Marketing Securities Online Is Different From Marketing Everything Else: Three Basic Rules To Follow To Avoid Trouble

I’m not sure that my AI image generator could possibly make a creepier person than this guy

Since the advent of the intertubes, we live in a world of constantly being marketed to. Back in the “good old days” it used to just be TV and radio commercials, junk mail in the mailbox and ads in newspapers and magazines. You could easily avoid or ignore them. You could change the station on the radio when commercials ran. You could fast forward past taped TV ads in shows, or switch channels while watching live. Newspapers had ads, but your eyes knew to ignore them. But today, wherever you are online, it’s impossible to not be bombarded by ads. They are everywhere, and they are so well done that sometimes you do not even know you are seeing or hearing an ad. 

This is truly the golden age of marketing. So much data is available that you can literally drop an ad in front of a group of people online in your exact customer demographic  and have that ad tailor made for your product or services, then have that ad follow them everywhere they go online. Nearly everyone buys things online now, and we never have to look far to find what we want because the wonderful people at Google and Meta and Microsoft mine so much data that they can have an ad in front of you in seconds after you showed even the most remote indication that you are interested in buying something. 

With the passing of the JOBS Act in 2012, we suddenly had the ability to sell something else online – investments in private companies and startups. Small businesses had a new tool to raise capital and the restrictions against advertising that existed for more than 80 years were gone. The prohibition against the general public investing in startups and small businesses that were not publicly traded were gone.

So why has this golden age of marketing not allowed free-wheeling, Katy-bar-the-door marketing of these securities online? Sure, we see ads for companies raising capital, but why are these ads so limited in what they say, or how they look?

This article will explore some of the reasons why marketing securities online is not as easy as marketing almost anything else online. It will also delve into some tips on how to stay out of trouble when your private company decides to sell securities using marketing and advertising online and in traditional media.

For the most part, this article will discuss three methods of raising capital online: Reg A, Reg CF, and reg D, Rule 506(c) which are all parts of the 2012 JOBS Act. Some of what I write may apply to all securities in general, but I’m mostly focused on how small businesses raise money online under these three JOBS Act laws to raise capital to try to become big businesses.

The First Step: Avoiding “Securities Fraud” in Marketing

I know what you’re thinking. “I’m not committing fraud, I’m just running an ad to try to sell stock in my company!” The reason rules for marketing securities are different from the rules about selling almost anything else online is that if you screw up in your online securities ads, you may be guilty of what federal law refers to as “securities fraud.” You could face civil penalties. You could face lawsuits. You could go to jail. This is serious stuff. Imagine running a relatively innocuous ad about how your company’s new T-shirts are the best and most comfortable T-shirts in the world, and having someone knock on your door and arrest you. That never happens. But say that the stock you are selling in your company is the best investment in the world, and you can expect a knock on your door, or more likely a nasty letter from a state or federal securities regulator before a knock.

Securities fraud under federal law is the misrepresentation or omission of information to induce investors into purchasing securities. The primary applicable federal law is Rule 10b-5 of the Exchange Act of 1934. Rule 10b-5 states that criminal and/or civil liability may occur if (a) there was a misrepresentation of a material fact (2) done knowingly (3) that a securities purchaser relied on and (4) the reliance on the material misrepresentation caused a loss.

In addition, state governments may also impose civil and criminal liability on those engaged in securities fraud based on state laws. But for the most part, if you follow the federal law as it applies, you will almost always be in good shape with state laws.

The key here that makes securities marketing different is the absolute prohibition on misrepresentation in your ads. We have all seen ads for cereal, shoes, cars and almost every consumer good that say things we all know are simply not true. Companies selling products and services have, for decades, been given some leeway for “puffery” or certain exaggerations of marketing claims. The courts tend to use this test, or something similar, to walk the fine line between puffery and false advertising: Is the claim “blustering and boasting that no reasonable consumer would rely on?” If so, it is puffery and not false advertising. One court said “a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion” is puffery, and not false advertising.

Unlike the rest of the marketing world, there is no place for “puffery” when marketing securities. Don’t expect the general rules of puffery above will be used when the SEC, a state securities regulator or a competitor makes a complaint or starts an investigation into a potentially false or misleading statement.

Under securities laws, you must be clear to not be false or misleading in any manner. When you plan to make any statement, or use any language or graphics in any marketing material, review it in the most critical fashion you can – not in the most favorable manner. Assume the regulator or court will construe it in the worst manner possible, not in a manner favorable to you. If it could be considered misleading, don’t take any chances. Do not use it.

