SEC Proposes New Regulatory Framework for Crowdfunding

Transcription

1 SEC Prpses New Regulatry Framewrk fr Crwdfunding OCTOBER 31, 2013 KELLEY DRYE CLIENT ADVISORY On Octber 23, 2013, the Securities and Exchange Cmmissin (the SEC ) prpsed lng-awaited rules that wuld implement Title III f the Jumpstart ur Business Act (the JOBS Act ), knwn as crwdfunding. Cngress envisined that allwing crwdfunding wuld prvide small businesses and startups with an alternative surce f capital by allwing them t raise small amunts f mney frm a large number f investrs ver the Internet. T date, the sale f securities thrugh crwdfunding has been illegal in the United States, s that cmpanies that wish t engage in crwdfunding have been relegated t in-kind and ther nn-equity crwdfunding such as prviding cash investrs with prducts r subscriptins. The SEC s prpsed rules, which are pen fr public cmment fr 90 days frm their release and which culd still change significantly at adptin, will when adpted supprt and advance the JOBS Act framewrk. The prpsed rules create an pprtunity fr eligible cmpanies t raise up t $1 millin n a 12-mnth rlling basis frm a large pl f individual investrs ver the Internet. Investrs will nt need t meet any sphisticatin r wealth threshlds, althugh they will be limited in the amunt f mney they will be permitted t invest in any 12-mnth perid. Crwdfunded fferings will need t be cnducted thrugh a registered brker r a registered funding prtal (a new type f entity envisined by the JOBS Act). Crwdfunding als will be restricted t nline-nly platfrms, such as Internet sites, smartphne apps r ther electrnic mediums. T engage in a crwdfunded ffering, an issuer will need t make substantial disclsure in its ffering materials abut its business, key persnnel and financial cnditin, including furnishing cmplete financial statements that will need t be certified by an fficer, reviewed by independent accuntants r audited depending n the issuer s target ffering amunt. After successfully cmpleting a crwdfunded ffering, the issuer will be required t file annual reprts with the SEC until it becmes a public cmpany, n lnger has any sharehlders wh purchased securities thrugh the crwdfunding exemptin, r disslves r liquidates. This advisry highlights significant requirements in the crwdfunding regulatry framewrk, as currently cntemplated by the prpsed rules. It des nt prvide a cmplete descriptin f each step and requirement t engage in crwdfunding. Fundamentals f the Crwdfunding Exemptin Eligible Issuers The JOBS Act created a new issuer transactinal exemptin frm registratin fr crwdfunding, cdified as Sectin 4(a)(6) f the Securities Act f 1933 (the Securities Act ). The exemptin is designed fr use by startups and small businesses. The fllwing types f entities are specifically ineligible t engage in crwdfunding: nn-us issuers; public reprting cmpanies;

