Due Diligence in Accredited Crowdfunding Offerings – Securities Lawyer 101
The Anti-Fraud Provisions That Apply to Accredited Crowdfunding
Even though Accredited Crowdfunding Offerings are exempt under Rule 506(c) and no specific disclosure requirements apply, under most circumstances, the anti-fraud provisions mandate disclosure of certain information to investors. Section 10(b) of the Securities Exchange Act of 1934, (the “Exchange Act”) prohibits the use of any manipulative or deceptive device in contravention of the Securities & Exchange Commission’s rules and regulations. Rule 10b-5, was adopted pursuant to Section 10(b), and prohibits fraudulent devices and schemes, material misstatements and omissions of any material facts, and acts and practices that operate as a fraud or deceit on any person in connection with the purchase or sale of a security. Read More
Rule 506 Offerings FAQ By: Brenda Hamilton Attorney
Rule 506 Offerings are the most common of the Regulation D exemptions from registration under the Securities Act of 1933, as amended (the “Securities Act”). It has been approximately a year since the Securities and Exchange Commission (the “SEC”) adopted new criteria for Rule 506 offerings. Under the new rules, issuers may use general solicitation and advertising in their securities offerings if certain conditions are met. The SEC’s new rules also create “disqualifying events” for “covered persons” which prevent the issuer from relying on the Rule 506 exemption.
This blog post addresses the most common questions we received over the last year from our clients about the JOBS Act’ and its changes to Rule 506. Read More
Form 10 v Form S-1 Registration Statements – Going Public
Form S-1 and Form 10 each provide unique benefits in the going public process. Additionally, Form S-1 and Form 10 require similar disclosures. A company can voluntary file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”) and/or the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Form S-1 is most commonly used registration statement form under the Securities Act. Form S-1 registration statements provide issuers with flexibility in going public transactions. A registration statement on Form S-1 can be used to register specific securities for a company to sell to investors and specific shares for the company’s shareholders to resell publicly. Form S-1 can be used to register both simultaneously. Form S-1 registration statements can be used for a Direct Public Offering (“DPO”) or Initial Public Offering (“IPO”) and can be structured a variety of way depending upon the particular transaction.
Using Form S-1, the issuer or its shareholders are able to sell unrestricted securities and if structured properly, qualify for a ticker symbol assignment by the Financial Industry Regulatory Authority (“FINRA”) Read More
Regulation A+ Q&A
Since Regulation A+ was adopted in 2015, it has gained notable market acceptance. Regulation A+ provides an offering that can be used in combination with direct public offerings and initial public offerings as part of a Going Public Transaction allowing the issuer to avoid the risks of reverse merger transactions. Regulation A+ simplifies the process of obtaining the seed stockholders required by the Financial Industry Regulatory Authority (“FINRA”) while allowing the issuer to raise initial capital. This blog post addresses the most common questions we receive about Regulation A+.
How much can I raise with Regulation A+?
Tier 1 of Regulation A+ is available for offerings of securities of up to $20 million in a 12- month period, with no more than $6 million in offers by selling security- holders that are affiliates of the issuer. Tier 2 is available, for offerings of securities of up to $50 million in a 12-month period, with no more than $15 million in offers by selling security-holders that are affiliates of the issuer. Read More
Regulation A+ , Going Public and Secondary Trading
The Securities & Exchange Commission’s amendments to Regulation A known as Regulation A+ went into effect on June 19, 2015. Regulation A+ has gained market acceptance not only by issuers quoted on the OTC Markets but also by the New York Stock Exchange (“NYSE”) and NASDAQ Stock Market as an effective means of raising capital and going public.
A sometimes overlooked aspect of Regulation A+ is the impact of Blue Sky laws on secondary trading and liquidity. State Blue Sky laws are applicable to secondary trading and vary from state to state. From a practical perspective, it is important for a company looking to raise capital to offer liquidity to investors and facilitate secondary trading.
