Business Broker Knowledge Base

Raising Private Capital for Early Stage Businesses: Online Offerings, Angel Networks and Matching Services by Michael T. Raymond

Introduction

Businesses in their infancy often turn to private individuals to raise start-up and early stage capital, often by offering equity interests and/or incurring non-bank debt. In most instances, the instrument delivered to the private investors meets the definition of a "security". Therefore, early stage businesses must comply with federal and state securities laws in raising capital through these means. Typically, this would require registration of an offering or compliance with the requirements of an exemption from registration. While a summary of applicable securities laws is outside the scope of this article, suffice it to say that a well-experienced guide is absolutely necessary if one is to properly navigate the registration and exemption requirements of applicable securities laws. The internet has placed its mark on securities offerings in recent years, including those offerings which aim to raise start-up and early stage capital. Amidst the myriad regulations, requirements and exemptions of securities law, a movement toward offering securities for sale via the internet has occurred. The following article focuses on developments in this area.

Regulation D Offerings on the Internet

As noted, the raising of private capital for early stage businesses most often involves the issuance of securities, and the issuer must comply with certain registration and disclosure obligations, or qualify for an exemption from registration under applicable securities laws. These requirements are relaxed, however, in certain cases. For example, Regulation D (an integrated series of rules promulgated by the Securities and Exchange Commission (the SEC)) provides "safe harbor" exemptive relief for "limited" offerings of securities. The establishment of a Regulation D exemption generally requires, among other things, that the offering not involve a "general solicitation". Essentially, this means that the capital-raising firm must refrain from prospecting for investors through any form of broad-based or blind solicitation techniques or advertising.

The use of the internet to conduct offerings of securities under Regulation D has intrigued capital-raising firms for a number of years. However, there is an inherent tension between Regulation D's prohibition of general solicitations and the use of a public, broad-based medium such as the internet to offer securities. In response to the growing public interest in utilizing the efficiency of the internet to make securities offerings, the SEC and many states have explored ways to permit internet solicitations without such actions constituting a general solicitation. As a matter of background, a general solicitation (which, as noted, is prohibited by Rule 502(c) of Regulation D) is typically not found when a pre-existing, substantive relationship between an issuer (or its broker-dealer) and an offeree exists. A 1996 SEC No-Action Letter (IPOnet, SEC No-Action Letter (July 26, 1996)) extended this principle to private offerings posted on the internet. In that case, access to private offering material was granted only after a "member" had been pre-qualified as an "accredited investor" by completing a generic questionnaire. Once qualified, the member was issued a password which enabled access to a website page containing a notice of a private offering. In addition, the operator imposed a suitable "cooling off" period before the qualified member was granted access to the private offering material. The SEC approved the operation of this website. In doing so, the SEC found that the website operator had taken sufficient steps to allow a "pre-existing, substantive" relationship to be established between the issuer/broker-dealer and the offerees.

A similar 1997 No-Action Letter (Lamp Technologies, Inc., SEC No-Action Letter (May 29, 1997)) involved a company that administered a website containing certain hedge funds offered on a semi-continuous basis. The SEC staff determined that the proposed operation of the website would not involve a general solicitation since it was password-protected and accessible only to members who had been pre-qualified as accredited investors. The investors were also subject to a 30-day "waiting" period before investments could be made.

Based upon concerns that certain website operators conducting online private offerings may have been overly zealous in their interpretations of the IPOnet and Lamp Technologies No-Action Letters, the SEC issued a clarifying release in April, 2000 (Release No. 33-7856 (April 28, 2000)). The SEC expressed its concern that certain entities (notably those who were not broker-dealers or affiliated with broker-dealers) may have engaged in practices that deviated substantially from the facts set forth in the IPOnet and Lamp Technologies No-Action Letters in offering private placements over the internet.

For example, some third party service providers had set up websites that invited prospective investors to respond to a questionnaire, ostensibly for the purpose of qualifying them as an "accredited investor". Completion of the questionnaire permitted access to private offerings displayed on those websites. Some of the websites did not even require the completion of a questionnaire; instead, they simply invited the user to check a box as a means of self-accreditation and immediate access. The SEC staff expressed their view that these types of websites raise significant concerns that a general solicitation is occurring.

