One of the biggest challenges that micro, small and medium enterprises face when trying to settle in and achieve success as profitable businesses is to obtain capital and sources of financing. Sometimes, the most common sources of financial resources – such as bank loans, private equity and public offerings of securities – are beyond the reach of these companies and, consequently, many innovative ideas that could result in booming business for the national economy and for the creation of jobs are not developed.
Another crowdfunding format is the equity crowdfunding model whereby investors provide capital and receive shares or another capital instrument that gives them the right to receive a percentage of the income generated by the business they are financing. There is also the debt-based crowdfunding model, in which investors lend funds on a temporary basis, waiting for the repayment of their investment in a certain period. In these cases, investors usually require that they be paid an interest on the borrowed capital, but models have arisen in which the participants have not demanded any consideration except the return of the amounts given in loan.
Our securities legislation requires that those securities that are going to be publicly offered in the Republic of Panama be registered first with the Superintendence of the Securities Market (hereinafter the “SMV”). The process of registering securities before the SMV consumes time and resources that micro, small and medium enterprises usually do not have. The current regulations include offers of securities that are exempt from registration with the SMV but they only allow the offer of unregistered securities to a small number of people or institutional investors and, thus, these registration exemptions do not work for crowdfunding initiatives whose purpose is to collect small sums of money from a large number of people. In order for crowdfunding to be possible without having to comply with the registration formalities, a new exemption from the obligation to register securities would have to be adopted.
The second regulatory challenge faced by crowdfunding in the Republic of Panama is that, under the Securities Act and the agreements adopted by the SMV, the operator of the Internet site that serves as a platform to facilitate the collection of financial resources have the obligation to obtain an investment adviser license, broker-dealer firm license or stock exchange license. The management of requesting and obtaining these licenses, as well as their subsequent operation, also requires investment of a lot of time and resources that, given the objective of a crowdfunding site to serve as a mere intermediary between entrepreneurs and investors, may not have to be incurred for crowdfunding purposes.
Article 128 of the Securities Act establishes the following: “Public offer or sales of securities to be made by an issuer or an affiliate or by an offerer in the Republic of Panama shall be registered in the Superintendence, unless they are exempted from such registration in accordance with the provisions of this Decree Law and its regulations. An offer or sale made to persons domiciled in the Republic of Panama shall be deemed to be an offer made in the Republic of Panama, regardless of whether it is made from the Republic of Panama or from abroad, unless the Superintendence determines otherwise.”
Paragraph 2 of article 129 establishes that “there are exempted from registration with the SMV offers of securities made by an issuer or an affiliated thereof, or by an offerer of said issuer or affiliate to no more than twenty-five persons altogether, or any such number of persons which the Superintendence may determine and which, within a period of one year, do not have as a result the sale of such securities to more than 10 persons, or any other number of persons which the Superintendence may determine.”
Article 3 of Agreement 1-2001 establishes that the following legal persons qualify as “institutional investors”: (i) banks, insurance companies, reinsurance companies, investment companies registered with the SMV, investment trusts managed by companies with trust licenses, retirement and pensions funds regulated by Law 10 of April 16, 1993, and broker-dealer firms; (ii) legal persons domiciled in the Republic of Panama, with regular operations managing investments for at least two years before the date the offer and/or sale is, which own a patrimony consisting of no less than One Million Dollars (US$1,000,000.00), according to the last audited financial statements and whose principal officers, or in their absence, the majority of Directors and Officers must have at least two years of experience in regular investment management; and (iii) Sovereign States and public entities that by their nature are authorized to make investments.