You do not want that knock on your door.

Here are the three basic rules to avoid committing securities fraud. Of course, there are just guidelines. In all instances, get legal advice from a securities lawyer.

Basic Rule 1: Be 100% truthful and use verifiable facts in all marketing communications

Ads, interviews, social media posts, emails and every other form of marketing need to be 100% truthful and all statements presented as facts must be 100% verifiable as true.

My basic rule is... if it could be read in any way as being misleading, do not say or use it at all. There is no reason to take a chance. Securities regulators do not care about “puffery” and will look at any statement that exaggerates, even if it is not believable at all, to be a false or misleading statement and a violation of securities laws.

Basic Rule 2: Use Qualifying Words and Terms When Giving An Opinion

If you have to discuss anything uncertain (I’m not talking about something false or misleading) make sure you qualify your statements.

For example, if you want to talk about your product being the best in the marketplace, understand the fine line between these two statements:

(1) We have the best product in the marketplace.

(2) We believe we have the best product in the marketplace.

The second statement is clearly an opinion, and while it is best to avoid even these types of statements when discussing a securities offering, sometimes it happens anyway, especially in a live interview. In those cases, be sure to qualify your statement with “we believe” or “we feel” or similar language. It’s not a perfect defense, and if the words after the qualifying statement are false or misleading, then qualifying it will not help. But always train yourself and your marketing team to qualify any opinion statement that cannot demonstrable be proven as fact to give your company the best chance to avoid problems.

Again, review all securities marketing statements in the most critical and negative way before using them because that is how a regulator or court will read them. They do not care if you interpret what you said differently. Your opinion as to how it could be interpreted the way you want it to be interpreted means nothing in this context. That is not how a regulator will interpret it.

Basic Rule 3: Try to avoid making statements about future projections unless there are lots of disclaimers and qualifying language

Projections of future sales, revenues, profits, etc. are rarely accurate, despite everyone’s best efforts. Once those projections are made public, they become fodder for regulators and plaintiff’s lawyers to make claims that you promised something that was false or misleading. It’s better to stay away from projections altogether. I almost always advise my clients to not use projections at all to promote the sales of their securities because of their uncertainty and the potential liability. But in circumstances where projections are used despite the great risk they bring to the table, there should be significant and thorough disclaimers surrounding the projections if they are in writing. If used in a media interview, they should be tempered by qualifying words and language – and best to do so in excess of what I discussed above given that you are talking numbers that people will rely on to make investment decisions.

But in my opinion, the best policy is to not use projections at all when marketing securities.

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This article is not and should not be considered legal advice. Yes, I am a securities lawyer but no, you did not hire me to provide you with legal advice. In all cases, consult with your own lawyer as every legal situation is unique and do not rely on my educational and informative article as legal advice.

How To Make An Effective Equity Crowdfunding Video

Take an AI generated movie set background, sprinkle in some bad photoshop of my head, and Voila! I’m a film director!

Why is a securities lawyer talking about making videos? Those who know me understand, but for those who are new to the world of Kendall Almerico, let me give you a tiny bit of background.

I’m been shooting and editing film (and later video) since I was a teenager. Not to date myself, but that means I was making Super 8 movies and cutting them with a razor and using tape to hold clips together. I remember when video cameras first came out and there was no way to edit them at home, so anything you shot had to be shot in order — no mulligans — to make a cohesive movie.

Go ahead, make dinosaur jokes.

I later worked in television and radio stations and I have an undergraduate degree in broadcasting. You used to have to pretty much work in broadcast related business to have access to video editing equipment. Now, anybody and everybody can shoot and edit quality video with the tiny device we all keep in our pockets (or our hands)  — but that doesn’t mean everyone can make a great video that tells a story and sells a product or company. That takes not just technical knowhow, but a certain set of skills that involves knowing how to communicate to the masses in a persuasive manner.

I’m not a professional videographer, but I know how to tell a story. I know how to communicate with investors through video. And I’m smart enough to know that a style of video that works for one company, does not necessarily work for every company.

There are some common elements in most successful equity crowdfunding videos, and this article will talk about those elements, and give you some real world examples of videos that I have used personally with clients to successfully to raise significant capital in the equity crowdfunding space.

