08Nov/21
Living will

Living Trusts and Wills: Understanding the Difference

A living trust and will help you make changes to your final will whenever your circumstances or wishes alter. However, the decisions you make in both of these documents aren’t legally binding unless you die. As a result, it is important to seek legal advice from an Oregon estate planning attorney if you have questions about how the laws apply to your situation. Here’s what an estate planning attorney in Bend Oregon can do for you.

A will allow you to establish another person’s ownership interest in your property without making a will. You can use a living trust to create a ” successors ” in the event of your disability or death. Wills are considered “last-known” decedents’ property in estate planning.

Just as with wills, the person creating the trust is called the administrator. The purpose of the living trust is to designate an individual or persons as administrators to manage your decedent’s estate. The administrator does not have all the same powers as a will, including the power to forgive debts. If your finances have changed since your last Will, you’ll want to talk to an Oregon estate planning attorney who can help you decide if a change in your administrators qualifies as a change in designating beneficiaries.

Many people aren’t aware that Oregon allows anyone to amend their living trusts. Even if you had a will, it might be possible to add beneficiaries and change other aspects, such as how your property is to be transferred, how you’re named guardian or trustee, and more. Again, an estate planning attorney in Bend Oregon can help you understand the mechanics of adding new beneficiaries and other changes to your final wishes. He or she will also be able to explain why a living trust might be appropriate for your situation.

If you’re already deceased but have living trusts in place, it doesn’t mean that your beneficiaries can’t try to claim the property or assets from you. They may still be denied because of a revocable living trust. The problem is that a revocable living trust can be changed by a court order to meet certain guidelines. Unless you’ve been very careful about whom you name as beneficiaries and why they’re named (some people choose to simply change their last names to evade having to deal with probate), revocability could make your estate plan null and void.

Keep in mind, too, that the probate process could drag on for many months or even years after someone dies. While waiting for the probate process to play itself out, your beneficiaries could be exposed to a great deal of stress, which can have a detrimental effect on their health and emotions. Be sure to talk with an Oregon estate planning attorney if you’d like some more information about the probate process and living trust. He can help guide you through it and provide sound advice. You can get good free estate planning advice in Portland, Oregon’s state capital.

06Oct/21

Divorce Mediation – What Is It and Why Should I Use It?

What exactly is divorce mediation? Divorce Mediation is an alternative voluntary agreement process commonly used by married couples seeking to either separate or divorce. Divorce Mediation allows couples to make their own choices about dividing assets and other matters regarding their divorces. With the help of a professional divorce mediator or divorce lawyer Seattle, divorcing couples are able to arrive at a custom-made agreement for their family’s finances, estates and personal futures.

Divorce Mediation

Divorce Mediation offers two main benefits. First, it helps couples work through their issues in a less expensive, quicker and easier manner than going to court. The cost of divorce mediation is typically less expensive than going to court and paying attorney fees. This is especially true if the parties involved enter into the mediation program through a professional organization that helps their clients prepare and present a well-written, comprehensive divorce mediation plan.

Read: Looking for uncontested divorce lawyer Seattle?

In addition to the ability to settle disputes quickly and easily through divorce mediation, there are a number of other advantages to this process. For example, during mediation both parties learn more about how their situation can be resolved and what will be required of them if a settlement is reached. There are many cases in which spouses have been married for years and, while they may have built a good relationship, deep emotional issues may still be present. By having this experience in mediation, the divorcing spouses become better able to communicate and work together to find the best solution for their individual needs. In many cases, this leads to a significantly faster and more affordable divorce resolution.

Another advantage to divorce mediation is that it saves the divorcing couple time and money. During a court proceeding, a judge may require the couple to be present physically and cannot take into consideration any other information that may affect the case. A mediator is free to look at all of the facts, gather information from both parties, and make a recommendation for the couple. He or she may also suggest an alternative to the parties in the divorce agreement, which can save time and money further down the road. In some cases, he or she will be able to negotiate on the behalf of the divorcing spouses and reach a settlement that both parties can agree upon.

