The Jobs Act, as amended by the Senate, was passed today by the US House of Representatives on a 381-41 voted! Congratulations to Congress for bipartisian action to help the economy.
On March 22, 2012, the US senate approved HR 3606 by a vote of 73-26, but with amendments. The bill, with amendments now returns to the House for passage or for a conference committee to reconcile the House version with the senate amended version. The approved Senate amendment, SA 1884, addresses “crowd funding” and provides as folllows:
TITLE III–CROWDFUNDING
SEC. 301. SHORT TITLE.
This title may be cited as the “Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act of 2012” or the “CROWDFUND Act”.
SEC. 302. CROWDFUNDING EXEMPTION.
(a) Securities Act of 1933.–Section 4 of the Securities Act of 1933 (15 U.S.C. 77d) is amended by adding at the end the following:
“(6) transactions involving the offer or sale of securities by an issuer (including all entities controlled by or under common control with the issuer), provided that–
“(A) the aggregate amount sold to all investors by the issuer, including any amount sold in reliance on the exemption provided under this paragraph during the 12-month period preceding the date of such transaction, is not more than $1,000,000;
“(B) the aggregate amount sold to any investor by an issuer, including any amount sold in reliance on the exemption provided under this paragraph during the 12-month period preceding the date of such transaction, does not exceed–
“(i) the greater of $2,000 or 5 percent of the annual income or net worth of such investor, as applicable, if either the annual income or the net worth of the investor is less than $100,000; and
“(ii) 10 percent of the annual income or net worth of such investor, as applicable, not to exceed a maximum aggregate amount sold of $100,000, if either the annual income or net worth of the investor is equal to or more than $100,000;
“(C) the transaction is conducted through a broker or funding portal that complies with the requirements of section 4A(a); and
“(D) the issuer complies with the requirements of section 4A(b).”.
(b) Requirements To Qualify for Crowdfunding Exemption.–The Securities Act of 1933 (15 U.S.C. 77a et seq.) is amended by inserting after section 4 the following:
“SEC. 4A. REQUIREMENTS WITH RESPECT TO CERTAIN SMALL TRANSACTIONS.
“(a) Requirements on Intermediaries.–A person acting as an intermediary in a transaction involving the offer or sale of securities for the account of others pursuant to section 4(6) shall–
“(1) register with the Commission as–
“(A) a broker; or
“(B) a funding portal (as defined in section 3(a)(80) of the Securities Exchange Act of 1934);
“(2) register with any applicable self-regulatory organization (as defined in section 3(a)(26) of the Securities Exchange Act of 1934);
“(3) provide such disclosures, including disclosures related to risks and other investor education materials, as the Commission shall, by rule, determine appropriate;
“(4) ensure that each investor–
“(A) reviews investor-education information, in accordance with standards established by the Commission, by rule;
“(B) positively affirms that the investor understands that the investor is risking the loss of the entire investment, and that the investor could bear such a loss; and
“(C) answers questions demonstrating–
“(i) an understanding of the level of risk generally applicable to investments in startups, emerging businesses, and small issuers;
“(ii) an understanding of the risk of illiquidity; and
“(iii) an understanding of such other matters as the Commission determines appropriate, by rule;
“(5) take such measures to reduce the risk of fraud with respect to such transactions, as established by the Commission, by rule, including obtaining a background and securities enforcement regulatory history check on each officer, director, and person holding more than 20 percent of the outstanding equity of every issuer whose securities are offered by such person;
“(6) not later than 21 days prior to the first day on which securities are sold to any investor (or such other period as the Commission may establish), make available to the Commission and to potential investors any information provided by the issuer pursuant to subsection (b);
“(7) ensure that all offering proceeds are only provided to the issuer when the aggregate capital raised from all investors is equal to or greater than a target offering amount, and allow all investors to cancel their commitments to invest, as the Commission shall, by rule, determine appropriate;
“(8) make such efforts as the Commission determines appropriate, by rule, to ensure that no investor in a 12-month period has purchased securities offered pursuant to section 4(6) that, in the aggregate, from all issuers, exceed the investment limits set forth in section 4(6)(B);
“(9) take such steps to protect the privacy of information collected from investors as the Commission shall, by rule, determine appropriate;
“(10) not compensate promoters, finders, or lead generators for providing the broker or funding portal with the personal identifying information of any potential investor;
“(11) prohibit its directors, officers, or partners (or any person occupying a similar status or performing a similar function) from having any financial interest in an issuer using its services; and
“(12) meet such other requirements as the Commission may, by rule, prescribe, for the
protection of investors and in the public interest.
