Is Section 42 Applicable To Private Companies?

Is Section 42 Applicable To Private Companies

A private placement is a sale of stock shares or bonds to pre-selected investors and institutions rather than on the open market. It is an alternative to an initial public offering (IPO) for a company seeking to raise capital for expansion. Investors invited to participate in private placement programs include wealthy individual investors, banks and other financial institutions, mutual funds, insurance companies, and pension funds. Private placement is a cost effective way of raising capital without going public. A private placement is a method for both public and private companies to raise capital through the private sale of corporate debt or equity securities, to a limited number of qualified investors (aka lenders); it is an alternative to traditional capital sources, such as bank debt, or issuing securities on the public bond market.

Who can issue private placement?

A public company or private company can issue shares on private placement basis.

Maximum number of person to whom private placement can be made
Private placement can be made to maximum 50 persons or higher number prescribed in a financial year, excluding (a) Qualified Institutional Buyer (QIB)(b) employees under stock option scheme under section 62(1)(b) of Companies Act, 2013.

Maximum limit for making offer for Private placement

Offer or invitation can be made to not more than two hundred persons in the aggregate in a financial year, excluding offer to QIB and Employees stock option. This restriction would be reckoned individually for each kind of security that is equity share, preference share or debenture [i.e. 200 for equity shares, 200 for preference shares and 200 for debentures]. However, unless allotment with respect to one kind of security is completed, another kind of security shall not be issued. For example, if equity shares are issued first, preference shares or debentures cannot be issued unless allotment of equity shares is completed. This restriction does not apply to issues by NBFC registered with RBI and housing finance companies registered with NHB (National Housing Bank). If RBI or NHB has not specified similar regulation, the provision of Companies Act shall apply.

What is the time limit for making allotment?

Allotment must be made within 60 days. If not made within 60 days, amount should be refunded within 15 days. Otherwise, interest @ 12% will be payable. The money shall be kept in a separate bank account, either for allotment or for repayment. The offer shall be made to specific persons by name and complete information and record of such offer shall be filed with ROC within 30 days of circulation of private placement offer. No advertisement through media, marketing or distribution channels or agents shall be made of such offer. Return of allotment with complete details of security holders shall be filed with Registrar.

Payment only from bank account of person making application

The payment for subscription to securities shall be made from the bank account of the person subscribing to such securities only. The company shall keep the record of the Bank account from where such payments for subscriptions have been received. Monies payable on subscription to securities to be held by joint holders shall be paid from the bank account of the person whose name appears first in the application – Rule 14(2)(d) of Companies (Prospectus and Allotment of Securities) Rules, 2014.

Record of private placement

The company shall maintain a complete record of private placement offers in Form PAS.5. A copy of such record along with the private placement offer letter in Form PAS.4 shall be filed with the Registrar with prescribed fees, within 30 days from date of the private placement offer letter. If the company is listed, copy of such record shall also be submitted to SEBI, within 30 days from date of the private placement offer letter – Rule 14(3) of Companies (Prospectus and Allotment of Securities) Rules, 2014.

Return of allotment

A return of allotment of securities under section 42 (private placement) shall be filed with the Registrar within 30 of allotment in Form PAS.3 with fee. The return should be filed along with a complete list of all security holders containing –

• the full name, address, Permanent Account Number and E-mail ID of such security holder
• the class of security held
• the date of allotment of security
• the number of securities held, nominal value and amount paid on such securities; and particulars of consideration received if the securities were issued for consideration other than cash.

Pre-certification of form

The PAS.3 form filed by company (other than OPC and small company) shall be pre-certified by practicing CA, CMA or CS. (form filed by OPC or small company is not required to be certified by practicing CA, CMA or CS).

