Crowdfunding In Colorado Is Now Available: Let The Offerings Roll! (Part 3b)
All Crowdfunding Offerings Must Be Through Escrow. Importantly, the CF Act requires that all crowdfunding offerings be funded through an escrow at a depository institution, such as a bank or savings and loan (C.R.S. §§ 11-51-308.5(3)(a)(IV)(D); 11-51-308.5(3)(a)(IV)(F); and 11-51-308.5(3)(a)(IX)). The maximum amount of the offering to be raised can be no more than twice the minimum amount of the offering, and funds cannot be released from escrow until at least the minimum offering is raised.
The CF Act provides that the escrow agent must be “a bank, regulated trust company or corporate fiduciary, savings bank, savings and loan association, or credit union authorized to do business in Colorado” (C.R.S. §§ 11-51-308.5(3)(a)(IV)(D)). This is somewhat different than the definition of “depository institution” found in C.R.S. 11-51-201(5), but hopefully will be interpreted similarly.
When the issuer has raised at least the minimum offering in the escrow and desires the release of the offering proceeds (whether or not the issuer wishes to continue the offering), the issuer must file a Form ES-CF with the Securities Commissioner and wait seven days before having the funds released from escrow. As a condition to the release from escrow, the issuer must also provide for the delivery of the securities and certain notices to the persons participating in the crowdfunding offering as defined in the rules. It is likely that many of the crowdfunded securities will be uncertificated.
- Corporate stock may be certificated or uncertificated. If uncertificated, C.R.S. § 7-106-207 sets forth the information that must be included in a written statement that (according to the CF Act and the rules) must be sent to the purchaser at or before the release of the escrow funds. C.R.S. § 7-106-206 sets forth the information that must be included on certificates for corporate stock.
- Neither the Colorado LLC Act nor the partnership acts contemplate certificates representing ownership interests. Even an issuer-made certificate would not constitute a “certificate” in the corporate sense unless the election contemplated under § 4-8-202 is made in the operating agreement or partnership agreement.
- Where the securities consist of a debt instrument (such as a promissory note), the debt instrument should be in writing and delivered at or before the release of the escrow funds.
In any case, it is important that the issuer maintain records accurately reflecting the ownership of the securities issued in the crowdfunding offering and any other outstanding securities of the issuer. The issuer may choose to do this directly or by retaining a transfer agent to do so.
While the issuer may continue the crowdfunding offering after obtaining the release of funds from escrow, all funds must still go through the escrow account and releases from the escrow must be accomplished in accordance with the rules. Furthermore, any release of funds from the escrow is likely a material event for which the issuer would be obligated to update its disclosure; the expenditure of those funds after release from escrow may also be a material event requiring updated disclosure.
Data Collection, Record-Keeping, and Reporting. The on-line intermediary may provide a method of collecting data from investors who deposit funds into escrow, and may provide a portal to the escrow agent for the transfer of funds by ACH. These are among the records that the issuer must obtain and retain, although the rules provide that the issuer may contract with the on-line portal to maintain the records retention on the issuer’s behalf.
During and following the offering, the issuer has certain reporting obligations to all of its owners, including the new investors. These reports are defined in the CF Act and the rules, and the obligation continues indefinitely. Wise issuers will report more frequently to their owners and investors than the quarterly report required by the CF Act (C.R.S. § 11-51-308.5(3)(a)(XIII)) and the rules (Rule 3.24.D, Notice of Completion of the Transaction and Rule 3.24.H, Quarterly Report Timing). The CF Act does set forth the minimum requirements for these reports, however, including an obligation to report the compensation being paid to the directors and executive officers and to provide a management analysis of the issuer’s business operations and financial condition.
Bad Actors Are Prohibited. Certain persons are prohibited from using the exemption from registration provided by the CF Act. These are referred to as “bad actors” and the definition is similar to the similar definition found in SEC Rule 506(d). The CF Act has provisions that the “bad actor” prohibition to both issuers (C.R.S. § 11-51-3-8.5(3)(a)(XIII)) and on-line intermediaries (§ 11-51-308.5(3)(c)(VII)), but Rule 3.30 expands the disqualification for issuers well beyond the SEC Rule 506(d) definition of “bad actors.”
The rules provide that where an issuer is subject to a bad actor disqualification, the Securities Commissioner can waive certain of the bases for disqualification. The Securities Commissioner will not waive a disqualification based on certain felony convictions and certain final orders issued by the SEC or state securities administrators. Before issuing a waiver, the Commissioner must make the following finding:
In balancing all relevant factors, granting the waiver is consistent with the objective of the Colorado Securities Act to protect investors and maintain public confidence in securities markets while avoiding unreasonable burdens on participants in capital markets.
Liability Risk From Crowdfunding
Unlike the rewards-based crowdfunding models of Kickstarter, Indiegogo, and other similar sites, crowdfunding under the CF Act involves the offer and sale of securities which is subject to regulation under and compliance with federal law (the Securities Act of 1933 and the Securities Exchange Act of 1934) and, in Colorado, the Colorado Securities Act. Strict compliance with the CF Act and the rules does not exempt the issuer or the other participants in the offering from potential liability; a failure to comply strictly with the CF Act and the rules may lead to potential administrative civil, or even criminal, liability.
Federal Compliance. The first issue under the CF Act, as under the crowdfunding legislation adopted in more than 20 other states, is compliance with SEC Rule 147 which provides an exemption from the registration requirements of § 5 of the 1933 Act. A failure to comply with Rule 147 leads to a violation of the registration requirements of the 1933 Act and the risk of issuer liability for rescission (§ 12(a)(1) of the 1933 Act) and the liability of the persons controlling the issuer (§ 15 of the 1933 Act).