Finally, although many mediators are not attorneys, they often know the laws and procedures that apply in your particular area and can therefore provide much needed support when it is time to go to court. Divorce mediation is usually much less costly than going to court, too. Because the parties cannot provide their own attorney, many mediators provide a consultation for very little or no cost. This means that the mediator can help his or her client obtain the desired results without having to invest money upfront.

If you are seeking a divorce, talk with your spouse about the possibility of seeking the help of a mediator. There are many benefits of divorce mediation tacoma, including your ability to get the fairest possible resolution without spending your own money on a legal battle. Your spouse may even agree to start the divorce proceedings by seeking the advice of a mediator because the sessions are less expensive than going to court. You will also have an opportunity to resolve any issues that have arisen since the marriage was finalized. Divorcedes may also find it easier to adjust to living away from one another once the divorce has been finalized.

Read more: What is collaborative divorce Olympia?

01Aug/21
venture capitalists strategizing

The Venture Capital Adviser Exemption

Section 203(l), also known as the “Advisers Act”, provides that only advisers to venture capital funds are exempted from registration under the Advisers Act. The Advisers Act does not define the term “venture capital funds”. Instead, SEC Rule 203(l),-1(a), defines the term as a private fund that meets specific conditions. This article will examine each condition and explain what you need to do in order to fulfill them.

Venture Capital Strategy

A fund must first meet the criteria to be considered a venture capital fund. This means that the fund must “[represent] itself to investors and potential investors as it pursues a strategy for venture capital.” It is subjective to determine whether a fund is actually pursuing a strategy for venture capital. The name of a fund does not have to include the word “venture capital”. The SEC examines the statements made by private fund advisers to potential investors and investors in general. However, to be able to give reasonable assurance that an investment adviser is exempted from registration, the offering materials for the fund must clearly and unambiguously declare that the strategy is venture capital.

Investment Holdings Limitation

The second condition is that the fund must meet:

Immediately following the acquisition of any asset (other than qualifying investments or short term holdings), no more than 20% of the fund’s aggregate capital contributions and uncalled capital in assets (other short-termholdings) that aren’t qualifying investments, valued either at cost or fair price, consistent applied by the fund.

The regulation defines the terms “qualifying investments” and “short-term holdings” in other words.

Qualifying Investments

A “qualifying investment” can be defined as one of the following: (i), equity security issued to a “qualifying company” by which an investor is directly acquired from that company; (ii), any equity security that is issued to a qualifying company in return for another equity security; and (iii). any equity security issued in exchange by a parent company of a qualified portfolio company for an equity stock in that portfolio company. The fund can retain its interest after a corporate restructuring or other exchange of equity interests. The fund can retain its interest after a qualifying portfolio business is acquired by another company, even a publicly-traded one. The qualifying portfolio company would then become a majority-owned subsidiary to the new parent company.

This definition has two major consequences. The first is that qualifying investments must not be debt but equity. The term equity security can be defined, thankfully, to include warrants, preferred stock, common stock convertible into common stock, and limited partnership interests. Bridge loans that aren’t convertible would not be considered qualifying investments.

They must also be purchased from a third party and made directly by an investor. The venture capital fund cannot treat any interest it acquires in a company on the secondary market, or by buying out current owners or managers as a qualifying investment. This would prevent the venture capital fund from treating such interest as part of its 20% non-qualifying basket. A qualifying investment is still considered a qualifying one after a corporate restructuring or buyout in which the equity interests of the qualifying portfolio companies are exchanged for equity interests in another company.

