Year: 2012

General Solicitation

Once again, through inadvertent action, the federal government is about to threaten Angel Investing. This all started as a way to increase investment in startups, when congress passed, and the Obama signed the JOBS Act (see: http://blog.drosenassoc.com/?p=97). Title II of the JOBS Act allows “General Solicitation and Advertising” of private placements (like Angel deals). One would think this is good for two principal reasons: (1) it roughly brings current practice into compliance, since many angel groups post their deals on a web site (like Gust, which is used by many angel groups) or run events where companies present to their members and others; and (2) more and more angel deals are funded by many angel groups (usually called syndication), so there is an implicit solicitation. We liked this idea. It allows our companies to reach a broader audience of only accredited investors. All good, right?

Well, not so much. The legislation also asks that the SEC use “reasonable steps to verify” that they are accredited. Even with that, it seems pretty straightforward. The reasonable steps to verify have been around a long time (under Rule 506B). Every time angels (or other accredited investors) make an investment, the deal documents come with a short form that you fill out how you qualify as an accredited investor. The SEC has given “safe harbor” using this mechanism.

But the SEC is considering that this long-accepted method will not be acceptable if an issuer (a startup company raising money using Regulation D) uses the new General Solicitation rule (Rule 506C). Instead, the SEC originally proposed that investors would have to give the issuer copies of their tax returns. The Angel Capital Association (ACA) wrote a very strident response that this would severely diminish angel investing, since few angels would turn over their tax returns to a startup. And, of course, the startup would have to find a way to preserve these records and keep them confidential – a real mess, given that most startups don’t even have permanent offices.

The ACA Public Policy Committee fought hard to ensure that existing “quiet offerings” (Rule 506B). Therefore, if you don’t take advantage of the General Solicitation (“noisy offerings”), you still can take advantage of the existing rules.

If you do use a noisy offering, then you will need to follow new rules, which have not yet been written. But the preliminary rules (and discussions with SEC) show that the SEC is unlikely to allow “self certification” for these offerings. Therefore, one of two outcomes now looks likely: (1) issuers (or their attorneys) will have to collect a lot of information about their investors and investors will have to share a lot of personal information; or (2) new third-party certifiers will emerge to do this.

Is this really so bad? YES – this is bad. First and foremost, we all rely on the “safe harbor” on the Reg D investments. At this point, the rules don’t give this safe harbor for any particular mode of validating accreditation. This means that deals can be challenged and unwound. Very bad. Secondly, even using third party validation, will cause the costs of these deals to increase. Instead of money going to hire engineers and sales people, it will be used on deal overhead. Very bad. And lastly, most angels HATE extra paperwork. If the validation requires that you hunt through and list all of your deals for the last 5 years (it would take me hours to do this!) And, I would be generally unwilling to provide my tax returns to anyone. In the end, it would just mean a lot of extra paperwork and time. I would probably avoid any deal that used a noisy offering.

I think that the SEC (and the legislators who supported the JOBS Act) really needs to recognize that the angel investing arena has self-regulated very well and the current system has worked well. Extending the current process for noisy offerings makes a ton of sense. It is the right way forward.

After all, “if it ain’t broke, don’t fix it!”

Angel Investing and Job Creation

As you know, I chair the Public Policy Committee of the Angel Capital Association (http://www.angelcapitalassociation.org/). In that regard, I’ve spent a bunch of time in Washington, DC, meeting with legislators and executive branch people. I thought it would be useful to post a simplified version of the story we tell.

It still surprises me, being so immersed in Angel Investing, that there is so little understanding of what we do. Many confuse what we do with banking. Others confuse us with venture capitalists. And yet others confuse us with friends and family. The ACA Public Policy agenda, when stripped to its essence, is comprised of the following four items:

1) Educational. Angel investing (and therefore angel investors) are the wellspring of our economy; we are the true job creators. We are not Wall Street; we are Main Street. We invest our own money (not other peoples’ money) in virtually every community in the country to start high-growth, high-potential startups that transform the economy to the 21st Century. We do this knowing that (statistically) over half will fail and we will lose our money. When we back the winner, we plow the returns back into more startups. We are not looking for government protection. But encouragement will make a difference in the rate and amount we invest in these high-growth companies.

