Lending Club Violated Securities Laws, Forced to File Rescission Offer
Lending Club appears to have violated the securities laws of several states when it issued stock options as compensation between July 2012 and October 2014. According to an official Rescission Offer filed with the SEC on June 12th, Lending Club is offering to buy back both common stock shares and unexercised options to remedy their mistake. Combined, 40,469,837 shares of common stock are subject to the offer. Their reason for doing so is as follows:
We have issued shares of common stock or granted options to purchase shares to our current and former employees and consultants. From July 2012 through October 2014 (or during the periods specified on the addendum to this offering circular with respect to residents of certain states), the options we granted and shares issued upon exercise of the options may not have been exempt from the registration or qualification requirements under applicable securities laws.
The filing admits they violated the laws of at least 16 states and Puerto Rico.
For New York, it says, “We were required to apply for an exemption from the broker-dealer registration and securities issuance requirements with the State of New York to issue the shares and/or options to you without registration or qualification. Because of our failure to apply for an exemption, you have three years to seek a remedy for our failure to register.”
For California, it says, “Certain options and shares issued pursuant to the 2007 Stock Incentive Plan may have been granted or issued in violation of the California Corporate Securities Law.”
The market price of the improperly issued shares amounts to $700 million. However, few if any shareholders subject to the rescission offer would likely accept it since it proposes buying back the shares at their original value + interest. Those values range from $0.06 to $8.94 per share. Lending Club closed today at $17.28, at double the highest proposed rescission offer price.
Indeed, no company officers are moving to accept the offer as it specifically states, “Seven of our officers and directors, who together hold 1,044,892 shares of common stock and options to purchase 11,081,780 shares of common stock, all of which shares are subject to this rescission offer, are eligible to participate in the rescission offer. We have been advised that these officers and directors do not intend to accept the rescission offer.”
However, if the stock price were to drop by more than 50% between now and July 15th (the deadline to decide), the rescission offer would actually become in the money for a handful of investors. The odds of that happening are pretty slim.
Lending Club’s explanation for getting in this mess in the first place is as follows:
June 12, 2015
We became subject to the reporting obligations of section 15(d) of the Securities Exchange Act of 1934, as amended (Exchange Act) upon the effectiveness of our registration statement for our member payment dependent notes on Form S-1 on October 10, 2008. As a result, we were no longer entitled to rely on the qualification requirements pursuant to section 25102(o) of the California Corporate Securities Law. Because we could not rely on section 25102(o) of the California Corporate Securities Law, the options we granted and the shares issued upon exercise of these options during this period may have been issued in violation of California securities laws. In July 2014, we applied for a permit for qualification from the California DBO. In connection with the review of the permit application, the California DBO has required that we make this rescission offer to certain holders of any outstanding, unexercised options or shares of common stock issued upon exercise of stock options. Accordingly, we are making the rescission offer to the approximately 598 persons who received grants of options or purchased common stock upon exercises of options under the 2007 Stock Incentive Plan (except with respect to shares of our common stock which were subsequently sold by such persons at a price per share that exceeded the exercise price per share plus interest at the legal rate from the date of exercise, and therefore would exceed the amount of the rescission offer). If our rescission offer is accepted by all offerees, we could be required to make an aggregate payment to the holders of these options and shares of up to approximately $34.2 million, which includes statutory interest.