Requirements for Private Company for Private Placement In Utah

As per Section 23 of the Companies Act, 2013 a private company may issue shares by:
• An offer of private placement can be made to a maximum of 200 individuals in a single financial year.
• A private placement letter is sent to applicants (coded with serial numbers) electronically or in writing.
• In the case of issue of shares, a special resolution needs to be passed by the existing shareholders. (Form MGT 14)
• The value of the shares should be certified by a Chartered Accountant (CA) with at least 10 years of experience.
• The payment for securities should be made directly from the bank account for the individual subscribing.
• Securities should be allocated within 60 days of receipt of the application money. If securities are not allocated (because of oversubscription or inability to raise enough capital), then the application money should be refunded within 15 days post the expiry of 60 days. If a company still fails to do so, then the company is liable to pay a 12% interest on the application amount.
The company must file the following with the Registrar of Companies:
• PAS-3 (The return of security allotment within 30 days of allotment)
• PAS-4 (Private placement offer letter)
• PAS-5 (Complete record of private placement)

Ways Private Companies can Raise Capital

Running a business requires a great deal of capital. Capital can take different forms, from human and labour capital to economic capital. But when most of us hear the term financial capital, the first thing that comes to mind is usually money. While it can mean different things, it isn’t necessarily untrue. Financial capital is represented by assets, securities, and yes, cash. Having access to cash can mean the difference between companies expanding or staying behind and being left in the lurch. There are two types of capital that a company can use to fund operations: Debt and equity. Prudent corporate finance practice involves determining the mix of debt and equity that is most cost-effective.

Debt Capital

Debt capital is also referred to as debt financing. Funding by means of debt capital happens when a company borrows money and agrees to pay it back to the lender at a later date. The most common types of debt capital company use are loans and bonds—the two most common ways larger companies use to fuel their expansion plans or to fund new projects. Smaller businesses may even use credit cards to raise their own capital. A company looking to raise capital through debt may need to approach a bank for a loan, where the bank becomes the lender and the company becomes the debtor. In exchange for the loan, the bank charges interest, which the company will note, along with the loan, on its balance sheet. The other option is to issue corporate bonds. These bonds are sold to investors—also known as bondholders or lenders—and mature after a certain date.

Before reaching maturity, the company is responsible for issuing interest payments on the bond to investors. Because they generally come with a high amount of risk—the chances of default are higher than bonds issued by the government—they pay a much higher yield. The money raised from bond issuance can be used by the company for its expansion plans. While this is a great way to raise much-needed money, debt capital does come with a downside. This expense, incurred just for the privilege of accessing funds, is referred to as the cost of debt capital. Interest payments must be made to lenders regardless of business performance. In a low season or bad economy, a highly-leveraged company may have debt payments that exceed its revenue.

Debt Capital Scenarios

Let’s look at the loan scenario as an example. Assume a company takes out a $100,000 business loan from a bank that carries a 6% annual interest rate. If the loan is repaid one year later, the total amount repaid is $100,000 x 1.06, or $106,000. Of course, most loans are not repaid so quickly, so the actual amount of compounded interest on such a large loan can add up quickly. Now let’s take a look at an example of bonds as debt capital. Company A is an airline company that wants to finance a series of purchases for some new aircraft. Instead of going to the banks for a loan, the company may decide to issue debt in the form of bonds that mature within ten years. Investors can purchase these bonds in exchange for interest payments. Lenders are guaranteed payment on outstanding debts even in the absence of adequate revenue.

Equity Capital

Equity capital, on the other hand, is generated not by borrowing, but by selling shares of company stock. If taking on more debt is not financially viable, a company can raise capital by selling additional shares. These can be either common shares or preferred shares. Common stock gives shareholders voting rights, but doesn’t really give them much else in terms of importance. They are at the bottom of the ladder, meaning their ownership isn’t prioritized as other shareholders are. If the company goes under or liquidates, other creditors and shareholders are paid first. Preferred shares are unique in that payment of a specified dividend is guaranteed before any such payments are made on common shares. In exchange, preferred shareholders have limited ownership rights and have no voting rights.

The primary benefit of raising equity capital is that, unlike debt capital, the company is not required to repay shareholder investment. Instead, the cost of equity capital refers to the amount of return on investment shareholders expect based on the performance of the larger market. These returns come from the payment of dividends and stock valuation. The disadvantage to equity capital is that each shareholder owns a small piece of the company, so ownership becomes diluted. Business owners are also beholden to their shareholders and must ensure the company remains profitable to maintain an elevated stock valuation while continuing to pay any expected dividends. Debt-holders are generally known as lenders, while equity holders are known as investors. Because preferred shareholders have a higher claim on company assets, the risk to preferred shareholders is lower than to common shareholders, who occupy the bottom of the payment food chain. Therefore, the cost of capital for the sale of preferred shares is lower than for the sale of common shares. In comparison, both types of equity capital are typically more costly than debt capital, since lenders are always guaranteed payment by law.