2) Do no harm. Sometimes there are unintended consequences of legislative actions. One good example of this were several provisions in the original draft of the Dodd-Frank Financial Reform act that would have eliminated over 70% of the eligible angels and made Reg D filings difficult or impossible. This would have severely hampered Angel Investing and curbed the companies we support. We take aggressive, but prudent, actions to ensure that such actions are understood and not taken.

2) Cap Gains. Reauthorizing the Section 1202 zero capital gains for Qualified Small Business, first through the extenders bill (making it retroactive to 1/1/12) and in place till the Congress has time to make it permanent. We need some structural changes (e.g. 2 year rather than 5 year holding period; LLCs as well as C corps; and changing the roll-over period to 1 year from 60 days) that we will work with staff to explain. And.. this needs to be permanent so that we can use it as an incentive; we look at lots of companies and the timing can’t be accurately predicted, so our members (and all angel investors) need to be able to plan on this or they won’t use it. When angels get an exit, they re-invest their proceeds in new deals; this is the flywheel upon which angel investing is based. If a substantial proportion of the proceeds are absorbed by taxes, the entire asset class looks much less attractive. And remember that Angels (unlike VCs who invest other people’s money and only make a return when they invest) don’t have to invest in these deals.

3) Angel Tax Credit. Other countries and lots of states have enacted an angel tax credit that has spurred investment in high-growth startups. Typically this is 25% in the year of investment. Zach has some wonderful data from WI. These tax credits do a great job in stimulating new investment.

More will follow.

At the Clinton Global Initiative – CGI America

I recently participated in the Clinton Global Initiative that was held in Chicago on June 7th and 8th. It really was a fascinating event in many respects. The agenda can be found at: http://www.cgiamerica.org/2012/agenda/. The basic thread was what specifically can be done to put America back to work. There were a slew of great speakers and breakouts. I was invited to help guide the Entrepreneurship sessions.

Dan Rosen & President Bill Clinton

It is impressive to see what former President Clinton can get companies and individuals to do – there were specific commitments to create programs, hire returning veterans, and great discussions and commentary about what has gone wrong and what can be done.

Several highlight comments:

  • Bill Clinton talked about the need for “creative cooperation” instead of the partisanship that is choking our political process.
  • He also talked about transforming our society to one that is sustainable, citing Costa Rica which has 26% national parks, is 51% forested, and has 92% of its energy (going to 100%) from renewables. He saw this model as a challenge model for the US.
  • Fareed Zakaria had a memorable quote, when saying he didn’t have a PowerPoint: “People who use PowerPoint rarely have power and never have a point.”
  • He then discussed the impact of two concurrent revolutions – globalization and technology – and how they are a “pincer movement” on American employment, where the American worker is stuck in a bad place, because we have had a divergence of capital and labor.
  • He cited that most countries have a cabinet level position to enhance tourism (“every tourist is a walking stimulus program”), where the US has a cabinet level position to prohibit tourism.
  • Rahm Emanuel, the new mayor of Chicago, cited the need for cities like Chicago to stop looking to Washington, DC or Springfield (the Illinois state capital) for help or answers; “the reinforcements aren’t coming.” He talked about programs he has done locally to help the city and employment in public-private partnerships and how he has gotten the cooperation of the unions.
  • He also made some interesting global comments about the economy. Apple, one of our most successful companies by any measure has over $100B in revenue, but only employs 40k people in the US. But, Foxcon, which make many of its products, employs over 1M people, primarily in China, to build Apple’s products.
  • Clinton: “I was just in Silicon Valley meeting with business leaders. I was told that, if we had the workers with the right skills, we would hire 3M people.” This was a segway to discussion about education.
  • I was really impressed by Ai-jen Poo, Director, National Domestic Workers Alliance. He spoke eloquently about the need to change both models and training in financial education. Paraphrased: “today the role models in disadvantaged communities are drug dealers and rap stars. They are successful and rich. We need new role models that bring financial dignity and literacy. Today, in these communities, you have liquor stores, pawn brokers, payday loans, and drug dealers. If you could raise the average credit score from 500 to 650, then you would transform them to convenience stores, credit unions and banks, and thriving businesses. This requires making “smart” sexy. And teaching and giving financial literacy and financial dignity.” Truly inspiring.
  • Clinton (in his second keynote) talked about Lincoln. In the teeth of the Civil War, he did the following:
    • Created the transcontinental railroad;
    • Created the National Science Foundation;
    • Chartered the land-grant universities
    • Others…
    • And wrote the Emancipation Proclamation.