Qualifying Portfolio Businesses

Next, let’s consider the question: What is a “qualifying Portfolio Company?” At the time of investment by the fund, a company must not be a reporting entity under the Securities Exchange Act of 1934 or listed on any foreign exchange. Directly or indirectly, the company must not be under common control with an Exchange Act reporting company or publicly traded foreign company. (iii) The company cannot borrow or issue debt obligations in relation to the private fund’s investments in the company. In exchange for such investment, the fund may distribute the proceeds of such borrowings or issuances to the fund (i.e. There are no leveraged buyouts; and (iii), it can’t be a mutual, hedge, private equity, private equity, other venture capital funds, commodity pool funds, or issuers of asset-backed securities.

A “qualifying portfolio” company is the first requirement to ensure that any venture capital fund that invests in a company (other than its 20% nonqualifying basket) is not publicly traded. This requirement is not controversial as venture capital strategies often invest in young companies and may take them public. Venture capital funds can keep this investment, even if the company goes public. The test to determine whether an investment is a qualifying investment is performed at the initial investment. If the fund acquires more shares of a portfolio business after it goes public, this investment will not be considered a “qualifying” investment. Therefore, if a venture fund is asked to sign an agreement to participate in future rounds of financing for a portfolio firm, any such requirement would apply to shares that were sold during an IPO. This agreement could require them to buy non-qualifying investments. If this happens, the adviser to the venture capital fund could be required to register under the Advisers Act. The second requirement for a “qualifying portfolio fund” is that any leveraged buyout funds or other private funds that finance portfolio acquisitions and cause portfolio companies to incur debt will not be included in the definition of venture capital funds. This requirement, along with the requirement that “qualifying investments” must be equity securities acquired directly from the portfolio companies, effectively restricts the transactions venture capital funds are allowed to enter while still allowing for exemptions for their investment adviser.

The definition’s final requirement states that “venture capital fund” cannot include any type of fund of funds. This is true even if the underlying funds themselves are venture capital funds. A venture capital fund may invest in other funds as a part of its non-qualifying portfolio.

Holdings for the Short-Term

Remember that at least 80% must be invested in “qualifying investment” or “short term holdings”. This is a very restrictive definition. Although some funds might want to store their assets in low-risk liquid investments like commercial paper, municipal bonds, and foreign debt, not all assets would be eligible. These assets may be considered non-qualified investments for a venture capital fund, but they should not be used as a cash management tool.

The Non-Qualifying Basket

The “non-qualifying” basket is a portfolio of investments that are not “qualifying investment” or “short term holdings” and can only be used to invest in 20% of the total assets of a venture capital fund, which includes committed capital but not yet invested capital.

Each investment must be calculated by the fund to determine if it exceeds the 20% limit. The test does not apply continuously. This means that even if certain qualified investments lose value or non-qualifying investment increase in value, regulations will still be followed. The fund will not be allowed to acquire any non-qualifying investments until the proportion of non-qualifying investors falls back below 20%.

Another thing to remember is that capital commitments must all be bona fide. Funds cannot have “investors”, who commit capital, with the understanding that it would never be called. According to the SEC, such arrangements would decrease the ratio’s committed capital. The ratio is still calculated even if the investor does not provide the capital, even if the adviser to the fund calls it.

Venture capital funds can also choose from one of two methods to ensure compliance with non-qualifying investment limits. Funds can choose to value investments at their fair value. This is known as a “mark-to-market” approach. If a fund’s nonqualifying basket loses value due to market fluctuations, it may be allowed to buy additional non-qualifying investment if this does not exceed the 20% limit. All assets are assessed at fair market value. This could be costly as many fund investments are likely to not be liquid and therefore difficult to value. Therefore, frequent appraisals may be necessary. Another approach that a fund might consider is to value all investments at their historic cost, so that the investment’s value does not change regardless of market fluctuations. This avoids having to perform frequent appraisals if the fund chooses fair value for its calculations. The SEC believes that fund advisor should not be allowed to use different methods on different occasions. The fund must use the same method to value all investments throughout its life.

Venture capital funds can use the non-qualifying basket to make non-qualifying transactions such as bridge loans to portfolio or potential portfolio companies, or purchase of publicly traded securities. They do not lose their status as venture capital funds.