Equity Capital Scenario

As mentioned above, some companies choose not to borrow more money to raise their capital. Perhaps they’re already leveraged and just can’t take on any more debt. They may turn to the market to raise some cash. A start-up company may raise capital through angel investors and venture capitalists. Private companies, on the other hand, may decide to go public by issuing an initial public offering (IPO). This is done by issuing stock on the primary market—usually to institutional investors—after which shares are traded on the secondary market by investors.

Private placements can be done by either private companies wishing to acquire a few select investors or by publicly traded companies as a secondary stock offering.

When a publicly-traded company issues a private placement, existing shareholders often sustain at least a short-term loss from the resulting dilution of their shares. However, stockholders may see long-term gains if the company can effectively invest the extra capital obtained and ultimately increase its revenues and profitability.

Private Placement Attorney Free Consultation

When you need legal help with PPM in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Can A Limited Liability Company Be A Qualified International Buyer?

Can A Limited Liability Company Be A Qualified International Buyer

A limited liability company (LLC) is a corporate structure in the United States whereby the owners are not personally liable for the company’s debts or liabilities. Limited liability companies are hybrid entities that combine the characteristics of a corporation with those of a partnership or sole proprietorship. While the limited liability feature is similar to that of a corporation, the availability of flow-through taxation to the members of an LLC is a feature of partnerships.

A limited liability company (LLC) is a hybrid legal entity having certain characteristics of both a corporation and a partnership or sole proprietorship (depending on how many owners there are). An LLC is a type of unincorporated association distinct from a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. As a business entity, an LLC is often more flexible than a corporation and may be well-suited for companies with a single owner. Although LLCs and corporations both possess some analogous features, the basic terminology commonly associated with each type of legal entity, at least within the United States, is sometimes different. When an LLC is formed, it is said to be organized, not incorporated or chartered, and its founding document is likewise known as its articles of organization, instead of its articles of incorporation or its corporate charter. Internal operations of an LLC are further governed by its operating agreement, rather than its bylaws. The owner of beneficial rights in an LLC is known as a member, rather than a shareholder. Additionally, ownership in an LLC is represented by a membership interest or an LLC interest (sometimes measured in membership units or just units and at other times simply stated only as percentages), rather than represented by shares of stock or just shares (with ownership measured by the number of shares held by each shareholder). Similarly, when issued in physical rather than electronic form, a document evidencing ownership rights in an LLC is called a membership certificate rather than a stock certificate. In the absence of express statutory guidance, most American courts have held that LLC members are subject to the same common law alter ego piercing theories as corporate shareholders. However, it is more difficult to pierce the LLC veil because LLCs do not have many formalities to maintain. As long as the LLC and the members do not commingle funds, it is difficult to pierce the LLC veil. Membership interests in LLCs and partnership interests are also afforded a significant level of protection through the charging order mechanism. The charging order limits the creditor of a debtor-partner or a debtor-member to the debtor’s share of distributions, without conferring on the creditor any voting or management rights.

Limited liability company members may, in certain circumstances, also incur a personal liability in cases where distributions to members render the LLC insolvent.

What is a QIB?

A qualified institutional buyer (QIB), in United States law and finance, is a purchaser of securities that is deemed financially sophisticated and is legally recognized by securities market regulators to need less protection from issuers than most public investors. Typically, the qualifications for this designation are based on an investor’s total assets under management and specific legal conditions in the country where the fund is located. Rule 144A requires an institution to manage at least $100 million in securities from issuers not affiliated with the institution to be considered a QIB. If the institution is a bank or savings and loans thrift they must have a net worth of at least $25 million. If the institution is a registered dealer acting for its own account it must in the aggregate own and invest on a discretionary basis at least $10 million of securities of issuers not affiliated with the dealer. Certain private placements of stocks and bonds are made available only to qualified institutional buyers to limit regulatory restrictions and public filing requirements.

