SEC Makes Intrastate Crowdfunding A Little Easier

By Mark Roderick CrowdFunding Beat  Sr. contributing editor and crowdfunding attorney with Flaster/Greenberg PC.aaeaaqaaaaaaaaf7aaaajdm2zwu1ywjmlwe2zjgtndljns04mtu3ltzmnza4mde3m2y4ma

The SEC just adopted rules that should make intrastate Crowdfunding easier, at least if State legislatures do their part.

To understand how the new rules help and how they don’t, start with section 3(a)(11) of the Securities Act of 1933, which has been, until now, the basis for all intrastate Crowdfunding laws. While section 5 of the Securities Act generally provides that all sales of securities must be registered with the SEC, section 3(a)(11) provides for an exemption for:

Any security which is a part of an issue offered and sold only to persons resident within a single State or Territory, where the issuer of such security is a person resident and doing business within or, if a corporation, incorporated by and doing business within, such State or Territory.

In 1974 the SEC adopted Rule 147, implementing section 3(a)(11). That was long before the Internet, and as state legislatures have enthusiastically adopted intrastate Crowdfunding laws since the JOBS Act of 2012, some aspects of Rule 147 have proven problematic. The rules just adopted by the SEC fix some of the problems of Rule 147:

  • In its original form, Rule 147 required that offers could be made only to residents of the state in question. The revised Rule 147 says it’s okay as long as the issuer has a “reasonable belief” that offers are made only to residents.
  • In its original form, Rule 147 required issuers to satisfy a multi-part test to show they were “doing business” in the state. Under the revised Rule 147, an issuer will be treated as “doing business” if it satisfies any one of several alternative tests.
  • The revised Rule 147 provides safe harbors to ensure that the intrastate offering is not “integrated” with other offerings.
  • In its original form, Rule 147 provided that securities purchased in the intrastate offering could not be sold except in the state where they were purchased for nine months following the end of the offering. The revised Rule 147 provides, instead, that securities purchased in the intrastate offering may not be sold except in the state where they were purchased, for a period of six months (not six months from the end of the offering).

Those are all good changes. But the SEC didn’t stop there. In addition to changing Rule 147 for the better, the SEC has adopted a brand new Rule 147A. Rule 147A more or less begins where Rule 147 leaves off and adds the following helpful provisions:

  • Most significantly, offers under Rule 147A may be made to anyone. That means the issuer may use general soliciting and advertising – and the Internet in particular – to broadcast its offering to the whole world. Purchasers – the investors who buy the securities – must still be residents of the state, but offers may be made to anybody.
  • The issuer doesn’t have to be incorporated in the state, as long as it has its “principal place of business” there – defined as the state “in which the officers, partners or managers of the issuer primarily direct, control and coordinate the activities of the issuer.” Thus, a Delaware limited liability company could conduct an intrastate “offering in Indiana, as long as all the officers and managers live and work in Indiana.

Why did the SEC bother to create a whole new Rule 147A to add these provisions, rather than just adding them to Rule 147?

The answer is that Rule 147 is an implementation of section 3(a)(11) of the Securities Act, and if you look at section 3(a)(11) you’ll see that the additional provisions in Rule 147A – allowing offers to everybody, allowing a non-resident issuer – are prohibited by the statutory language. To add these provisions, the SEC had no choice but to create a new Rule 147A that is entirely independent of section 3(a)(11).

And there’s the rub. Many of the existing intrastate Crowdfunding laws require the issuer to comply with Rule 147 and section 3(a)(11). Texas, for example, says:

Securities offered in reliance on the exemption provided by this section [the Texas intrastate Crowdfunding rule] must also meet the requirements of the federal exemption for intrastate offerings in the Securities Act of 1933, §3(a)(11), 15 U.S.C. §77c(a)(11), and Securities and Exchange Commission Rule 147, 17 CFR §230.147.

This means that issuers in Texas will not be allowed to conduct an offering under the more liberal provisions of Rule 147A until the Texas State Securities Board changes that sentence to read:

Securities offered in reliance on the exemption provided by this section must also meet the requirements of the federal exemption for intrastate offerings in the Securities Act of 1933, §3(a)(11), 15 U.S.C. §77c(a)(11), and Securities and Exchange Commission Rule 147, 17 CFR §230.147, or, alternatively, the requirements of the federal exemption for intrastate offerings in Securities and Exchange Commission Rule 147A, 17 CFR §230.147A.