Therefore, in relation to the exemption of the obligation to register securities before the SMV, it is proposed that public offers of securities, whether of fixed or variable income (and the resale of such securities in the secondary market) that comply with characteristics similar to the following be considered exempt from registration: (i) the securities that are offered by the issuer through an Internet crowdfunding platform duly notified to the SMV (hereinafter, a “Crowdfunding Site”); (ii) the amount of capital that the issuer wishes to collect (the “Requested Capital”) shall be expressed on the Crowdfunding Site, as well as the amount of securities to be offered, its price and the proportion of total capital represented by each security; (iii) the issuer shall establish a period of time during which potential investors may express their willingness and commitment to purchase the securities (the “Commitment Period”); (iv) the securities shall be issued and the issuer shall receive the funds only when the target is met, that potential investors have expressed, within the Commitment Period, their commitment to purchase securities for an amount at least equivalent to the Requested Capital (the “Minimum Target”); (v) individuals or legal entities with an annual income of less than US$100,000.00 may invest no more than 10% of their income within a period of twelve (12) months; (vi) individuals or legal entities with an annual income of more than US$100,000.00 may invest no more than 15% of their income up to a maximum amount of US$100,000.00 within a period of twelve (12) months; (vii) any issuer that has placed securities on the basis of an exempt crowdfunding offer, by reason of having complied with all the requirements, may carry out additional crowdfunding offers; (viii) an offer of securities under the proposed exemption, if adopted, would not prohibit the issuer from making other offers, sales or transactions exempt from registration as established in Article 129 of the Securities Act (for example, the offers of securities that an issuer carries out under a crowdfunding exemption are excluded from the computation of the investors referred to in numeral 2 of Article 129 on private placements); and (ix) issuers that offer securities under a crowdfunding exception could, in any case, try to obtain financing through other sources of funding, such as bank loans and venture capital.
Notwithstanding the foregoing and with the interest of protecting the investing public, the issuers that offer securities based on a registration exemption such as the above, or similar, must be subject to compliance with the provisions of articles 246 and 248 of the Securities Act in relation to the prohibition of incurring, during the process of offering and placing the exempt securities, in fraudulent or misleading acts, in the making of false statements about a material fact or omitting to disclose a material fact.
In addition to an exemption from the obligation to register securities with the SMV, in order for crowdfunding to work as an accessible measure of financing, it is also required that operators of Crowdfunding Sites are exempt from obtaining an investment adviser license, broker-dealer firm license or stock exchange license. For the purposes of the foregoing, it is proposed that operators of Crowdfunding Sites that meet the following requirements be considered exempt from obtaining the above licenses: (i) notify the SMV of the operation of a Crowdfunding Site within five (5) business days following the launching of the Crowdfunding Site; (ii) not recommend, qualify or otherwise provide investment advisory services in relation to the securities offered through its platform; (iii) obtain the information required by Law 23 of 2015 and its regulations from potential issuers of securities; and (iv) adopt terms and conditions under which (a) the operator of the Crowdfunding Site is prohibited and, if it is a legal entity, its shareholders, directors, officers and employees, to purchase securities offered through the Crowdfunding Site, (b) the issuers of securities undertake to issue the securities in case the Minimum Target is met within the Commitment Period, and (c) the persons who wish to invest through the Crowdfunding Sites recognize that the expressions of willingness to purchase securities during a Commitment Period constitute promises to purchase the securities and pay their price in case the Minimum Target is met but granting those persons who have expressed interest in acquiring the securities the possibility of not having to purchase the securities if they communicate their wish to opt out in the financing within a set period of time before the Commitment Period expires.
The exemptions proposed in this document to encourage crowdfunding in the Republic of Panama are based on similar standards adopted in other jurisdictions. On April 5, 2012, the former president of the United States of America, Barack Obama, signed the so-called “Jumpstart Our Business Startups Act,” also known as the “JOBS Act,” which was a law promulgated with the intention of motivating the financing of small businesses in that country and resulted in the adoption of exemptions similar to those suggested here in the securities regulatory framework of the United States of America. This year, Argentina enacted Law 27,349, which, in its Title II, creates the figure of “crowdfunding systems”.
In other words, certain jurisdictions are adopting new rules so that crowdfunding is a real and accessible source for raising capital and financing for micro, small and medium enterprises. The Republic of Panama cannot be left behind in this aspect and the time is still favorable for us to take the necessary actions and measures in order to adopt rules that can help promote crowdfunding not only to our local entrepreneurs but also to attract those foreigners innovators that do not have this possibility of financing in their respective jurisdictions. Being short in this attempt may even cause our local talent to turn to other countries that have rules that encourage and facilitate crowdfunding in order to obtain funds to develop their ideas and, most likely, end up implementing them in the territory of those same jurisdictions who had the vision of accommodating this figure to help them launch their businesses in the beginning.
