RS BioTherapeutics is live!

RS BioTherapeutics develops life-changing medicines for the millions of people suffering from diseases characterized by pulmonary inflammation. RS BioTherapeutics’ first investigational compound (RSBT-001) is a first-in-class therapeutic in development as an alternative to corticosteroids for the treatment of respiratory diseases characterized by pulmonary inflammation.

RS BioTherapeutics’ Reg CF raise launched on April 29, 2024. Learn more about this pathbreaking company and the investment opportunity at:  https://www.startengine.com/offering/rs-biotherapeutics

By Jossey PLLC, www.thecrowdfundinglawyers.com

Jossey PLLC performed paid legal work for this capital raise

Reg CF Issuers, File Your Annual Reports!

Reg CF Issuers, File Your Annual Reports!

For Regulation Crowdfunding (Reg CF) issuers, Spring means more than tax time. Uncle Sam, through the Securities and Exchange Commission (SEC), requires an annual report, Form C-AR. Companies must submit these reports 120 days after the fiscal year (usually December 31) until they become eligible to stop.

And while an SEC Enforcement Division letter may not seem as scary as the IRS kind, ignoring these reports, which update investors on company progress and financials, comes with dire consequences.

First, the SEC could deem Reg CF securities as unregistered. This can mean personal liability for founders and other officers. Indeed, it could put the entire company at risk. The Commission is particularly protective of Reg CF-eligible retail investors. In its 2015 release the regulator stated it may prosecute delinquent filers, even if they had remedied. “We note that even if an issuer has regained eligibility [by filing past reports], the Commission could still bring an enforcement action under the federal securities laws based on the issuer’s failure to make the required filings.”

Reg CF Issuers must file Annual Reports to avoid SEC trouble

But even without this extreme action, founders ignoring Form C-ARs face potential legal headaches. First, the company will be ineligible to do another Reg CF raise until the company files past-due reports dating back two years. Second, companies must be current on these reports to exclude Reg CF investors from the 12(g) record-holder count. Exceeding this shareholder number requires companies to formally register with the SEC—an expensive and time-consuming process almost no recent Reg CF issuer is ready for. Third, issuers must disclose past failure to comply with reporting requirements on any future Reg CF offering statement and annual report, risking reputational harm.

More broadly for the industry, low filing rates give ammunition to those hostile to retail investor access to the private capital markets, particularly state-level regulators.

Reg CF issuer compliance with Annual Reports is abysmal

Despite these myriad negative repercussions, issuer compliance with Form C-AR is abysmal. In a recent Crowdfund Insider article, Howard Marks, founder and CEO of the StartEngine portal compiled the following data:

  • Based on my team’s calculations, an estimated 1,548 Form Cs were filed in 2022, signifying the start of new Reg CF offerings.
  • From that group, we further estimate that 810 companies that filed Form C-U – this typically indicates a successfully completed Reg CF funding round.
  • We estimate that of the approximate 1,548 Form C filings, only 361 filed Form C-AR’s; and of the 810 successful rounds, as few as 253 completed the filing on time.

This results in compliance rates of 23% and 31% respectively. As stated, noncompliant founders and officers risk professional and personal harm.

Companies may stop annual reporting after as few as one C-AR, depending on number of shareholders and total assets, although it must notify the SEC with Form C-TR: Termination of Reporting. Other companies must report until some event occurs like registering the securities, repurchasing them, or ending operations.

By Jossey PLLC, contact for further information [email protected]

Are changes coming to Reg CF?

Are changes coming to Reg CF?

Regulation Crowdfunding (Reg CF) is helping small businesses and startups across a broad range of demographic and geographic cohorts. But some tweaks could make it even more appealing for founders. So concluded the Securities and Exchange Commission Office of the Advocate for Small Business Capital Formation (the SEC Advocate) in its recently released annual report

Reg CF allows private companies to accept investment from its own “crowd” of supporters, friends, customers, clients, and anyone else, without the wealth requirements that have traditionally limited investment to Accredited Investors.

Since going live in 2016, Reg CF has successfully opened private markets to companies in a vast array of industries. It has also become “social validation” for venture capitalists less eager to write large checks than they were a few years ago.

