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SEC Targets Reg A+ Marijuana Company, Med-X, in Administrative Proceeding.

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Reprinted from Crowdfund Beat, By Samuel S. Guzik, CrowdFundBeat special guest editor, Guzik & Associate

The Regulation A+ industry was buzzing this week – not with excitement, but with a healthy dose of trepidation. One of the first, high (no pun intended) profile Regulation A+ offerings, launched in November 2015, after a seemingly successful “Testing the Waters” campaign, was for a company called Med-X, a startup formed to participate in the newly burgeoning marijuana industry – the so called “Green Rush.”

But this month’s headline for Med-X was a bit more sanguine, enough to counteract even the most potent dosage of THC: “REGULATION A EXEMPTION OF MED-X, INC. TEMPORARILY SUSPENDED.” The story that followed was not the kind of publicity any company is looking for – especially when it is in the throes of raising money under Reg A+. Actually, it was not a story. Rather, it was an Administrative Order issued by the SEC on September 16, 2016, temporarily suspending the exemption of Med-X under Regulation A+.

Why? Well, it seems that this company failed to notice, or at least heed, the requirement that Reg A+ issuers file periodic informational reports as a condition of maintaining their status as Reg A+ issues. The basic requirement calls for a company, at the least, to file a semi-annual and annual report with the SEC following the “qualification” of the offering. Seems that Med-X failed to file its annual report, which would include audited financial statements, when due back in the Spring of 2016.

Some have speculated that the SEC was targeting a disfavored industry – Rule 506. I doubt it. The SEC has approved the registered sale of other companies in this industry long before Regulation A+ was adopted.

Others have speculated that this action reflects an uneven hand towards Regulation A+ issuers. After all, this type of swift action is rare for fully reporting companies which are delinquent in their filings. One more time: I think not.

The Staff at the SEC has been remarkably supportive of the rollout of Regulation A+, as measured anecdotally in terms of the efficiency in which it has been processing the review of Regulation A+ offerings.

Rather, I think back to one of the more notable sound bytes I coined in a Webinar back in April 2015: “Regulation A+ is not your daughter’s Kickstarter campaign.” Raising capital from outside investors is serious, heavily regulated business. And as indicated by some of the early Regulation A+ participants, the level of sophistication of the management of some of these issuers has hardly met the bar required to file and prosecute a Regulation A+ offering.

Yes, Regulation A+ is a little more complex than the pipedream: filling out a form, waiting for SEC approval, and then crowdfunding your way to $50 million. Apart from detailed disclosure rules, including audited financial statements, and the always difficult task of raising capital – especially for early stage companies – there is an ongoing SEC reporting requirement. Yes, the requirement is lighter than a fully reporting public company, to be sure, but enough to quickly overload an early stage company, with limited financial and human resources.

So if nothing else, this is one SEC enforcement action can be expected to inject a dose of reality into the Regulation A+ capital raising process. As our President might say, “A Teachable Moment.”

Samuel Guzik

Samuel S. Guzik has more than 35 years of experience as a corporate and securities attorney and business advisor in private practice in New York and Los Angeles, including as an associate at Willkie Farr and Gallagher, a major New York based international law firm, a partner at the law firm of Ervin, Cohen and Jessup, in Los Angeles, and in the firm he founded in 1993, Guzik & Associates.

Mr. Guzik has represented public and privately held companies and entrepreneurs on a broad range of business and financing transactions, both public and private. Mr. Guzik has also successfully represented clients in federal securities litigation and SEC enforcement proceedings. Guzik has represented businesses in a diverse range of industries, including digital media, apparel, health care and numerous high technology based businesses.

Guzik is a recognized authority and thought leader on matters relating to the JOBS Act of 2012 and the ongoing SEC rulemaking, including Regulation D Rule 506 private placements, Regulation A+, and investment crowdfunding. He has been consulted by Congressional members, state legislators and the U.S. Small Business Administration Office of Advocacy on matters relating to the JOBS Act and state securities matters.

Guzik & Associates
1875 Century Park East, Suite 700
Los Angeles, CA 90067
Telephone: 310-914-8600
www.guziklaw.com
www.corporatesecuritieslawyerblog.com
@SamuelGuzik1

Venture capital for everyone

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Venture capital have made fortunes for a new investors. Wish you had put resources into Apple when it was still in its carport days?

