We’ve written regularly about the plight of cannabis businesses not being able to secure traditional lending (and other financial services) from major, federally regulated institutions. In this post, we dive deeper into a promising federally regulated equity offering as an alternative funding means: Rule 504 under Securities and Exchange Commission (“SEC”) Regulation D.
Why aren’t banks more involved?
Despite adoption by a growing number of states, marijuana is (still) federally illegal. Federal laws preventing money laundering and other financial crimes create regulatory hurdles so significant for most major banks to service cannabis businesses that it just isn’t worth the compliance burden.
While state-regulated credit unions have stepped up to fill some of the void, institutional lending remains largely unattainable. The remainder of the void is filled by private lenders from the private equity and venture capital crowd and individual investors that require often significant collateral and interest rates that reflect the ongoing marijuana industry risk.
Raising money through private placements
When a cannabis company wants to raise capital through a private placement (sale) of securities, it subjects itself to federal and potentially state securities laws, regardless of whether they are raising through debt, equity, convertible debt, or something more creative like a SAFE (simple agreement for future equity).
What is a security or investment contract? Howey tells us
All private capital raises implicate securities laws. The definition of a security, while complex and fact-specific, in the private capital raise context is most clearly captured by the infamous U.S. Supreme Court case SEC v. Howey Co.
In Howey, the Court held that the catch-all term “investment contract” as used in the Securities Act’s definition of a security includes any contract or scheme where there is: 1) an investment of money; 2) in a common enterprise; 3) with the expectation of profit; 4) to be derived primarily from the efforts of others. Thus, the passive investment of capital into a cannabis business with the expectation of a return based on the success of the cannabis business is a security.
Under the federal securities laws, a company (the “issuer”) may not offer or sell securities unless the offering has been registered with the SEC or an exemption from registration is available. If they can, issuers typically prefer to avoid registration of securities offerings because it’s a lot of work and highly expensive. So, how can a cannabis company offer exempt securities to raise capital?
How does a Rule 504 exempt offering work?
Offerings may be exempt from the SEC’s registration requirements pursuant to Securities Act Section 4(a)(2) or its safe harbor under Regulation D of the Securities Act. Reg D includes Rule 504 that offerors commonly use to use securities without registration. This exemption sits nicely between the traditional Reg A+ public offering and Reg CF crowdfunding offering.
At the risk of oversimplifying, Rule 504 allows for the sale of up to $10MM in securities to non-accredited investors, but the issuer cannot advertise the offering publicly (this is called “general solicitation”). Accredited investors can still be involved and generally do not count against any investor limitations. Accredited investors, generally, have at least $1 million in net worth or income over $200,000 (individually) or $300,000 (with spouse or partner) in each of the prior two years.
For most smaller cannabis companies trying to raise capital, their capital needs are often too small for accredited investors to be interested in or do not have access to accredited investors in the first place. Thus, Rule 504’s allowance for non-accredited investors and its relative simplicity becomes a possible solution. We note here that a Rule 504 offering does not preempt state securities registration requirements as other exemptions do, so state law compliance must be taken into account.
Avoiding bad actor disqualification
Like the other Reg D exemptions, Rule 504 contains a “bad actor” provision, which disallows certain people and issuers from being able to avail themselves of the exemption. So, what is a bad actor and do cannabis companies by virtue of trading in a federally illegal substance qualify as one? The short answer is no.
For the purposes of this post, the bad actor provision in Rule 504 disqualifies any issuer from taking advantage of the exception from having to register securities if its directors, general partners, managers, executive officers, or persons with more than 20% voting power of the offeror have certain criminal convictions.
Relevant criminal convictions
Fortunately, all of the convictions and other disqualifying events as stated by the SEC are focused almost exclusively on securities related offenses. While operating a cannabis business is technical unlawful under the Controlled Substances Act, none of the disqualifying events are characterized by violations of federal law not involving securities. So, while the term “bad actor” may seem like it could prohibit a marijuana company from offering unregistered securities under Rule 504, that is not the case.
Indeed, many cannabis companies raise capital by offering exempted securities under Rule 504 and applicable state exemptions. Its allowance for non-accredited investor participation also makes it uniquely suited to the situation many cannabis businesses find themselves in and their capital needs.
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