SEC Proposed Equity Crowdfunding Rules: What We Know

securities and exchange commission secThe SEC has provided a fact sheet on today’s proposed rules. As we wait for the official rules to hit the SEC’s web site, here is what we do know about said proposed rules now. Note that most of this information was in the statute itself, so much of this has been known for some time, but in light of today’s development we’re going to revisit these items.

  • A company would be able to raise a maximum aggregate amount of $1 million through crowdfunding offerings in a 12-month period.
  • Investors, over the course of a 12-month period, would be permitted to invest up to:
    • $2,000 or 5 percent of their annual income or net worth, whichever is greater, if both their annual income and net worth are less than $100,000.
    • 10 percent of their annual income or net worth, whichever is greater, if either their annual income or net worth is equal to or more than $100,000.  During the 12-month period, these investors would not be able to purchase more than $100,000 of securities through crowdfunding.
  • Certain companies would not be eligible to use the crowdfunding exemption.  Ineligible companies include non-U.S. companies, companies that already are SEC reporting companies, certain investment companies, companies that are disqualified under the proposed disqualification rules, companies that have failed to comply with the annual reporting requirements in the proposed rules, and companies that have no specific business plan or have indicated their business plan is to engage in a merger or acquisition with an unidentified company or companies.
  • As mandated by Title III of the JOBS Act, securities purchased in a crowdfunding transaction could not be resold for a period of one year.  Holders of these securities would not count toward the threshold that requires a company to register with the SEC under Section 12(g) of the Exchange Act.
  • Consistent with Title III of the JOBS Act, the proposed rules would require companies conducting a crowdfunding offering to file certain information with the SEC, provide it to investors and the relevant intermediary facilitating the crowdfunding offering, and make it available to potential investors.
  • In its offering documents, among the things the company would be required to disclose:
    • Information about officers and directors as well as owners of 20 percent or more of the company.
    • A description of the company’s business and the use of proceeds from the offering.
    • The price to the public of the securities being offered, the target offering amount, the deadline to reach the target offering amount, and whether the company will accept investments in excess of the target offering amount.
    • Certain related-party transactions.
    • A description of the financial condition of the company.
    • Financial statements of the company that, depending on the amount offered and sold during a 12-month period, would have to be accompanied by a copy of the company’s tax returns or reviewed or audited by an independent public accountant or auditor.
  • Companies would be required to amend the offering document to reflect material changes and provide updates on the company’s progress toward reaching the target offering amount.
  • Companies relying on the crowdfunding exemption to offer and sell securities would be required to file an annual report with the SEC and provide it to investors.
  • The proposed rules would require intermediaries to:
    • Provide investors with educational materials.
    • Take measures to reduce the risk of fraud.
    • Make available information about the issuer and the offering.
    • Provide communication channels to permit discussions about offerings on the platform.
    • Facilitate the offer and sale of crowdfunded securities.
  • The proposed rules would prohibit funding portals from:
    • Offering investment advice or making recommendations.
    • Soliciting purchases, sales or offers to buy securities offered or displayed on its website.
    • Imposing certain restrictions on compensating people for solicitations.
    • Holding, possessing, or handling investor funds or securities.
  • The proposed rules would provide a safe harbor under which funding portals can engage in certain activities consistent with these restrictions.
  • The comment period for these proposed rules will be 90 days.
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