As if companies and investors didn’t have enough letters and numbers to remember, in December the SEC issued proposed new rules under Regulation A. We already have Title II Crowdfunding under the JOBS Act and Title III Crowdfunding under the JOBS Act – these new rules can be thought of as Title IV Crowdfunding under the JOBS Act.
Putting the new rules in context, Regulation A has always allowed companies to use general solicitation to find investors. But the drawbacks of Regulation A were very significant: a company could raise no more than $5 million; issuers were required to file a mini-registration statement with the SEC; and offerings under Regulation A were subject to the labyrinth of state securities laws, i.e., “blue sky” laws in every state where the securities were offered. As a result, Regulation A has been used very rarely.
But Title IV of the JOBS Act directed the SEC to liberalize Regulation A. The rules proposed by the SEC on December 18, 2013 would do just that:
- They would create a new kind of Regulation A offering – already referred to as Regulation A+.
- In a Regulation A+ offering, an issuer could raise up to $50 million during any 12 months.
- The issuer could use general solicitation and advertising to find investors, e.g., the Internet.
- The issuer could sell to non-accredited investors, subject to a maximum investment of 10% of the investor’s income or net worth in Regulation A+ offerings.
- Regulation A+ offerings would be exempt from registration or qualification under state blue sky laws.
That will be music to the ears of many issuers: finding investors through the Internet free of state regulation, selling to non-accredited investors, raising up to $50 million rather than the paltry $1 million allowed in Title III Crowdfunding.
The main drawbacks under the proposed rules:
- Regulation A+ offerings require a mini-registration statement filed with the SEC before any sales are made, including audited financial statements.
- Regulation A+ offerings require significant ongoing reporting to the SEC.
Neither Title II Crowdfunding nor Title III Crowdfunding requires a registration statement, mini or otherwise, and Title II Crowdfunding in particular is free of most reporting requirements.
Nevertheless, the benefits of Regulation A+ – the $50 million limit and the ability to sell to non-accredited investors – will make it attractive for many issuers, certainly an option to be considered.
The proposed rules are subject to a 60 day comment period.
Questions? Contact Mark Roderick at Flaster/Greenberg PC.
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