On one hand, the SEC just proposed several changes to Rule 147 that will make intrastate Crowdfunding easier:
- We used to worry, at least a little, about the language in Rule 147 saying that you couldn’t offer securities to anyone outside the state. How does this work when your offers are made with the Internet, we wondered? The SEC just proposed eliminating that requirement.
- If you were doing an intrastate offering in Texas, Rule 147 used
to require using a Texas entity – not Delaware, for example. No more.
- If you’re doing an intrastate offering in Texas, you have to show you’re doing business in Texas. The new proposals would make that easier.
- The new proposals would also simplify and rationalize the rules around (1) the “integration” of offerings (combining an intrastate offering with other offerings), (2) verifying that investors are residents of the state, and (3) re-sales of securities purchased in an intrastate offering.
All that is great, and should really help the intrastate Crowdfunding market (although I take to heart Anthony Zeoli’s excellent caveat here.)
On the other hand, the SEC also proposed a $5 million cap on intrastate offerings, which seems very important in light of Title III.
Title III Crowdfunding allows any issuer anywhere to raise up to $1 million from non-accredited investors who live anywhere in the world. With Title III Crowdfunding available, why would an issuer use intrastate Crowdfunding? There are only two possible reasons:
- You’re allowed to raise more money in the intrastate offering
- The process of the intrastate offering is faster/cheaper/easier
Once the hi-tech folks get their hands around Title III, I think we’re going to see the process becoming faster, cheaper, and easier than it looks now, making Title III comparable (maybe even superior) to intrastate Crowdfunding from that perspective.
Then it just comes down to how much you can raise. If I am a small issuer – raising less than $1 million, for example – why would I use the intrastate law of my state when I can use Title III instead and appeal to the whole universe of investors? Case in point: New Jersey enacted an intrastate Crowdfunding law just this week – with a $1 million limit. Why would a New Jersey business use that law, with Title III on the books and the gold and silver of Manhattan right across the Hudson River?
And if I’m a software developer wondering what kind of platform to build, isn’t the scale tipped in favor of Title III?
The scales will tip further that way when Congress increases the limit of Title III from $1 million to something higher. Although the SEC can always raise the limit for intrastate Crowdfunding as well, the future probably belongs to Title III.
Mark Roderick is spearheading Flaster/ Greenberg’s Crowdfunding Practice. He speaks and writes regularly on Crowdfunding. Expanding on his in-depth knowledge of capital-raising and securities law, Mark represents many portals and other players in the Crowdfunding field, spending much of his day helping entrepreneurs build an entirely new industry from the ground up.
Mark also maintains a widely-read Crowdfunding blog at crowdfundattny.com. In addition to Flaster/ Greenberg’s Crowdfunding Practice, Mark is also a member of the firm’s Mergers and Acquisitions, Business and Corporate, and Taxation Practice Groups. He represents entrepreneurs and their businesses across a wide range of industries, including technology, real estate and healthcare. Mark holds a Master’s degree in mathematics as well as a J.D. from the University of Virginia. You can reach Mark at 856.661.2265 or mark.roderick@ flastergreenberg.com.
For more information on Crowdfunding, including news, updates and links to important information pertaining to the JOBS Act and how Crowdfunding may affect your business, : @CrowdfundAttny.