Monster Media 1996 #14/Monster Media No. 14 (April 1996) (Monster Media, Inc.).ISO/business/sba961.zip/F268.SBE

Text File | 1996-01-01 | 13KB | 289 lines

@198 CHAP 11

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             │    SECURITIES LAW CONSIDERATIONS    │
             └─────────────────────────────────────┘

Yet another factor to take into account in choosing the le-
gal form of a business is the potential application of fed-
eral and state securities laws if the new business is to
have more than one owner or should it become necessary to
raise capital for an existing business.  Because of the po-
tentially dire consequences of violating federal or state
securities laws, it is important to consult with a business
attorney as early as possible when considering issuing or
transferring a security.  Note that corporate stock and lim-
ited partnership interests are generally considered securi-
ties, and even a general partnership interest can be a se-
curity in appropriate circumstances, as can certain kinds
of debt instruments.

@IF901xx]Since your business is not yet in existence, you may need to
@IF901xx]comply with state or federal securities laws if you need to
@IF901xx]sell ownership interests in @NAME.
@IF901xx]
@IF125xx](NOTE: So long as you are the sole owner of the business,
@IF125xx]you are unlikely to have to be concerned with securities
@IF125xx]law problems.  SEC and state "blue sky" laws will only be-
@IF125xx]come a consideration if or when you should decide to take
@IF125xx]in other investors who buy an interest in your business,
@IF125xx]generally speaking.)
@IF125xx]
Since the Securities Act of 1933, federal law has required
registration as a prior condition to the issuance or trans-
fer of securities.  The law exempts various types of securi-
ties and certain types of transactions.  The most important
of these exemptions for small or new businesses have been
the exemptions for securities sold to persons residing
within a single state and transactions by an issuer not
deemed to involve any public offering.  The Securities and
Exchange Commission (the SEC) from time to time has issued
regulations exempting small securities issues, attempting
to balance the needs of small businesses to raise capital
against the public policy of protecting investors.  In
1982, the SEC adopted Regulation D as its primary method
of regulation of securities offerings by small businesses
(although not to the exclusion of other exemptions which
might apply in a given case).  These regulations were re-
vised in April 1988 and again in April 1989.


RULE 504:
--------

Rule 504 under Regulation D exempts the issuance of securi-
ties by an entity if the aggregate offering price of all
exempt securities sold by the entity during a 12-month per-
iod does not exceed $1,000,000.  (Limited to $500,000 if
the securities are not registered under any state securi-
ties law.)  The securities cannot be offered or sold by any
form of general solicitation or general advertising, and
the securities so acquired cannot be resold (generally)
without registration or an exemption from registration.
This rule does not require any specific information to be
given to the purchasers of the securities.  However, since
the anti-fraud provisions of the securities laws apply even
though the transaction is exempt from registration, it is
helpful to memorialize in writing the material information
regarding the offering.


RULE 505:
--------

Rule 505 exempts offers and sales of securities if the of-
fering price for all exempt securities sold over a 12-month
period does not exceed $5,000,000.  To obtain this exemp-
tion, the issuer must reasonably believe that there are not
more than 35 purchasers, other than "accredited investors."

Examples of "accredited investors" include banks, insurance
companies, a natural person whose net worth (or joint net
worth, counting spouse) at the time of purchase is in ex-
cess of $1,000,000 or who has individual income in excess
of $200,000 (or joint income, with a spouse, in excess of
$300,000) in each of the two most recent years and expects
the same in the current year, or corporations, partnerships
or business trusts having total assets in excess of $5 mil-
lion (unless formed for the specific purpose of acquiring
the securities).

For purposes of Rule 505, the issuer must furnish extensive
information and certified financial statements to the in-
vestors, unless securities are sold only to accredited in-
vestors.  The prohibition against advertising and solicita-
tion applies to this rule, as do the anti-fraud provisions
of the securities laws.


RULE 506:
--------

Rule 506 is similar to the exemptions provided by Rule 505,
except that the five million dollar limitation does not ap-
ply.  The 35 purchaser limitation does apply (with the ex-
ception for accredited investors), but a separate limita-
tion requires that the issuer must reasonably believe im-
mediately prior to making any sale to a non-accredited
investor that such investor, either alone or with a repre-
sentative, has such knowledge and experience in financial
and business matters that he is capable of evaluating the
merits and risks of the prospective investment.  The pro-
hibitions against advertising and solicitation also apply
under this rule, as do anti-fraud provisions of the secur-
ities laws.


FILING OF NOTICE UNDER REG. D:
------------------------------

An issuer that relies upon any of the above Regulation D
exemptions must file Form D with the SEC, generally not la-
ter than 15 days after the first sale of securities and at
other specified times thereafter.  (However, failure to
file Form D will no longer disqualify an issuance of se-
curities, in general, that otherwise meets the Rule 504,
Rule 505 or Rule 506 requirements, unless the issuer has
been enjoined by a court for violating the filing obliga-
tion. -- Rule 507, as interpreted in SEC's Securities Act
Release No. 6825, March 14, 1989.)