Get Attention Quickly

You only have a few seconds to grab a viewer’s attention and to keep it. Many experts (people who write things on the internet are always “experts” so you know they’re telling the truth!) say that if you don’t grab a viewer’s attention in the first 10 seconds of an online video, you will lose that viewer. It’s true. People have short attention spans — especially when watching video online. So you need to grab people’s attention right away. I’m not sure 10 seconds is really a make or break point, but you definitely need to do something at the beginning of the video to keep people engaged.

If they stop watching your video after 10 seconds, there is a very strong chance they are not going to invest in your company. So don’t start off your video with something boring. Things like a great visual, an exciting phrase or a famous face will hold attention. Do what works for your company, but do it right away at the beginning of your video.

And I know all of this because I’m an expert!

Here is an example from my client, international craft brewing sensation BrewDog. More about them later (and the full video this screenshot came from), but when they launched their first successful Reg A offering a few years ago, the first thing you saw on their equity crowdfunding video was this:

You may not have known that BrewDog called their equity crowdfunding offerings “Equity for Punks.” You may know anything about them. But you see a vibrant Times Square backdrop and some attention grabbing words: Propaganda Outreach. If you stopped watching after seeing this, you were never the kind of person who was going to invest in their company anyway.

Don’t Go Too Long

A lot of “experts” will tell you that your video should be under 2 minutes. Some will tell you under 90 seconds. While this would be ideal given the short attention spans of your typical TicTok viewer, it’s not really accurate when it comes to equity crowdfunding videos. The reality is, most companies will not be able to effectively introduce their company, explain an investment opportunity and convince strangers to invest in 90 seconds. The random time limitations people impose also contradict the reality that if you make a 60 minute compelling and interesting video, people will watch it for 60 minutes. Hell, every major motion picture made is 90 minutes minimum, and a great film leaves you on the edge of your seat not leaving, but instead wanting more.

This goes back to my story telling comment earlier in the article. If you can tell the complete story in 90 seconds, you should do so. But if it takes 3–5 minutes to do so, and you can do it in a very interesting and compelling way, 3–5 minutes is also okay. It all depends on what you are saying, who is saying it, how it is being said, and if you have a creative team who knows how to keep the subject matter interesting.

I’m going to use three examples of videos made by equity crowdfunding clients of mine to launch their online offerings – one of which is still ongoing as this is published. All three were very successful, and collectively these three offerings raised millions of dollars from thousands of investors. The lengths of the three videos are 2:07, 2:38 and 5:15! When you see each of these videos below, I doubt you will be looking at your watch and wondering why they are longer than 90 seconds. They are compelling, attention grabbing and interesting. But if you are going to use a 5 minute video, you better make sure it’s not boring or repetitive. Show it to a few people when it’s done but before you launch it. If you hear “That was too long” and — believe me, people will tell you if it’s too long — then edit it down and make it tighter.

Get People Excited About Your Company As Quickly As Possible

Remember, you are not making The Godfather or Citizen Kane.

You’re making a commercial for your company. You’re not trying to sell tickets to a movie theatre. You’re trying to sell investments in your company. This is not time for Quentin Tarantino film techniques with a timeline where you have to watch half a movie that seems chronologically challenged then it all ties together at the end (with lots of blood and cursing). You’re making an ad. It needs to grab people quickly. I needs to get people excited about your company quickly. It needs to get people thinking “I’ll watch the rest of this, I’m interested in investing in this company!”

So don’t wait until 30 seconds into a 2 minute video to explain what your company does. Tell the viewer right away. Let them know why your company is special — right away. Use visuals — this is video after all — do not have a talking head spending 30 seconds explaining something that one picture or 5 seconds of video can explain immediately!

Real People Get Real Results

Not every great equity crowdfunding video has someone central to the company in it. But most do. And there is a reason why.

Lots of people bet on the jockey, not on the horse.

Most companies using equity crowdfunding, whether it is Reg A or Reg CF, are at a relatively early stage. Apple is not using equity crowdfunding. Apple can do a video, use its famous logo, throw up great imagery and sounds — and sell you its products — because its Apple! You already know who they are and what they do.

Most companies using equity crowdfunding are not particularly well-known. You have to explain to people what you do, and who you are. And having a face that is integral to the company to do the explaining is usually the right call. Look, I’ll be the first to admit if the founders of a company do not look good or do not sound great on video, this concept gets thrown out the window. But most founders believe in their company, know more about the company than anyone else, and speak with passion about their company and that belief, knowledge and passion come through in a well-made video.