    He was clearly in the “Future Business.” This is what we need now!

  • Kasim Reed, Mayor, City of Atlanta, said: “Being a mayor is where hope meets the street. It is a question of will – doing the right thing even when the cost is high.”
  • Another passionate and brilliant speaker was Neil deGrasse Tyson, Astrophysicist and Director, Hayden Planetarium, American Museum of Natural History. He said (paraphrase): “Getting students to study the hard STEM topics is more a question of inspiration than knowledge. We need to inspire our youth.”

The only downside for me was the seeming confusion between lending and equity. There was much discussion about helping small business and a lot of confusion about loans as investment. We angels have our work cut out for us.

Northwest ACA Regional Meeting

The Northwest ACA Regional meeting was held in Seattle on May 1-2. About 80 active angels from around the Northwest attended, from WA, OR, ID, BC, and Montana. A few guests from CA and even New Zealand were also there. Sponsored by the AoA (www.allianceofangels.com) and hosted by K&L Gates (http://www.klgates.com/), most attendees seemed to find the meeting both informative and enjoyable.

Among the topic were:

Looking at this list, we covered a lot of territory. I was impressed by the engagement of the entire group and the vast knowledge that the angels in the room represented. Anecdotal conversations lead me to believe that the event was overwhelmingly successful.

JOBS Act – What does it mean for angels

I have been asked repeatedly over the last several weeks: “What does the JOBS Act mean for Angels?” In this and other future blog postings, I will give my perspective.

First, what is the JOBS Act? It stands for Jumpstart Our Business Startups Act; it has nothing to do with earlier jobs stimulus efforts other than sharing an acronym. It is a regulatory reform act and does not have any tax elements. The full text can be found at: http://www.govtrack.us/congress/bills/112/hr3606/text (There are other pending legislations that address how to stimulate early-stage company investment through tax incentives.)

Broadly speaking, the JOBS Act is intended to provide more capital to startups that fuel the growth of our economy. It does the following:

  1. Removes some of the most onerous provisions of Sarbanes-Oxley Bill from emerging growth companies. The argument is that, while large, publicly traded companies needed the extra oversight and transparency, it was never intended to cripple the ability of high-growth startups from tapping the public markets.
  2. Brings the Securities Act of 1933 into the 21st century by recognizing that markets and communications have changed.
  3. Potentially allows for the revitalization of Reg A filings as a way for smaller companies to raise money from public markets.
  4. Enables “Crowdfunding” – a way that very early stage startups can get many small investors to stake their company early in the lifecycle of the company.

Much of the attention to the JOBS Act has been focused on the Crowdfunding part, so I’ll address this in this posting. However, the largest impact is likely to be from the other provisions, which will modernize and simplify the operations of Angel financings, small IPOs, etc. I’ll address those in future postings.

Crowdfunding (Title III of the JOBS Act)

In the past, startups were typically initially financed by “friends and family.” There are legendary stories of entrepreneurs mortgaging their homes to start their businesses, and then reaching out to their family, friends, and associates to get the company off the ground. As the original Senate bill said, the decline in home values has caused much of this source of early-stage capital to dry up.