Reg CF is helping a broad array of founders

Founders across the spectrum are incorporating this tool into their capital-raising portfolio. The SEC Advocate reports:

  • 28.5% of offerings in Q3 2022 had at least one woman founder
  • 25.2% of offerings in Q3 2022 had at least one founder of color
  • 71.5% of offerings in 2022 exceeded minimum funding targets
  • 70% of capital is distributed outside the top 10 capital hubs
  • $1,578 average investor check size
  • $428,486 average raise in 2022
Source: Securities and Exchange Commission

Still, Reg CF comprises only a small part of the overall private capital market. The SEC last modified Reg CF in 2021, raising investor and offer limits, allowing Special Purpose Vehicles (SPVs), which cabin Reg CF investors on a single cap table line, and allowing pre-raise communications with potential investors. These fixes made Reg CF more founder and investor friendly.

Are Changes Coming to Reg CF?

The SEC Advocate now recommends additional changes to further this effort. They include allowing non-GAAP accounting for small businesses raising up to $500,000 to satisfy financial requirements and increasing the offer ceiling on for financial self-certification. Currently, for offerings between $124,000 and $618,000, or for the first Reg CF of up to $1,235,000, the issuer must provide GAAP-based CPA-reviewed financial statements.  

They also propose allowing companies operating under the Investment Companies Act to utilize Reg CF. The SEC Advocate asserts this would smooth existing complications with the SPV model.

The full Commission will consider these recommendations along with the others the SEC Advocate recommended to help small business capital raising.

Regardless of whether the SEC acts, founders should be weary of the myriad legal pitfalls they potentially face with Reg CF. It is always best to engage legal counsel before undertaking any securities transaction, but especially those with retail investors. The SEC is especially protective of these less sophisticated investors in contrast to exemptions where only Accredited Investors are eligible.

Reg CF changes means hiring expert counsel

Founders should hire experienced counsel to guide them through the process. The original SEC Regulation Crowdfunding release is almost 700 pages and the commission has added guidance and interpretations several times. Moreover, the SEC Enforcement Division is ramping up scrutiny on Regulation Crowdfunding.

By Jossey PLLC via www.thecrowdfundinglawyers.com

Crowdfunded startup survival more likely amid VC pullback

Crowdfunded startup survival more likely amid VC pullback

“Startups are dying amid a historic drought in venture funding,” began one recent Wall Street Journal article. “The pace of startup shutdowns, fire sales and sharp business-strategy changes is picking up,” began another. Yikes!

Higher interest rates, macroeconomic concerns, and unsettled geopolitical events have all contributed to a shaky environment for startups recently awash in cash. A startup “mass extinction event” is underway, as the head of one capital fund remarked. This is due partly to belt-tightening measures among venture capitalists. Startups seeking capital raised $37 billion the first quarter of this year, a 55% decline from last year. Indeed, according to Pitchbook, in 2022 the -7%, the return rate for venture capital firms was its lowest since 2009.   

VC-backed startups are struggling

Anecdotes back the numbers. Once unicorn-potential startups with massive valuations are flatlining as market realities sink in. Hopin, an events startup once valued at $7.8 billion recently sold for a measly $15 million. Zume, a robot pizzamaker, once valued at $2.35 billion couldn’t turn pies into dough fast enough and is winding down. WeWork a hotshot of yesteryear whose valuation peaked at $47 billion is headed for a Theranos-style downfall. The list of lesser knowns failing to keep afloat grows daily.

Startup survival has always come with long odds. 7.5 out of 10 venture-backed startups fail. Only 16% went public or had a successful acquisition within seven years of getting their first VC check according to one study.

Crowdfunded startup survival more likely  

But those that choose equity crowdfunding (Reg CF) over or in addition to the whales are more likely to survive. Unlike VC partners, Reg CF are more likely to be patient with startups trying to find their footing or pivot due to market conditions. By definition, they are casual, passive investors, investing disposable income. With lower stakes comes less pressure and more willingness to support a further round. Reg CF investors also tend to be more loyal as they are more likely to already be in the founder’s extended network and are often investing in part to support the founder personally. Further, for consumer-facing businesses they are more likely to already be customers or clients engendering further loyalty.

These factors matter when times get tough as they currently are in the present startup environment.