Limits on leverage

The third condition for a “venture capital funds” is that the fund must:

“Doesn’t borrow, issue debt obligations or provide guarantees, or otherwise incur leverage, exceeding 15% of the aggregate capital contributions of the private funds. Any such borrowing, indebtedness or guarantee of leverage by the private fond of a qualifying portfolio firm’s obligations up the amount of private fund investment in the qualifying company is not subject the 120-day limit.

There are two main requirements for the leverage restriction. The first is that a venture capital fund cannot borrow, indebtedness, or guarantee the debts of portfolio businesses in excess of 15% its aggregate capital contributions and uncalled committed capital. It can also incur significant leverage during the fund’s early years of existence, even before it has called all its capital. If a fund has $10 million in capital commitments but has not called $2 million yet, it could theoretically be subject to leverage of up $1.5 million. This is because the 15% calculation uses the total aggregate number.

A second requirement is that all borrowing, including those incurred to comply with the 15% limit, must not exceed 120 calendar days. Portfolio company debt guarantees are exempted from this limitation. The guarantee of portfolio company debt cannot exceed the fund’s investment in the portfolio company. Except for that exception, any borrowing by a fund must not be longer than one year.

These two requirements result in very restrictive leverage restrictions within the SEC’s definitions of portfolio companies. They effectively prevent funds that use substantial leverage from using the venture capital exception to registration as investment advisers.

Investors do not have any redemption rights

The fourth condition demands that the fund:

“Only issues securities whose terms do not give holders any rights, except in exceptional circumstances, to withdraw, redeem, or require the purchase of such securities. However, holders may be entitled to receive distributions made pro-rata to all holders.”

In its comments to the rule, the SEC provided guidance on what “extraordinary circumstances” mean. It stated that it would be restricted to events outside the control of either the fund adviser or investor. SEC only gives one example: a material modification in law or regulation. Evidently, the SEC meant that this exception would be very limited in scope.

One question that might arise is whether an adviser to a fund would be allowed to receive distributions from its carry interest without making a pro-rata distribution to investors. It can, according to the commentary. This is because the regulations state that venture capital funds can only issue securities without redemption rights. The carried interest of the fund adviser is typically a general partnership interest in a limited partnership, or a managing member of a limited liability business. This would not be considered security in the context of fund formation. There are potential problems. A few fund advisers structure their carried interests as a limited partnership interest that is held by a special limited partner, which is an entity independent from the fund adviser. This limited partnership interest could be considered a security and a fund that is structured in this way may not be allowed to distribute the carried interest of the fund adviser without pro rata distribution to investors.

This requirement also raises the question of whether it prohibits investors from transferring their interest in venture capital funds. Private funds’ offering documents must limit the transferability of fund interests as a condition of making use of Regulation D. However, certain exemptions, such as Rule 144 and Section 4(a),(7) of the Securities Act of 1934, or the “Section 4 (1 1/2 ) exemption”, allow for resale. Fund offering documents often state that the owner of an interest is allowed to transfer it if counsel gives an opinion stating that there is a resale exemption. Is this a violation of the redemption restriction? Commentary to the rule suggests that the SEC believes that such a provision does not violate the redemption restriction, provided that the adviser is not giving de facto redemption rights by helping investors find potential transferees. Venture capital funds should not offer to help investors locate potential transferees.

These restrictions are in line with the practices of the venture capital fund industry. This requirement will mean that some funds will not be able to qualify for the SEC’s definition. The definition may not apply to funds that are “evergreen”, that accept new investors, allow redemptions like hedge funds do, or that use a special limited partner and intend to distribute to that partner at a pro rata rate to investors.

Registering the Prohibition Against Investment Company Act

The fifth and final condition is that the fund (i) must not be registered under Investment Company Act of 1940, and (ii) must not elect to be treated in accordance with the Investment Company Act as a business development firm. Venture capital funds should not be affected by this requirement.

