Filing a Form C – Who is signing?

You are almost at the home stretch in your Regulation CF offering; however, there are still a few more formalities that need to occur.

First, you will need to identify who will be signing on your Form C.  The SEC requires the following individuals to sign:

  1. Individual who will sign on behalf of the company
  2. Principal executive officer or officers
  3. Principal financial officer
  4. Controller or principal accounting officer
  5. Majority of members and/or directors of the company

Second, you should have a filing day plan.  Each of these individuals will be “signing” a document that will be filed with a federal agency. Which means they are acknowledging responsibility for that filing, including potential liability. [i]

Further, this means that each signatory should not only review the information but also give their overt consent to the platform/filing agent to file on their behalf.  You should know who is going to be signing and make sure they will be around the day of filing to give their consent, preferably in writing (e-mail).

Once you do, you should be able to file, and happy fund-raising!

Still got questions? Here are a few we come across frequently:

What if I don’t have a principal accounting officer? You are in good company, in fact, we have yet to come across a single company who currently has someone in that role.  We believe best practice is to have an appropriate person sign in that capacity.  This holds true for all the officer positions and it is not unusual for an individual to sign as CEO, CFO and Controller.

What if I don’t have a managing body, managers, directors or a similar structure can I still file? You should talk with a lawyer.  If you do not have a corporate governance structure, how are you comfortable selling pieces of your company to a crowd of complete strangers? It will be well worth your time to seek advice to make sure you and your company are protected.

Do all signatories need to be disclosed in the Form C?  Yes.  They are officers and/or managers/directors in your company.  They will need to be listed as such and you will need to include the appropriate disclosure, include three years of work history.

Is there a document to sign?  Unlike other filings with the SEC (where companies are supposed to create physical records of their signature, to be kept for a number of years) there is no requirement for a “wet” signature.  Therefore, you should feel free to create a signature page for your files; however, many platforms and filers accept e-mail confirmations.

If I sign with the SEC will I have liability?  Can I not sign?  Truthfully, it doesn’t matter.  Section 4A(c) creates liability for specified officers and directors whether they sign or not, so even if you do not sign you will could be liable for untrue statements of a material fact or omitting to state a material fact.   On that note, if you are an officer or director in a company that is doing an offering, consider taking some time to read what you are filing.

Do all officers have to sign? No. The only officers required to sign are those enumerated above.  It is great that you may have a Chief Marketing Officer, Chief Operating Officer, or even a movie director (not to be confused with a director of your company); this are indicia that you may have a functioning company. That said, only those specified need to sign.  If someone really wants to sign, such you can have them sign (though I for one wouldn’t volunteer unless required), but it is truly unnecessary.

[i] Those signing on behalf of the company will sign to the following:

Pursuant to the requirements of Sections 4(a)(6) and 4A of the Securities Act of 1933 and Regulation Crowdfunding (§ 227.100 et seq.), the issuer certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form C and has duly caused this Form to be signed on its behalf by the duly authorized undersigned.

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