Here’s an example from a Reg A video for my client Armed Forces Brewing Company who sold out their first Reg A offering. They are now on their second Reg A offering which you can read about here: www.OwnArmedForcesBrewingCo.com Their entire launch video is below, but this is the first frame of the video from their initial Reg A offering:

That guy is Robert J. O’Neill, a highly decorated retired Navy SEAL who also just happens to be the guy who shot and killed Osama Bin Laden. He is one of many veterans who own this military tribute brewery. While many people recognize him, not everyone does, so the first words out of his mouth are “I’m Robert J. O’Neill, former Navy SEAL Team 6 operator, and I shot a famous guy.” Even if you didn’t hear the audio, you have seen (a) the company’s logo and branding, (b) American flags and (c) guns and ammo. If this kind of imagery is not appealing to a viewer, that viewer is not likely to invest in Armed Forces Brewing Company. But for people who are fans of the U.S. military and veterans, this opening shot and tiny bit of dialogue have sucked you in and kept you watching. This is what the beginning of an effective video needs to do.

Remember the graphic that started the BrewDog video I showed you earlier — the one that said Equity For Punks: Propaganda Outreach? Right after that graphic, the video cuts to BrewDog’s founders. 

They are shot from a very low angle and they have NYC lights behind them. It’s visually strange, but grabs your attention. And it fits their company. Here are your founders — this is who we are! And when you see the full video a little further down in this article, you will hear the passion in their voices as they tell you how excited they are to bring their global success to America!

Problem and Solution

There is a widely held belief that every pitch deck, every video and every other thing done to attract investors must identify a problem, then explain why this company has the magical solution!

I’m not one to argue with things that work, and I agree that this makes sense in many cases — particularly when you have a new product or service that people may not understand. If you have to explain that a problem exists because people do not inherently know about it, then a “problem and solution” section of your video is probably a good idea. In fact, you may want to lead with it.

But if your company is entering a flourishing and crowded market that already exists, forcing a “problem and solution” into a video may just be a waste of time. Leave it in your deck or on your offering page. For example, my client BrewDog is a craft brewery behemoth that is a true unicorn — with an enterprise valuation of more than $1B. They have successfully run many equity crowdfunding offerings around the world, and have raised hundreds of millions of dollars from hundreds of thousands of crowdfunding investors worldwide. When they used Reg A to fund their first U.S. brewery, they were already a successful and profitable brand all over Europe, but had almost no footprint or visibility in America. They simply believed that they had a better product, a better approach and better everything than craft brewers in America.

There wasn’t a “problem” with the craft brewing industry in the U.S. they were trying to take their share of. They didn’t offer a “solution” to a problem. They just needed to educate people about who they were, what they bring to the table and their overseas success. So their crowdfunding launch video (click on the photo below to watch the video) did not have (or need) a “problem and solution” section.

This video launched one of the first Reg A offerings in the U.S. and drove thousands of people who had never heard of BrewDog to invest millions in the company to launch their U.S. operations. One of the reasons I love this video so much is that it really sends a message about what BrewDog is all about. You see the two founders and you know their personalities right away (bet on the jockey not the horse). It is high energy and you hear about their success overseas (get people excited as soon as possible). It is professional looking and has great video and sound (see below for good video and sound). It asks for an investment (see below for don’t forget the ask). You see that they like to “stick it to the man” by dropping “fat cats” all over Wall Street. While this approach may not appeal to everyone, and probably not to many traditional stock market investors at the time, it was an incredibly effective video to introduce a company to a new market for that company, and it worked.

What I like about it most is that I made an Alfred Hitchcockian cameo in the video. Yes, that’s me — the extremely handsome movie star everyone is staring at before he is unceremoniously smacked down by a parachuting fat cat. If there were credits in the video, I would have been listed as “Dude in suit on Wall Street pummeled by falling feline.”

Talk About Your Business — But Don’t Make It All About Numbers

In the world of public companies traded on NASDAQ or the NYSE, it’s all about the numbers. Revenues, profitability, PE ratios and a million other stats that analysts spew out to analyze how a company is performing. Public company management often spend more time worrying about their stock price than anything else. Numbers are important. But don’t make the mistake of thinking that most Reg A or Reg CF offerings should be treated anything like public companies when it comes to talking about business numbers in an equity crowdfunding video.