The trading of securities of issuers listed on National Securities Exchanges like the NASDAQ Stock Market and the NYSE are exempt from State Blue Sky laws that govern secondary trading; however, other companies such as those on the OTC Markets platform must comply with State Blue Sky laws for both their Regulation A+ Offerings and secondary sales. Read More
Form S-1 Registration Statement Filings – Securities Lawyers – Going Public
Form S-1 registration statement filings remain widely used by companies seeking to raise capital and go public even after the enactment of Regulation A. Form S-1 registration filings are the most commonly used registration statement form. The flexibility and benefits of a Form S-1 filing allows for a variety of structures in securities offerings and going public transactions. All companies qualify to register securities on a Form S-1 registration statement. Private companies going public should be aware of the expansive disclosure required in registration statements filed with the SEC prior to making the decision to go public. A Form S-1 registration statement on Form S-1 has two principal parts which require line item disclosures. Part I of the registration statement is the prospectus, which requires that the company provide to Investors certain disclosures about its business operations, financial condition, and management. Part II contains information that doesn’t have to be delivered to investors.
This blog post provides a summary of the sec disclosures and reporting requirements related to Form S-1 registration statement filings. Read More
David Dreslin and Michael Toups charged with Orchestrating a Fraudulent Public Shell Company Scheme
The SEC announced on December 3,2018 fraud charges against a Florida-based CPA, a former broker, and his spouse, for their roles in a fraudulent scheme involving the creation and sale of a public shell company and false regulatory filings to facilitate the sale.
According to the SEC, David Dreslin and Michael Toups created a shell company, Anglesea Enterprises, Inc., by filing false and misleading registration statements and periodic reports with the SEC, creating a phony business plan, and appointing nominal officers and directors to conceal their control over the company. The goal of the alleged scheme was to sell Anglesea in a reverse merger for profit. The SEC also alleges that Leslie Toups served as Anglesea’s majority shareholder and director and signed filings and other documents that contained materially false and misleading statements and omissions over a multiyear period. Read More
SEC Charges Four in Fraudulent Microcap Manipulation Scheme Orchestrated Through International Accountotc mar
The SEC charged Morrie Tobin and three other individuals for their roles in a scheme to profit from the manipulation and illegal sale of stock of two publicly traded companies, Environmental Packaging Technologies Holdings, Inc. and CURE Pharmaceutical Holding Corp.
According to the SEC’s complaint, Morrie Tobin, a California resident, worked with co-defendants Milan Patel, Matthew Ledvina, and Daniel Lacher to facilitate Morrie Tobin’s scheme. Milan Patel and Matthew Ledvina, attorneys at an international tax law firm, and Matthew Lacher, a resident of Switzerland, allegedly hid Morrie Tobin’s ownership and control over the companies by using offshore entitites to hold his stock and by establishing accounts to sell that stock at Wintercap SA, a Swiss-based company run by U.K. citizen Roger Knox. On October 2, 2018, the SEC filed an emergency action and obtained an asset freeze against Roger Knox and Wintercap, charging them with a scheme that generated more than $165 million of illegal sales of stock in at least 50 microcap companies. Read More
Court Enters Final Judgment in Case Against Immigration Lawyer, Steve Qi and His Law Firm
On November 5, 2018, a U.S. District Court for the Central District of California entered a final judgment on consent against immigration attorney, Steve Qi, and his law firm who were charged with violations in connection with the EB-5 Immigrant Investor Program.
The SEC’s complaint, filed December 8, 2017, alleged that Steve Qi and his law firm acted as unregistered brokers in connection with sales of EB-5 investments and defrauded their investor clients by not fully disclosing their receipt of transaction-based compensation. After the Court denied Defendants’ motion to dismiss the complaint, the parties engaged in Court-ordered mediation that resulted in resolution of the case by consent. Read More
Hurricane Restoration Company and Executives Settle SEC Accounting Fraud Charges
The former CEO and CFO of a now-defunct Dallas and New Orleans-based disaster remediation and construction business, Home Solutions of America, Inc have agreed to pay disgorgement and penalties to settle accounting fraud charges brought by the SEC. In addition, the SEC has asked the Court to convert the injunctive relief previously ordered against the company, Home Solutions of America, Inc. into a final judgment.