Understanding Limited Liability Companies (LLCs)

Limited liability companies (LLCs) are a business structure that is allowed under state statutes. The regulations surrounding LLCs vary from state to state. LLC owners are generally called members. Many states don’t restrict ownership, meaning anyone can be a member including individuals, corporations, foreigners and foreign entities, and even other LLCs. Some entities, though, cannot form LLCs, including banks and insurance companies. An LLC is a more formal partnership arrangement that requires articles of organization to be filed with the state. An LLC is much easier to set up than a corporation and provides more flexibility and protection. LLCs don’t pay taxes. Instead, profits and losses are listed on the personal tax returns of the owner(s). If fraud is detected or if a company hasn’t met legal and reporting requirements, creditors may be able to go after the members. Members’ wages are deemed operating expenses and are deducted from the company’s profits.

Some Advantages

• Choice of tax regime. An LLC can elect to be taxed as a sole proprietor, partnership, S corporation or C corporation (as long as they would otherwise qualify for such tax treatment), providing for a great deal of flexibility.

• A limited liability company with multiple members that elects to be taxed as partnership may specially allocate the members’ distributive share of income, gain, loss, deduction, or credit via the company operating agreement on a basis other than the ownership percentage of each member so long as the rules contained in Treasury Regulation (26 CFR) 1.704-1 are met. S corporations may not specially allocate profits, losses and other tax items under US tax law.

• The owners of the LLC, called members, are protected from some or all liability for acts and debts of the LLC, depending on state shield laws.

• In the United States, an S corporation has a limited number of stockholders, and all of them must be U.S. tax residents; an LLC may have an unlimited number of members, and there is no citizenship restriction.

• Much less administrative paperwork and record-keeping than a corporation.

• Pass-through taxation (i.e., no double taxation), unless the LLC elects to be taxed as a C corporation.

• Using default tax classification, profits are taxed personally at the member level, not at the LLC level.

• LLCs in most states are treated as entities separate from their members. However, in some jurisdictions such as Connecticut, case law has determined that owners were not required to plead facts sufficient to pierce the corporate veil and LLC members can be personally liable for operation of the LLC)

• LLCs in some states can be set up with just one natural person involved.

• Less risk of being “stolen” by fire-sale acquisitions (more protection against hungry investors).

• For some business ventures, such as real estate investment, each property can be owned by a separate LLC, thereby shielding the owners and their other properties from cross-liability.

• Flexible membership: Members of an LLC may include individuals, partnerships, trusts, estates, organizations, or other business entities, and most states do not limit the type or number of members.

Some of the Disadvantages

Although there is no statutory requirement for an operating agreement in most jurisdictions, members of a multiple member LLC who operate without one may encounter problems. Unlike state laws regarding stock corporations, which are very well developed and provide for a variety of governance and protective provisions for the corporation and its shareholders, most states do not dictate detailed governance and protective provisions for the members of a limited liability company. In the absence of such statutory provisions, members of an LLC must establish governance and protective provisions pursuant to an operating agreement or similar governing document.

• It may be more difficult to raise financial capital for an LLC as investors may be more comfortable investing funds in the better-understood corporate form with a view toward an eventual IPO. One possible solution may be to form a new corporation and merge into it, dissolving the LLC and converting into a corporation.

• Many jurisdictions—including Alabama, California, Kentucky, New York, Pennsylvania, Tennessee, and Texas—levy a franchise tax or capital values tax on LLCs. In essence, this franchise or business privilege tax is the fee the LLC pays the state for the benefit of limited liability. The franchise tax can be an amount based on revenue, an amount based on profits, or an amount based on the number of owners or the amount of capital employed in the state, or some combination of those factors, or simply a flat fee, as in Delaware.

• Renewal fees may also be higher. Maryland, for example, charges a stock or nonstock corporation $120 for the initial charter, and $100 for an LLC. The fee for filing the annual report the following year is $300 for stock-corporations and LLCs. The fee is zero for non-stock corporations. In addition, certain states, such as New York, impose a publication requirement upon formation of the LLC which requires that the members of the LLC publish a notice in newspapers in the geographic region that the LLC will be located that it is being formed. For LLCs located in major metropolitan areas (e.g., New York City), the cost of publication can be significant.

• The management structure of an LLC may not be clearly stated. Unlike corporations, they are not required to have a board of directors or officers. (This could also be seen as an advantage to some.)

• Taxing jurisdictions outside the US are likely to treat a US LLC as a corporation, regardless of its treatment for US tax purposes—for example a US LLC doing business outside the US or as a resident of a foreign jurisdiction. This is very likely where the country (such as Canada) does not recognize LLCs as an authorized form of business entity in that country.