Hit a few main numbers and statistics in your video, but if you include more than 2–3, you are going to lose your audience. Watching a crowdfunding video is nothing like watching a stock market analyst talking about a publicly traded company on CNBC. If your video drones on and on about numbers and stats, I can assure you many people will stop paying attention. It’s hard to entertain and keep people engaged when you are droning on and on about one number after another.

If you are going to use numbers and stats, consider adding graphics to illustrate. There is a reason people say a picture is worth a thousand words. People will remember a graphic with a number at a far greater percentage that a number than is merely spoken. For example, take a look at this video from another client of mine that recently completed a successful Reg CF offering, Wunderground Coffee.

Look at how Wunderground’s Reg CF video illustrated a key number/stat to show their growth.

This is one of my favorite crowdfunding videos because (a) it worked (b) it told a lot of important stories about the company in a short time (c) it showed off the amaxing founder Jody Hall and her team of very successful entrepreneurs with multiple exits and a history with an industry giant (d) explained why mushroom coffee is delicious and healthy and a new growing industry and (e) had lots and lots of “food porn” shots of their amazing coffee.

Don’t Forget “The Ask”

Crowdfunding Video 101 — Ask your viewers to invest. Ask more than once if you want. Definitely ask at the very end — in the perfect world a viewer of the video watches the video then goes straight to the INVEST button on the same webpage and pulls the trigger. Reminding the viewer of this is important and a necessity for any equity crowdfunding video.

Don’t be subtle. Ask for an investment. Ask for money. I’ve had clients try to be clever and not want to mention their video is about getting people to invest. This misguided desire to be subtle and not ask directly for an investment reminds me of how some people run ads for an equity crowdfunding offering. They run an ad about something sexy, something interesting, something to drive a click on the ad — but never mention the ad is driving the person who click to an investment opportunity. This is almost always a mistake, and gets a click from someone who then finds out they are being asked to invest. People do not like being deceived. It’s a waste of ad money driving clicks from people who then get surprised, and not in a good way, that you are asking them for money to grow your company. If you are running ads and not telling people you are seeking an investment, you’re wasting your money and their time. Same thing with your video. If you suck them in, keep them excited and never tell them you are asking them to invest, you just wasted an opportunity.

Last, But Not Least — Good Sound and Video Quality Matter

Don’t get me wrong — you do not have to get Martin Scorsese to direct your equity crowdfunding video or use a Hollywood crew of 50 people to shoot a 2 minute video. I’ve seen great equity crowdfunding video that were shot on an iPhone and edited in iMovie. But even those paid attention to two important details: great video and good sound quality.

Great video means having good lighting and keeping everything in focus. Good sound quality usually means having an external microphone especially if you are using an iPhone. Nothing is` more unprofessional than a poorly lit video where the person talking isn’t using a mic, and it sounds like they are in a tin can or the Lincoln Tunnel.

The point is you are asking people to invest in your company. People want to invest in a company that will be successful. If you can’t invest a few bucks to make a great video when it is often the first and only impression a potential investor will have of your company, then you’re not projecting success to the audience that matters. If people think you can’t even make a decent video that looks and sounds good, why should they trust you with a much more difficult task of building and growing an entire company?

A few final words…

There is no cookie cutter, one-size-fits-all approach to an equity crowdfunding video. In fact, one video used to launch a Reg A offering that sold out and was oversubscribed, pretty much broke most of the rules above. Watch this equity crowdfunding launch video for Armed Forces Brewing Company  —  a military tribute brewery that pledges to employ 70% if their national workforce from veterans and their family members. The video is funny, silly, goofy and a parody of a lot of things. Some people loved it and shared it and it was seen by a huge number of people, Some people didn’t like it at all because it was too campy, but they remembered it. It features a famous person — retired Navy SEAL Robert J. O’Neill who shot and killed Osama Bin Laden, playing an over-the-top cartoon version of himself shooting and blowing things up.

Humor in an equity crowdfunding video is a big risk, and although this one paid off, it’s not always easy to do the right way. Armed Forces Brewing Company had a strategy from the beginning that they were going to market their company using humor and it worked for them at the beginning, and still works today as they are in a second Reg A offering as I publish this. Watch another of their promotional videos used during their Reg A offering.

Again, they break all the video rules, but it worked for Armed Forces Brewing Company. They oversubscribed their first Reg A offering and are on their way to doing the same in their second Reg A offering.