Crowdfunding has precedence. People have contributed small amount of money (via the net) to charities, arts, etc. The music and theatre industries have tapped their fan base to ask for money for new works.

The difference with these precedents and Crowdfunding is the purchase of equity, which has been highly regulated. In the US, only accredited investors (a person with over $200k of annual income or over $1M in net worth; see http://www.sec.gov/answers/accred.htm for the full definition) could invest in highly-speculative private shares. The accredited investors were thought to be sophisticated investors, who could do appropriate diligence on the company and assess the risks. In general, Angels and VCs are the primary investors in this category.

There is still a raging debate on the advisability of allowing less sophisticated investors to enter this asset class. On one hand, the optimists say “why should only the very wealthy be allowed to buy early shares in a company like Facebook?” On the other hand, the pessimists would say, “this is a recipe for fraud; charismatic fraudsters will prey on the unsophisticated investors getting them to invest an amount of money that they can’t afford to lose in companies that don’t really exist.”

The devil will be (to some degree) in the details. The Act calls for a 270 day period for the SEC to write the rules. It also includes some safeguards:

  • A company may only raise $1M in a year from Crowdfunding;
  • No investor may invest more than $10,000 (or $2,000 if the investor has an income of less than $100k);
  • The investment can only be through a registered broker or funding portal;
  • A degree of public transparency by publishing the terms of the deal, the basis of the price, cap table, etc. that Angels would typically study;
  • Take steps to prohibit “bad actors” from issuing securities using Crowdfunding to help prevent fraud.

This is an experiment that marries the internet, social networking, and modern communications with selling private securities. It could work, it could fizzle, or it could be a great vehicle that tests the innovative spirit of fraudsters. If it works, it could cause thousands of flowers to bloom – startups in all parts of the US will have access to capital. If not, we can hope that the SEC regulations will limit the amount of fraud.

Impact on Angels

The simple answer is none of us know exactly. But there are certain things I believe to be absolutely true.

First and foremost, Crowdfunding will only INCREASE the need for angel financing. Very few of our high growth companies will get by on just Crowdfunding. If this is a successful experiment, then more companies will need follow-on financing from Angels.

But, the question is “will angels be willing to invest in a company with potentially hundreds of new, unsophisticated shareholders?” Will the cap table be screwed up? Any good, sophisticated angel knows that valuation is a key to success. My biggest fear is the following scenario:

  • Company X at the concept stage has a charismatic CEO with a great vision. He posts a plan and video on a funding portal asking for $1M with a $20M post for common stock at $1 per share. (We all know that it is possible to write a business plan the justifies this!)
  • The company then spends the money and makes progress toward a product. It now seeks angel financing for $2M.
  • We assess the company, like its prospects, and agree that it is a worthy investment, but assess the appropriate pre-money valuation to be $2M (not $20M) for preferred stock.
  • The previous Crowdfunding investor now see their shares valued at less than 10 cents on the dollar. They are very angry.
  • This is widely reported in the press and the entire asset class takes a hit.

We have a lot of work to do on Crowdfunding.

Signing the JOBS (Jumpstart Our Business Startups) at the White House

It was much cooler than I thought – being in the Rose Garden at the White House for the signing of the JOBS Act. I was just a few feet from Obama. Surprised at how many people I knew there, including Tom Alberg (Madrona), Joe Schocken (Broadmark), Steve Case (former AOL), Sen. Scott Brown (R-MA), Bill Carleton (McNaul Ebel), etc. Pictures are below.

Attending the JOBS Act Signing – I will be there!

On Thursday afternoon, I will attend the JOBS Act signing ceremony in the Rose Garden at the White House. The Jumpstart Our Business Startup Act passed both the House and Senate with broad bi-partisan support. It is primarily a regulatory reform act and does not address tax policy issues.

For details on the JOBS Act, see my previous post: http://blog.drosenassoc.com/?p=87. This is not a perfect solution. The centerpiece of the legislation is Crowdfunding, which will take some time to implement and many (including me) worry might allow weakening of the security statutes and targeting of those investors who can least afford to lose the money they invest in these very risky startups.