As crowdfunding bounced in ubiquity, another government administer now permits supposed unaccredited investors to set up as meager as $100 for a stake in new companies and little organizations. The SEC’s tenet, called Regulation Crowdfunding, will help organizations raise capital while additionally let ordinary individuals — and not only the affluent — in on the activity.

Beforehand, these sorts of speculations were limited to authorize financial specialists, those with a total assets of $1 million, or who met other resource criteria. The principle change, which produced results in May, is a key part of the JOBS Act of 2012, which was intended to open the capital pipeline after access was extremely tightened in the wake of the credit emergency.

Be that as it may, Venture capital comes at a cost.

Venture capital start-up investing is the most dangerous of the least secure type of crowdfunding. However for some people, the open door for a value stake in a start-up or little business might be powerful. From one viewpoint, crowdsourcing is only that: giving the opportunity to non accredited investors to get into the game and potentially make big financial gains.

Variety of Venture capital decisions

Try not to put every one of your advantages in one investment. Speculators ought to confine their introduction to a little chunks of their portfolio. Financial advisors often recommend making 15 to 20 speculations of up to $500 each. Having numerous speculations that do pay off can possibly make solid returns.

These are high-risk, high yield ventures, and thusly they ought to make up a small a percentage of an individual investor’s portfolio. Financial advisors often recommend that investors limit their high risk investments in venture capital opportunities to no more than 3 percent to 5 percent of their total portfolio.

It’s the same than what you would do in a conventional stock portfolio, take after the widespread counsel: Diversification is the way to achievement.

Crowdfunding is the greatest change to hit start-up investing in years, maybe ever

The guidelines do give some extra securities. For instance, there are strict due diligence requirements for the business and securities offering and points of confinement on the sums that can be contributed.

For instance, investors who make more than $100,000 a year by and large can contribute up to 10 percent of their salary, while a financial investors with pay of under $100,000, can contribute up to 5 percent over a 12-month time frame. There’s likewise a top of $100,000 on the sum that people can put resources into a year.

Organizations attempting to raise reserves must document printed material on their financials, projections and foundation and register with a platform. These platforms are required to check that the start-up’s disclosures are honest and exact. The platforms additionally give a stage to individual investors to meet up to inspect the points of interest to choose whether they need to contribute.

Small businesses and start-ups are required to file 2 updates per year (rather than the yearly 10-K or 10-Q reports that are typically filed) and post them on the investor area of their websites.

Overview of Rule 506(c) and 506(b) Offerings

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What are the real differences between Rule 506(c) and 506(b) Offerings?
The chart below covers a few of the differences between 506(b) and 506(c) offerings. Please note that this is not legal advice. You should consult with your own attorney before conducting a 506(b) or 506(c) offering. Securities regulations (and interpretations regarding such regulations) are subject to change.

 

506(b) Offering 506(c) Offering
Communications with Investors Companies may not advertise their security offering. Generally, companies may approach potential investors if there is a substantive, pre-existing relationship. General advertising permitted. Companies may advertise via social media, email, or offline. No substantive, pre-existing relationship with potential investors required.
Eligible investors Accredited investors and up to 35 non-accredited investors who meet sophistication requirements. Only accredited investors.
Accreditation Process Self-certification via a questionnaire is the general standard.

 Companies must take reasonable steps to verify accredited investor status. Self-certification via a questionnaire is not permissible. The SEC issued examples of reasonable steps for verification.
Offering size No limit on offering size. No limit on offering size.
Disclosure Companies must decide on what information to provide to accredited investors, but that information must not violate antifraud prohibitions. If non-accredited investors are included, companies must provide those investors with disclosure documents that are generally the same as those used in registered offerings. If a company provides information to accredited investors, it must make that information available to non-accredited investors as well. Companies must be available to answer questions from potential investors. Companies must decide on what information to provide to accredited investors, but that information must not violate antifraud prohibitions. Companies must be available to answer questions from potential investors.
Filing Requirements Companies must file a Form D. Companies must file a Form D.
Intermediaries Not required. If used, the intermediary must be a registered broker-dealer or exempt from broker-dealer registration. Not required. If used, the intermediary must be a registered broker-dealer or exempt from broker-dealer registration.