Crowdfunding is a high profile means of raising seed capital for start-ups. Services such as kickstarter and indiegogo are frequently looked to by Canadian companies as potential funding vehicles. Unfortunately, raising money by crowdfunding services such as these is not a viable option for most Canadian start-up businesses. The reason being that the investment model of crowdfunding, sometimes referred to as “equity crowdfunding” – where funders provide money in exchange for equity or debt in the start-up company – violates Canadian securities laws. On the other hand, the rewards model of crowdfunding, where funders provide seed money in exchange for a non-financial benefit, such as a pre-order of a new product or service like a watch or a phone app., do not generally violate Canadian securities laws. In a nut shell, crowdfunding is only an option if your start-up business model lends itself to the rewards model of crowdfunding.
Canadian companies raising capital by issuing equity or debt to investors – regardless of whether the funding round is seed financing, angel investment or second round financing – must continue to comply with the capital raising prospectus exemptions available in their jurisdiction and the jurisdictions of their investors. The most frequently relied upon exemptions being: accredited investor exemption, family, friends and business associates exemption, private issuer exemption and offering memorandum exemption. These exemptions are available only if the company seeking the investment and the investor fit squarely within the capital raising exemption criteria.
There is reason to be optimistic that some form of equity crowdfunding will eventually be permitted in Ontario. The Ontario Securities Commission (OSC) is reviewing the rules regulating equity and debt financing in Ontario and this review includes the consideration of the adoption of a prospectus exemption to permit crowdfunding. Essentially, Ontario is following the Jumpstart Our Business Startups Act (the JOBS Act) recently enacted by the U.S. Congress in April 2012, which will allow non-accredited or non-sophisticated investors to buy small equity stakes in companies without going through the costly process of preparing and filing a prospectus. (The JOBS Act is currently waiting on more detailed rulemaking by the SEC). However, such optimism should be tempered because even if the OSC does eventually adopt an equity crowdfunding prospectus exemption, unless other provinces in Canada adopt a similar exemption, it will only help companies in Ontario raise seed financing from investors in Ontario.
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