But, the bill also makes many long-needed changes to security regulations that reflect the current market conditions, including changes to advertising and general solicitation and ability for smaller companies to access the IPO market without many of the unnecessary burden imposed by Sarbanes-Oxley and the Dodd financial reform legislation.

All of these changes raise the need for angel investors. Crowdfunding (once implemented) can help get companies going; it augments and replaces friends and family funding. It only gets companies so far. The ones that achieve their milestones will then require the next round of growth capital and this is where either Angels or VCs fit the bill.

I intend to post my observations on the White House event after I attend. And of course will continue to add my insights as appropriate.

JOBS Act

Here is a post that I helped author for the ACA:


ACA Public Policy Flash
March 27, 2012

Dear ACA Member –

Unless you’ve been on a vacation on a remote island, you have heard that the US House and Senate have each passed their own versions of the JOBS Act
(Jumpstart Our Business Startups Act,
HR 3606), aimed at making it easier for small businesses to raise capital and have positive exits and thereby creating jobs. We understand that the House just voted on the Senate bill today, and the bill is being sent to President Obama for signature immediately.

The JOBS Act is complicated, but we wanted to provide you with information about the bill. The main thing to understand about this bill is that it does not deal with any tax issues, which are very difficult to pass in this partisan environment in Congress. Instead, the leaders of the House and Senate have focused on those structural and regulatory issues that inhibit startup growth, but don’t directly impact government revenue.

Many angels are asking questions about it and we know opinions about part of the bill vary quite widely (crowdfunding, anyone?). Below is a quick summary, with an eye toward how angels are or might be affected, and also links to some more detailed resources. The bill covers multiple issues:

  • Allows equity-based crowdfunding – New businesses will be able raise up to $1 million in equity capital from unaccredited investors. The Senate version of the JOBS Act creates a number of restrictions, aimed at protecting investors. Among those restrictions are limiting individual investments to $10,000 or 10 percent of the investor’s annual income (whichever is less) and registration by intermediary platforms and issuers with the SEC. Federal law would preempt state regulations, meaning that issuers could raise funds from across the United States. The SEC has 180 days after the bill’s enactment to publish rules for crowdfunding.
  • Removes prohibitions on general solicitation of Regulation D offerings – Allows for advertising of Reg D 506 offerings, as long as advertisements are focused on accredited investors. Angels should especially note the “McHenry Amendment,” which clarifies that angel and incubator platforms that do not charge a fee connected to the purchase or sale of securities are exempt from broker-dealer registration. This is helpful for Web platforms such as AngelList or Gust and venture forums aimed at accredited investors, and also for some of your angel groups.
  • Creates an IPO “on ramp” – Reduces the cost of going public for “emerging growth companies” – those with annual revenues of less than $1 billion and after the IPO, less than $700 million in publicly traded shares. These companies receive a 5 year exemption from costly Sarbanes-Oxley 404(b) requirements such as hiring outside auditors, while still requiring some quarterly and annual SEC disclosures. A number of other related technical issues are included, many recommended by a study committee of the National Venture Capital Association.
  • Increases threshold for Regulation A “mini public offerings” – Regulation A currently allows companies to go public and be exempted from SEC registration for offerings up to $5 million. The JOBS Act increases the offering threshold for this little used exemption to $50 million, perhaps making it a more useful option for more angel-backed companies.
  • Raises cap on private shareholders from 500 to 2,000 – Many private companies are forced by regulations to file as a public company once they exceed 500 shareholders and $10 million in assets. The bill increases the shareholder limit to 2,000 accredited investors or 500 unaccredited investors. The updated cap allows for flexibility to Facebook in staying private or going public, and could also benefit secondary market platforms that can offer a more robust market for the shares of private companies.

