Crowdfunding? Really? Crowdfunding Rule under the JOBS Act

Lewis Roca Rothgerber LLP

Count me a Luddite when it comes to social media in general, and more specifically, the supposed potential for crowdfunding and raising capital for start-ups and small businesses. My skepticism about crowdfunding admittedly has its roots in the resistance to public solicitation of non-public offerings that 20 years in state securities regulation embedded in me. Publicly solicited “private placements” before the advent of Rule 506(c) were all but certainly fraudulent. But, times (and exemptions) change.

Now, the word on the street is that the SEC has dragged its feet too long on promulgating its Congressionally mandated rule on crowdfunding under the JOBS Act, so the Republican House is going to take matters into its own hands and legislate a more rational crowdfunding exemption than the provision in the JOBS Act and proposed rule, without the need for SEC action. I can’t wait to see that hummer!

Since the subject of allowing crowdfunding for investments first arose in the initial rumblings that preceded the JOBS Act, there have been literally hundreds of articles, blogs and other commentaries tooting crowdfunding as the panacea for raising capital for start-ups and small businesses with the result that all sorts of new jobs would be created (a claim based more in hyperbole than empirical evidence.) Jobs? Perhaps some, but enough to make a national economic difference? Really? There has been at least one University of Colorado law review article on comparable legislation in Great Britain, and I have assisted a former securities law student of mine at the James E. Rogers College of Law, University of Arizona, in preparing her own article on crowdfunding that includes a review of British as well as other European capital raising crowdfunding regimes.

Most of these articles on crowdfunding appear to have been written by people who hope to profit providing services to general public crowdfunding principals once it’s lawful. A good share of them have been observations and opinions written by lawyers who regularly critique federal and state regulations, proposals and market developments. To one extent or another, the articles focus on Congress versus the SEC, or the needs for capital raising versus securities regulations.

These proselytizers and commentators have all but ignored what is truly the other side of the investment equation—the investors. I’m not talking about fraudsters. That dirty element will worm its way into whatever system is finally implemented, to one extent or another. I’m focusing here on the people who send their money to hopeful, legal crowdfunding issuers.

If the proponents of investment crowdfunding can run the “start-up businesses create jobs” pennant up the rhetorical flagpole, it’s only fair to allow me to hoist the “most start-up enterprises fail within five years” banner up right along next to it.

The unfortunate reality is that start-up businesses make horrible investments. Few of them survive at all, let alone turn a profit any time soon, let alone provide a return to investors. Investing in start-ups is like hunting ducks with a rifle, and few investors have enough “bullets” to fire.

Entrepreneurs are eternally enthusiastic, energetic and optimistic. They have to be. For many years, the dreamers (and their counsel) urged Congress and the SEC that “if only the ban on public solicitation and advertising were lifted, we could all fund our private placements.” Now that that cat is out of the bag with Rule 506(c), at least for accredited investors, the chant has shifted (predictably) to, “if only we could use crowdfunding to publicly solicit and advertise to reach non-accredited investors.”

If a start-up entrepreneur—I’ll call him “Fred”—is ready to turn to looking for funding from strangers, I think it fair to draw an inference or three about what has happened to date. First, Fred is tapped out on his own funds. Second, the bank has said or would say “no” to a loan, based on Fred’s lack of collateral or some other deficiency. Third, anyone Fred knows (and he may not know anyone) who might invest in his business—those people and businesses with whom he has a “pre-existing business or personal relationship”—have either invested as much as they are going to, or have found ways to be “on vacation in the Australian outback and hard to reach” when Fred has come calling for money the first time or for more later.

At this point, many entrepreneurs would keep working until they had saved up enough money of their own, or grew to qualify for that bank loan. A lot of business owners I’ve encountered have no interest in selling equity in their businesses to investors. But there are certainly those who are willing to do so. Whatever, at this point, “Fred” has now gone through all his own cash. His business and personal profile are insufficient to qualify for a bank loan, even if government subsidized. In other words, the professional lenders won’t touch him. Further, anyone who knows him and/or his business who might invest have either done so or won’t. With investment crowdfunding, Congress and several state legislatures and regulators have made the public policy decision to let Fred now turn to perfect strangers, the general public. So, the smallest, riskiest, least sophisticated, most poorly funded, most likely to fail business owners can turn now to the general public for investments when all the professionals and close-in people, those in the best position to know Fred and evaluate his company’s investment potential, have said “no” or “no more.”

To me, this is a public policy that makes no sense. If Congress wants to promote investment in start-ups and small businesses to create jobs, let them direct the Small Business Administration to ease their guarantee standards for SBA loans. Oh, we can’t do that because the SBA would go broke guaranteeing bad loans, thus requiring more federal funding? What’s wrong with this picture?