“(b) Requirements for Issuers.–For purposes of section 4(6), an issuer who offers or sells securities shall–
“(1) file with the Commission and provide to investors and the relevant broker or funding portal, and make available to potential investors–
“(A) the name, legal status, physical address, and website address of the issuer;
“(B) the names of the directors and officers (and any persons occupying a similar status or performing a similar function), and each person holding more than 20 percent of the shares of the issuer;
“(C) a description of the business of the issuer and the anticipated business plan of the issuer;
“(D) a description of the financial condition of the issuer, including, for offerings that, together with all other offerings of the issuer under section 4(6) within the preceding 12-month period, have, in the aggregate, target offering amounts of–
“(i) $100,000 or less–
“(I) the income tax returns filed by the issuer for the most recently completed year (if any); and
“(II) financial statements of the issuer, which shall be certified by the principal executive officer of the issuer to be true and complete in all material respects;
“(ii) more than $100,000, but not more than $500,000, financial statements reviewed by a public accountant who is independent of the issuer, using professional standards and procedures for such review or standards and procedures established by the Commission, by rule, for such purpose; and
“(iii) more than $500,000 (or such other amount as the Commission may establish, by rule), audited financial statements;
“(E) a description of the stated purpose and intended use of the proceeds of the offering sought by the issuer with respect to the target offering amount;
“(F) the target offering amount, the deadline to reach the target offering amount, and regular updates regarding the progress of the issuer in meeting the target offering amount;
“(G) the price to the public of the securities or the method for determining the price, provided that, prior to sale, each investor shall be provided in writing the final price and all required disclosures, with a reasonable opportunity to rescind the commitment to purchase the securities;
“(H) a description of the ownership and capital structure of the issuer, including–
“(i) terms of the securities of the issuer being offered and each other class of security of the issuer, including how such terms may be modified, and a summary of the differences between such securities, including how the rights of the securities being offered may be materially limited, diluted, or qualified by the rights of any other class of security of the issuer;
“(ii) a description of how the exercise of the rights held by the principal shareholders of the issuer could negatively impact the purchasers of the securities being offered;
“(iii) the name and ownership level of each existing shareholder who owns more than 20 percent of any class of the securities of the issuer;
“(iv) how the securities being offered are being valued, and examples of methods for how such securities may be valued by the issuer in the future, including during subsequent corporate actions; and
“(v) the risks to purchasers of the securities relating to minority ownership in the issuer, the risks associated with corporate actions, including additional issuances of shares, a sale of the issuer or of assets of the issuer, or transactions with related parties; and
“(I) such other information as the Commission may, by rule, prescribe, for the protection of investors and in the public interest;
“(2) not advertise the terms of the offering, except for notices which direct investors to the funding portal or broker;
“(3) not compensate or commit to compensate, directly or indirectly, any person to promote its offerings through communication channels provided by a broker or funding portal, without taking such steps as the Commission shall, by rule, require to ensure that such person clearly discloses the receipt, past or prospective, of such compensation, upon each instance of such promotional communication;
“(4) not less than annually, file with the Commission and provide to investors reports of the results of operations and financial statements of the issuer, as the Commission shall, by rule, determine appropriate, subject to such exceptions and termination dates as the Commission may establish, by rule; and
“(5) comply with such other requirements as the Commission may, by rule, prescribe, for the protection of investors and in the public interest.
“(c) Liability for Material Misstatements and Omissions.–
“(1) ACTIONS AUTHORIZED.–
“(A) IN GENERAL.–Subject to paragraph (2), a person who purchases a security in a transaction exempted by the provisions of section 4(6) may bring an action against an issuer described in paragraph (2), either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if such person no longer owns the security.
“(B) LIABILITY.–An action brought under this paragraph shall be subject to the provisions of section 12(b) and section 13, as if the liability were created under section 12(a)(2).
