offering goes live, or by correcting the Facebook post and directing Facebook friends to the Funding Portal.
Where Does That Leave Us?
Ideally, a company thinking about raising money using Title III would follow these simple rules:
Don’t attend demo days.
In fact, don’t mention your plan to raise money to any potential investors until you register with a Title III Funding Portal.
The minute you want to talk about raising money, register with a Title III Funding Portal.
After registering with a Title III Funding Portal, don’t mention your offering except in “tombstone” advertising.
After registering with a Title III Funding Portal, don’t meet, speak, or even exchange emails with investors, except through the chat room on the Funding Portal.
A company that follows those rules shouldn’t have problems.
That’s ideal, but what about a company that didn’t speak to a lawyer before attending a demo day? What about a company that posted about its offering on Facebook before registering with a Funding Portal, and included too much information? What about a company that’s spoken with some potential investors already? What about a real company?
Nobody knows for sure, but unless the SEC takes a very different position with regard to Title III than it has taken with regard to Regulation D, I think a company that has engaged in any of those activities, or even all of those activities, can still qualify for a successful Title III offering.
Let’s not forget, the SEC has been very accommodating toward Crowdfunding, from the no-action letters in March 2013 to taking on state securities regulators in Regulation A. With section 502 in its toolbox, it’s hard to believe that the SEC is going to smother Title III in its cradle by imposing on startups the same rules it imposes on public companies.
It’s instructive to look at the way the SEC has treated the concept of “general solicitation and advertising” under Regulation D.
By the letter of the law, any contact with potential investors with whom the issuer does not have a “pre-existing, substantive relationship” is treated “general solicitation,” disqualifying the issuer from an offering under Rule 506(b) (and all of Rule 506, before the JOBS Act). But the SEC has taken a much more pragmatic approach based on what it refers to as “long-standing practice” in the startup industry. In fact, in a 1995 no-action letter the SEC concluded that there had been no “general solicitation” for a demo day event even when investors had been invited through newspaper advertisements.
I think the SEC will recognize “long-standing practice” in interpreting Title III also.
Bearing in mind the language of section 502, I think the key will be that an issuer tried to comply with the rules once it knew about them, i.e., that a company didn’t violate the rules flagrantly or intentionally. If you’re a small company reading this post and start following the rules carefully today, I think you’ll end up with a viable offering. Yes, there might be some legal doubt, at least until the SEC issues clarifications, but entrepreneurs live with all kinds of doubt, legal and otherwise, all the time.
It’s Not Just the Issuer
The issuer isn’t the only party with a stake in the advertising rules. The Funding Portal might have even more on the line.
Here’s the challenge:
Before allowing an issuer on its platform, a Funding Portal is required to have a ”reasonable basis” for believing that the issuer has complied with all the requirements of Title III.
We’ve seen that one of the requirements of Title III is that all advertising must point back to the Funding Portal.
Before the issuer registered with a Funding Portal, advertising by the issuer couldn’t have pointed back to the Funding Portal.
Therefore, if a would-be issuer has engaged in advertising before registering with the Funding Portal, including any activity that could be construed as an “offer” for purposes of section 5(c), the Funding Portal might be required legally to turn the issuer away.
With their legal obligations in mind, dozens of Funding Portals are preparing questionnaires for would-be issuers as I write this, asking questions like “Have you made any offers of securities during the last 90 days? Have you participated in demo days?”
If the Funding Portal denies access to any issuer that answers “I don’t know” or “Yes,” it might end up with very few issuers on its platform. On the other hand, if it doesn’t ask the questions, or ignores the answers, it’s probably not satisfying its legal obligation, risking its SEC license as well as lawsuits from investors.
The Funding Portal will have to make some tough calls. But its answer doesn’t have to be limited to “Yes” or “No.” For one thing, using its own judgment, the Funding Portal might suggest ways for the issuer to “fix” any previous indiscretions. For another, rather than make the call itself, the Funding Portal might ask for an opinion from the issuer’s lawyer to the effect that the issuer is eligible to raise money using Title III.
Advertising Products and Services
We’ve seen that product advertisements by a company that has filed, or is about to file, a public registration statement can be viewed as an “offer” of securities for purposes of section 5(c) if the company uses the product advertisement to “arouse interest” in the offering. However, I don’t believe this will be a concern with Title III:
A company that has registered with a Funding Portal should be free to advertise its products and services however it pleases. There’s no “quiet period” or similar concept with Title III the way there is with a public registration.
A company that has not yet registered with a Funding Portal and is not otherwise offering its securities should also be free to advertise its products or services. Just not at a demo day!
Many companies in the Title III world will be looking to their customers as potential investors. For those companies it makes perfect sense to advertise an offering of securities in conjunction with an advertisement of products or services. Sign up with a Funding Portal, follow the rules for advertising, and “joint” advertisements of product and offering should be fine.
Will a Legend Do the Trick?
Suppose a company thinking about raising money using Title III Crowdfunding makes a presentation to a roomful of investors at a demo day, but includes on each slide of its deck the disclaimer: “This is Not An Offering Of Securities.”
The disclaimer doesn’t hurt and might tip the balance in a close case, but don’t rely on it.
An Issuer With A Past: Using Rule 506(c) to Clean Up
Photo Credit: Fast Company editor Jason Feifer
In Scott Fitzgerald’s The Great Gatsby, the main character reaches for a new future but, in the end, finds himself rowing “against the current, borne back ceaselessly into the past.” In this final section I’ll suggest a way that an issuer might raise money using Title III notwithstanding a troubled past, succeeding where Jay Gatsby could not.
Suppose an issuer registers with a Funding Portal, raises money using Title III, then fails. Looking for a basis to sue, investors learn that the issuer attended a demo day three weeks before registering with the Funding Portal. An illegal offer! Gotcha!
“No,” says the issuer, calmly. “You’re right that we attended a demo day and made an offer of securities, but that’s when we were thinking about a Rule 506(c) offering. As you know, offers made under Rule 506(c) are perfectly legal. It was only afterward that we started to think about Title III.”
As long as the record – emails, promotional materials, investor decks, and so forth – demonstrates that any “offers” were made in contemplation of Regulation D rather than Title III, I think the issuer wins that case. The case would be even stronger if the issuer actually sold securities using Rule 506(c) and filed a Form D to that effect, before registering with the Funding Portal.
An issuer with a troubled past – one that has attended lots of demo days, posted lots of information on Facebook and met with a bunch of different investors – might go so far as to engage in and complete a Rule 506(c) offering before registering on a Funding Portal. With the copy of the Form D in their files, the issuer and the Funding Portal might feel more comfortable that the troubled past is behind.
Markley S. Roderick concentrates his practice on the representation of entrepreneurs and their businesses. He represents companies across a wide range of industries, including technology, real estate, and healthcare.