ACA has been working with our Public Policy Advisory Council to better understand many of these issues and to keep you all accurately informed. Thanks go particularly to Joe Bartlett, Bill Carleton, Dan Hansen, and Lori Smith.

The SEC will have 90 days to publish rules on most of these items, with 180 days to set the crowdfunding rules. ACA will be in contact with the SEC to provide feedback on the rules for many of these issues to ensure the best possible environment for healthy angel investment. In addition, we are currently working with VC Experts to hold a Webinar on the JOBS Act in April – before the rules are set – to catch you up on the details and to get ACA member feedback.

ACA is supportive of the JOBS Act, acknowledging its complexity and differences of opinions on the impact of crowdfunding on sophisticated angel investing and startups. We continue to generally support the concept, as we wrote you in December, while also noting some concerns about fraud and other issues. We will also point Congress to the need to catalyze angel investment – through tax credits and extension of the 100% exemption of gains on Qualified Small Business Stock – so that the companies that raise capital through crowdfunding have access to the excellent angel investment they will need to survive and grow.

We will stay in touch with you as the rules and details for the JOBS Act concepts are set. If you have questions or suggestions, please do not hesitate to contact us.

Regards,

Dan Rosen,Chair, ACA Policy Committee
Marianne Hudson, ACA Executive Director


For more information about JOBS Act:

Shugie

I don’t usually do personal stuff on my blog. However, so many of my colleagues knew my little dog, Shugie; I felt I needed to let them know of her passing. She died last Tuesday (3/12), after a brief battle with pulmonary hypertension. Shugie lived a charmed life and was just shy of 16. She was well loved and loved me and all of her friends. Her smile brought joy to everyone.

Shugie was a remarkable creature. Tiny in size, but huge in spirit. Her absolute favorite thing in the entire world was to go to business meetings, which she did from the time she was a tiny puppy. This picture was taken at a meeting. She understood (sometimes better than I did) how to behave at a meeting. She would greet each person, ask me to pick her up, and then sit in her seat looking at each person as they spoke.

It has been oft stated that dogs make us human. In fact, I think they often represent the best of us – showing us how important it is to be joyful even in adverse circumstances. I know that her unconditional love was showered on me. She lived a wonderful life, but will be sorely missed. To quote a friend of mine: “Remarkable that so gigantic a vacuum can be left by the absence of such a tiny creature.”

SkyCast – the cooler path to in-flight entertainment

Occasionally, you see a deal where you immediately understand both how cool it is and the impact that it will have on an industry. Couple that with one that will also have an impact on you personally and a great team, and you have SkyCast Solutions.

Founded by the inventor of the digEplayer (if you fly Alaska as much as I do, it needs no introduction), Bill Boyer, who is joined by my friend, Peter Parsons, and Greg Latimer (former VP Marketing at Alaska Air), this is a team that understands the industry. It is no secret that airlines have troubles with profitability. As fuel prices soar and the sluggish economy depress business travel, the problem gets worse. Airlines have learned that ancillary sources for revenue (like baggage fees) are an attractive way to make up any gaps. The problem with fees: customers hate paying for something that brings them no enjoyment that they think should be free.

Enter SkyCast Solutions. They make a VERY cool in-flight entertainment solution, called TrayVu™ (http://www.skycastsolutions.com/NEW/products.html). It is an android tablet that goes into the tray table, can be viewed through the table, and automatically flips up when you put the tray down. This offers many advantages, including being light weight (a short IRR for the airlines on fuel savings alone), ability to show ads or other things below 10,000 feet, having use of your tray table with the screen in a perfect viewing position, a credit card reader to buy food or pay per views, and (maybe most importantly to anyone who has had the person behind them play angry birds in a seat back system) when you play a touch game you don’t disturb the person in the seat in front. It is an exceeding economical system for the airlines to install and use, brought to you by an industry veteran who knows how to make these things work.

OK.. in-flight entertainment won’t change the world. But it will make long flights much more fun. This is why I (and other Alliance of Angels members) chose to invest in SkyCast Solutions.

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