The point here is that every company is different and your equity crowdfunding video should reflect your company’s ethos, mission and character. Compare the BrewDog video above to the Wunderground video above. Two very effective videos, but completely different style, tone, and direction.

One thing I cannot overemphasize — get help from professionals when you create your equity crowdfunding video. The professionals may be your marketing team, your social media team, outside videographers or others. But this is an area where guidance, both technical (video, audio, music, graphics) and in the overall writing and presentation is invaluable.

Your equity crowdfunding video can make or break your Reg A or Reg CF offering. Don’t make the mistake of glossing over this incredibly important part of a successful online capital raise.

This article is not and should not be considered legal advice. Yes, I am a securities lawyer but no, you did not hire me to provide you with legal advice. In all cases, consult with your own lawyer as every legal situation is unique and do not rely on my educational and informative article as legal advice.

Reg A vs. Reg CF: Which JOBS Act Equity Crowdfunding Regulation Is Right For You?

When the JOBS Act was passed into law in 2012, small businesses in United States were given the opportunity to finally be able to tap into the crowd – everyday people – to raise capital even if the company was a startup, early stage or otherwise not going to be able to attract private equity or venture capital money. After 80 years, the heart of the American economy, small businesses, could finally raise capital from anyone, not just wealthy or well-connected individuals or institutions, and still remain a private company.

Over the past few years, two provisions of the JOBS Act have allowed small businesses (and some large businesses!) to raise billions of dollars from investors that for decades would not have been allowed to invest. Regulation A (also called Reg A or Reg A+) and Regulation Crowdfunding, or Reg CF as many call it, changed the landscape for small businesses that needed money to grow. While most people decide which of these provisions to use based on the amount of money they are trying to raise (Reg A allows an offering of up to $75M in one year while Reg CF is limited to $5M per year) there are many factors to be considered by a company seeking capital that go far beyond the simple question of “How much do I need to raise?”

 As a securities attorney who has handled many of both types of offerings, and as a crowdfunding consultant who has helped direct the marketing and other non-legal facets of both Reg A and Reg CF offerings, I have some insights that most do not have. In this new series of articles, I’ll share many of the things companies need to consider when they choose which regulatory exemption from SEC registration to use in order to raise capital from the crowd.

 I’m going to break this down into several articles that I will post over the next few weeks to save you from having to read the War and Peace version of how to democratize capital raising all at one time!

 Also, note that Reg A involves two tiers: not-so-coincidentally named Tier I and Tier II.  because Tier I has limited use for most companies raising capital and is rarely used compared to Tier II.

 This week: The Basics.

 Who can raise capital?

 For both Reg A and Reg CF, only a company (usually a corporation or an LLC) can raise capital. Individuals cannot raise funds with either Reg A or Reg CF.

 Regulation A is only available only to companies organized in and with their principal place of business in the United States or Canada.

 Regulation CF requires the company raising funds to be organized under the laws of a state or territory of the United States or the District of Columbia. There is no “principal place of business requirement” for Reg CF which opens the door to foreign companies using the law with some restructuring.

 Who can invest in a Reg A or Reg CF offering?

 Anyone, regardless of their level of income or net worth, may invest in a Reg A or Reg CF offering. This includes anyone in other countries, as long as it is legal in their jurisdiction to invest and assuming there is no ban in the United States on that person or anyone from their country investing.

 Are their limits on how much someone can invest in a Reg A or Reg CF offering?

 There are no limits on the amount any person or entity may invest in either type of offering, if the investor is “accredited.” An accredited investor is defined in 17 CFR § 230.501(a) and there are many criteria that allow one to meet the definition, but the most common two categories are (a) any natural person whose individual net worth, or joint net worth with that person's spouse or spousal equivalent, exceeds $1,000,000 (not including the person's primary residence not included as an asset and indebtedness that is secured by the person's primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, not included as a liability or (b) any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year.

 For an investor who is not accredited, they may still invest in a Reg A or Reg CF offering. In both cases, the amount one may invest is limited. In the case of Reg CF, it is further limited by the amount that person has invested in other Reg CF offerings in the past 12 months.

 I’d explain the formulas behind the limitations here, but it would only confuse you and make you ask yourself why these two provisions of the JOBS Act that basically allow companies to do the same thing to not have the same formula to determine how much money a non-accredited investors is allowed to invest. The good news is that this calculation is done behind the scenes through software that makes it fairly easy for an investor to determine how much they are legally allowed to invest. The other good news is that Congress didn’t put the burden on companies using Reg A or Reg CF to check the math or verify the numbers an investor uses. Unless the company is aware the investor is not “accredited” the company is allowed by law to rely on the investor’s representations.