“Investing” in start-ups is akin to a parent “lending” money to her 24 year old. Good luck ever seeing that money again! At least she’ll get a Mother’s Day card. The non-investment crowdfunding successes to date have usually involved donors getting a sample product, a discount, or a souvenir tee shirt, baseball cap or the like in exchange for their donation. Perhaps Congress should take a hint from these crowdfunding success stories in fashioning its investment crowdfunding legislation, and mandate that investment crowdfunders distribute a commemorative sweatshirt along with their securities. That would at least give the investors something tangible to remember their investment by, and would create jobs by increasing demand for commemorative sweatshirts! Oh, wait, those are made in Malaysia.


North Carolina General Assembly Fails to Jump Start Our Businesses with Crowdfunding Legislation

Poyner Spruill Law firm

Crowdfunding is a relatively new capital raising tool, which was generally used in the past as a financing method for such ventures as films and music recordings.  To date, crowdfunding has not been a popular method for offering and selling securities because offering a share of financial returns or profits from business activities would subject the transaction to federal and state securities laws, requiring certain registrations with the Securities and Exchange Commission (SEC) and state securities regulators. U.S. Securities and Exchange Commission, SEC Issues Proposal on Crowdfunding (October 23, 2013).

In 2012, Congress passed the JOBS Act (Jumpstart Our Business Startups Act).  The JOBS Act, among other things, added a new section, 4(a)(6), to the Securities Act of 1933, creating a new exemption for certain crowdfunding offerings from SEC and state law registration requirements.  However, before the law can become effective the SEC must promulgate and implement rules regulating the exemption.  For further information on the JOBS Act, please see The JOBS Act—An Overview and Some Recent Developments, written by Michael E. Slipsky and David R. Krosner.

As of this summer, the SEC has proposed rules for crowdfunding, but those rules are not final. A dozen states are making an effort to join Georgia, Kansas, Michigan, Alabama, Maine, Washington, Wisconsin, and Indiana by developing their own regulations allowing crowdfunding within the states. States are growing frustrated and tired of waiting for the SEC to adopt federal regulations.  See Posting of Bill Meagher to, States make own crowdfunding rules, rather than wait for SEC (May 5, 2014, 15:03 EST).

In response to the federal delay, Representative Tom Murry of Wake County sponsored state legislation attempting to allow and regulate crowdfunding in North Carolina, filing House Bill 680, the JOBS Act, on April 9, 2013.  House Bill 680 did not pass the Senate and was not eligible for consideration in the 2014 short session.  For that reason, in June the House added the crowdfunding provisions, titled, “Jump-Start Our Business Start-Ups Act,” to the 32 page fifth edition of Senate Bill 734, Regulatory Reform Act of 2014. 

When compromise discussions between the House and Senate on Senate Bill 734 stalled, the Senate added to House Bill 1224 various provisions regarding modifications to the local government sales and use tax rate as well as other provisions including the crowdfunding provisions.  House Bill 1224 had been filed at the beginning of the short session as a bill modifying the Job Maintenance and Capital Development Fund.  The House rejected the Senate’s modifications of House Bill 1224.  As a result, the House and Senate appointed a conference committee, and the committee made its report on July 31, 2014.  The Proposed Conference Committee Substitute was passed by the Senate, however it failed in the House. 

The final version of House Bill 1224, the Proposed Conference Committee Substitute, would have allowed North Carolina residents to invest up to only $2,000 per purchaser – unless the purchaser is an accredited investor as defined by rule 501 of SEC regulation D, 17 C.F.R. § 230.501 – in new in-state ventures through the crowdfunding mechanism.  It would have allowed most companies to raise up to $1 million in capital through unregistered securities without a financial audit and up to $2 million in capital if the issuer has undergone and made available to each prospective investor and the Secretary of State the documentation resulting from a financial audit.  Essentially companies would have been able to sell securities directly to the North Carolina public without having to incur the expense of conducting a registered securities offering.  The NC Secretary of State would have been tasked with the regulation of these types of transactions and would have collected quarterly reports.  See Posting of Mark Binker to WRAL TechWire, Crowdfunding bill clears N.C. Senate Committee,  (July 16, 2014 14:08 EST).

The General Assembly has adjourned sine die.  Although crowdfunding provision had an opportunity to become law during the 2014 short session in either Senate Bill 734 or the Proposed Conference Committee Substitute of House Bill 1224, the General Assembly did not pass the crowdfunding provision.  House Bill 1224 failed in the House and the compromise finally reached for Senate Bill 734 in the ratified bill excluded the crowdfunding provision.  There is a possibility the crowdfunding provision could again be considered before the 2015 session, scheduled for late January, if three-fifths of all members of the Senate and three-fifths of all members of the House vote to do so, as provided in Section 11(2) of Article II of the North Carolina Constitution.  However, the more likely scenario for the General Assembly to return would be for a “special session” by call of the Governor.  As provided in Section 5(7) of Article 3 of North Carolina Constitution, “[t]he Governor may, on extraordinary occasions, by and with the advice of the Council of State, convene the General Assembly in extra session by his proclamation, stating therein the purpose or purposes for which they are thus convened.”