Funds that are registered as investment corporations are usually publicly traded mutual funds. Contrary to this, venture capital funds are generally private funds. These funds are exempted from the Investment Company Act’s registration requirements. A venture capital fund typically uses one of two exemptions: the “3(c)(1)” exemption or the “3(c)(7)” exemption. Funds with 100 or less investors are exempted from registration under the Investment Company Act by the 3(c(1) exemption. The Investment Company Act exemption 3(c)(7) exempts any fund sold only to qualified purchasers. This is, roughly speaking, a person or entity that has $5 million or more in investment assets. Practically speaking, this means that private funds, such as venture capital funds, are either (i) limited to 100 or less accredited investors or (ii) limited to qualified purchasers.

Advisors to funds that have elected to be classified as business development companies under the Investment Company Act are exempt from the venture capital exemption. A business development company can be described as a publicly traded private equity fund that provides capital to financially distressed companies. If an exemption applies, advisers to such funds must register with the SEC as investment advisors.

Conclusion

It may seem easy to be exempted from the requirements for venture capital advisor exemption by restricting the adviser’s business only to advising venture capital funds. However, it can be difficult to determine if a fund meets the complex conditions to be a “venture fund”. Also note that a private fund adviser exempt under the venture capital exemption is still an exempt reporting adviser, which means it will still be required to provide an abbreviated Form ADV to the SEC. In addition, fund advisers exempt from the SEC may also still nonetheless be subject to state investment adviser registration requirements. An attorney with experience in securities regulatory issues should be consulted to determine if your fund management company is required to register with either the SEC or state authorities, and what filings are necessary.

01Jun/21
funds

The Meanings of “Registration” in Private Funds

New private fund advisers frequently ask me if they need to register with the SEC. Many of them think in terms that they will need to register as investment advisers. Even if a fund advisor is exempted from registration with the SEC as an investment advisor, they need to be aware of the impact of federal securities laws such as the Securities Act of 33 and the Investment Company Act of 40. They also need to be familiar with state securities laws including the state registration requirements for investment advisers. Many new fund advisers claim that they will rely on one exemption and assume that it applies to all securities laws. This article will discuss the various statutes and regulations that govern private funds advisers, and the registration exemptions that are often relied upon.

Securities Act of 1933

After the 1929 market crash and subsequent Great Depression, the Securities Act of 1933 was adopted. The Securities Act was the first federal law to regulate the sale securities. The Securities Act generally prohibits the sale and offer of securities to the public that aren’t registered with the Securities and Exchange Commission. As we’ve discussed, the definition of security is broad. This means that the Securities Act can be applied to many transactions more than you might think. Private funds interests would also be considered securities. (See this post for a discussion on the securities laws treatment of limited partnerships and limited liability companies). Private funds cannot sell securities to investors without registering them with the Securities Commission. This is because of the high cost of doing so.

Private funds almost always use one of the two exemptions, Rule 506(b) or Rule 506.(c), which both are part of Regulation D. These exemptions are set forth under the Securities Act. A Rule 506(b), exempts an offering from registration if the issuer doesn’t solicit or advertise the securities for sale (also known by general solicitation), (ii), the issuer offers securities only to accredited investors1, (iii), the issuer takes reasonable precautions to ensure that purchasers aren’t purchasing securities in the intention to resell them, and (iv) the issuer isn’t soliciting or advertising the securities for sale. Rule 506 (c) is the same as Rule 506 (b), except that (i), the prohibition against general solicitation does not apply, and (ii), the issuer takes reasonable measures to ensure that each purchaser are accredited investors. This usually involves verifying the net worth and income of the investor by reviewing relevant documents or getting a verification letter by their accountant. This process can be time-consuming and discourage investors from investing in the fund. Most funds follow Rule 506(b).

Securities bought under Rule 506 exemption do not need to be registered with SEC. Instead, the fund must file Form D to the SEC within 15 calendar days of the first sale.