REGULATION S-B -- "GOING PUBLIC" EASIER FOR SMALL FIRMS:
-------------------------------------------------------

In 1993, the SEC issued new Regulation S-B, which permits
smaller firms to issue securities under a simplified
registration form, new Form SB-2.  Unlike the former S-18
short form, use of which was limited to offerings of $7.5
million or less, there is no dollar limit on the amount
of securities that can be issued under SB-2 for eligible
"small business" issuers.  Regulation S-B provides a new
set of rules designed to make it easier and simpler for
small businesses to raise capital in the public market.

Regulation S-B is an integrated system of rules, forms,
and reporting requirements designed especially for small
firms, which have traditionally found the costs and com-
plexity of "going public" to be prohibitive.  To make a
public offering of securities that qualifies under the
streamlined procedures of Regulation S-B, an issuing com-
pany must meet all the following requirements:

  .  Must be a U.S. or Canadian company;

  .  Revenues must be less than $25 million;

  .  Aggregate value of its outstanding securities (not counting
     those held by affiliated companies or persons) must not exceed
     $25 million;

  .  Cannot be an investment company; and

  .  If issuer is a majority-owned subsidiary of another corporation,
     the parent company must also meet these criteria.


STATE "BLUE SKY" LAWS:
----------------------

Keep in mind that the exemptions available under the feder-
al securities laws are more liberal than those available
under the securities laws of many states. In connection
with any issuance or transfer of securities, it is neces-
sary to consider the possible application of securities
laws in the state where the business entity is established
or operates, and, if different, the states where purchasers
of the securities live.

@CODE: CA
@CODE:NF
       ┌────────────────────────────────────────────────┐
       │   COMPLIANCE WITH CALIFORNIA SECURITIES LAWS   │
       └────────────────────────────────────────────────┘

When your newly-formed corporation issues shares of its
stock to you and to any other shareholders, you must be ve-
ry careful to comply with BOTH federal and California secur-
ities laws.  Otherwise, you will be an inviting target for
lawsuits from disgruntled investors in your corporation and
could also be subject to criminal prosecution.

In the case of the typical small corporation startup, you
will probably be able to qualify for exemptions from the
burdensome and costly procedures of registering with the
SEC under federal securities laws (under one of the exemp-
tions described above) or "qualifying" with the California
Dept. of Corporations under California securities laws.

In general, when a corporation issues stock in California,
the issuance must be approved (qualified) by the Corpora-
tions Commissioner, unless the stock issuance meets one of
the exemptions provided under the California securities
laws.  However, most new corporations issuing their origin-
al shares of stock can qualify under at least one of the
two main exemptions for small corporations noted below.

LIMITED OFFERING EXEMPTION--Section 25102(f) of the Cali-
fornia Corporations Code.  This is the exemption that most
new corporations issuing stock in California will want to
come under.  To be able to meet the requirements of this
exemption, a stock issuance must comply with all of the
following restrictions:

    . Stock must not be issued to more than 35 "counted"
      shareholders.

    . Certain shareholders don't have to be counted, such
      as officers or directors of the corporation, certain
      relatives of uncounted persons (living at the same
      address), promoters of the corporation, and certain
      wealthy or sophisticated individuals.

    . Each shareholder must come within one of three
      "suitability" categories.  They must be either
      one of the following:

         .  Uncounted shareholders;

         .  Persons who have certain types of pre-existing
            personal or business relationships to direc-
            tors or officers of the corporation (or to
            "controlling persons" -- such as a promoter or
            founder); or

         .  Certain "sophisticated investors" with busi-
            ness or financial experience (or who are repre-
            sented by professional advisers), who have a
            net worth of over $500,000 and who are able to
            bear the economic risks of the transaction.

    . No advertising of the stock offering is allowed, by
      radio, mail, TV, seminars, etc.

    . Each shareholder who buys shares must sign a "repre-
      sentation letter" stating that he or she is buying
      the stock for his or her own account, and not for
      resale or distribution.

    . Stock can only be issued for cash, real estate, or
      tangible or intangible personal property.  It may
      not be issued for a promise to render future ser-
      vices or (in general) in exchange for a promissory
      note from the purchaser.

    . A Notice of Transaction form must be filed with the
      California Department of Corporations within 15 days
      after the first sale of stock occurs, together with
      a filing fee of $25 to $300 (which varies based on
      the value of the securities sold).

SMALL OFFERING EXEMPTION--Sec. 25102(h) of the California
Corporations Code.  While less frequently used, this exemp-
tion may be available in some situations where the "limited
offering exemption" is not, such as where you have a purch-
aser who cannot meet the 25102(f) "suitability" standards.
Note that in order to use the small offering exemption, an
attorney must sign a statement that the stock issuance
qualifies under the Sec. 25102(h) exemption and file it
with the Dept. of Corporations.  Thus, under this exemption
you cannot self-incorporate without paying at least some
legal fees to an attorney.  There are numerous technical
requirements that your attorney must determine that the
issuance meets in order to qualify under this exemption.

Finally, any issuance of securities under California law,
whether under one of the above exemptions or not, is sub-
ject to Section 25401 of the California Corporations Code.
This section makes it unlawful to offer or sell a security
in the state by means of any written or oral communication
which includes an untrue statement of a material fact or
fails to state a material fact that is necessary to make
sure that the statements made are not misleading.  In
short, be completely honest and do not withhold any un-
favorable information from any prospective investor in
your company's stock or you may be in BIG trouble from a
securities law standpoint.