Dangers In Forming A Company Without Advising An Attorney
SECURITIES ISSUES FOR STARTUPS: CALIFORNIA LIMITED FILING EXEMPTION NOTICE
There are many dangers in forming a company without advising an attorney, such as failing to file a securities registration exemption with the California Department of Business Oversight (DBO) and federal Securities and Exchange Commission (SEC). The most common California exemption is the Limited Offering Exemption Notice (LOEN) under Corporations Code § 25102(f). This exemption is available if (a) the securities are sold to no more than 35 persons, (b) all purchasers have a preexisting personal or business relationship with the offeror or company (and other owners of the company), (c) all purchasers are not purchasing the security with a view to sell or distribute the security, and (d) the offer and sale are not accomplished by publication of any advertisement. Failure to file a LOEN within 15 calendar days from issuance of the securities may result in legal action from the Commissioner of Business Oversight, including civil penalties. Securities are typical considered issued upon the earlier of actual issuance, formation of your LLC or corporation, or execution of the Operating Agreement or Bylaws.
California law and the SEC clearly define a security as stock, so when forming a corporation, a LOEN must be filed. Despite federal law not specifically mentioning LLC membership interests, LLC interests are still subject to the federal Securities Act of 1933 because they are considered investment contracts (securities). The federal case SEC v. Howey, 328 U.S. 293 (1946) illustrates, “[a]n investment contract…means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or third party.” Corporations Code § 25019 reiterates this, indicating a “security” is any interest in an LLC “…except a membership interest in [an LLC] in which the person claiming this exception can prove that all of the members are actively engaged in the management of the [LLC].” English translation: LLC membership interests may be investment contracts, and therefore securities, when all members of an LLC are not involved in the management (the same is true for limited partnership interests). In this case, a registration exemption must be filed.
Besides California securities registration exemptions, registering the securities under the Securities Act of 1933 may be necessary. However, most securities issued upon the formation of a company are exempt from Regulation D of the Securities Act. A discussion of the federal securities registration exemptions is outside the scope of this material.
You should avoid the many pitfalls of using LegalZoom or any other service to form your company, and failing to file a securities registration exemption is one of many. If you have any questions about securities or entity formation issues, please do not hesitate to contact the Law Offices of Tyler Q. Dahl for a free consultation. 333 University Ave, Suite 200, Sacramento, CA 95825, 916-565-7455
Disclaimer: This material was prepared for general informational purposes only, and is not intended to create an attorney-client relationship and does not constitute legal advice. This material should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a qualified attorney regarding any specific legal problem or matter.
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