SEC Proposes to Permit General Solicitation in Private Offerings

An article, SEC Proposes to Permit General Solicitation in Private Offerings, by Alan Singer of Morgan, Lewis & Bockius LLP was recently featured in The National Law Review:


Proposed rule amendments permit general solicitation and general advertising in Rule 506 and Rule 144A offerings but raise challenges for verification of accredited investor status of Rule 506 purchasers.

On August 29, the Securities and Exchange Commission (SEC) issued a release[1] proposing rule amendments designed to satisfy the legislative mandate of Sections 201(a)(1) and 201(a)(2) of the Jumpstart Our Business Startups Act (JOBS Act), which are focused on permitting general solicitation and general advertising (collectively, general solicitation) in offerings under Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 (Securities Act), respectively. These amendments would enable issuers to utilize offering methods that previously have not been permitted in the private offering context.

Rule 506 is a “safe harbor” rule that, if its conditions are satisfied, provides for the exemption from registration of the offer and sale of securities based on Section 4(a)(2) of the Securities Act, which exempts transactions by an issuer not involving any public offering. Currently, an issuer or any person acting on the issuer’s behalf cannot engage in general solicitation in connection with a Rule 506 offering. Rule 144A is a “safe harbor” rule that, if its conditions are met, provides for the exemption from registration of resales of restricted securities based on Section 4(a)(1) of the Securities Act, which exempts transactions by persons other than an issuer, underwriter, or dealer. Under current Rule 144A, offers and sales must be limited to qualified institutional buyers (QIBs) or to persons the seller and any person acting on behalf of the seller reasonably believe are QIBs. This limitation has the practical effect of prohibiting general solicitation.

Section 201(a)(1) of the JOBS Act requires that the SEC amend Rule 506 to permit general solicitation in Rule 506 offerings, provided that all purchasers are accredited investors. Section 201(a)(2) requires the SEC to adopt amendments to Rule 144A to permit offers, including offers by means of general solicitation, to persons other than QIBs, provided that securities are sold only to persons that the seller and any person acting on behalf of the seller reasonably believe are QIBs. Significantly, Section 201(a)(1) also mandates that rules promulgated by the SEC require the issuer to take “reasonable steps to verify” that all purchasers of securities in a Rule 506 offering involving general solicitation are accredited investors. In contrast, a verification requirement does not apply with respect to determining that a purchaser in a Rule 144A offering subject to general solicitation is a QIB.

The Proposed Amendments to Rule 506 and Rule 144A

The rule amendments proposed by the SEC principally are designed to implement the JOBS Act’s statutory mandate. Proposed new Rule 506(c) provides an exemption from registration for offerings that meet some of the conditions traditionally applicable to Rule 506 offerings, but Rule 506(c) offerings need not meet conditions prohibiting general solicitation and requiring dissemination of specified information in offerings to persons other than accredited investors, provided that all purchasers in the Rule 506(c) offering are accredited investors. In addition, Rule 506(c) would require that the “issuer . . . take reasonable steps to verify that purchasers of securities sold in any offering under [the proposed Rule 506(c) exemption] are accredited investors.” Rule 144A, as proposed to be amended, would no longer restrict offers to QIBs or to persons that the issuer or persons acting on the issuer’s behalf reasonably believe are QIBs. The QIB requirements would apply only to sales under Rule 144A. Because Rule 144A does not expressly prohibit general solicitation, the proposed amendment would effectively enable general solicitation in Rule 144A offerings.

Verification Requirement Under the Proposed Rule 506(c) Exemption

Most of the SEC’s release addresses the verification requirement with respect to accredited investors under new Rule 506(c). The SEC did not propose to require any specified methods of verification, or even provide a nonexclusive list of specified methods of verification. Instead, the SEC provided general guidance as to what constitutes “reasonable steps to verify.” Although the SEC stated that it “anticipate[s] that many practices currently used by issuers in connection with existing Rule 506 offerings would satisfy the verification requirement,” the SEC’s guidance is limited and does not provide much tangible information regarding the verification steps it would deem reasonable, subject to certain obvious exceptions.

The SEC stated that whether steps are reasonable would be based on a number of factors issuers “would consider.” The SEC then addressed what it characterized as “some examples” of these factors, namely the nature of the purchaser and the type of accredited investor the purchaser claims to be, information about the purchaser, and the nature and terms of the offering.