Even strict compliance with the requirements of Rule 147 does not preclude the risk of future liability. Like all exemptions from registration, Rule 147 merely exempts the offering from the registration requirements of the 1933 Act; it does not provide an exemption from the disclosure and anti-fraud requirements.
- Where the disclosure in the Colorado Form CF-2 is inadequate, incomplete, or inaccurate in any material respect, the issuer (under 1933 Act § 12(a)(2) and 1934 Act Rule 10b-5) and persons controlling the issuer are potentially liable, as are (potentially) other participants in the offering.
- Where the issuer or its controlling persons take actions (such as spending the proceeds raised) contrary to the disclosure, they have significant risk of liability.
When broker-dealers or sales representatives are involved in the offering, they have the risk of liability under both federal law and the rules of their governing organization, the Financial Industry Regulatory Authority (“FINRA”). When an on-line intermediary is involved, the liability of the on-line intermediary is lesser as long as the on-line intermediary does not participate in the offering beyond merely posting the disclosure documents and perhaps gathering information and maintaining certain limited records.
Of course, where the on-line intermediary (or any other participant in the offering) knows, or reasonably should know, that the disclosure is inadequate, incomplete, or inaccurate in any material respect, such persons have significantly increased their risk of liability in an administrative, civil, or even criminal forum.
Colorado Compliance. Strict compliance with the CF Act and the rules also creates an exemption from the registration requirements found in § 11-51-301 of the Colorado Securities Act. Disclosure in the Form CF-2 that is accurate and complete in all material respects also limits the risk of liability for securities fraud. Where there is a failure to comply with the exemption or the disclosure requirements in any material respect, issuers and persons controlling the issuer are potentially liable in a state administrative, civil, or even criminal forum.
In Colorado, § 11-51-501 makes it unlawful for any person (issuer, broker-dealer, sales representative, or investment advisor) or controlling person (§ 11-51-604(5)) to “employ any device, scheme, or artifice to defraud” an investor, to “make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading,” or to “engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.” Where the Securities Commissioner suspects a violation of the registration requirements, the broker-dealer licensing requirements, or the disclosure requirements, he may initiate an investigation (§ 11-51-601) or seek enforcement by an administrative cease-and-desist proceeding (§ 11-51-606(1.5)), injunction (§ 11-51-602), civil action (§ 11-51-604), or through a criminal proceeding (§ 11-51-603). Under § 11-51-604, investors may also seek civil damages against the issuer and controlling persons for violations of the anti-fraud rules.
Colorado Crowdfunding Act. The CF Act provides certain exemptions from liability which are applicable to the Colorado Securities Act but which would not be applicable under a federal complaint.
- There is no provision exempting issuers or the issuer’s controlling persons from liability for disclosure that is inadequate, incomplete, or inaccurate in any material respect, or for post-offering actions that are inconsistent with the disclosure made.
- Escrow agents are the key to the success (and even the ability to conduct) an offering under the CF Act. The Act (in § 11-51-308.5(3)(a)(IV)(D)) provides that the escrow agent “does not have any duty or liability, contractual or otherwise, to any purchaser or other person.” Most escrow agreements will provide contractual exoneration of the escrow agent except in the case of bad faith or willful misconduct by the escrow agent.
- Broker-dealers and sales representatives participating in any offering under the CF Act remain subject to their regulatory obligations, including due diligence and “know your customer.” Because of these continuing requirements, broker-dealers and sales representatives will want to complete due diligence investigations and hire legal counsel—all of which will make a crowdfunding offering much more expensive to the issuer.
- On-line intermediaries (defined in § 11-51-201(11.5)) are more likely participants in crowdfunding offerings in Colorado than are broker-dealers and sales representatives. On-line intermediaries are specifically exempted from the definition of “broker-dealer” under § 11-51-402(1)(c) provided the on-line intermediary limits its activities as contemplated in the CF Act and the rules. Even though originally contemplated to be passive bulletin boards who may provide some services, the rules impose certain additional obligations not specifically contemplated in the CF Act, including the obligations described in Rule 3.28.C to deny access to the on-line intermediary where the on-line intermediary has a “reasonable basis” for believing that the issuer is not acting in compliance with the CF Act, that the issuer does not have adequate record-keeping capabilities, or that the issuer raises investor protection concerns.
The Risk of Fraud. Fraud is one of the principal risks of a crowdfunding offering as it is with any capital raising transaction involving the offer and sale of securities. It is likely that offerings under the CF Act will follow the national trend—where purchasers invest from $100 to $300 in equity or debt securities. In most cases, this will be “pocket change” or “slot machine money.” Where the purchaser loses her investment either through a bad business decision or even fraud, it likely will not be worth the purchaser’s time and expenditure to take legal action. Perhaps the purchaser will file a complaint with the Colorado Division of Securities, but it is unlikely that the purchaser will take any more extensive action to recover her investment.
Thus, purchasers of crowdfund securities seeking to protect themselves should follow the typical mantra of investor advocates—know and trust your management. This again leads to the most-likely-to-be-successful crowdfunding offering—those within affinity groups where the investors know management or have other bases to trust management.
By Herrick K. Lidstone, Jr., Burns, Figa & Will, P.C., republished from Newsletter, Business Law Section, Colorado Bar Association, August 2015