Each state has its own registration requirements, in addition to the Securities Act’s federal requirements. The benefit of using Rule 506 (b) or Rule 506(c) to register your fund is that the state registration requirements are not preempted. Therefore, each state does not need to file a separate exemption. The fund must still file a copy the Form D with every state where purchasers of the fund’s interests are located, and possibly the state where the adviser to the fund is located.

1940 Investment Company Act

The 1940 Investment Company Act requires that securities issuers that hold or invest in securities must register with the SEC. There are many restrictions to this registration and additional regulatory hurdles. Among other things, investors must be able to see the investment holdings of registered investment companies and they can also be subjected to certain restrictions.

Private fund operation is not possible due to the Investment Company Act’s reporting requirements and investment restrictions. Private fund advisers will need to find an exemption from Section 3(c)(1) and (3) of the Investment Company Act. Section 3(c),(1) and (3) are the most popular exemptions. The two most common exemptions are Sections 3(c),(1) and 3(c),(7). Private funds that rely upon Section 3(c),(1) must: (i) not make or propose to make a public offering (complying to Rule 506 (b) or Rule 506(c) above fulfills this requirement); and (ii). limit the number to 100 investors. However, please note that counting the number of investors can actually be quite complex if some of the investors are entities rather than individuals (See this post for more information.) To rely on Section 3(c)(7), the fund must (i) not make, or propose to make, a public offering of its securities (same as for Section 3(c)(1)) and (ii) limit the offering to “qualified purchasers” (see this post for more information). For a further discussion on this exemption and the distinctions between Section 3(c)(1) and 3(c)(7), see this post.

The 1940 Investment Advisers Act

Investment advisers, including those who are private fund advisors, may need to register with SEC under the 1940 Investment Advisers Act. The Advisers Act generally defines an “investment advisor” as any person or company that is paid to provide advice, make recommendations, issue reports or furnish analyses on securities. Investment advisers include private fund advisors. They must register unless they are exempt from registration.

The SEC rarely requires new fund advisers to register from the beginning. The policy of having small investment advisers primarily regulated by states is prohibited from investing advisers located in the United States with assets under $25 million. This prohibition is commonly known as the exemption for small advisers.

The private fund advisor exemption is the most popular exemption for private-fund advisers. This exempts investment advisers that advise private funds only and have less than $150,000,000 in assets under management. Another commonly used exemption is the venture capital fund adviser exemption, which exempts an investment adviser that only advises venture capital funds, as described further in this post. The foreign private adviser exemption is another exemption that applies to certain fund advisors. This exempts investment advisers who: (i) have no business location in the United States; (ii), have fewer than 15 clients in America and investors in the United States for private funds they advise; (iii); have assets under management that are attributable to clients in USA and investors in US in private funds managed by the adviser and less than $25,000,000; and (iv). Do not openly represent themselves as an investment advisor to the United States

Fund advisers who rely on the exemption for private fund advisors or the exemption for venture capital fund advisors are exempt from filing a Form ADV. This is also the form used to register with the SEC as an investment adviser. However, investment advisers who use the exemption for foreign private advisers or the exemption for small advisers are not required to file an exemption reporting form. However, they may need to do so to be eligible to receive certain state exemptions to registration as an investor adviser.

State law plays an important part in the regulation of private fund advisors, just as it does with securities sales. Each state has its own requirements for investment adviser registration, as well as exemptions. Private fund advisers may be exempted by many states. Some states have exemptions that may apply to private fund advisers. It is possible to be exempted from SEC registration, but still be required to register with the state. Investment advisers who have assets under management of between $25 million and $110 million may need to register under the Investment Advisers Act. This interaction between federal and state law is complex and is described in more detail here.

Conclusion

In the context of private funds regulation, the term “exemption” can be misunderstood. This leads to confusions for new advisers. A waiver from registration with one regulator or under one law does not exempt you from other regulatory or laws. Some exemptions might still require filing with the SEC and/or a state agency. It is essential to have a thorough understanding of the laws governing private funds as well as the exemptions available from registration to launch a new fund.

