December 7, 2021

Volume XI, Number 341

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December 06, 2021

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Beware of Use of Derivatives in Purchase and Sale of Private Shares

The SEC is examining the use of derivatives in the secondary market for shares of private companies.[1] The trading of shares of private companies remains robust, and we are writing this alert to remind everyone that whether you are a buyer or a seller, using derivatives for these types of transfers is problematic and may be unlawful and unenforceable.

Sand Hill 

The SEC has already acted once. It recently shut down and fined Sand Hill Exchange (“Sand Hill”), an online Silicon Valley exchange for derivatives covering pre-IPO, venture-backed companies. Sand Hill sold contracts whose payouts were linked to the valuation of private companies at a liquidity event, such as a merger or IPO. In other words, “You pay me X dollars for my Uber shares today, and I promise to pay you Y dollars equal to what I receive after Uber goes public.” The SEC considered these contracts to be derivatives.

Background on Derivatives 

As a general matter, derivatives include any agreement, contract, or transaction whose value is based upon — or “derivative” of — the occurrence of an event or the value of something else, e.g., interest rates, currencies, commodities, or securities. A contract whose valued is linked to the occurrence of an event (like an IPO) affecting the value of stock of a private company is considered a derivative.[2] Under the securities laws, “retail” investors generally cannot enter into private derivative transactions. An exception exists for people who meet the high standard of “eligible contract participant”.[3] Individuals often need to have $10 million invested on a discretionary basis to qualify. Many of Sand Hill’s participants were not “eligible contract participants.” Sand Hill was therefore shut down and fined.

Conclusion

Done properly, derivatives may be used to transfer economic exposure to private shares. They can be effective in bypassing contractual transfer restrictions governing the private shares. Done improperly, however, the transfer is unlawful and has risks of unenforceability. Looking forward, online derivative exchanges may, eventually, facilitate greater liquidity in start-ups and pre-IPO companies. Until they are structured properly, though, the Sand Hill action shows the government’s willingness to police this frontier.  


Here is a link to the SEC’s enforcement action:  https://www.sec.gov/litigation/admin/2015/33-9809.pdf.

http://www.wsj.com/articles/regulators-probe-marketing-of-hot-private-tech-shares-1436139252 

2  Note: The use of a special purpose vehicle to acquire shares is not considered a derivative.

3  An eligible contract participant includes an individual who has amounts invested on a discretionary basis in excess of (i) $10 million or (ii) $5 million and who enters into the transaction for hedging purposes.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume V, Number 253
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About this Author

Daniel I. DeWolf, Mintz Levin, Member, Chair, Technology Practice; Co-chair, Venture Capital & Emerging Companies Practice Emerging Companies Lawyer, Venture Capitalism
Member / Chair, Technology Practice; Co-chair, Venture Capital & Emerging Companies Practice

Daniel is a leading authority on growth companies and venture capital law — and has worked on pioneering online capital-raising methods since the Internet’s beginning. He is immersed in the national and international ecosystem of emerging companies and investors focused on start-ups. He has also been a member of NYU Law School’s faculty since 2003, where he teaches venture capital law. Earlier, he co-founded and served as managing director of an early stage venture capital firm based in New York City.

Daniel is Chair of Mintz's Technology Practice Group and Co-chair of the firm’s...

212-692-6223
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