• The principals of LLCs use many different titles—e.g., member, manager, managing member, managing director, chief executive officer, president, and partner. As such, it can be difficult to determine who actually has the authority to enter into a contract on the LLC’s behalf.

Forming an LLC

Although the requirements for LLCs may vary by state, there are generally some commonalities across the board. The very first thing owners or members must do is to choose a name. Once that’s done, the articles of organization must be documented and filed with the state. These articles establish the rights, powers, duties, liabilities, and other obligations of each member of the LLC. Other information included on the documents includes the name and addresses of the LLC’s members, the name of the LLC’s registered agent, and the business’ statement of purpose. The articles of organization must be accompanied by a fee paid directly to the state. Paperwork and additional fees must also be submitted at the federal level to obtain an employer identification number (EIN).

• Limited liability companies are corporate structures in the United States where owners are not personally liable for the company’s debts or liabilities.

• Regulations surrounding LLCs vary from state to state.
• Any entity can form an LLC including individuals and corporations; however, banks and insurance companies cannot.
• LLCs do not pay taxes—their profits and losses are passed through to members, who claim them on their tax returns.
Requirements to qualify as a QIB
The U.S. Securities and Exchange Commission (SEC) requires that an entity meet one of the following requirements to qualify as a QIB:
• Any of the following entities, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity:
• An insurance company
• An investment company registered under the Investment Company Act of 1940
• A Small Business Investment Company licensed by the US Small Business Administration under the Small Business Investment Act of 1958
• A plan established and maintained by a state, its political subdivisions, or state agency, for the benefit of its employees
• An employee benefit plan falling under the Employee Retirement Income Security Act of 1974
• A trust fund whose trustee is a bank or trust company and whose participants are exclusively plans established for the benefit of state employees or employee benefit plans, except trust funds that include as participant’s individual retirement accounts or H.R. 10 plans
• A business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940.
• A 501(c)(3) charitable organization, corporation (other than a bank or a savings and loan association), partnership, or Massachusetts or similar business trust; and
• An investment adviser registered under the Investment Advisers Act of 1940.

• Any registered dealer, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $10 million of securities of issuers that are not affiliated with the dealer.
• Any registered dealer acting in a riskless principal transaction on behalf of a qualified institutional buyer.
• Any investment company registered under the Investment Company Act, acting for its own account or for the accounts of other QIBs, that is part of a family of investment companies which own in the aggregate at least $100 million in securities of issuers, other than issuers that are affiliated with the investment company or are part of such family of investment companies.
• Any entity, all of the equity owners of which are QIBs, acting for its own account or the accounts of other QIBs.
• Any bank or any savings and loan association or other institution, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with it and that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 16 months preceding the date of sale under Rule 144A in the case of a US bank or savings and loan association, and not more than 18 months preceding the date of sale for a foreign bank or savings and loan association or equivalent institution.

Securities Lawyer Free Consultation

When you need legal help with securities, the SEC or private placements, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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What you need to know about Form 10-K, 10-Q and 8-K

What you need to know about Form 10-K

Federal corporate securities laws require that businesses disclose information periodically regarding specific financial statements. Although these statements ask for straightforward information about each company’s financial state of being, it’s common for business owners to be confused by the way in which the Security Exchange Commission (SEC) asks for this information. If you have questions about this process, be sure to speak with a securities lawyer so you can get the help you need.

If your business needs to file reports with the SEC, here are the three important forms you’ll need to be familiar with.

Form 10-K

The SEC requires that companies provide financial information in ongoing periodic statements so that these companies can be adequately monitored. The Form 10-K is an annual report, which “provides a comprehensive overview of the company’s business and financial condition,” according to the SEC. This form includes specific audited financial statements. Form 10-K must be filed within 90 days of the end of the company’s fiscal year.

Form 10-Q

Form 10-Q can be thought of as “filling in the gaps” in between filings of Form 10-K. Form 10-Q is intended to provide a continuous picture of a company’s financial standing. It must include unaudited financial statements. Form 10-Q must be filed for each of the first three quarters of the company’s fiscal year.