Morgan & Morgan advised The Goldman Sachs Group Inc. in the negotiation of a Security Purchase Agreement with McDermott International, Inc.
Panama, December 7, 2018. Morgan & Morgan represented certain investment funds managed by the Merchant Banking Division of The Goldman Sachs Group Inc. (“Goldman Sachs”) in the negotiation of a Security Purchase Agreement pursuant to which Goldman Sachs acquired for US$300 Million, 12% Redeemable Preferred Stock of McDermott International, Inc., a Panamanian corporation (the “Company”), and a warrant to purchase a number of shares of the common stock of the Company.
Panama, September 25, 2018. Morgan & Morgan and sixteen attorneys of the firm were recognized in the Chambers Latin America 2019, guide of the best lawyers and law firms across 20 countries of Central America, the Caribbean, South America and Mexico.
The firm has been ranked in the first Bands within the areas of Banking & Finance, Capital Markets, Corporate/M&A, Dispute Resolution, Energy & Natural Resources, Intellectual Property, Offshore, Projects, Real Estate, Shipping and Shipping Litigation.
Likewise, the publication noted as leaders in their areas attorneys Inocencio Galindo, Francisco Arias, Ramon Varela, Roberto Vidal, Simon Tejeira, Jose Carrizo, Luis Vallarino, Ana Carolina Castillo, Allen Candanedo, Maria Eugenia Brenes, Roberto Lewis, Luis Manzanares, Enrique De Alba, Jazmina Rovi, Juan David Morgan Jr. and Francisco Linares.
One of the clients interviewed stated that “Judging by the results that the firm achieves, I can say that their advice is effective and arrives in a timely manner. I would highlight their availability and technical competence”.
About Morgan & Morgan
With over 80 lawyers and 20 practice areas, Morgan & Morgan is a full service Panamanian law firm, regularly assisting local and foreign corporations from different industries, as well as recognized financial institutions, government agencies and individual clients. Of particular note is our continuous advice for clients involved in all stages of the development of important projects related to energy, water supply, construction, oil, mining, public infrastructure, retail, ports, transportation, among others. Learn more at www.morimor.com.
Morgan & Morgan acted as special Panamanian counsel to Alta Cordillera, S.A., in connection with a credit facility agreement granted by PDS Gaming-International, LLC, M&G Illiquid Credit Opportunities Fund Limited and M&G Illiquid Credit Opportunities Fund II Limited, as lenders, to Alta Cordillera and Codere Newco, S.A.U., as borrowers. PDS Gaming LLC acted as arranger, servicer and agent for the lenders and PDS Gaming-International, LLC acted as collateral agent.
Fifteen Morgan & Morgan attorneys from several practice groups of the firm have been recognized for their exceptional work, in the second edition of the Who´s Who Legal Central America 2017. The guide is a comprehensive listing the leading practitioners and law firms across 13 areas of business law in the region.
With over 80 attorneys and 20 practice areas, Morgan & Morgan is s a full service Panamanian law firm, regularly assisting local and foreign corporations from different industries, as well as recognized financial and government institutions, in important investments in Panama and the region.
“These distinctions are very important for us because they show that our clients and peers recognize our broad expertise in many areas of law, and the commitment of our team when advising clients in their legal needs while doing business in Panama”, said Romulo Roux, Partner and Head of the Legal Services Unit of the firm.
Morgan & Morgan experts recognized:
Carlos Ernesto Gonzalez Ramirez, Partner
Maria Eugenia Brenes, Associate
Ana Carolina Castillo, Associate
Carlos Ernesto Gonzalez Ramirez, Partner
Eduardo Ferrer, Partner
Francisco Arias, Partner
Inocencio Galindo, Partner
Jose Carrizo, Partner
Simon Tejeira Q., Partner
Francisco Arias, Partner
Inocencio Galindo, Partner
Ramon Varela, Partner
Enrique Jimenez, Partner
Inocencio Galindo, Partner
Luis Manzanares, Partner
Enrique De Alba, Partner
Francisco Linares, Partner
Jazmina Rovi, Partner
Juan David Morgan Jr., Partner
Morgan & Morgan advised HSBC Bank (Panama), S.A. in Master Assignment Agreement for an amount of up to US$35 million
Morgan & Morgan advised HSBC Bank (Panama), S.A. as assignee and administrative agent as well as local collection agent, in a Master Assignment Agreement for an amount of up to US$ 35,000,000.00 of certain credit rights of Constructora Meco, S.A., as assignor.
