Exempt Offerings  JOBS Act Solutions

advising on exempt offerings to find investors.  

There are several ways to raise capital for your ICO or ITO using exemptions under Reg CF, Regulation A+, Regulation D, Regulation S, or on an ICO funding platform.

1. Regulation Crowdfunding (Reg CF)

Reg CF or Regulation Crowdfunding is relatively new and makes it legal for private placements to be marketed to non-accredited investors. Think Kickstarter with equity (or debt) being offered. Securities purchased under the Reg CF exemption cannot be resold within a year. Only $1,070,000 can be raised each year.

Example:  https://www.startengine.com/inde

You will need to file an annual report with financial statements. If you neglect to do so, you will be unable to fund-raise with Reg CF again until you file the missing annual report. You may concurrently raise funds from accredited investors using a Regulation D exemption.

2. Rule 506(b or Rule 506(c under Regulation D.

Examples of a Reg D ICO: Filecoin http://coinlist.co/filecoin

Rule 506 is the easiest and most-used exemption. There is no limit to the amount you can raise. 

Under the Rule 506(c exemption, general solicitation and advertising are permitted. Only accredited investors may invest, whereas under Rule 506(b, 35 investors may be non-accredited, and no general solicitation is permitted. 

3. Regulation S is a new but popular option.

US companies selling their ICO securities to foreign investors will want to use a SAFT. A SAFT is similar to the SAFE “Simple Agreement for Future Equity” framework used by Y Combinator. A SAFT is the instrument used to convey rights in tokens prior to the the tokens becoming functional. The SAFT itself is a security; it can be offered in a private placement to accredited investors. The tokens ultimately delivered to the investors may be fully functional and therefore not securities under U.S. law.

An offering does not qualify as exempt under Regulation S if anything is done in connection with the offering to the purpose of “conditioning” the U.S. market. Issuers cannot advertise the offering in the U.S., mail printed materials to U.S. investors, or have promotional seminars in the U.S. However, companies can initiate Reg S selling efforts from the U.S. if the efforts are directed abroad.

You can sell securities offshore without regard to the sophistication or number of purchasers in the offering or the size of the offering. You can raise as much as you want from an unlimited number of people. Unlike Rules 506(b and 506(c of Regulation D, Regulation S does not have specific information requirements.

An issuer who makes a Reg S offering online may do so without jeopardizing its exemption by including prominent statements on its website saying that the offer is directed only outside the U.S. A Private Placement Memorandum is not required for a Regulation S offering, but steps must be taken so that foreign investors understand the structure, principals, and risks associated with the offering.

A Regulation S offering may be conducted concurrently with a Regulation D offering to U.S. accredited investors without the offerings being deemed integrated. Securities sold under Regulation S are subject to re-sale restrictions. The nature of the restrictions depends on whether the issuer is foreign or domestic; whether the issuer is a public company; the types of securities being sold; and whether there is a “substantial U.S. market interest.” The securities being sold must contain a legend stating that the securities may not be resold to US investors for a restricted period of time.

4. Regulation A+ is designed for companies who want to raise more funds publicly, but don’t want to do a full-blown IPO.

Example of Reg A+ ICOs are:

FCFL https://app.microventures.com/proposed/fcfl-506c, and GAB https://www.startengine.com/gab-select

You can raise up to $50 million per year from anyone. (Soon to be $75 million. You can advertise your fundraising while you “test the waters” and solicit investors before filing with the SEC.

It is expensive. Before you can start fundraising and collect funds, you need to pre-file an offering placement memorandum (OPM) with the SEC. An OPM is like a business plan wrapped with a whole bunch of legal disclaimers, and can cost well over $50,000 in legal fees.  Issuers will want to schedule 30 days to compile the required documents; 21 days to complete and submit the forms; up to 45 days to get SEC approval.

5. ICO Funding Platform Options

Here are some platforms that are friendly to ICOs. This is easier than going it alone but you may end up paying 6%-8% of what you raise to the platform.


StartEngine: https://www.startengine.com/ico 
Indiegogo: https://ico.indiegogo.com/
Coinlist: http://coinlist.co.

Perhaps the best option is hhp://www.BrightCoin.us.