14May/21
start up

Why Startups Use Convertible Notes

For the past 10 years or so, founders of early-stage startups have been increasingly turning to convertible notes and convertible equity instruments to structure investment rounds, particularly for their first capital raise. Although some angel investors argue that founders should do fewer convertible notes rounds and make more equity deals, it is important to remember why convertible notes have been so popular in the early-stage financing industry. What are the main benefits to founders and investors of a convertible note offering instead of a stock offer? We will be discussing the important terms for your convertible note offering in future posts. But let’s first look at the main benefits of the convertible structure to help you decide if it’s right for you.

You might think, “What’s wrong selling 10% of my company to an investment in exchange for $100,000 to help us get off the ground?”. This is the first problem that convertible notes are designed to solve. It’s the valuation. Let’s say your company is still in beta with its product or looking for a first enterprise customer. Is it logical to place a $1,000,000 post money valuation on the company in this stage? But what if the $100,000 gets you traction and you raise a Series B round at $10 million valuations two years later? You’ll be thrilled to meet your first investor, but you will also feel serious seller’s guilt for giving up such a large portion of your company to an investor who now realizes that it was a very low valuation.

Convertible notes have the advantage that investors and founders can postpone discussing valuation for another day. Based on the company’s valuation, convertible notes can be converted into equity. In our example, instead of receiving 10% of the company for the $100,000, the investor would convert to the round that valued it at $10 million, at a discount of, for instance, 20%. The founder saw the value in the $100,000 being used to get the necessary traction and justify a higher valuation. It also avoided the dilution of selling equity at a 1 million valuation. The convertible note investor is happy because he was compensated for taking on extra risk by coming in early and receiving a discount in the new round. The stock is available for purchase at $.80/share, while other investors will pay $1.00/share.

The simplicity second reason is used to justify convertible note. What terms will the initial $100,000 investment be made by the founders to sell their 10% equity stake in the company? What is the difference between preferred shares and common shares? Will the proceeds of a sale go first to the investor or to the founders? What happens if the company raises capital at better terms? What happens if the investor gets those better terms? Or has the opportunity to take part in the new offering to avoid being diluted?

The convertible note can be used to replace company stock. This allows both the founders and investor to put off these decisions until the next equity financing round. Convertible note investors will receive the same rights as the equity financing investor, except that they will convert to the class of shares being offered. Convertible note offerings are generally less expensive than equity financing rounds due to their simplicity. It is important to note that both types offer the issuance and transfer of securities. You will need to consult an attorney to ensure compliance with both federal and state securities laws. The angel financing community has evolved to the point that there are agreed terms for first-money equity offering and convertible note offerings. This reduces negotiation complexity. Convertible note offerings may be simpler to set up, but outside factors such as who your investors and their negotiating leverage will impact the project’s complexity.

Convertible notes are a great addition to the early stage financing landscape. They allow founders to raise capital efficiently without having to grant the rights that preferred stock investors have. Convertible notes can delay discussions about company valuations and preferred stockholder rights but these decisions have to be made. Convertible notes can be viewed as a bridge that will help the company get in the best position possible for a larger round equity financing.

01May/21
raising capital

Do’s and Don’ts for Rule 506(b), Offering

A company must adhere to securities laws when raising capital. As previously discussed, all offerings of securities, must either be registered with the SEC or exempt from such registration. Private companies have the most common exemption from securities under Rule 506(b). Even if you have met the basic requirements of the exemption, there are still nuanced requirements that can be overlooked and could affect your ability to qualify under the exemption. An issuer, its officers and directors can face severe penalties if they fail to follow Rule 506(b). The SEC and state regulators have the power to initiate investigations, civil and administrative actions, enter orders and impose substantial monetary penalties. They can also transmit evidence to U.S. attorney general, who can take criminal proceedings. Buyers who violate securities registration requirements are entitled to rescission rights according to both federal and state laws. This blog post provides a list of best practices to conduct a 506 (b) offering. It is bullet-pointed for your convenience.