Angel Networks and Online Matching Services

In approaching the general solicitation question as it relates to online offerings, the SEC has focused on broker-dealer operated websites and the method by which they pre-qualify their customers. As noted, it appears that the SEC has demonstrated considerable acceptance of online offerings operated by broker-dealers. However, the SEC has routinely resisted providing no-action relief to non-broker-dealer website operators. In doing so, the SEC has repeatedly relied upon its high comfort level with the traditional methods of broker-dealer firms designed to establish a "pre-existing, substantive" relationship with prospective investors. This is because broker-dealers are required under their self-governing NASD rules to deal fairly with, and make suitable recommendations to, their customers. The SEC has noted, however, that the absence or presence of a general solicitation is always determined on a case-by-case basis, taking into account all relevant facts and circumstances. In so commenting, the SEC left open the slight possibility that third party (i.e. non-broker-dealers) service providers may obtain no-action relief.

Possible examples of non-broker-dealer website operators include unregistered angel networks and online matching services. Angel investors are typically high net worth, business-savvy individuals willing to invest patient capital in early stage, high-risk companies. Angel networks essentially provide a convenient forum (either real or virtual) for pre-screened, qualified angels to assemble, evaluate, collaborate among themselves and actually invest in emerging businesses. In addition to live presentations, investment opportunities are often presented to angels through access restricted/password protected private offering materials discretely displayed to them on an angel network website. Companies afforded the lucrative opportunity to present their offering materials to investors are often invited by a "sponsoring" angel and are typically pre-screened from a large group of companies which have previously submitted their business plans.

Angel networks (especially internet-enhanced ones) and online matching services bear a strong resemblance to one another. Online matching services attempt to join companies in search of capital with people looking to invest their capital. The capital seekers are typically earlier stage companies. The capital spenders are typically angels, venture capitalists and, on occasion, other institutional-type investors.

There are three primary regulatory considerations introduced by the operation of internet-enhanced angel networks and online matching services. First, and most importantly, due to the inherent nature of their activities, both of these operations may require licensing as a broker-dealer. As noted, the SEC has routinely denied no action relief from the broker-dealer registration requirements for unlicensed persons that sponsor angel networks or provide matching services for profit. See Progressive Technology Inc., SEC No-Action Letter (October 11, 2000) and Oil-N-Gas, Inc., SEC No-Action Letter (June 8, 2000).

Second, regulatory concerns stem from the fact that certain state private offering exemptions are expressly conditioned upon the issuer not paying "commissions" to any unlicensed persons (e.g. MCL 451.802(a)(8)(B); MCL 451.802(b)(9)(C)). If the angel network sponsor or matching service provider is not registered as a broker-dealer (or, at least, affiliated with a registered broker-dealer), payment of a transaction-based fee to such operator could render the private offering exemption unavailable to the issuer utilizing such services.

Finally, based upon the SEC No-Action Letters and Interpretive Releases discussed above, the means by which investors are accessed through an online angel network or matching service may involve a "general solicitation", thereby defeating an issuer's claimed private offering exemption. As noted, however, by taking certain precautions, the issuer may avoid the characterization of its offering as one involving a general solicitation.

Conclusion

Based on available SEC No-Action Letters and other commentary, it appears that the safest online private offerings under Regulation D will involve: (a) a password-protected website directly operated by an issuer or its broker-dealer firm (as opposed to an unlicensed third party), (b) use of a comprehensive, generic (non-offering specific) questionnaire that elicits sufficient information to permit a thorough evaluation of the prospective investor's financial standing and sophistication level, and (c) a requirement that a sufficient amount of time lapse between the response to the questionnaire and actual participation in a private offering. While the time may come when the SEC will truly embrace an online Regulation D offering sponsored by a non-broker-dealer, currently the SEC has shown practically no support for such offerings. Accordingly, start-up and early stage business seeking to utilize online angel investor networks or matching services to raise capital should ensure that these service providers have been registered as broker-dealers, and that they follow at least the "general solicitation" precautions noted above.

Michael T. Raymond is a partner in the Ann Arbor office of the law firm Dickinson Wright PLLC. Mr. Raymond gratefully acknowledges the assistance of James L. Carey, Assistant Professor at Thomas M. Cooley Law School, and Anthony P. Ferman, Associate, of Dickinson Wright PLLC.

How To Raise Money in a Recession

Here are eight ways to raise capital in a tight economy.