Crowdfunded startups add extra benefits beyond survival

Beyond surviving tough times, here are other reasons founders should consider a Reg CF round in place of or in addition to VC money:

  • Broaden your investor base: Unlike other funding models, Reg CF can diversify your investor base from both a financial and geographical standpoint. Portals can accept investors from anywhere in the US, giving your business a potential foothold in all 50 states.
  • Turn your customers into marketers: Reg CF allows your customers to become financially invested in your business and see their investment grow as your business grows. This provides a free marketing campaign for your business with every new investor.
  • Incentivize your investors: Reg CF allows you to provide perks as part of the investment. Depending on the product this could include the product itself, ‘founder’ status on your website, access to events, or anything else that may induce an investment.  
  • Prove value to institutional investors: A successful Reg CF raise can show larger, institutional investors your business is ready for the big money. Many larger investors are now requiring “social proof” of a company’s business model. Your business can show larger investors value and momentum and provide your business “bridge money” while larger investors evaluate your model.

By Jossey PLLC

Schedule a free 30-minute consultation with my firm here: https://www.thecrowdfundinglawyers.com/cfl-scheduler/

Reg CF Crowdfunding for Franchises

Reg CF Crowdfunding for Franchises

Franchisors looking to expand into new markets and franchisees looking to “take the plunge” often face a dilemma: where to get the upfront capital. Franchise attorney Schuyler Reidel recently explored some traditional ways franchisees broach this issue. They include Franchise financing programs, loan guarantees, working capital loans, royalty fee deferrals, franchise associations, SBA loans or alternative investment networks.

All these methods have helped entrepreneurs begin their franchise journey. But another method has recently emerged that may overtake all past avenues for the added benefits both franchisors and franchisees get in publicity and more intense customer loyalty. This new method is Regulation Crowdfunding (Reg CF).

Reg CF is a set of regulations created by the Securities and Exchange Commission (SEC) deriving from Title III of the JOBS Act of 2012. Although passed into law over a decade ago the regulations did not go live until 2016. In 2021, the SEC modified the rules making them more founder and investor friendly.

Reg CF allows anyone to become an investor in a small business or startup, this includes franchises. (Publicly traded companies such as McDonalds are not eligible). Investors buy the securities over funding portals or traditional broker dealers. The securities can cover a wide range of financial instruments from equity, to future equity, to traditional notes, and profit-sharing “rev shares.”

Franchisors who have established customer bases are well suited for these types of raises given their consumer-facing businesses and the ability for the company (issuer) to include coveted perquisites thematic to the raise.

Reg CF crowdfunding allows franchisors and franchisees to collaborate on capital needs

Here are two scenarios where the franchisors and franchisees can benefit from a Reg CF raise:

Scenario One

An established BBQ restaurant with a loyal following wants to add two more stores. The total capital needed is $1.2M. They hire an attorney, contact a portal, get the required financial review completed and eventually go live with their raise. In the meantime, the owners reach out to their customer base to “Test the Waters” and gauge interest in the raise. They receive an enthusiastic response. When the raise goes live investors learn their investment entitles them to other benefits depending on their investment level including free T-shirts, “comped” meals, and the opportunity to attend a private dinner with the owners after the grand opening. After three months the raise closes and six months later the owners have two new stores.

Scenario Two

A pizza franchisor discusses a franchisee deal with two young entrepreneurs. The potential franchisees are eager to get into the business but do not have the $500k of upfront capital required. The franchisor allows them to use the company’s marks and email list in a Reg CF campaign. Because the raise will be imputed to the franchisor, the security is structured as a “rev share.” That way, the franchisor will not sell any equity in the company. Instead, the franchisees will finance the upfront capital by promising a part of future profits to the investors.

The franchisees hire an attorney, set up an LLC, and conduct the raise through a broker dealer with the franchisor’s blessing. The franchisor brings his customer base “closer” to him by making them investors and not just customers. The customers feel more aligned with the pizza franchise as investors and eat there more often. After four months the franchisees secure the capital needed to open the store. Two years later they have paid off the investors and start the process over for their next store.

*All investment comes with risk; these scenarios are for information purposes only.

Reg CF will upend capital raising for franchises

Reg CF is the future in franchise capital. It allows franchisors the chance to expand their business in a way the promotes brand awareness and loyalty. Franchisees looking for upfront capital may be able to use the franchisor’s goodwill and tap into their existing customers to create an investor base.   

For more information on starting a franchise contact Schuyler Reidel at [email protected]

For more information on Reg CF raises for franchises contact Paul H. Jossey at [email protected]

By Jossey PLLC