How much capital can a company raise?

 In any one year period, a company may raise up to $5M with Reg CF.

 In any one year period, a company using Reg A may raise up to $75M with Tier II of Regulation A, and up to $20M with Tier I. This is commonly misconstrued to mean any company raising between $1-$20M must use Tier I, which is not true. A company may raise from $1-$20M with Tier I, and from $1-$75M with Tier II.

 I’m not going to get into the details of Reg A Tier I versus Reg A Tier II in this article for one simple reason: the use of Reg A Tier I is very limited for most companies. The reason for this in a nutshell comes down to one major factor: Reg A Tier II allows a company to raise capital anywhere in the U.S. without having to comply with every state’s Blue Sky laws while Tier I is the opposite and requires the issuer to comply with those laws in every state where investors will be solicited. Compliance with state by state Blue Sky laws is extremely expensive and could easily double or triple the cost of getting a Reg A Tier I offering live. Imagine having to have your offering circulars to raise capital undergo review by each state’s securities regulators, instead of just the SEC. Imagine the legal bills of trying to come up with filings in each state that are the same, and every time one of 50 state regulators or the SEC tells you to change one random paragraph, then having to go to all the other states again to make sure that they are happy with the change one regulator 2,000 miles away required. Imagine watching your bank account get drained as you pay even more attorneys’ fees.

 Suffice to say, Reg A Tier I is an often excellent choice to raise capital if you plan to only target residents on one state (an example would be a local restaurant who wants to open more locations in the same city), it is not a great choice for a company trying to reach investors across the fruited plain.

 How much does it cost to raise capital?

 For a company that is already formed, typically it costs approximately $15,000-$25,000 in out of pocket expenses to get a Reg CF offering live. The costs after the offering is live typically involve mostly marketing expenses, which can vary dramatically from case to case.

 For a company that is already formed, typically it costs approximately $50,000-$75,000 in out of pocket expenses to get a Reg A offering live. Just like Reg CF, the costs once the offering is live typically involve marketing expenses which can vary dramatically.

These numbers are general guidelines, and the cost could be far lower, or much higher, depending on all of the circumstances.

What legal documents do I have to prepare?

In order to start raising capital with a Reg CF offering, a company must file a document called Form C with the SEC which contains certain required legal disclosures, risks factors, company information, information about the securities you are selling, financial statements and more. Note that some funding portals – who are a sort of mini-broker-dealer – will offer to draft and file the Form C for you to save money. Before taking this extremely risky chance, consider the risks of allowing non-lawyers to draft legal documents for you that investors will be relying upon. Your company, and perhaps the principals and directors of your company, will be on the hook for whatever is contained in that Form C filing.  There are potential criminal penalties for those whose names are signed to these documents if they are not prepared correctly. Securities laws are complicated and paying a seasoned securities lawyer with Reg CF experience to draft and file this important document for you is something most prudent companies do.

 In order to start raising capital with a Reg A offering, a company must file a document called Form 1-A with the SEC. Typically, this is a far more extensive document than Reg CF’s Form C, even though it contains much of the same basic disclosure requirements. In reality, Form 1-A is basically a shorter form of a prospectus used by companies that hold an IPO. Form 1-A undergoes a review process with the SEC and must be “qualified” before you can go live and start raising capital.

 What financial and accounting requirements must I meet to file my proposed offering with the SEC?
This can get complicated, so I’ll give you the basics which apply in most situations.

Reg A is simple. With Tier II, all offerings must include up to two years of financial statements audited by an independent CPA. If your company is less than two years old, you must have audited financial statements from inception to the present.

 Reg CF is a bit more complex, and what financial statements must be included in your SEC filing depends on how much you plan to raise, and whether this is your company’s first Reg CF offering or not and whether the date of the offering is more or less than 120 days after the end of your company’s prior fiscal year.

 The basic rules are:

 If you are planning to raise less than $124,000, you may disclose internally created financial statements for the past two fiscal years certified as accurate by your management.

 If you are planning to raise between $124,000 and $618,000, you must disclose independent CPA reviewed financial statements for the past two fiscal years.

If you two are planning to raise between $618,000 and $1,235,000 and this is the first time your company has used Reg CF, you must disclose independent CPA reviewed financial statements for the past two fiscal years. If you have previously used Reg CF, you must disclose independent CPA audited financial statements for the past two fiscal years.