Nature of the Purchaser and Type of Accredited Investor the Purchaser Claims to Be

Not surprisingly, the SEC noted that, for entities such as registered broker-dealers, very little effort would be required to verify accredited investor status; in the case of a broker-dealer, merely checking the broker-dealer’s status on FINRA’s Broker Check website would be sufficient. Of course, such a cut-and-dried approach is not always available, and the SEC noted that the nature of the reasonable steps an issuer would take to verify accredited investor status “would likely vary depending on the type of accredited investor that the purchaser claims to be.” Verification is more challenging with regard to natural persons, and the SEC acknowledged that taking reasonable steps to verify such persons’ accredited investor status “poses greater practical difficulties as compared to other categories of accredited investors, and these practical difficulties likely would be exacerbated by natural persons’ privacy concerns about the disclosure of personal financial information.”

Under Regulation D’s definition of “accredited investor,” a natural person is an accredited investor if his or her net worth, exclusive of the person’s primary residence, exceeds $1 million (subject to limited exclusions in calculating liabilities with respect to certain indebtedness secured by the person’s primary residence). In addition, a person is an accredited investor if he or she had an individual income in excess of $200,000 in each of the two most recent years or joint income with his or her spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year. As described below, while verification that a potential purchaser satisfies the income test could be achieved through the purchaser’s presentation of a Form W-2, providing verification of net worth will present more of a challenge.

Information About the Purchaser

Despite its acknowledgment of the difficulties in verifying the status of natural persons as accredited investors, the SEC indicated its unwillingness to countenance a process where the verification would be based solely on at least some forms of purchaser representations. The SEC stated, “[W]e do not believe that an issuer would have taken reasonable steps to verify accredited investor status if it required only that a person check a box in a questionnaire or sign a form, absent other information about the purchaser indicating accredited investor status.” As the examples provided by the SEC regarding acceptable forms of verification involve publicly available information or information obtained from third-party sources, there may be some question as to whether more comprehensive information provided by the purchaser, such as a detailed balance sheet, would satisfy the “other information” requirement.

An issuer’s inability to rely on such information could present a particular challenge in the context of verifying a natural person’s net worth. The income test applicable to natural persons and the assets test applicable to corporations, partnerships, Massachusetts or similar business trusts, or 501(c)(3) organizations could be verified through, for example, a Form W-2 (for purposes of the income test) or a bank statement or brokerage account statement (for purposes of the assets test). However, these types of verification will not be sufficient for the net worth test because that test requires not only assets but also liabilities to be taken into account. How does an issuer knows that it has verified all of a natural person’s outstanding liabilities if it cannot rely exclusively on the representations of the prospective purchaser? As described below, the SEC has suggested that verification by a third party, such as a broker-dealer, attorney, or accountant, may suffice if the issuer has a reasonable basis to rely on the verification. But the “reasonable basis” element of this alternative raises other concerns for an issuer. Therefore, we are hopeful that the SEC will provide additional guidance clarifying that, in this context, an issuer’s procurement of comprehensive information provided by the purchaser would constitute a “reasonable step.”

The SEC’s list of possible sources of verification of accredited investor status range from the obvious to the curious and include the following:

  • Publicly available information, for example:
    • For a Section 501(c)(3) organization, the organization’s Form 990 series return disclosing the organization’s total assets.
    • If the purchaser is a named executive officer of a company having a class of securities registered under the Securities Exchange Act of 1934, proxy statement disclosure of the person’s compensation.
  • Third-party information providing “reasonably reliable evidence,” such as the following:
    • For a natural person, copies of the person’s Form W-2.
    • “[T]he purchaser works in a field where industry and trade publications disclose average annual compensation for certain levels of employees or purchasers, and specific information about the average compensation earned at the purchaser’s workplace by persons at the level of the purchaser’s seniority is publically available.”
    • Verification by a third party, such as a broker-dealer, attorney, or accountant, “provided that the issuer has a reasonable basis to rely on such third-party verification.” The SEC did not provide any guidance on what constitutes a “reasonable basis” for such reliance. (In a footnote, the SEC speculated that perhaps verification services may develop, particularly for Web-based Rule 506 offering portals that include offerings for multiple issuers. The SEC noted that such services “as opposed to the issuer itself, could obtain appropriate documentation or otherwise verify accredited investor status.”)

Nature and Terms of the Offering

The SEC began its analysis here with the unsurprising observation that an issuer soliciting investors through a website generally available to the public “would likely be” obligated to take greater verification measures than an issuer who solicits new investors from a database of prescreened accredited investors “created and maintained by a reasonably reliable third party,” such as a registered broker-dealer. The SEC then proceeded to focus its analysis on the view expressed by some commentators that a purchaser’s ability to meet a high minimum investment amount “could be relevant to the issuer’s evaluation of steps that would be reasonable” to verify a purchaser’s status as an accredited investor. The SEC stated its belief that “there is merit to this view.” (A large minimum investment was at one time sufficient to confer accredited investor status on a purchaser. As initially adopted, Regulation D included among the categories of persons who were accredited investors a natural person who purchases at least $150,000 of the securities being offered, where the total purchase price did not exceed 20% of the person’s net worth at the time of sale, or joint net worth with the person’s spouse, and where the consideration paid was within specified categories. This category was rescinded in 1988.) The SEC stated:

[I]f an issuer knows little about [a natural person who is a] potential purchaser[,] . . . but the terms of the offering require a high minimum investment amount, then it may be reasonable for the issuer to take no steps . . . other than to confirm that the purchaser’s cash investment is not being financed by the issuer or by a third party, absent any facts that indicate that the purchaser is not an accredited investor.