2 registered investment cmpanies; private equity funds and hedge funds; and blank check cmpanies and special purpse acquisitin cmpanies (SPACs). Offering Cap Eligible issuers will be able t ffer and sell securities (including debt securities, subject t applicable requirements f the Trust Indenture Act f 1939) under Sectin 4(a)(6) f the Securities Act just as they sell securities under ther applicable registratin exemptins. They will, hwever, be restricted frm raising mre than $1 millin in the aggregate frm crwdfunded fferings n a 12-mnth rlling basis. Issuers will be free t raise funds thrugh ther transactin exemptins, e.g., Regulatin D, withut thse funds cunting tward the $1 millin crwdfunding cap. Similarly, capital raised thrugh dnatins r ther cntributins will nt cunt against the $1 millin cap. Issuers will be able t launch individual crwdfunded fferings fr any amunt, up t the $1 millin cap, but they will need t disclse in advance the target ffering amunt, the ffering deadline and whether they will accept funds beynd the target number (and, if s, hw much). If the target ffering amunt is nt met by the ffering deadline, all cmmitted investments received t that pint will need t be returned t investrs. The prpsed rules als allw an issuer t cnduct a minimum-maximum (r min-max) ffering, where the minimum wuld serve as the target ffering amunt. All crwdfunded fferings must be pen fr at least 21 days. Nn-crwdfunded fferings wuld be permitted t ccur simultaneusly with, r immediately preceding r fllwing, a crwdfunded transactin withut being integrated with the crwdfunded ffering, s lng as each ffering cmplies with applicable exemptin requirements. Even a private ffering under Rule 506(b), which des nt permit general slicitatin r general advertising, culd ccur simultaneusly with a crwdfunded ffering s lng as the issuer can shw that the purchasers in the Rule 506(b) ffering were nt directly slicited by any f the publicity materials related t the crwdfunded ffering and did nt first discver the issuer thrugh the crwdfunding slicitatin. Investr Limitatins There are n incme, net wrth r sphisticatin requirements fr investrs t participate in crwdfunding. There are, hwever, strict limits n the amunt f mney an investr may invest via crwdfunding, which are as fllws: Investr Status: Investment Limit (per 12 mnths): If bth annual incme and net Limit f $2,000 r 5% f annual wrth are less than $100,000 incme r net wrth, whichever is If either annual incme r net wrth are greater than $100,000 greatest Limit f 10% f annual incme r net wrth, whichever is greater, up t a maximum f $100,000 2

3 Furthermre, in all cases, an investr s annual incme and net wrth may be calculated jintly with such investr s spuse s incme and net wrth. The SEC has acknwledged that mnitring and independently verifying these investr limits may be difficult. Under the prpsed rules, an issuer wuld be entitled t rely n the effrts f its intermediary t determine whether a sale t an investr wuld exceed that investr s maximum investment limit, s lng as the issuer des nt have actual knwledge that the investr has exceeded r wuld exceed his r her limit as a result f taking part in the issuer s crwdfunded ffering. T satisfy their versight respnsibility, hwever, intermediaries wuld be entitled t rely n investr representatins as t cmpliance with the investr limitatin requirements. Restrictins n Resale The custmary six-mnth hlding perid f Rule 144 f the Securities Act will nt apply t securities purchased thrugh the crwdfunding exemptin. Rather, investrs will als be restricted frm reselling securities purchased thrugh a crwdfunded ffering fr ne year frm the date f purchase. The nly exemptins t this ne-year hlding perid are fr transfers: t the securities issuer; t accredited investrs; as part f an ffering registered with the SEC; t a family member, r in cnnectin with certain events (including the investr s death r divrce ); and t a trust cntrlled by an investr r a trust created fr the benefit f an investr s family member(s). Intermediaries Crwdfunded fferings may be cnducted nly ver the Internet r thrugh ther similar electrnic means (e.g., websites, smartphne apps, etc.). In additin, all crwdfunded fferings must be cnducted thrugh an intermediary that is either a registered brker r a new type f registered entity called a funding prtal (which prtal wuld be exempt frm being registered as a brker r dealer), either f which must be a member f the Financial Industry Regulatry Authrity, Inc., r FINRA. A funding prtal is an entity specifically designed t cnduct crwdfunded fferings, and unlike brkers may nt: ffer investment advice r recmmendatins; slicit investrs, sales r ffers t buy the securities sld n its prtal; cmpensate emplyees, agents r thers fr such slicitatin; r hld, manage, pssess r therwise handle investr funds r securities. T allay cncerns that the restrictin n ffering investment advice wuld prhibit a funding prtal frm accepting r rejecting any ffer an issuer seeks t list n the prtal s platfrm, the SEC has prpsed a nnexclusive safe harbr fr funding prtals that engage in certain limited activities, including limiting permissible fferings based n publicly psted and cnsistently applied bjective criteria (e.g., funding 3