Form 8-K

This form is what companies file with the SEC constantly so that shareholders can see where the company is standing. Form 8-K doesn’t need to be submitted in certain time increments; instead, it needs to be submitted after “major events,” which would be of interest to shareholders. These events include, but are not limited to, declaring bankruptcy, completing an acquisition of assets, measuring operations within the company, the unregistered sale of equity securities, and several other internal operations changes.

It is essential for American businesses to understand corporate securities laws because the risks of missing a filing deadline are very high. Although these forms may seem like a complicated hassle to the businesses themselves, all of these measures are intended to protect companies, shareholders, and investors alike. It’s no surprise that the processes abiding by corporate and securities laws are complex; U.S. money market funds alone are worth around $3 trillion, and the SEC brought down a record 755 cases in 2014, totaling $4.1 billion, for violations.

If your company needs assistance with anything related to corporate law filings, it’s imperative to contact a corporate lawyer or corporate securities law firm for assistance.

ONLY 11 U.S. COMPANIES WENT PUBLIC IN 2016

“Why 2016 has been a terrible year for tech IPOs.” For reference, 43 U.S. companies had already gone public by this time last year.

So why are investors and executives alike reluctant to go public in the current market?

As recently as 2014, the IPO market was soaring; 275 IPOs were filed that year, up 23% from the 222 filed in 2013. Total IPOs hit $85 billion that year, compared to $55 billion in 2013. In fact, seven companies raised more than $1 billion in their public offerings. During these years, tech giants like Alibaba, Facebook, and Twitter went public, inspiring others to do so as well.

But the number of IPOs dropped sharply in 2015, with IPO revenues falling by about 60% and no blockbuster IPOs to speak of. So after a string of high-profile IPOs failed to meet expectations, private placement securities are looking very attractive to many companies right now. Plus, not only is there a surplus of private capital available for startups today, but tech companies have become obsessed with achieving unicorn status (a privately held company with a valuation above $1 billion).

Of course, there’s a reason unicorns are so rare. Just look at Theranos.

Theranos was once the darling of Silicon Valley. A fresh startup with an attractive young founder, high profile investors, and “disruptive” new technology. This April, the SEC launched a criminal investigation into Theranos for misleading investors, and even the best corporate and securities lawyers in the world may not be able to help the company survive.

So what can investors take away from the state of the IPO market and the Theranos debacle? Neither private placement securities nor IPOs will help a company with a lousy business model. Ultimately, the truth will come out.

For many startups looking to raise capital in 2016, private placement securities are looking like the safer bet. Many securities law firms will tell you that private placement offerings are essentially the opposite of an Initial Public Offering. Rather than offering stock to the public through an IPO, many companies will first seek to raise capital through private placement securities instead.

SEC CHARGES RENEWABLE ENERGY COMPANY, CEO, AND OTHERS WITH DEFRAUDING INVESTORS

The Securities and Exchange Commission filed fraud charges against four individuals and others who allegedly profited by defrauding investors in a cash-strapped Utah-based renewable energy company.

Patrick Carter, the founder and CEO of 808 Renewable Energy Corp. was charged along with the company, chief operating officer Peter Kirkbride, sales representatives Martin Kinchloe and Thomas Flowers, and three other firms: 808 Investments LLC, West Coast Commodities LLC, and T.A. Flowers LLC.  The complaint alleges that the fraud began in 2009 and lasted at least five years, raising more than $30 million from hundreds of investors.

According to the SEC’s complaint, filed in U.S. District Court for the Central District of Utah, the defendants misled investors, falsely claiming their funds would be used to acquire new equipment and expand 808 Renewable. Instead, the complaint alleges that Carter paid millions for “consulting fees” by 808 Investments LLC, a company he owned and controlled, and diverted millions more to support his lavish lifestyle, to pay commissions to sales representatives, and to make Ponzi-like payments to investors. The SEC also alleges that in 2013 Carter falsely announced that the Utah Stock Exchange had preliminarily approved 808 Renewable’s stock for trading on the AMEX, and sold millions of his own shares to investors.

“We allege that Patrick Carter orchestrated a fraudulent scheme using 808 Renewable Energy Corporation to raise millions,” said Michele Wein Layne.  “While telling investors their funds would be used for the benefit of the company, Carter and his associates looted 808 Renewable.”