 If you two are planning to more than $1,235,000, you must disclose independent CPA audited financial statements for the past two fiscal years.

 Also, for Reg CF, if your company has audited financial statements available for the relevant time period, you must disclose those.

 After you start raising capital, are there any ongoing filings to make with the SEC?

 For both Reg A and Reg CF, there are ongoing reporting requirements. While none of these are as expensive or burdensome as those required of fully registered public companies, they are very important to remain compliant with federal securities laws. The main reports to be filed are discussed below, although other reports may be required.

 Reg CF only has one major ongoing SEC reporting requirement. An issuer that sold securities in a Regulation CF offering is required to provide an annual report on Form C-AR no later than 120 days after the end of its fiscal year and must post the report the company’s website. The annual report requires similar financial information to what is required in the Form C offering statement that is initially filed to start a Reg CF offering, but the financial statements do not need to be audited or reviewed by an independent CPA. This filing requirement ends when one of five events occurs:
(1) the issuer is required to file reports under Exchange Act Sections 13(a) or 15(d);

(2) the issuer has filed at least one annual report and has fewer than 300 holders of record;

(3) the issuer has filed at least three annual reports and has total assets that do not exceed $10 million;

(4) the issuer or another party purchases or repurchases all of the securities issued pursuant to Regulation Crowdfunding, including any payment in full of debt securities or any complete redemption of redeemable securities; or

(5) the issuer liquidates or dissolves in accordance with state law.

 At that point, the issuer may file notice on Form C-TR reporting that it will no longer provide annual reports.

 For Reg A, Tier II, there are more reports to file to remain compliant. Similar to Reg CF’s annual report on Form C-AR, Reg A issuers file an annual report on Form 1-K within 120 calendar days of the issuer’s fiscal year end. Form 1-K requires two years of audited financial statements. It also requires an update of information from the issuer to information previously filed. It also requires disclosures relating to the issuer’s business operations for the prior three fiscal years (or, if in existence for less than three years, since inception) as well as related party transactions, beneficial ownership of the issuer’s securities, executive officers and directors, including certain executive compensation information, management’s discussion and analysis of the issuer’s liquidity, capital resources, and results of operations.

And requires an update of information from the issuer requires issuers to update information previously filed and to provide disclosures relating to the issuer’s business operations for the prior three fiscal years (or, if in existence for less than three years, since inception) as well as related party transactions, beneficial ownership of the issuer’s securities, executive officers and directors, including certain executive compensation information, management’s discussion and analysis of the issuer’s liquidity, capital resources, and results of operations.

Additionally, Reg A Tier II requires a semiannual report to be filed on Form 1-SA within 90 calendar days after the end of the first six months of the issuer’s fiscal year. Form 1-SA requires issuers to provide disclosure primarily relating to the issuer’s interim financial statements and management’s discussion and analysis of the issuer’s liquidity, capital resources, and results of operations.

Reg A also requires an issuer to file a “current report” on Form 1-U within four business days of the occurrence of one (or more) of the following events: fundamental changes; bankruptcy or receivership; material modification to the rights of securityholders; changes in the issuer’s certifying accountant; non-reliance on previous financial statements or a related audit report or completed interim review; changes in control of the issuer; departure of the principal executive officer, principal financial officer, or principal accounting officer; and unregistered sales of 10% or more of outstanding equity securities.

 How fast can I get an offering live?

 This is a hard question to answer because there are so many variables. One variable – how long it takes your company to get its financial statements done - almost always takes longer than expected and without those statements, you cannot file with the SEC under Reg CF or Reg A.

Some companies do not have their books in order, or their books are not to GAAP (Generally Accepted Accounting Principles) so there can be delays getting the basic financial statement requirement complete which holds up the entire process.

 But realistically, I tell my law firm clients that it is about a 3 month process to get a Reg CF offering live from the time I am hired, and a 4-6 month process to get a Reg A offering live. That being said, there are times I have been able to get an offering live on a shorter timeline, and times it took longer than those estimates.

 Coming next week: Part 2 of the 6 part series: How Does a Company Receive The Capital It Raises? Also, this article is not and should not be considered legal advice. Yes, I am a securities lawyer but no, you did not hire me to provide you with legal advice. In all cases, consult with your own lawyer as every legal situation is unique and do not rely on my educational and informative article as legal advice.