The SEC charged Home Solutions of America, Inc, its former CEO, Frank Fradella, and its former CFO, Jeffrey Mattich, four other former executives, and a business partner in 2009 with fraud for lying about non-existent business deals in the 2005-2008 time period and inflating the company’s revenues and stock price. To settle the SEC’s charges, Frank Fradella agreed to pay $1 million in disgorgement, a lifetime bar from serving as an officer or director of a public company, and to be permanently prohibited from violating the antifraud provisions of Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5, the books-and-records provisions of Section 13(b)(5) of the Exchange Act and Rules 13b2-1 and 13b2-2, and the certification provision of Rule 13a-14 of the Exchange Act. In addition, he agreed to be permanently prohibited from aiding and abetting violations of the reporting provisions of Section 13(a) of the Exchange Act and Rules 12b-20, 13a-1, and 13a-13 and the books-and-records provisions of Sections 13(b)(2)(A) and (B) of the Exchange Act.
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The Securities and Exchange Commission announced on November 15, 2018, the resolution of three actions against the CFO of a Chicago-area information technology company, who was previously charged by the SEC and the U.S. Attorney’s Office. Dhru Desai was ordered, in the SEC’s civil action, to pay approximately $1.63 million in disgorgement, prejudgment interest, and a civil penalty; suspended by the Commission from practicing before the Commission on the basis of his guilty plea in the parallel criminal action; and sentenced to 39 months in prison in the criminal action.
The SEC’s complaint, filed on June 29, 2017 in the U.S. District Court for the Northern District of Illinois, alleged that former chief executive officer Nandu Thondavadi and former chief financial officer Dhru Desai stole more than $4 million from Schaumburg, Illinois-based Quadrant 4 System Corp., for a nearly five-year period. The former executives also allegedly caused Quadrant 4 System to understate its liabilities and inflate its revenues and assets, evading scrutiny by lying to the company’s auditors and providing them with forged and doctored documents. Read More
SEC Announces Settlement in Fraud Case Against OTC Markets IIssuer and Cornelius Peterson
On January 31, 2018, the Commission filed a complaint in the United States District Court for the District of Massachusetts charging Cornelius Peterson and his former colleague, James Polese, with securities fraud for engaging in various schemes to defraud their clients, including fraudulently misappropriating $350,000 of their client’s money, using $100,000 of those funds to make investments in their own names, and directing the remaining $250,000 to James Polese’s personal bank account and investing $100,000 of another client’s funds into an investment in which Cornelius Peterson and James Polese held a financial interest, without informing the client or disclosing their conflict of interest. Read More
SEC Settles Claims Against James V. Mazzo Former Chairman/CEO of Advanced Medical Optics, Inc.
The SEC announced on November 14, 2018, that it has agreed to resolve its insider trading claims against James Mazzo, the former Chairman and Chief Executive Officer of Advanced Medical Optics, Inc.for allegedly tipping information about his company’s acquisition to his close personal friend, former professional baseball player Douglas V. DeCinces.
The SEC’s complaint alleged that in October 2008 James Mazzo executed a nondisclosure agreement with Abbott Laboratories, Inc., as Abbott explored a potential acquisition of Advanced Medical Optics. Talks between Advanced Medical Optics and Abbott Laboratories progressed over the ensuing months. James Mazzo provided Douglas DeCinces with material, nonpublic information about the acquisition on multiple occasions. The complaint further alleges that Douglas DeCinces bought between Advanced Medical Optics securities numerous times after communicating with James Mazzo about the progress of the merger talks. Douglas DeCinces also allegedly tipped five of his friends, including a former Baltimore Orioles teammate and a businessman, David L. Parker. Douglas DeCinces’s trading resulted in over $1.3 million in alleged ill-gotten gains, and the tippees obtained another $1 million in ill-gotten gains. Read More