Goldmans Sachs’ $450 million investment in social networking juggernaut Facebook has prompted a federal inquiry into whether the deal is designed to avoid rules aimed at protecting investors, The Wall Street Journal reported, citing “people familiar with the situation.”
News of the probe comes as the SEC is already looking into the relatively new phenomenon of online private markets, which have allowed the wealthy to buy and sell shares of companies the average investor cannot.
The basic disclosure issue surrounding Goldman’s investment is that Section 12(g) of the Securities Exchange Act of 1934 — amended by later SEC rulemaking — requires a company with assets exceeding $10 million and equity held by more than 500 people to register its securities with the federal government and file quarterly and annual reports.
In other words, if a company has any real assets to speak of, and is owned by more than 500 people, it must register with the SEC. At that point, the SEC’s transparency rules kick in, requiring the company to provide greater financial disclosures to the public, although it is still under no obligation to undertake an initial public offering.
Google hit the 500-person rule in 2003 and decided to go whole-hog and sell shares to the public. That worked out pretty well for the company.
The law and subsequent rulemaking were designed to protect investors from losing money betting on companies that aren’t held to “generally accepted accounting principles,” or the same strict disclosure requirements as public companies.
For the last several years, there has been a brisk market in Facebook equity on places like SharesPost, which bills itself as the “Online Marketplace for Private Investments.” Another firm in this business is SecondMarket.
This has allowed Facebook employees to sell some of shares they were granted when they were hired, and it has allowed outside individuals to snap them up. A few years ago, Facebook got an exemption from the 500-shareholder rule for its own employees, but the exemption does not apply to outside shareholders of the company.
Who are these outside individuals buying Facebook equity? Rich, sophisticated investors who have both the means to invest and the wherewithal to even know what SharesPost is in the first place. They’re known as “accredited investors,” and they need to have a net worth of at least $1 million.
As the SharesPost website says:
SharesPost is a passive bulletin board that enables its registered members, who are sophisticated buyers and sellers of private company securities, to view existing portfolio items held by other members that may be available for purchase as well as items of interest to prospective buyers.
SharesPost is not a registered broker-dealer or registered securities exchange. SharesPost is not registered as an Investment Advisor with the Securities and Exchange Commission or any state authority.
In other words, SharesPost has facilitated a brisk private market for rich people in the shares of a multibillion-dollar company — Facebook — with little oversight from any financial regulator.
It’s little wonder that the SEC is looking into these markets. SecondMarket, which is a registered broker-dealer regulated by FINRA and the SEC, said in recent days that it is “fully cooperating with the SEC in this inquiry.”
Which brings us to Goldman Sachs, and where things get tricky.
As pointed out by professor Steven M. Davidoff, one of the top securities law authorities in the country, Section 12(g) applies to shareholders “of record” (basically direct owners) not shareholders who own equity “beneficially” (basically indirect owners, as in the case of a trust).
What Goldman Sachs is proposing to do is create a $1.5 billion, so-called “special-purpose vehicle” — a term that could only have been conjured on Wall Street — that would allow its high-net-worth clients to invest in Facebook.
The participants in Goldman’s Facebook “special-purpose vehicle” would not be considered Facebook owners “of record,” but rather “beneficial” owners. In other words, for the purposes of the Securities Exchange Act, Goldman’s Facebook “special-purpose vehicle” would constitute one owner “of record,” no matter how many Goldman clients participate.
Thus, it would appear that Goldman Sachs and Facebook are attempting to avoid SEC disclosure rules and allow Facebook to remain private for as long as possible, but still make it easy for Goldman’s rich clients to invest in the company.
“We do not know the number of record holders of Facebook shares, but in the case of Facebook, this appears to be how Goldman is planning to get around the SEC’s reporting rule,” Davidoff wrote.
But there’s a catch. The SEC thought that some might attempt to evade its disclosure rules, so it further defines owners “of record” as follows.
If the [company] knows or has reason to know that the form of holding securities of record is used primarily to circumvent the provisions of [the Securities Act], the beneficial owners of such securities shall be deemed to be the record owners thereof.
It’s important to note, as Davidoff points out, that exceeding the 500-shareholder limit would not force Facebook to go public, it would merely trigger SEC disclosure rules that require companies to file quarterly and annual reports.
It would appear that Facebook is not interested in such disclosure.
Follow us for disruptive tech news: Sam Gustin and Epicenter on Twitter.
No one at Trion Worlds has promised that the company’s first fantasy role-playing online game, Rift: Planes of Telara, will be a World of WarCraft killer. Indeed, many makers of massively multiplayer online games have tried to knock out Blizzard Entertainment’s online subscription game, but WoW has ruled for six years and it just got a major upgrade with World of WarCraft: Cataclysm, which sold 3.3 million units in a day. But that doesn’t intimidate the folks at Trion Worlds, which has raised more than $100 million and has more than 200 people working on a variety of MMOs. Of course, beating WoW is the ultimate prize, since WoW has more than 12 million paying subscribers and it generates more than $1 billion in revenue per year for Activision Blizzard.