To those who have spent the last three years pushing intrastate Crowdfunding laws through state legislatures, it might look as if the boulder has rolled back down the hill. But there might also be a silver lining. Almost all the state rules were adopted before Title III became final, and almost all include very modest offering limits. Now that Title III is working as promised, Rule 147A might present an opportunity for legislatures not just to take advantage of the more liberal provisions, but also to raise offering limits and make other adjustments, seeking to make their state rules more competitive with the Federal Title III rules.

In the big picture, the SEC has once again proven itself a fan of Crowdfunding. And that’s good.

Questions? Let me know.

Mark Roderick is one of the leading Crowdfunding lawyers in the United States. He represents platforms, portals, issuers, and others throughout the industry. 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, follow Mark’s blog, or his twitter handle: @CrowdfundAttny. He can also be reached at 856.661.2265 or mark.roderick@flastergreenberg.com.

Tags: , , , , ,

HEADLINE NEWS

TechCrunch2017 crowdfunding guideTechCrunchCrowdfunding is not limited anymore to cheap consumer gadgets (if it ever was). In fact, simple gadgets that do well, like the Fidget Cube, which raised close to $6.5 million, could be copied even before they ship (the quality of the copies — [...]

ForbesInvestment Crowdfunding: What Works And What Needs FixingForbesOn May 16, 2016, Regulation Crowdfunding became effective. Arguably representing the biggest change to securities laws in 80 years, Title III of the JOBS Act passed in 2012 made investment crowdfunding legal subject [...]

Crowdfunding for the Monadnock Region to arrive in MarchThe Keene SentinelIn recent years, crowdfunding has become a popular way for people to raise money for personal causes and creative projects by seeking small donations from friends, family members and others online. Websites incl [...]

newsBTCStarbase to Revolutionize the Crowdfunding Market with Its Blockchain OfferingnewsBTCIf an idea is attractive enough for the general public, they can contribute towards the idea to make it a reality. The introduction of crowdfunding platforms as a mean to support ideas is now p [...]

Crowdfunding: Why do people donate?UTA The ShorthornCrowdfunding, which is the practice of funding a project or venture by raising many small amounts of money from a large number of people, typically via the internet, according to Forbes, has a relatively short history in its modern r [...]

Southgate News HeraldCrowdfunding campaign launched for pavilion in downtown WyandotteSouthgate News HeraldPublic Spaces Community Places is a collaborative effort of the MEDC, the Michigan Municipal League, and Patronicity in which local residents can use crowdfunding to be part of t [...]

DNAinfo'Goddamn Bookstore' Coming to The Bronx After Crowdfunding Goal SurpassedDNAinfoNoëlle Santos is working to bring an independent bookstore to The Bronx, and her online fundraising campaign recently surpassed its $100,000 goal. View Full Caption. Noëlle Santos. Bronx r [...]

ForbesPaying For College: CrowdfundingForbesCrowdfunding, which has often been used to raise funds for start-up businesses and charities, is now being used by students to pay for college. Going directly to your friends and the public to ask for contributions to help pay for college is [...]

The Times of IsraelMuslim crowdfunding activists enlist to help 2nd vandalized Jewish cemeteryThe Times of IsraelMuslim crowdfunding activists enlist to help 2nd vandalized Jewish cemetery. Tarek El-Medissi, whose campaign has raised over $135K for St. Louis graveyard, says he will di [...]

GizmodoCrowdfunding Is the Only Way Americans Know How to Mourn After Engineer Is Killed by TerroristGizmodoOne of Kuchibhotla's friends, Kavipriya Muthuramalingam, did what has become all too common in the wake of American gun violence: He launched a GoFundMe crowdfunding campai [...]

CFB Finance

Marketwired

  • Crowdfunding
  • Crowdfund
  • Peer to Peer Lending
  • FinTech
  • Reg A+
  • Reg CF
  • Crowdfunding USA

Press Release

CrowdFund Beat Media

CrowdFund Beat News Information for Crowdfunding: ln.is/www.youtube.co… via @YouTube

Live Crowdfunding .tv

What's Next Step in Regulation A+ JOBS ACTS Title IIII :L Interview : Steve Cinelli with Brian Korn Securities and Crowdfunding/Peer-to-Peer Lending Lawyer, Watch more video library | Conference | Interview | Campaign Showcase | Research | Education |