4 prtals that fcus their platfrm n issuers in certain industries r gegraphic lcatins r by the type f security being ffering). An issuer wuld be restricted t using nly ne intermediary fr its fferings at any ne time. Intermediaries wuld als have substantial disclsure and versight requirements when cnducting crwdfunded fferings n behalf f issuers, independent f issuer requirements, as discussed further belw. Penalties fr Nn-Cmpliance An issuer wuld be barred frm cnducting a crwdfunded ffering if it has failed t file annual reprts fr a previus crwdfunded ffering during the tw years immediately preceding the filing f a new ffering statement. Once any delinquent reprts have been filed, the issuer will be permitted t launch a new crwdfunded ffering. Crwdfunding Investrs Nt Cunted Tward Recrd Hlder Cunt Under the prpsed rules, investrs purchasing securities thrugh a crwdfunded ffering wuld nt cunt tward an issuer s recrd hlder list fr the purpse f determining whether the issuer is required t register as a public cmpany. Currently, Sectin 12(g) f the Securities Exchange Act f 1934 requires an issuer with ttal assets f $10 millin and a class f securities held by either 2,000 persns r 500 persns wh are nt accredited investrs t register with the SEC. Disclsure Requirements Issuer Initial Disclsure Issuers engaging in crwdfunding wuld be required t prvide substantial disclsure t investrs, ptential investrs and the SEC at the time f the ffering s launch, thrugh an ffering statement n a new SEC Frm C which wuld be filed with the SEC n EDGAR. In brief, the initial ffering statements wuld include infrmatin related t: Issuer Infrmatin: Issuer s name, legal status, frm f rganizatin, physical address and website. Offering Infrmatin: The price f the securities being ffered, the target ffering amunt, the deadline t reach the target ffering amunt, whether investments in excess f the target amunt will be accepted, and, if s, the maximum amunt the issuer will accept as well as hw shares in versubscribed fferings will be allcated. Directrs and Offers: Directr and fficer infrmatin, including name, principal ccupatin and emplyment, and business experience fr the past three years. 20 Percent Beneficial Owners: Names and wnership levels f the beneficial wners f mre than 20% f the issuer s utstanding vting securities. Business Plan: A descriptin f the issuer s business and its anticipated business plan, althugh there wuld be n required frmat fr the business plan and n infrmatin that is specifically required t be cntained in the plan. 4

5 Financial Cnditin: A narrative discussin f the issuer s financial cnditin that, amng ther pints, addresses the issuer s histrical results f peratins, its liquidity and capital resurces, and whether the ffering prceeds are necessary fr the business s viability. Financial Statements: Based n the sum f the target ffering amunt plus the ttal amunt f capital raised thrugh crwdfunding in the 12 mnths prir t the ffering, the issuer must prvide tw years f GAAP-cmpliant financial statements as fllws: Aggregate Target Offering Amunts in Disclsure Requirement Current and Previus Cmpleted Offerings in the Trailing 12-Mnth Perid $100,000 r less Financial statement certified by the principal executive fficer, and an incme tax return fr the mst recently cmpleted year Mre than $100,000, up t $500,000 Financial statement reviewed by an independent public accuntant Mre than $500,000, up t $1,000,000 Audited financial statements Use f Prceeds: A sufficiently detailed descriptin f the intended use f the ffering prceeds (including the amunt f prceeds that will be used t cmpensate the intermediary), and, if the issuer des nt have a specific use f prceeds (r a range f pssible uses f prceeds), then a descriptin f each prper use and factrs impacting the selectin f each particular use. Descriptin f Investrs Rights: Issuers must include the fllwing statements t make clear t investrs their rights relative t their investment cmmitments: investrs may cancel an investment cmmitment until 48 hurs prir t the stated ffering deadline; the intermediary will ntify investrs when the target ffering amunt has been met; if an issuer reaches the target ffering amunt prir t the deadline, then the issuer will be permitted t clse the ffering early, s lng as it ntifies investrs f the new clsing date at least five business days in advance theref and investrs retain the ability t cancel their investment cmmitment up t 48 hurs prir t the new clsing date; if an investr des nt cancel his r her investment cmmitment befre the 48-hur deadline, the funds will be released t the issuer at clsing and the investr will receive the purchased securities; and if the issuer des nt raise the full target ffering amunt by the stated deadline, then all funds cmmitted t that pint will be returned t investrs and n securities will be sld. Capital Structure: A descriptin f the issuer s wnership and capital structure, including the differences in the rights f the securities being ffering frm the existing classes f securities, risks f capital dilutin, risks assciated with minrity wnership, descriptin f transfer restrictins f the securities, and the wnership level f existing 20% beneficial wners. 5