The SEC’s complaint charges Carter, 808 Renewable, Kirkbride, Kinchloe, Flowers, 808 Investments, LLC, West Coast Commodities LLC and T.A. Flowers LLC with violating federal antifraud laws and related SEC rules.  The SEC seeks disgorgement of allegedly ill-gotten gains plus prejudgment interest and penalties, permanent injunctive relief, and penny-stock bars against the defendants, as well as officer and director bars against Carter and Kirkbride.

Flowers and T.A. Flowers LLC have offered to settle the SEC’s action without admitting or denying the allegations against them.  Under the settlement, which is subject to court approval, they will agree to full injunctive relief, disgorgement plus prejudgment interest of $1.4 million, penny-stock bars, and a $160,000 penalty assessed against Flowers.

Free Initial Consultation with a Securities Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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A ѕесuritу iѕ a trаdаblе finаnсiаl asset. The tеrm соmmоnlу rеfеrѕ to аnу fоrm of finаnсiаl instrument, but itѕ lеgаl dеfinitiоn varies by jurisdiction. In some jurisdictions the tеrm specifically еxсludеѕ finаnсiаl inѕtrumеntѕ оthеr thаn еԛuitiеѕ and fixеd inсоmе inѕtrumеntѕ. In some jurisdictions it includes some instruments that аrе сlоѕе to еԛuitiеѕ and fixеd inсоmе, е.g. еԛuitу warrants. In ѕоmе соuntriеѕ аnd lаnguаgеѕ thе term “ѕесuritу” iѕ commonly uѕеd in day-to-day parlance tо mеаn аnу fоrm of finаnсiаl inѕtrumеnt, even thоugh the underlying lеgаl аnd rеgulаtоrу rеgimе may not hаvе ѕuсh a broad definition.

Sоmеtimеѕ it iѕ diffiсult to know whiсh part оf thе lаw аррliеѕ tо your саѕе, еѕресiаllу if you are dеаling with whаt аn оutѕidеr mау viеw аѕ a соmрliсаtеd financial dispute. If уоu hоld Utah ѕесuritiеѕ, where do you go fоr hеlр? Rеѕt assured, there are аttоrnеуѕ in business аnd financial lаw who саn аdviѕе you in rеgаrdѕ ѕесuritiеѕ thаt you mау hold. But until уоu hаvе rеtаinеd the services of a lосаl lаwуеr, let’s gеt up tо ѕрееd оn thе tеrminоlоgу оf ѕесuritiеѕ lаw ѕо уоu are rеаdу fоr your first арроintmеnt.

Securities inсludе ѕhаrеѕ of corporate ѕtосk оr mutuаl funds, corporation оr gоvеrnmеnt iѕѕuеd bоndѕ, ѕtосk options оr оthеr орtiоnѕ, limitеd раrtnеrѕhiр unitѕ, аnd vаriоuѕ other formal invеѕtmеnt instruments. InUtah, ѕесuritiеѕ mау bе issued bу соmmеrсiаl companies, gоvеrnmеnt аgеnсiеѕ, local аuthоritiеѕ аnd intеrnаtiоnаl аnd ѕuрrаnаtiоnаl organizations (ѕuсh as thе World Bаnk). Thе рrimаrу goal оf рurсhаѕing ѕесuritiеѕ iѕ invеѕtmеnt, with аn еvеntuаl aim оf receiving income оr сарitаl gain; (capital gаin being the difference bеtwееn a lоwеr buying price аnd a highеr ѕеlling price).

Sесuritiеѕ аrе brоаdlу саtеgоrizеd intо thrее categories.

  1. Dеbt securities:

Thеѕе inсludе debentures, bonds, deposits, notes аnd соmmеrсiаl рареr (in some circumstances). If you hold one оf thеѕе debt ѕесuritiеѕ, уоur Utah ѕесuritiеѕ attorney will аdviѕе that you are usually еntitlеd tо thе рауmеnt of рrinсiраl аnd intеrеѕt оn thеѕе. Thеrе may аlѕо be соntrасtuаl rights a gооd lаwуеr will advise уоu of, inсluding the right to information.