Rift is in the midst of closed beta testing, and I’ve had a look at the beta version up close. The graphics are beautiful and the unscripted dynamic events, where the world can change in an instant, are working as advertised. We had a chance to catch up with David Reid, head of marketing at Trion Worlds in Redwood City, Calif. (and former marketing chief for Microsoft’s Xbox 360) about the upcoming game, and here’s what he had to say:
VB: You’ve been working for a long time on this game — more than five years. What are you doing with the beta testing now?
DR: The beta process is about testing scalability. How many players can we support? It’s about getting some feedback from a number of real users so that we can tune some of these last knobs. But in a lot of ways, beta will be almost like a launch for us. We know that a number of MMO companies have made the mistake of going out with the beta with a product that really should not have been characterized as a beta. They paid for it. We are not doing that kind of a beta. [Laughs]
VB: You’re getting close to release?
DR: We feel like we are very close to release-level quality. We are tuning. We are polishing. We are scaling.
VB: So after five years, you’re not making money on this game yet.
DR: Not yet, but really darn soon. What day of the month is it?
VB: How will the launch proceed?
DR: Here’s probably how it works. The best game companies launch their newest titles with a presale program. That is the point where the consumer can put money down for the game. Technically, when that happens, the game won’t be formally live. It will still be in testing. But we are going to treat it as if it were the real launch. We will have 24/7 support in all languages. We will treat these players as if they are paying customers. We’re very close to that right now. We’ll open it up to the public for a large beta test soon.
VB: At that point, you will have tens of thousands of people playing?
DR: Absolutely. I can’t disclose specific numbers of the beta, but we are in the midst of some very large beta test events now and we just keep scaling it up. The first beta event was just the data center in Dallas, and so Europeans were in the beta, but they were playing on Dallas servers. We are opening a data center in Amsterdam for the European users. Operationally, that’s very important for us. We’ll bring up the different languages over time.
VB: The whole idea of a “Rift” is that you can open up a portal into the world and flood it with monsters. Then the players all go to that area and fight off the invasion. How many people can you concentrate in one place in the world?
DR: That’s a question with many potential answers. Because there’s the geographic point of it and then there is the hardware server part of it. The servers have multiple sections, or shards. Right now, we are figuring out how many people on a shard is too many. But what is unique about our game is that you can have a very large number of players all in one place and you can interact with all of them. You don’t have to worry that you can’t find your friends because they are in a different region or a different server. When a Rift opens, it is a dynamic event. The Rifts can happen in any geographic location and you can have lots of them at once. We have shown in our beta testing that all of that is working properly. We will ramp this up to an industrial scale.
VB: Is the game designed to be split into shards at all?
DR: It is a game with shards. But we are being very careful about not locking people to particular servers and things like that. MMOs have always had that kind of problem. MMO’s, by their nature, are incredibly social experiments, right? And people in Europe want to play with people in North America, and people in North America want to play with people in Australia, and that’s just how these communities have been built online as opposed to a pick-up basketball game in your neighborhood.
So if you lock those servers and you’re not letting those people play with friends, then you are, by definition, fracturing those communities. We have to do this well because we are going into a territory where there are well-established brands that already have communities rallied around them. We want to win with the people who play these games regularly. If they have a guy in their group who is in New Zealand, you have to bring them all into the game together. This is something we’ve been really focused on.
VB: So you can manage this game by throwing in more servers when you have peak usage?
DR: In full transparency, I’m probably not the ideal guy to answer that level of question. But what I can tell you is that we do have with both the Dallas data center and the Amsterdam data center. We have servers operating in a beta process and we can fire more of them up as the population grows. We can add more firepower to the servers if there are more people or if we are going to amp up the events in the game, such as create sharper artificial intelligence, better physics, or more Rifts. One thing we are looking at is how many Rifts should be occurring in a given zone of the game so that a player can feel like they have a lot to choose from. What level of that is fun? One thing we want to communicate to the player is that they will start with all of the features that they expect to have in a AAA quality game. You have your zones, dungeons, quests, character classes, fashions, monsters — and on top of that is this dynamic layer where the Rifts open in the world and change the environment of the game dynamically. The dynamic layer is what causes the social play, because you have to rally with your friends to stop the Rifts. It impacts your decisions as a gamer and the decisions of the groups of gamers as well.
VB: What is your marketing message these days about your game being the “WOW killer”?
DR: Well, to be clear, no one in Trion has ever said that, and I don’t think anybody in Trion ever will. If you look at the lineage of great MMOs, starting with Ultima Online, you see generational improvements. Ultima Online was the first commercial success in the MMO business, but it was two-dimensional and weighted toward players fighting other players. That wasn’t much fun for the new players. EverQuest came along with 3D animation and players fighting against the environment. It was a real commercial success and it was prettier. Still, it had its bugs. World of WarCraft came along in 2004. It was an improvement on what came before and it was very polished. Within that game, you could have some great solo experiences. Other games have tried to emulate it.
We think of Rift as the next step in that evolution of product. We’ve taken a look at what World of WarCraft and others in that generation of MMOs have done and done really well. There were really innovative things that happened in Warhammer Online and in the Age of Conan. But those two products, in particular, didn’t, of course, capture everything that a World of Warcraft player was looking for. The players didn’t migrate from WoW.