This statement certainly does not constitute an endorsement of a minimum investment, by itself, as being sufficient to reasonably verify accredited investor status. By requiring that an issuer confirm a negative, namely that the purchaser’s cash investment is not being financed by the issuer or a third party, an issuer would appear to be facing a significant challenge absent the SEC’s willingness to countenance a purchaser’s own representation that it did not obtain such financing from a third party (obviously, the issuer will know if it financed such a purpose). The SEC provided no guidance on this issue.

In summing up its analysis of the factors addressed above, the SEC articulated a two-step test:

  1. Based on the information gained by looking at these factors, is it likely that a person qualifies as an accredited investor?
  2. If so, the issuer would have to take fewer steps to verify accredited investor status, and vice versa.

In our view, this two-step test is illusory and can be collapsed into a single test: Is the totality of information obtained by an issuer sufficient to support a reasonable conclusion that the person is an accredited investor? If so, the issuer has taken reasonable steps to verify that the purchaser is an accredited investor. If not, the issuer has not taken such steps. In other words, we believe that the SEC ultimately may determine the reasonableness of the steps taken based on its view of the reasonableness of the conclusion reached by the issuer regarding a purchaser’s accredited investor status. Such an analysis could be an invitation to the application of 20/20 hindsight.

“Reasonable Belief”

The SEC then engaged in a discussion of whether the “reasonable belief” standard continues to apply to the determination of accredited investors. Although the concept of “reasonable belief” is included in JOBS Act Section 201(a)(2) dealing with general solicitation in Rule 144A offerings, the concept is not included in Section 201(a)(1)’s requirement that all purchasers in a Rule 506 offering involving general solicitation must be accredited investors. Nevertheless, the SEC noted that the definition of “accredited investor” remains unchanged; that definition continues to include not only persons who come within the specified categories of accredited investors, but also persons the issuer reasonably believes come within the specified categories. As a result, the SEC concluded that the reasonable belief standard continues to apply to the determination of a person’s accredited investor status. In reaching this conclusion, the SEC noted its belief that the difference in the JOBS Act’s statutory language reflects the different manner in which the reasonable belief standard was included in Regulation D and Rule 144A as initially adopted, and not a congressional intent to eliminate the reasonable belief standard from Regulation D’s definition of “accredited investor.”

We believe the SEC’s analysis is sound, as far as it goes. But what constitutes a “reasonable belief” in the context of a traditional Rule 506 offering, which has not been subject to a verification requirement, and what constitutes a “reasonable belief” in the context of an offering under the new Rule 506(c) exemption from registration, which contains the verification requirement, likely are meaningfully different.

New Form D Check Box

Form D is a notice required to be filed with the SEC by issuers offering securities in reliance on an exemption from registration provided by Regulation D or by Section 4(a)(5) under the Securities Act. In conjunction with its amendment to Rule 506, the SEC proposed adding a separate check box for offerings relying on the new Rule 506(c) exemption (the current reference to “Rule 506” would be changed to “Rule 506(b)”). The SEC stated it proposed the change to assist its efforts to monitor general solicitation in Rule 506(c) offerings and to help it “look into the practices that would develop to satisfy the verification requirement.”

Privately Offered Funds

Section 3(c)(1) of the Investment Company Act of 1940 excludes from the definition of an “investment company” any issuer whose outstanding securities (other than short-term paper) are beneficially owned by no more than 100 beneficial holders. Section 3(c)(7) excludes from the “investment company” definition any issuer whose outstanding securities are owned exclusively by persons who, at the time of acquisition, are “qualified purchasers,” as defined in that act. In either case, the exemption applies only to issuers that are not making and do not “presently” (in the case of Section 3(c)(1)) or “at that time” (in the case of Section 3(c)(7)) propose to make a public offering of their securities.

For privately offered funds that may wish to rely on the proposed Rule 506(c) exemption, a question arises as to whether use of general solicitation would constitute a public offering that would make unavailable the Sections 3(c)(1) and 3(c)(7) exemptions. The SEC answered the question in the negative, noting that Section 201(b) of the JOBS Act states that offers and sales exempt under Rule 506, as revised under JOBS Act Section 201(a), will not be deemed to be public offerings under the federal securities laws as a result of general solicitation.