(Mega Pixel - Shutterstock)

There have been 11 recessions since 1948, occurring about once every six years. Periods of economic expansion are much more varied and have lasted as little as one year and as long as a decade. The average recession before 2007 lasted about 11 months. The Great Recession, which began in December 2007 and ended in June 2009, lasted 18 months and recorded the largest decline in output the country experienced since 1960 (IMF). The 2020 COVID recession lasted just two months but broke the record for longest expansion in U.S. history. Regardless of where we are in the economic cycle, we are either recovering from or headed to a recession. A constant during either period was that people were still starting new businesses. In fact, often the best new businesses get started when a smart, ambitious, and entrepreneurial person gets laid off from an existing business due to downsizing during economic contraction. If you’ve become part of this brave and bold crowd during an economic downturn, you are not alone. You represent the entrepreneurial American spirit that burns in the hearts of many. But to realize your dream, you need money. How do you get it? Below I discuss the top eight ways you can raise money in a recession (or any economy).

1. Bootstrapping    This is probably the most obvious way to finance any new business. Bootstrapping is the process of funding your business yourself, without outside investment. In addition to your savings, there are other ways to get creative with your assets. If your new business will start out as a side hustle, a loan from your 401(k) may be an option. Be aware that every employer's plan has different rules for 401(k) loans, so find out what your plan allows. You could also take a direct withdrawal from your 401(k), but I don’t recommend this as it will trigger taxes and penalties making it a bad financial decision. If you have significant retirement assets in your IRA, you can look into getting a Rollover as Business Startup (ROBS). A ROBS is not a loan or a self-directed IRA, but allows you to access your money from your IRA penalty-free. The process involves setting up a C Corporation, then establishing a 410(k) retirement plan and rolling over existing retirement assets into the new retirement plan that then invests the money into the stock of the new C Corporation. This can be a complicated and tricky process, so it’s best to hire an expert if you are considering it as an option. You can also leverage your home’s equity. If you have owned your home for some time, there may be home equity that you can borrow to fund or invest in your new venture. You can do this through a Home Equity Line of Credit (HELOC). HELOCs are very common, and you can learn more by visiting your local bank branch or their website. In general, bootstrapping is a good option for businesses that have relatively low startup costs or that can generate revenue quickly.

2. Friends and Family      Friends and family loans may be available when other types of financing aren’t, but they do require some precautions. Friends and family loans or direct investment by friends or family members has been used to launch many successful businesses including Walmart, Motown Records, and Amazon, to name just a few. Loans or investment into a business by friends and family can be a good source of early-stage funding, especially if you have a strong personal network. There are many pros and cons when looking to fund your business using money from your friends and family. On the pro side, such loans typically have no credit checks, can have low or no interest rates, and allow for flexible repayment terms. It all depends on what you can negotiate and the generosity of those funding. On the con side, the funding may be smaller than what you could get at a bank, and if things go south with your venture, it could damage relationships. It is hard to look Uncle Frank in the eyes at Thanksgiving dinner if you lost his money. If after weighing the pros and the cons you believe funding through your family and friends makes sense for your business, it is important to be clear about the terms and to have a written agreement in place.

3. Angel Investors      Angel investors are individuals who invest their own money in your business. They are typically wealthy private investors focused on financing small business ventures in exchange for equity. Unlike a venture capital or private equity firm that raises money from other investors and then uses that capital to invest in a business, angel investors use their own net worth to invest in your business. Funding your business using an angel investor has some distinct advantages. They may be more patient with entrepreneurs and open to providing smaller dollar amounts for a longer time. For this flexibility and acceptance of increased risk, an angel Investor typically wants 10% to 50% of the business in exchange for the funding. That means business owners could lose control of their business if the angel investors determine the owner is keeping the company from succeeding. Angel investors are often looking for businesses with high growth potential and can be a good source of funding for businesses that have a clear business plan and a strong team.

4. Venture Capital (VC) Funds       Like angel investors, VC funds tend to invest in startups and early-stage businesses. They are typically looking for businesses with a large addressable market and a clear competitive advantage. VC funds are professional investors who must earn a consistently superior return on investments in inherently risky businesses. More recently, VC funds have focused on certain industries or niches in which they can gain deep knowledge and expertise to help mitigate that risk. You will need to have a good business plan and be able to convey your value quickly. Make sure your business is ready, commercially viable, and preferably scalable, before approaching VC funds looking to raise capital. To find VC funds who may be interested in investing in your business, you can start on the internet looking for online platforms and investor databases. There are also venture capital associations located in various cities around the country. These are all good sources, but when looking to fund your business nothing beats networking at industry events and asking your social network for introductions.

