Entrepreneur's Guide To Regulation A+

In 2012, President Obama signed the Jumpstart Our Business Startups Act (the “JOBS Act”) into law. The JOBS Act greatly expanded entrepreneurs’ access to capital by allowing them, under certain circumstances, to solicit capital investment more widely. The JOBS Act mandated two SEC rule updates and expansions – Expansion of Regulation D under Title II (which you can read more about here), and Expansion of Regulation A under Title IV. The hope is that these new rules will have a positive impact on the U.S. economy since 65% of new jobs are created by small businesses.

Reg. A is the longstanding SEC rule that allows companies to offer and sell securities to the public, but with more limited disclosure requirements than those of publicly reporting companies. While this would seem to appeal to smaller companies in early stages of development, few companies take advantage of it, mainly due to such burdensome requirements for an offering that is capped at $5 million. As a result of the JOBS Act mandate, in 2015 the SEC amended Reg. A to create a new exemption from registration called Reg. A+. Under Reg. A+ companies can raise up to $50 million. Reg. A+ has two Tiers, with requirements as follows:

In many ways, Reg. A+ is middle ground between a traditional fundraising under Reg. D and an IPO; some even call a Reg. A+ offering a “mini IPO.” Similar to an IPO, Reg. A+ allows companies to raise capital from all investors and it requires a degree of regulatory review. However, fees associated with a Reg. A+ offering are expected to be much lower than a traditional IPO, and ongoing disclosure requirements are much less burdensome.

Reg. A+ issuers may also “test the waters” before committing to a financing. This allows companies to gauge the potential success of a Reg. A+ offering and decide whether or not to move forward prior to spending time and money on the SEC approval process.

Elio Motors is the first company to raise equity and go public under Reg. A+. In this deal, which closed in February 2016, the company raised over $16 million in funding. Further information on the deal can be found here.

While some companies are dipping toes in the water, several questions remain. Can small, early stage companies afford Reg. A+? Or, did the SEC simply make cheaper for middle and late stage companies to execute public offerings? So far, it looks like the latter might be true.

Bob Zeglarski can be reached at 615-933-3545 or via email at bobz@cutwaterlaw.com. Cutwater Law provides legal services to the creative industries. Clients include small and medium-sized businesses, and entrepreneurs in tech, television, film, music, publishing, and digital media.

Producer's Guide to SAG-AFTRA's New Media Agreement

SAG-AFTRA (“Screen Actors Guild‐American Federation of Television and Radio Artists”) is a labor union that represents over 160,000 film and television performers, actors in radio, video games, announcers (in both radio and television), newspersons, singers and recording artists (both royalty artists and background singers), performers in commercials, and actors working as stunt persons and specialty acts. It is dedicated to protecting its members’ interests and improving wages, hours and working conditions. To that end, SAG-AFTRA has designed a series of contractual agreements that apply when any of its members is engaged in a production. Therefore, if you wish to engagea SAG-AFTRA member in your production, you must become a “signatory” to the relevant SAG-AFTRA agreement and agree to its terms. To be clear, SAG-AFTRA members cannot work for you unless you are a signatory to the relevant SAG-AFTRA agreement. Unfortunately, most new media producers fail to realize that SAG-AFTRA covers all forms of media, including small budget, online productions. This article provides a quick overview of the New Media Agreement, including, when you need it, and what it requires of you as a producer. 

SAG-AFTRA’s New Media Agreement, which covers dramatic (scripted) and non-dramatic (non-scripted) entertainment productions, is intended for initial exhibition via the internet, mobile devices or any other new media platform (now known or hereinafter devised). The New Media Agreement is generally thought to be SAG-AFTRA’s answer to online content and generally covers small productions, including content like webisodes, reality television shows and motion pictures initially released online.

While SAG-AFTRA’s New Media Agreement broadly covers most productions, it excludes:

• Motion pictures made for an initial theatrical release (including film festivals);
• Programs made for an initial television or DVD release;
• Video games;
• Commercials and Public Service Announcements; and
• Any type of production or medium otherwise covered by any other SAG-AFTRA agreement.

Unlike the other signatory agreements, the New Media Agreement does not require minimum compensation. Initial pay is completely negotiable under the SAG-AFTRA New Media Agreement for productions that do not meet the high budget threshold. While there are no minimums under the Agreement, keep in mind that local, state and federal minimum wage laws still apply. Payment is due to the performer no later than five business days from the date worked. SAG Pension and Health or AFTRA Health and Retirement contributions are due on the negotiated initial compensation, at a rate of 17%.

Subject to certain guidelines, you may hire both SAG-AFTRA actors and non-union actors. The guidelines are as follows: all principal performers and the first ten background performers, per day, must be covered under a SAG-AFTRA contract. If, within reason, you need to hire a non-union member for any covered role you must submit a Taft-Hartley report within 15 days of the first date worked, stating your reason for hiring that performer over a union performer.  

You are able to defer payment to your performers under the SAG-AFTRA New Media Agreement if your performers agree to the deferral. Pension and Health or Health and Retirement contributions will also be deferred until payment is triggered.

Residuals will be due for use in new media only if an original, made for new media program’s final total cost, as exhibited, is $25,000 or more per minute and it is exhibited on a consumer-pay-platform beyond 26 weeks. You may distribute your new media production beyond new media, after the initial new media release, without the prior consent of your performers or an upgrade in payment; however, residuals will be paid for the use of Made for New Media productions in traditional media based on the appropriate existing SAG, AFTRA or SAG-AFTRA Agreement formulas.

Becoming a signatory to the SAG-AFTRA New Media Agreement can be done through a paper application or by applying online. You can find the online application to sign SAG-AFTRA New Media Agreement here:https://osa.sagaftra.org.

Bob Zeglarski can be reached at 615-933-3545 or bobz@cutwaterlaw.com. Cutwater Law provides legal services to the creative industries. Clients include small and medium-sized businesses, and entrepreneurs in tech, television, film, music, publishing, and digital media.