In part, Rift is our love letter to the players who played the games that came before us. We love those games and we think this is the next generation, much like players move on to a new console with every generation.
VB: So WoW just went through that big change with Cataclysm. I guess you can do the same kind of upgrade just about every day?
DR: Yes. And that is a bit of what the engine of the Rift game and our End of Nations game is about. For all of the interconnected play that you have in an MMO, those worlds are still remarkably static. There isn’t much to do until a patch or a giant expansion comes out. And what the portal mechanic in Rift does is add a level of real life variability. It’s the first time really that in an MMO, you have the beginnings of emergent game play of things that will happen in this game that the developers aren’t able to predict and that the players are going to have a real hand in deciding. If a Rift opens on a town, you can help save it or you can wait for it to do its work.
VB: Is the audience for these games as large as ever, or are the free games sucking out a lot of the paying players?
DR: It has been fun to watch the industry evolve. We sit right here next door to one of the world’s largest publishers (Electronic Arts). Those kinds of publishers are putting a lot of focus on what I’ll call the shallow end of online gaming: the casual, the mobile, the social. Those are all really fine businesses, but at the end of the day, we still think that it is the gamer who spends the most money especially in tough economic times. These are people who will forego other things and will eat ramen noodles for weeks if that’s what it takes to pay for their Xbox Live subscription or their MMO subscription. That audience is very demanding. For them, you have to build a great, immersive product. In the past couple of years, the MMO businesses have not served this customer well. They have launched games that needed more time or innovation or just better quality.
We are capitalized well enough here that we’re not making that same mistake. As I said, for us, the beta test is really like a launch in a lot of ways. We’re not bringing a half-finished product to market.
VB: You made a reference to All Points Bulletin, which failed miserably after five years of development. You don’t interpret that failure as bad for the whole MMO market?
DR: No, we don’t. I think a lot of people could see those things coming and it wasn’t just APB. Final Fantasy XIV had a very rough start. There are other games over the past few years. It isn’t that the market isn’t there. It just comes down the fact that if you have quality product, gamers are willing to pay for it. But don’t try to convince them your product is high quality and charge them a high price if it’s not. That is the road to death.
VB: Are you tempted to play around with different business models because the industry has changed so much?
DR: Sure. There is a lot to think about there. It is, you know, from a business perspective, a very exciting time. Innovation is important, in both the game, the marketing and the business model. With Rift, we will use the standard approach. We will sell a premium product in digital form as a download or in a retail store. We will charge an appropriate price and have a monthly service fee that you pay after your first 30 days have passed.
VB: You have developed a flexible server infrastructure for your game. How will you make use of that?
DR: We can do updates. We will do some handcrafted design and launch it on a regular basis. But we can also change just a bit every single day, every couple of hours, whatever, as players react to and encounter dynamic content. Now, we have big plans on this front because this is part of what’s really new and special about what we’re doing. Those plans are nothing I can talk directly about yet, but I will tell you that it is something that makes you think hard about how the customer encounters your product and experiences it. There are critical moments in a consumer’s mindset of, ‘Am I having enough fun to continue paying for this game?’ and we think very hard about when to uncork more awesomeness in our dynamic layer of things to satisfy a very difficult customer who is used to some very high quality product.
VB: I saw a report that said someone had reached the highest level possibly in Cataclysm on the day it came out.
DR: That kind of gamer is going to be part of our audience. I am not surprised. Again, it only added five new levels. I’m impressed with that player, but I’m not shocked. People take a lot of pride in being the first to race through the content. As a publisher, that terrifies you. It means your work is never done. But it’s also something you admire in the audience.
VB: So, that’s the kind of thing you will be ready for?
DR: It is different for us. We have a very different kind of MMO with dynamic content. When you hit the highest level, you haven’t finished all the content. When you hit our level cap, you don’t have to leave the game. The challenge for the publisher is that once someone hits the highest level, they will still have awesome game play experiences.
VB: If you look back on the five-plus years, how would you say you made good use of that time? Sometimes when a game takes that long to finish, it’s a bad sign because of the cost overruns or because the design becomes outdated.
DR: That’s right. It’s a hard business, right? And you look back and there’s probably any number of small things you look at and say, “Yes, we could have squeezed that a little more efficiently. But a large amount of what you get with the time and the financing that the time gives you is the ability to bring in a great team of people. Then you give them the time to get the chemistry right and build what they want to build. The soul of this product is the ambition behind it and the polishing that has gone into making it right. You can’t do these games without huge investments, awesome talent, and a lot of time. For venture financing, $100 million sounds like a lot. But these are really ambitious projects, and you have to be in this league to be competitive. We have used that money to build not one game but to commission a number of games that are all very groundbreaking.
VB: Did you guys get some benefit from seeing Blizzard’s leaked release schedule?
DR: It got headlines everywhere and we looked at it like everyone else. But I don’t think we would change any of our plans based on internet rumor.
Check out a video recording of one of the unscripted Rift scenes in action below.
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