August 20, 2013
Ms. Elizabeth M. Murphy
Secretary, Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
Re: Amendments to Regulation D, Form D and Rule 156 under the Securities Act File No. S7-06-13
Dear Ms. Murphy:
Thank you for the opportunity to provide comments to the Securities and Exchange Commission on its proposed amendments to Regulation D under the Securities Act of 1933, and Form D.1
My story is a bit unique in that I personally created the first global distribution platform for private companies and private funds back 12 years ago. The company was called Vencast and it unfortunately ran out of money before breaking even. But I clearly remember educating FINRA and other regulators back 12 years ago on how to properly use the internet to distribute materials to accredited, pre-qualified investors. I was blazing a new trail back then and it seems 12 years later, we are finally getting some new rules to use in this new digital age, however these new rules cause more problems than they do solve.
Today, I am the CEO of a startup called Fitmoo and we are in constant fund raising mode. Fitmoo needs capital to survive, and a lot of it. We have raised $400,000 to date and are now out seeking $3 million. We are a pre-revenue, pre-profit, pre-launch company, registered in CT but transferring to DE. There is not a day that goes by that I do not think about and actively talk about fund raising. We are constantly changing our pitch deck, draft PPM, videos, and other presentation materials. Our Term sheets usually go through no fewer than 20 iterations before getting signed. Our subscription documents go through 5-7 drafts before being finalized.
The minute I close on one dollar of financing, my attention is immediately turned to the next financing round we will need and when we will need it. Daily, I calculate the "runway" we have in the event we do not reach profitability or get bought, which is the amount of time we have until we run out of cash. This ebs and flows almost daily as the business and our spend evolves and changes.
Every day, I evaluate the potential channels of distribution. The include but are not limited to: my own network, the networks of Fitmoo's investors, third party placement agents, informal investment groups, formal investment groups like Connect, angel groups like NY Angels, angel lists like Angel.com, incubators like 500 Start-Ups, accelerators like Accelerate IT, non-profit coaching platforms like SDSI connect, crowdfunding platforms like kickstarter and crowdfunder, and many others. I use them all as I never know where my investors will come from
Every conversation I have comes back to Fitmoo. I travel around the country, sometimes coast to coast, for one meeting with a qualified accredited investor. I recently travelled to San Diego to pitch a group of potential investors for 15 mins. Fund raising is extremely challenging and time consuming, and I, as well as thousands of others, are looking for an easier way to touch people, get my company in front of accredited and non-accredited investors, so that we can build the premier social marketplace for fitness, health and wellness. This will be my 3rd start up and I'm a big believer that great companies (like Fitmoo) only have a chance of succeeding if we get funding. We have ZERO chance of success if we don't get funded. Therefore, the bigger the audience, the more likely that companies like ours will get in front of the appropriate investors who can not only provide investment capital, but who can also provide strategic guidance.
My wish list would be that there as a market place, an exchange of sorts, where new offerings could be marketed and distributed, as well as secondary shares traded. I know this is complicated and if you'd like, I'd be happy to help in some way. My goal would be simply to help get great companies funded properly by giving them the exposure they need. As a CEO, I am constantly stressed by the fact that I cannot get in front of enough people. Preparing for meetings, traveling to meetings, debriefing, following up, often takes days. The whole process is inefficient at best, expensive and burdensome to the point where we seasoned entrepreneurs question our sanity. The reality is that the fund raising process is burdensome and results in self doubt when all I (or we) want to do is build a world-class business. It is unfortunate that in 2013, we cannot figure out ways of regulating a digital marketplace that both protects the investor from fraud or gross negligence, but allows companies from around the world get the audience they need to get funded, assuming they are good businesses. Even if they aren't "good businesses", there are investors that sometimes see value in these that we do not and may wish to put some risk capital in knowing that they could win big or lose it all. It's that what investing is all about anyway? Public markets, private markets, private companies, large funds, it's all the same. Risk has taken on a new meaning post 2001 and 2008 and therefore, even investing for the "long-term" in municipal bonds carries with it risk of loss of capital. As the former CIO of a large family office, I know too well that risk is now defined well beyond traditional volatility of returns, and that preservation of capital is sometimes a myth where once it was guaranteed.
The current proposed rules by the SEC are burdensome and will constrain innovation more than help them get funded. Great companies will not get the audience they need and bad companies who get lucky will take capital out of the system when it should go to other companies. There is a finite amount of capital to go into small private companies, however there is an abundance of it if looked at globally. The SEC needs to get behind creating market places, exchanges, or distribution platforms that will allow companies like Fitmoo to have the best chance of succeeding.
I would be happy to have a discussion with you about specific rules that don't work as proposed and would be happy to travel to Washington to meet with you. Alternatively, you are invited to visit our global headquarters and talk to me and my people about the fund raising process. We operate in my living room on the beach in Fairfield CT and you are welcome any time to see how a real start-up starts.
Thank you in advance for your consideration.