Constructora Meco, S.A. assigned under master and ancillary assignment documents, all its collection rights arising from certain design and construction agreements for a value of US$ 35,000,000.00 signed between Constructora Meco, S.A. and Panama´s Ministry of Public Works.
Said operations relate to road network redesign projects namely, overpass on Omar Torrijos Avenue and Andrews Pass, roads and bridges on east Panama Province and underpass in the Pan-American road, and rehabilitation of the runway on the Scarlett Martinez airport in Rio Hato, Cocle Province.
Partner Francisco Arias and senior associate Kharla Aizpurua Olmos, participated in this transaction.
Morgan & Morgan advises Banco Inbursa in the purchase and assignment of Credits Master Agreement for a value of US$415 millions
Morgan & Morgan advised Banco Inbursa, S.A., Institucion de Banca Multiple, as buyer in the master agreement for the purchase and assignment of non-recourse credits through an evolving discount purchase facility for a value of US$ 415,000,000.00 of certain specific credit rights of Consorcio Linea 2 de Metro de Panama, comprised of FCC Construccion, S.A. as seller and assignor, and Constructora Norberto Odebrecht, S.A. as assignor. In addition, Metrotrust, S.A. acted as trustee, assignee and local agent for collection of assigned credits.
Consorcio Linea 2 de Metro de Panama assigned certain credits within the framework of an Assignment Agreement and master and ancillary documents for its collection of rights arising from the agreement to provide “services of engineering design, construction of civil works, installation of auxiliary lines and stations, provision and installation of an integral railroad system including rolling material, putting into work Line 2 de Metro de Panama” subscribed by Consorcio Linea 2 de Metro de Panama and Metro de Panama, S.A.
Partner Francisco Arias, senior associate Kharla Aizpurua Olmos and associate Pablo Epifanio, participated in this transaction.
The Superintendence of Banks (SBP) of the Republic of Panama has issued a resolution by which it grants Puente Bank, S.A. an International Banking License to formally operate in the Republic of Panama.
“Since the month of August, 2014, Morgan & Morgan, by request from the bank’s managements, formally started the legal and administrative processes required by SBP to obtain the license necessary to carry out the banking business in our country,” stated Dr. Eduardo Ferrer, partner of Morgan & Morgan who handled this operation.
Grupo Puente is one of the leading investment banking institutions and most experienced in the Southern Cone.With a portfolio of assets under management exceeding US$2,500 million and more than 35,000 clients worldwide, the new financial entity will provide all services offered by a general license bank, thus joining the list of renowned financial entities operating in Panama.
Morgan & Morgan advised Thesan with respect to a US$11.5 million finance for the development and operation of solar energy project El Espinal
Morgan & Morgan acted as Panamanian counsel to Thesan with respect to a US$11.5 Million Dollars Project Finance facility granted by CIFI (Corporación Interamericana para el Financiamiento de Infraestructura, S.A.) for the development and operation of a solar photovoltaic power plant “El Espinal”, with an installed capacity of 8.5MW in the Republic of Panama.
Partner Ramon Varela, and associate Ana Carolina Castillo, participated in this transaction.
Morgan & Morgan advised Wells Fargo Bank, National Association and The Prudential Insurance Company of America in a US$250 million securitization of DPRs
Morgan & Morgan advised Wells Fargo Bank, National Association and The Prudential Insurance Company of America, in their role as lenders and investors in new loans and notes for an aggregate amount of US$250,000,000.00, which are guaranteed by a diversified payment rights program established by Banco General, S.A., comprising of the securitization of future funds flows represented by payment orders (called Diversified Payment Rights or DPRs).
Partner Ramon Varela and associates Roberto Vidal and Ricardo Arias, participated in this transaction.