Integration of Rule 506 and Rule 144A Offerings with Regulation S Offerings

Regulation S is a “safe harbor” rule that articulates conditions that, if satisfied, would result in offers and sales of securities being deemed to take place outside of the United States and, therefore, not subject to the registration requirements under the Securities Act. It has been common for issuers to conduct offerings in reliance on Regulation S concurrently with a private offering in the United States conducted in accordance with Rule 506 or Rule 144A. This practice developed as a result of language in Regulation S itself, as well as specific SEC guidance in the release adopting Regulation S,[2] which stated that “[o]ffshore transactions made in compliance with Regulation S will not be integrated with registered domestic offerings or domestic offerings that satisfy the requirements for an exemption from registration under the Securities Act,” even if undertaken contemporaneously.

The use of general solicitation in Rule 506 or Rule 144A offerings raises a question regarding the continued ability to conduct those offerings concurrently with Regulation S offerings. Specifically, the question focuses on whether it remains possible to satisfy the Regulation S requirements that (1) securities sold without Securities Act registration must be sold in an offshore transaction and (2) there can be no directed selling efforts in the United States. In particular, commentators raised concerns regarding the impact of general solicitation on the “no directed selling efforts” requirement. Rather than specifically analyzing the interplay between general solicitation in Rule 506(c) and Rule 144A offerings and the “no directed selling efforts” requirement in Regulation S, the SEC simply reiterated that offshore offerings that are conducted in compliance with Regulation S would not be integrated with concurrent domestic unregistered offerings conducted in compliance with Rule 506 or Rule 144A, as proposed to be amended.

The application of this guidance is not entirely clear. We believe that, absent further guidance from the SEC, general solicitation in a Regulation S offering must be segregated from general solicitation in a U.S. offering such that the Regulation S solicitation will satisfy the “no directed selling efforts” requirement. With regard to Internet postings, taking steps such as providing separate uniform resource locators (URLs) containing information directed to specifically disparate audiences should be helpful. In the case of Internet postings in the context of a Regulation S offering, compliance with guidance provided by the SEC in Use of Internet Web Sites to Offer Securities, Solicit Securities Transactions or Advertise Investment Services, Release No. 33-7516 (March 23, 1998), would be prudent.

The comment period for the proposed rule amendments is relatively short, expiring on October 5, 2012. This may be a response to some political pressure on the SEC to dispense with proposed amendments and proceed directly to adopting final rules, particularly because the July 4, 2012, deadline set forth in the JOBS Act for adopting such rules has already passed.

[1]. Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings, Release No. 33-9354 (Aug. 29, 2012), available here.

[2]. Offshore Offers and Sales, Release No. 33-6863 (Apr. 24, 1990).

Copyright © 2012 by Morgan, Lewis & Bockius LLP

SEC Proposes Rule Amendments to Eliminate the Prohibition against General Solicitation and Advertising in Certain Securities Offerings

On Wednesday, August 29, 2012, the Securities and Exchange Commission (the “SEC”) proposed rule amendments that would eliminate the prohibition against general solicitation and general advertising in certain securities offerings.  The rule amendments, which would impact Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 (the “Securities Act”), were proposed in accordance with the requirements of Section 201(a) of the Jumpstart Our Business Startups Act (the “JOBS Act”). 


Section 201(a)(1) of the JOBS Act directs the SEC to amend Rule 506 of Regulation D under the Securities Act to permit general solicitation or general advertising in offerings made under Rule 506, provided that all purchasers of the securities are accredited investors.  Section 201(a)(1) also states that the amended rules must require the issuer to take reasonable steps to verify that purchasers of the securities are accredited investors.  Section 201(a)(2) of the JOBS Act requires the SEC to revise Rule 144A(d)(1) under the Securities Act to permit offers of securities pursuant to Rule 144A to persons other than qualified institutional buyers (“QIBs”), including by means of general solicitation or general advertising, provided that the securities are sold only to persons that the seller and any person acting on behalf of the seller reasonably believe are QIBs.

Rule 506 is a non-exclusive safe harbor under Section 4(a)(2) (formerly Section 4(2)) of the Securities Act, which exempts transactions by an issuer “not involving any public offering” from the registration requirements of Section 5 of the Securities Act. Under existing Rule 506, an issuer may offer and sell securities, without any limitation on the offering amount, to an unlimited number of “accredited investors,” as defined in Rule 501(a) of Regulation D, and to no more than 35 non-accredited investors who meet certain “sophistication” requirements. The availability of the Rule 506 safe harbor is subject to a number of requirements and is currently conditioned on the issuer, or any person acting on its behalf, not offering or selling securities through any form of general solicitation or general advertising, such as advertisements published in newspapers and magazines, communications broadcast over television and radio, unrestricted Web sites and seminars whose attendees have been invited by general solicitation or general advertising.

