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May 20, 2024

Navigating the New Crowdfunding Frontier: Rule 3a-9 and Regulation Crowdfunding SPVs

Part 5 of a 5 Part Series

Common Structures

After all that has been discussed in the prior four installments of this series, one question remains: how does one typically setup this “crowdfunding vehicle” structure for use in a Regulation Crowdfunding (“Reg. CF”) offering to reap the full benefits of Rule 3a-9?

By far, the most common entity type used for crowdfunding vehicles is the Limited Liability Company (“LLC”). As a brief recap of the LLC legal entity type, LLCs are owned by their members, who hold the LLC’s membership interests. LLCs can be member-managed, in which case the members vote to make decisions on behalf of the LLC, or they can be manager-managed, or managing-member managed, in which case an appointed manager, who is either a third party or a member, respectively, makes certain decisions on behalf of the LLC.

In the context of Reg. Crowdfunding co-issuer structures, an LLC may be formed to act as a Reg. CF issuer’s crowdfunding vehicle (i.e., its crowdfunding SPV). The LLC’s membership interests are sold to the crowd in the Reg. CF offering, and the primary issuer’s securities are sold to the crowdfunding SPV LLC. As a result, investors become members of the crowdfunding vehicle, and indirect owners of the primary issuer’s securities. The crowdfunding vehicle itself is often manager-managed, with the primary issuer being appointed as its manager, as illustrated below.

Navigating Crowdfunding

Once formed, the crowdfunding vehicle will function as a co-issuer alongside the primary issuer, which is the company’s operating entity. Unlike a wholly owned subsidiary, the co-issuer structure is a conduit arrangement. Both the primary issuer and the co-issuer crowdfunding vehicle share the responsibilities and obligations associated with the Reg. CF offering. One aspect of this collaborative structure is the use of a single disclosure document (called the Form C) by both entities in the Reg. CF offering.

As mentioned in detail throughout this blogpost series, for this model to work seamlessly and compliantly, the co-issuers must jointly navigate the requirements of Rule 3a-9. Notably, all expenses of the crowdfunding vehicle must be covered by the primary crowdfunding issuer. The crowdfunding vehicle must also append inception financial statements to the Form C along with crowdfunding issuer’s financial statements. The crowdfunding vehicle may not engage in any other activities and must be operated solely for the securities offering(s) of the primary crowdfunding issuer. Furthermore, the securities of the crowdfunding vehicle must maintain a one-to-one relationship with those of the crowdfunding issuer in terms of “number, denomination, type, and rights.” How this one-to-one relationship may be achieved depends largely on the type of security being offered by the primary crowdfunding issuer, whether the crowdfunding issuer is a corporation or an LLC, whether there is a proxy or voting agreement in place, among a host of other factors. These nuances in structure become crucial for determining how to structure the crowdfunding vehicle’s membership interests in its operating agreement with an eye towards transparency and compliance.

Ultimately, in the world of regulated investment crowdfunding, the crowdfunding vehicle co-issuer model emerges as a modernization of the crowdfunding rules in the interest of efficiency. By taking advantage of the benefits of Rule 3a-9, entrepreneurs and real estate fund managers alike can create a streamlined path to bring their companies’ securities to market while minimizing regulatory risk and administrative burdens.

If you would like to learn more about how a crowdfunding vehicle co-issuer structure could benefit your company in its crowdfunding efforts, feel free to reach out to us at contact@jobsactlawyer.com to schedule a complimentary initial consultation.

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