5. Government Grants and Loans     Believe it or not, the government wants to fund your new business. In fact, the Small Business Administration (SBA) is set up to do just that through different types of funding programs. Through its participating lender partners, the SBA offers loans for variant needs through its flagship 7(a) program that offers loans up to $5 million; 504 Loans for real estate, equipment, machinery, or other assets; and microloans for those needing less than $50 thousand to start their business. If you prefer equity funding for your business, the SBA has 300 Small Business Investment Companies (SBICs) licensed by the SBA who invest in small businesses in the form of debt and equity. For certain types of business such as those engaged in scientific research and development, they even offer grants. All the SBA’s programs provide their partners with a guarantee for the various types of funding. This can impact the cost of funding but is a good option for businesses who may have difficulty qualifying for traditional financing.

6. Crowdfunding      Crowdfunding has grown in popularity over the past 20 years. Crowdfunding is done through platforms which allow you to raise money from many people, typically in exchange for rewards or equity in your business. Some of the more popular platforms include Kickstarter, Indiegogo, StartEngine and WeFunder. Different crowdfunding platforms have different market niches that they serve, so do some research to find the platform that works best for your business. Crowdfunding can be a good option for businesses with a strong social media presence or a compelling product or service.

7. Win A Business Competition       Do you have a flair for presenting? A charismatic personality? If so, competing in a business competition to fund your business may be a good idea. There are many business competitions that offer prizes in the form of cash, mentorship, or other resources. These competitions can be a great way to raise money and get exposure for your business. Each competition has certain rules and focuses. For example, many are location-based, industry-focused, or university-led programs that are open to only certain types of businesses and founders. The good news about exclusivity is that it means you are only competing against others that meet the competition’s criteria, possibly making it easier to get exposure and funding even if you don’t win the competition.

8. Revenue Share Agreement      A Revenue Share Agreement allows you to raise money from stakeholders in exchange for a share of future revenue over a period of time. Revenue Share Agreements can be a good option for businesses that are not yet profitable but have the potential to generate significant revenue in the future. The key to a successful Revenue Sharing Agreement lies in the structuring—not all revenue is equal. If different products and services have varying gross margins, the agreement should be structured to provide different share percentages based on product or product lines. A Revenue Share Agreement aligns stakeholders to work toward the same goal and offers a shared success. In raising funding for your business, approaching potential suppliers for funding will most likely be the best option, because your success means their success as well! Conclusion Raising money during a recession is no different than raising it during a period of economic growth—the only variation is the number of doors you will need to knock on will increase and, when you get the chance to pitch, the strength of your business case will matter even more.

Article by Ken Fick Freelance Writer Ken Fick is a CPA, and MBA with over 25 years of finance experience providing leading-edge solutions designed to improve forecasting, budgeting, planning, and decision-making to companies from $3 million to over $50 billion in revenue. He is a freelance writer that focuses on producing engaging content on all things business, accounting, finance and investment related. You can view a sampling of his published work at FPAexperts.com.

Regulation D Offerings - U.S. Securities and Exchange Commission

Under the Securities Act of 1933, any offer to sell securities must either be registered with the SEC or meet an exemption. Regulation D (or Reg D) contains three rules providing exemptions from the registration requirements, allowing some companies to offer and sell their securities without having to register the securities with the SEC. For more information about these exemptions, read our publications on Rules 504 , 505 , and 506 of Regulation D.

While companies using a Reg D (17 CFR § 230.501 et seq.) exemption do not have to register their securities and usually do not have to file reports with the SEC, they must file what’s known as a "Form D" after they first sell their securities. Form D is a brief notice that includes the names and addresses of the company’s executive officers and stock promoters, but contains little other information about the company.

In February 2008, the SEC adopted amendments to Form D , requiring that electronic filing of Form D be phased in during the period September 15, 2008 to March 16, 2009. Although as amended, the electronic Form D requires much of the same information as the paper Form D, the amended Form D requires disclosure of the date of first sale in the offering. Previously, disclosure of the first date of sale was not required. The Office of Small Business Policy has posted information on its web page about the filing requirements for the new Form D.

If you are thinking about investing in a Reg D company, you should access the IDEA database to determine whether the company has filed Form D. If you need a copy of a Form D filed as a paper filing (which will include any Form D filed before September 15, 2008) that has not been scanned into IDEA, you can request a copy using our online form. If the company has not filed a Form D, this should alert you that the company might not be in compliance with the federal securities laws.

You should always check with your state securities regulator to see if they have more information about the company and the people behind it. Be sure to ask whether your state regulator has cleared the offering for sale in your state. You can get the address and telephone number for your state securities regulator by calling the North American Securities Administrators Association at (202) 737-0900 or by visiting its website . You’ll also find this information in the state government section of your local phone book.

For more information about the SEC’s registration requirements and common exemptions, read our brochure, Q&A: Small Business & the SEC .

http://www.sec.gov/answers/regd.htm

Possible or Impossible?