Rule 506(b) Offering Procedures

Who Should Conduct an Offering. The offering should only be conducted by the officers, directors, and employees of the company issuing securities, or registered broker-dealer. If they claim to be able to raise money for your company, they must not be associated with a broker-dealer. This could legally put you and your company in danger.

Offeres. Only persons or entities who meet the requirements below may be offered investment opportunities.

  1. You believe they are accredited investors because they fall under one or more of the following categories:
    • Business organizations with assets exceeding $5,000,000 that are not intended for investing in your company.
    • Directors or executive officers of the company
    • Individuals with a net worth of more than $1,000,000 or jointly with a spouse; This does not include primary residence.
    • Individuals with income greater than $200,000 or joint income with spouse exceeding $300,000. Expecting the same income in this year’s income;
    • These individuals may have IRAs
    • Trusts of assets exceeding $5,000,000 are not created for the purpose to invest in your company. They must be directed by a sophisticated individual.
    • entities in which all owners are one of these.
  2. Who fall within one of the following categories
    • Ideal candidates are people who have a relationship with you in a business or personal capacity. To evaluate their financial situation and sophistication, you must have enough information.
    • People with whom you don’t have a relationship are less desirable. However, you can introduce yourself to people through your personal network of sophisticated, experienced investors. You can then send them the offer materials by asking them to complete an “Investor Questionnaire”. You can avoid prohibited “general solicitation” by contacting fewer people.

What to Avoid

Avoid these things:

  • Accepting investment documents that are incomplete or incorrect or accepting investments from investors even though they have not been accredited
  • Accepting funds from potential investors before reviewing and receiving investment documents
  • Cold calls, website communications or email blasts or newsletters are all acceptable methods of contacting the public about an offering of securities.
  • Any materials other than those prepared by legal counsel for an offer of securities must not be used.
  • Distributing materials about your company (such as annual reports) that may be construed to offer securities except for the permissible types of people described above is not allowed.
  • Compensation of directors, officers or employees who find investors through a subscription;
  • You cannot compensate anyone for finding investors or in connection to an investment, except if such person is a registered placement agent or broker-dealer with whom you have signed an agreement.

Documentation procedures

These procedures will ensure that your offering is eligible for the Rule 506 (b) exemption. You should also have the appropriate documentation in case of an audit by regulators.

Contacting Offeres

  • If your offering materials have a number (and it is a good idea to number each one), you should fill in the number for each package before you give them to potential investors. This number should be unique for each individual receiving the materials, regardless if they decide to invest. This means that the number should be unique to each person receiving the materials, regardless of whether they invest or not. You should not re-use numbers even if you never hear back from the person.
  • All items should be included in the offer materials for each potential investor.
  • The offering materials can be delivered in person, by mail, facsimile or email.
  • Consider adding security protections to electronic files, such as encryption, password protection, watermarks, or statements regarding confidentiality, when you email the offering materials.
  • Keep track of the number, offeree’s name, and transmittal date.
  • Use client relationship management software (CRM) to track the transmission of offer materials to potential investors.

Securities filings

  • The required disclosure filing Form D must be filed with SEC within 15 days of the first investment. Your counsel will usually prepare the Form for you, but they need to know about your subscription as soon as it occurs.
  • Each state must file a copy of Form D within 15 days of the sale. This is usually done by the counsel of the issuer. However, they will need to be notified immediately if you have new investors.
  • For certain changes, amendments to Form D should be filed. If any information on the Form D has changed, let your counsel know immediately.
  • Annual amendments to Form D must also be filed, as long as the offering is ongoing.

Permanent Maintenance

  • Keep track of all subscriptions.
  • You should review the offering materials at least once a quarter, as well as when any major event occurs. Your counsel should inform you if there is any information that needs to be corrected or updated as soon as possible. You should consult your attorney if you are uncertain about which events or changes will require updating the offering materials.