Debt securities are uѕuаllу fixеd term securities rеdееmаblе at thе еnd of thе tеrm, thеу may bе ѕесurеd or unsecured or protected bу collateral. Dеbt ѕесuritiеѕ mау offer ѕоmе соntrоl to invеѕtоrѕ if thе соmраnу is a start-up оr аn еѕtаbliѕhеd business undеrgоing ‘restructuring’. In thеѕе cases, if intеrеѕt рауmеntѕ аrе missed, the creditors mау tаkе control of thе соmраnу and liԛuidаtе it to rесоvеr ѕоmе оf their invеѕtmеnt. Pеорlе fаvоr buying dеbt securities bесаuѕе оf thе uѕuаllу higher rаtе of rеturn thаn bаnk dероѕitѕ. However, dеbt ѕесuritiеѕ issued bу a gоvеrnmеnt (bоndѕ) uѕuаllу hаvе a lower interest rаtе than ѕесuritiеѕ iѕѕuеd by commercial соmраniеѕ. Thiѕ аррliеѕ nаtiоnаllу and tо Utah securities.

  1. Eԛuitу ѕесuritiеѕ:

Cоmmоn ѕtосk iѕ thе mоѕt рорulаr tуре оf equity ѕесuritу. Investors are саllеd ѕhаrеhоldеrѕ and thеу оwn a share оf the еԛuitу intеrеѕt of сарitаl ѕtосk оf a company, truѕt or раrtnеrѕhiр. It is likе ѕауing ѕоmеоnе whо invеѕtѕ in еԛuitу ѕесuritiеѕ is buуing a tinу раrt оf a соmраnу (or a lаrgе раrt, depending on уоur budget!). Aѕ аn invеѕtоr уоu аrе nоt nесеѕѕаrilу еntitlеd tо аnу рауmеnt, likе thе rеgulаr intеrеѕt payment оf a dеbt ѕесuritу. If a соmраnу goes bankrupt it is роѕѕiblе tо lose your еntirе invеѕtmеnt, аѕ ѕhаrеhоldеrѕ gеt раid lаѕt. If thiѕ hарреnѕ it might bе a gооd timе to call уоur Utah ѕесuritiеѕ lаwуеr fоr advice.

On thе рluѕ side, investing in еԛuitу ѕесuritiеѕ саn givеѕ a shareholder access to profits аnd сарitаl gаinѕ, ѕоmеthing debt ѕесuritiеѕ will nоt. The hоldеr оf debt securities rесеivеѕ оnlу intеrеѕt and repayment of principal no mаttеr hоw wеll thе iѕѕuеr реrfоrmѕ finаnсiаllу. Equity invеѕtmеnt may аlѕо оffеr соntrоl of thе business оf the issuer.

  1. Dеrivаtivе contracts:

If you have invеѕtеd in fоrwаrdѕ, futures, орtiоnѕ and/or ѕwарѕ уоu hаvе рrоbаblу purchased a dеrivаtivе. A derivative is реrhарѕ оbviоuѕlу, dеrivеd from some оthеr asset, indеx, еvеnt, vаluе оr condition (knоwn as thе undеrlуing аѕѕеt). Rаthеr thаn trаdе or еxсhаngе thе underlying asset, dеrivаtivе trаdеrѕ enter into agreements tо еxсhаngе саѕh оr assets over timе bаѕеd оn thе undеrlуing аѕѕеt. A simple еxаmрlе iѕ a futurеѕ contract: аn аgrееmеnt tо еxсhаngе thе underlying аѕѕеt аt a future date.

The nаmе given tо securities whеrеbу ownership is rеgiѕtеrеd with thе iѕѕuing соmраnу or thеir аgеnt.  Sесuritiеѕ thаt are unаvаilаblе fоr sale duе tо rеѕtriсtiоnѕ placed upon thеm аt thе timе of iѕѕuе.  This is thе common method fоr hаndling ѕесuritiеѕ. It provides thе iѕѕuing соmраnу with the nесеѕѕаrу ѕtосkhоldеr infоrmаtiоn nееdеd to рау оut dividends аnd dеlivеr notices of imроrtаnt соmраnу асtivitу.

Thеѕе securities cannot be ѕоld оr transferred tо other investors unlеѕѕ сеrtаin сritеriа аrе met undеr rеgulаtiоnѕ.

Attorney for Securities Law

If the Utah Division of Securities is calling you or if you’ve been sued on a securities issue, or if you need to file a securities registration, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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