Rule 144A is a non-exclusive safe harbor exemption from the registration requirements of the Securities Act for resales of certain “restricted securities” to QIBs.  Resales to QIBs in accordance with the conditions of Rule 144A are exempt from registration pursuant to Section 4(a)(1) (formerly Section 4(1)) of the Securities Act, which exempts transactions by any person “other than an issuer, underwriter, or dealer.”

The JOBS Act requires that the rule amendments be adopted no later than 90 days after the April 5, 2012 enactment date of the JOBS Act.  The SEC already missed this deadline.  Initially, the SEC had planned to adopt interim final rules on August 22, 2012 that would have been effective immediately but still subject to comment and revision.  However, the SEC abandoned that plan and instead proposed these rule amendments, which it will adopt only after a typical comment and review process.

For a summary of the JOBS Act, please read Congress Passes the JOBS Act.

In this Client Alert, as in the proposing release, general solicitation and general advertising are sometimes referred to collectively as “general solicitation.”

The Proposed Rules

1. Rule 506

In order to implement Section 201(a)(1) of the JOBS Act, the SEC has proposed a new Rule 506(c) which would permit the use of general solicitation to offer and sell securities under Rule 506, provided the following conditions are satisfied:

  • The issuer must take reasonable steps to verify that the purchasers of the securities are accredited investors;
  • All purchasers of securities must be accredited investors, either (i) because they come within one of the categories of persons who are accredited investors under existing Rule 501, or (ii) the issuer reasonably believes that they meet one of the categories at the time of the sale of the securities; and
  • All terms and conditions of Rule 501 and Rules 502(a) and 502(d) must otherwise be satisfied.

The proposing release notes that the SEC is preserving the existing ability of issuers to conduct an offering under Rule 506(b) without the use of general solicitation.  A company may still wish to utilize this exemption if it does not wish to use general solicitation and thus become subject to the requirement to take reasonable steps to verify the accredited investor status of purchasers or because the company wishes to take advantage of the ability under Rule 506(b) to sell to up to 35 non-accredited investors who meet Rule 506(b)’s sophistication requirements.

In determining the reasonableness of the steps that an issuer must take to verify that a purchaser is an accredited investor, the proposing release explains that issuers are to consider the particular facts and circumstances of each transaction. Factors to be considered include:

  • the nature of the purchaser and the type of accredited investor that the purchaser claims to be (for instance, the reasonable steps to verify accredited investor status for a registered broker-dealer would necessarily differ from those reasonable to verify the status of a natural person);
  • the amount and type of information that the issuer has about the purchaser (for example, the more information an issuer has evidencing accredited investor status, the fewer steps reasonably required to verify such status);
  • the nature of the offering, such as the manner in which the purchaser was solicited to participate (for instance, solicitation through a publicly accessible Website or mass e-mail solicitation vs. targeted solicitation from a list of pre-screened accredited investors); and
  • the terms of the offering, such as a minimum investment amount (for example, the amount may be sufficiently high that only accredited investors could reasonably be expected to meet it).


The SEC noted in the proposing release that it considered but ultimately decided not to propose requiring issuers to use specified methods of verification, stating that it “would be impractical and potentially ineffective in light of the numerous ways in which a purchaser can qualify as an accredited investor, as well as the potentially wide range of verification issues that may arise, depending on the nature of the purchaser and the facts and circumstances of a particular Rule 506(c) offering.”  Similarly, the SEC determined not to propose providing a non-exclusive list of specified methods for satisfying the verification requirement, stating that there may be circumstances where such information would not actually verify accredited investor status and also stating a concern that such a list could be implicitly viewed by the market as required verification methods and thus eliminate the flexibility the new proposed rule is intended to provide.

In response to concerns voiced by some commentators on Section 201(a) of the JOBS Act, the SEC confirmed its interpretation that the JOBS Act and the new proposed Rule 506(c) do not replace the existing “reasonable belief” standard in the accredited investor definition of Rule 501(a) with an absolute standard.  The SEC stated, “[i]f a person who does not meet the criteria for any category of accredited investor purchases securities in a Rule 506(c) offering, we believe that the issuer would not lose the ability to rely on the proposed Rule 506(c) exemption for that offering, so long as the issuer took reasonable steps to verify that the purchaser was an accredited investor and had a reasonable belief that such purchaser was an accredited investor.” But the proposing release also cautions that, whatever steps are taken to verify accredited investor status, it will be important for an issuer to maintain adequate records of its actions since any issuer claiming an exemption from registration requirements will have the burden of showing its entitlement to the exemption if challenged.

Finally, the SEC confirmed its belief that the effect of the JOBS Act is to permit privately offered funds such as hedge funds, venture capital funds and private equity funds to make general solicitations under Rule 506(c) without losing their ability to utilize either of the Section 3(c)(1) or Section 3(c)(7) exclusions from the definition of “investment company” under the Investment Company Act of 1940.