6 Related Party Transactins: Disclsure f related party transactins that ccurred within the 12 mnths prir t the crwdfunded ffering that were in excess f 5% f the aggregate amunt f capital raised by the issuer thrugh crwdfunding in the previus 12 mnths. Additinal Disclsure: The issuer wuld als be required t disclse the fllwing infrmatin: the amunt f cmpensatin paid t the intermediary; its current number f emplyees; the material terms f any indebtedness; all f its exempt fferings cnducted within the past three years; and material risk factrs that make an investr s investment risky r speculative. Issuer Onging Disclsure Prgress Reprts: An issuer must prvide ntice t the SEC, its intermediary, and investrs within five business days f reaching 50% and then 100% f the target ffering amunt. If the issuer accepts investments beynd the riginally stated target ffering amunt, it must file anther ntice within five business days after the ffering deadline s as t disclse the ttal amunt f securities sld. T satisfy the ntice requirements with regard t the SEC, an issuer must file a Frm C-U n EDGAR; and t satisfy the ntice requirement with regard t investrs, an issuer may refer investrs t the intermediary s platfrm thrugh a pst n the issuer s wn website (amng ther ptins). Annual Reprts: An issuer that has successfully sld securities under the crwdfunding exemptin must file an annual reprt with the SEC n EDGAR and pst the reprt t its website. The annual reprt must disclse infrmatin similar t the issuer s initial ffering statement, including disclsure abut its financing cnditin and the applicable financial statement requirement. This reprting requirement wuld cntinue until: the issuer becmes a reprting cmpany; the issuer n lnger has any sharehlders wh purchased securities thrugh the crwdfunding exemptin; r the issuer liquidates r disslves. Intermediary Disclsure Intermediaries als wuld have significant disclsure bligatins t investrs and ptential investrs wh use their prtals. Belw are sme f the key intermediary disclsure bligatins. Cmpensatin: An intermediary must disclse t an investr, at the time the investr pens an accunt with the intermediary, hw the intermediary is cmpensated fr its services. Educatinal Materials: Upn the pening f a new accunt by a ptential investr, an intermediary must prvide the investr with plain-language educatinal materials as well as keep current and pst thse educatinal materials n its website. 6