Whenever business or investment property is sold for a gain, generally tax on the gain is recognized and becomes due at the time of sale. Internal Revenue Code "IRC" Section 1031 provides an exception and allows the paying of tax on the gain to be postponed if the proceeds are reinvested in similar property as part of a qualifying like-kind exchange. Gain deferred in a like-kind exchange under Section 1031 is tax-deferred, but it is not tax-free.

"Like-kind" refers to the nature or character of the property and not to its grade or quality. One kind or class of property can be exchanged for property of the same kind or class. Real estate can be exchanged for other real estate, and personal property can be exchanged for other personal property.

A key like-kind issue is the fact that the qualifying property is not determined based on its grade or quality. For example, in Letter Ruling 200450005, the IRS determined that the differences between automobiles and sport utility vehicles "SUVs" do not rise to the level of a difference in nature or character. Instead, they are merely different in grade or quality under the General Asset Class and Product Class guidelines.

Accordingly, the IRS ruled that the exchange of an SUV for an automobile would qualify as a like-kind exchange under Section 1031.

The like-kind exchange of real estate is very liberal with generally any type of real estate being considered like kind to any other type of real estate. On the other hand, personal property is much more restrictive requiring the assets be of the same kind or asset class.

Thus, the key to a successful like-kind exchange is to properly identify property of like-kind.

Background:

Section 1031 of the Internal Revenue Code has a very long and somewhat complicated history dating back to 1921. The first income tax code was adopted by the United States Congress in 1918 as part of The Revenue Act of 1918, and did not provide for any type of tax-deferred like-kind exchange. The first tax-deferred like-kind exchange was authorized as part of The Revenue Act of 1921, when the United States Congress created Section 202(c) of the Internal Revenue Code, allowing Investors to exchange securities and non-like-kind property unless the property acquired had a "readily realizable market value."

These non-like-kind property provisions were quickly eliminated with the adoption of The Revenue Act of 1924. The Section number applicable to tax-deferred like-kind exchanges was changed to Section 112(b)(1) with the passage of The Revenue Act of 1928. In 1935, the Board of Tax Appeals approved the first modern tax-deferred like-kind exchange using a Qualified Intermediary and the "cash in lieu of" clause was upheld so that it would not invalidate the tax-deferred like-kind exchange transaction.

The 1954 Amendment to the Federal Tax Code changed the Section 112(b)(1) number to Section 1031 of the Internal Revenue Code and adopted the present day definition and description of a tax-deferred like-kind exchange, laying the groundwork for the current day structure of the tax-deferred like-kind exchange transaction.

The two specific types of property applicable to a like-kind exchange are IRC Section 1250 Property which is Real Estate and IRC Section 1245 Property which is Personal Property.

Real estate includes rental buildings, office buildings, stores, manufacturing plants, warehouses, raw land, etc... It does not matter if the real estate is improved or unimproved. Thus, for example, unimproved land can be exchanged for an apartment complex.

Personal property includes tangible and intangible property. Tangible property includes office furniture, vehicles, equipment, etc. Intangible property includes copyrights, trademarks, customer-based intangibles, etc... Personal property cannot be included in a like-kind unless the property of one kind or class is exchanged for property of the same kind or class. Thus, for example, a vehicle can be exchanged for another vehicle but a vehicle cannot be exchanged for a pizza oven.

Like-Kind Exchange Of An Entire Business...

When dealing with the transfer of an entire business, the exchange of one business for another business cannot be treated as an exchange of a single property for another single property (Revenue Ruling 89-121). The assets held in a business must be analyzed and compared to the assets held in another business to determine which assets will and will not qualify for like-kind exchange treatment.

Per Regulation Section 1.1031(a)-2(c)(2), the goodwill or going concern value of one business is not of a like-kind to the goodwill and going concern value of another business. Accordingly, like-kind exchange treatment is not available for the entire exchange of one business for another business. To maximize the use of Section 1031 for the like-kind exchange of assets included as a part of a complete business transfer, a planning tactic is to value intangibles which can be separated from goodwill and going concern. Per Chief Counsel Advice 200911006, intangibles such as trademarks, trade names, customer-based intangibles, etc... that can be separately valued apart from goodwill qualify as like-kind property.

Thus, even though an entire business cannot be exchanged for another business, through creativity and utilization of proper business valuation techniques, it is possible, depending on the facts associated with a specific business, to transfer a significant portion of a business using the like-kind exchange provisions of Section 1031.