2. Rule 144A

Pursuant to Section 201(a)(2) of the JOBS Act, the SEC also proposed an amendment to Rule 144A(d)(1).   As amended, the rule would require only that securities are sold to a QIB or to a purchaser that the seller and any person acting on behalf of the seller reasonably believe is a QIB.  Likewise, resales of securities pursuant to Rule 144A could be conducted using general solicitation as long as purchasers are limited in this same manner.

3. Form D

The SEC also proposed to amend Form D, the notice of sale that issuers must file with the SEC for each new offering of securities made in reliance on a Regulation D exemption.  The revised form would add a separate box for issuers to check if they are claiming the exemption under new Rule 506(c) and rename the existing check box as “Rule 506(b)” (currently stated simply as “Rule 506”).  This will assist the SEC’s efforts to monitor use of the new exemption, practices that develop under the exemption and the size of this offering market.

Comment Period

The SEC is seeking public comment on the proposed rule amendments and certain enumerated topics and questions relating thereto that are set forth in the proposing release.  The comment period will remain open until 30 days after the proposed rules are published in the Federal Register.  The SEC expects to review the comments

© 2012 Schiff Hardin LLP

JOBS Act – Jumpstart Our Business Startups: U.S. House of Representatives Legislation

Recently published in The National Law Review was an article by Jeffrey M. Barrett and Gregory J. Lynch of Michael Best & Friedrich LLP regarding the JOBS Act:

On Thursday, March 8, 2012, the U.S. House of Representatives easily passed a package of bills called the Jumpstart Our Business Startups, or JOBS Act aimed at making it easier for small businesses to go public, attract investors, and hire workers by reducing U.S. Securities and Exchange Commission (SEC) registration requirements and other restrictions.  If it becomes law, the JOBS Act has the potential to significantly reduce the securities compliance costs of raising capital for emerging companies.

The Senate is expected to soon introduce its own version of the legislation and President Obama has indicated his support of the measure.Business Startups, or JOBS Act aimed at making it easier for small businesses to go public, attract investors, and hire workers by reducing U.S. Securities and Exchange Commission (SEC) registration requirements and other restrictions.  If it becomes law, the JOBS Act has the potential to significantly reduce the securities compliance costs of raising capital for emerging companies.

Increase of 500 Investor Threshold to be a Reporting Company

The JOBS Act increases the offering threshold for companies exempted from SEC registration from $5 million – the threshold set in the early 1990s – to $50 million.  The measure also raises the threshold for mandatory registration under the Securities Exchange Act of 1934, as amended, from 500 shareholders to 1,000 shareholders for all companies (and 2,000 shareholders for all banks and bank holding companies) and excludes securities held by shareholders who received such securities under employee compensation plans from the calculation.  Raising the offering and shareholder thresholds is intended to help small companies gain access to capital markets without the costs and delays associated with the full-scale securities registration process.


Also included in the legislation is a new registration exemption from the Securities Act of 1933, as amended, for securities issued through internet platforms also known as “crowdfunding.”  To use this new exemption, the issuer’s offering cannot exceed $1 million, unless the issuer provides investors with audited financial statements, in which case the offering amount may not exceed $2 million.  An individual’s investment must be equal to or less than the lesser of $10,000 or 10 percent of the investor’s annual income.  By exempting such offerings from registration with the SEC and preempting state registration laws, the legislation seeks to enable entrepreneurs to more easily access capital from potential investors across the United States to grow their business and create jobs.

Removal of Ban on Small Company Advertisements to Solicit Capital

Lastly, the legislation would remove the prohibition against general solicitation or advertising on sales of non-publicly traded securities, provided that all purchasers of the securities are accredited investors.  The Securities Act of 1933, as amended, currently requires that any offer to sell securities either be registered with the SEC or meet an exemption.  Rule 506 of Regulation D is an exemption that allows companies to raise capital as long as they do not market their securities through general solicitations or advertising.  The legislation would allow small companies offering securities under Regulation D to utilize advertisements or solicitation to reach investors and obtain capital, provided that all purchasers of the securities are accredited investors.  The goal is to allow companies greater access to accredited investors and to new sources of capital to grow and create jobs, without putting less sophisticated investors at risk.

Emerging Growth Companies

The legislation establishes a new category of security issuers, identified as “Emerging Growth Companies” (EGCs), which will be exempt from certain regulatory requirements until the earliest of three conditions: (1) five years from the date of the initial public offering; (2) the date an EGC has $1 billion in annual gross revenue; or (3) the date an EGC becomes what is defined by the SEC as a “large accelerated filer,” which is a company with a  worldwide market value of outstanding voting and non-voting common equity held by non-affiliates (also known as “public float”) of $700 million or more.  The regulatory relief provided by the legislation is designed to be temporary and transitional, encouraging small companies to go public but ensuring they transition to full conformity with regulations over time or as they grow large enough to have the resources to sustain the type of compliance infrastructure associated with more mature enterprises.