7 Material Changes: Intermediaries must prvide ntice t cmmitted investrs as t any material changes t the term f an issuer s ffering that ccur during the ffering perid. In the event f a material change, an investr must recnfirm his r her investment cmmitment within five business days and if the investr fails t d s, that investr s investment cmmitment will be cancelled and the cmmitted funds returned. General Requirements fr Intermediaries The fllwing is a descriptin f certain key requirements applicable t brkers and funding prtals t cnduct crwdfunded fferings as an intermediary: Registratin: Bth brkers and funding prtals wuld be required t register with the SEC t serve as crwdfunding intermediaries. The registratin prcess fr brkers wuld remain unchanged (they wuld cmplete the Frm BD Unifrm Applicatin fr Brker-Dealer Registratin ). Funding prtals wuld be required t cmplete a new Frm Funding Prtal, which wuld be similar t the Frm BD, but less extensive. Financial Interests: Neither the intermediary nr its directrs and fficers may wn any securities f issuers that cnduct fferings using its prtal, and the intermediary may nt accept securities as cmpensatin fr its services. Antifraud Measures: Intermediaries wuld be required t have a reasnable basis fr believing that issuers have established an accurate methd fr the recrdkeeping f securities and are in cmpliance with the requirements f Sectin 4(a)(6) f the Securities Act, althugh intermediaries wuld be allwed t rely n issuer representatins, absent actual knwledge r ther infrmatin that indicates that the representatins are untrue. Intermediaries als wuld be required t cnduct backgrund checks and security enfrcement regulatry histry checks n issuers and their directrs, fficers and 20% beneficial hlders. Maintaining Funds: Brkers that act as intermediaries must keep all investr funds segregated in a separate bank accunt. Funding prtals, which are prhibited frm handling investr funds, must arrange fr investrs t send funds directly t a bank t be held in escrw. Cnclusins Crwdfunding represents a substantial departure in style and substance frm the existing exemptins t securities registratin. The JOBS Act reimagined investr prtectin, freging traditinal measures and relying n pen cmmunicatin and the wisdm f the crwd, in an effrt t spur investment in startups and small businesses. Cngress may have envisined crwdfunding as a streamlined and readily accessible way fr small cmpanies t access new surces f capital, but the emerging regulatry framewrk makes clear that there will be substantial hurdles fr cmpanies that want t raise capital thrugh crwdfunding. Cst is likely t be the largest such hurdle fr small issuers. The crwdfunding rules are cmplex, and prper cmpliance will cst issuers bth time and mney. In additin, fr fferings ver $500,000, the cst f prviding reviewed 7

8 r audited financial statements, as applicable, and filing annual reprts may be prhibitive. The fee structure fr intermediaries is still unknwn, and the prpsed rules due diligence bligatins fr intermediaries will likely further increase their csts, which will likely flw dwn t issuers. Mrever, the restrictin against cmpensating intermediaries with issuer securities will make paying an intermediary s fees all the mre challenging. The value f crwdfunding t investrs is als uncertain. Investing always carries substantial risks, but crwdfunded fferings present several specific risks t investrs. As SEC Cmmissiner Luis Aguilar nted in his remarks at the SEC s Octber 23rd meeting, nt nly d 70% f initial venture capital investments lse mney, but small business investments are at relatively high risk fr fraud, self-dealing and verreaching by cntrlling sharehlders. Furthermre, under the crwdfunding exemptin, issuers will be permitted t deliver less infrmatin and disclsure t investrs that they wuld be required t prvide under certain ther private ffering exemptins. Exit ptins may als be further limited fr investrs in crwdfunded fferings. Crwdfunding investrs are subject t a ne-year hlding perid, rather than the six-mnth hlding perid fr nn-affiliates under Rule 144 f the Securities Act, which gverns restricted securities sld under ther ffering exemptins. Cmpanies wishing t fundraise by issuing equity r debt securities thrugh internet slicitatins may ultimately find that the csts f the new rules exceed the benefits, and that the existing regulatry framewrk fr private placements is easier t use than the new crwdfunding rules. Many cmpanies wish t raise funds thrugh crwdfunding and have been eagerly anticipating the U.S. legalizing crwdfunding and the SEC issuing its rules implementing the JOBS Act mandate. While the JOBS Act s intent appeared t be t encurage a rbust market fr businesses and funders and t keep the U.S. capital market cmpetitive, all while prtecting investrs against fraud, it is t sn t tell whether the JOBS Actmandated rules will gain tractin in the marketplace. Fr mre infrmatin abut the matters discussed in this client advisry, please cntact: Jane E. Jablns (212) jjablns@kelleydrye.cm M. Ridgway Barker (203) mbarker@kelleydrye.cm Thmas H. Fergusn (312) tfergusn@kelleydrye.cm Jeanne R. Slmn (212) jslmn@kelleydrye.cm Matthew J. Kane (212) mkane@kelleydrye.cm 8