“(2) APPLICABILITY.–An issuer shall be liable in an action under paragraph (1), if the issuer–
“(A) by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by any means of any written or oral communication, in the offering or sale of a security in a transaction exempted by the provisions of section 4(6), makes an untrue statement of a material fact or omits to state a material fact required to be stated or necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading, provided that the purchaser did not know of such untruth or omission; and
“(B) does not sustain the burden of proof that such issuer did not know, and in the exercise of reasonable care could not have known, of such untruth or omission.
“(3) DEFINITION.–As used in this subsection, the term `issuer’ includes any person who is a director or partner of the issuer, and the principal executive officer or officers, principal financial officer, and controller or principal accounting officer of the issuer (and any person occupying a similar status or performing a similar function) that offers or sells a security in a transaction exempted by the provisions of section 4(6), and any person who offers or sells the security in such offering.
“(d) Information Available to States.–The Commission shall make, or shall cause to be made by the relevant broker or funding portal, the information described in subsection (b) and such other information as the Commission, by rule, determines appropriate, available to the securities commission (or any agency or office performing like functions) of each State and territory of the United States and the District of Columbia.
“(e) Restrictions on Sales.–Securities issued pursuant to a transaction described in section 4(6)–
“(1) may not be transferred by the purchaser of such securities during the 1-year period beginning on the date of purchase, unless such securities are transferred–
“(A) to the issuer of the securities;
“(B) to an accredited investor;
“(C) as part of an offering registered with the Commission; or
“(D) to a member of the family of the purchaser or the equivalent, or in connection with the death or divorce of the purchaser or other similar circumstance, in the discretion of the Commission; and
“(2) shall be subject to such other limitations as the Commission shall, by rule, establish.
“(f) Applicability.–Section 4(6) shall not apply to transactions involving the offer or sale of securities by any issuer that–
“(1) is not organized under and subject to the laws of a State or territory of the United States or the District of Columbia;
“(2) is subject to the requirement to file reports pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934;
“(3) is an investment company, as defined in section 3 of the Investment Company Act of 1940, or is excluded from the definition of investment company by section 3(b) or section 3(c) of that Act; or
“(4) the Commission, by rule or regulation, determines appropriate.
“(g) Rule of Construction.–Nothing in this section or section 4(6) shall be construed as preventing an issuer from raising capital through methods not described under section 4(6).
“(h) Certain Calculations.–
“(1) DOLLAR AMOUNTS.–Dollar amounts in section 4(6) and subsection (b) of this section shall be adjusted by the Commission not less frequently than once every 5 years, by notice published in the Federal Register to reflect any change in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics.
“(2) INCOME AND NET WORTH.–The income and net worth of a natural person under section 4(6)(B) shall be calculated in accordance with any rules of the Commission under this title regarding the calculation of the income and net worth, respectively, of an accredited investor.”.
(c) Rulemaking.–Not later than 270 days after the date of enactment of this Act, the Securities and Exchange Commission (in this title referred to as the “Commission”) shall issue such rules as the Commission determines may be necessary or appropriate for the protection of investors to carry out sections 4(6) and section 4A of the Securities Act of 1933, as added by this title. In carrying out this section, the Commission shall consult with any securities commission (or any agency or office performing like functions) of the States, any territory of the United States, and the District of Columbia, which seeks to consult with the Commission, and with any applicable national securities association.
(d) Disqualification.–
(1) IN GENERAL.–Not later than 270 days after the date of enactment of this Act, the Commission shall, by rule, establish disqualification provisions under which–
(A) an issuer shall not be eligible to offer securities pursuant to section 4(6) of the Securities Act of 1933, as added by this title; and
(B) a broker or funding portal shall not be eligible to effect or participate in transactions pursuant to that section 4(6).
Pending legislation in Congress, H.R. 3606, the `Reopening American Capital Markets to Emerging Growth Companies Act of 2012,’ offers hope for enhancing the ability of emerging business to tap America’s public capital markets. Passed on a bipartisan basis in the House of Representatives, the legislation is pending in the US Senate.
The bill amends the Securities Act of 1933 to establish a new category of issuers known as `Emerging Growth Companies’ (EGCs), which are issuers that have total annual gross revenues of less than $1 billion. H.R. The legislation exempts EGCs from certain regulatory requirements until the earliest of three dates: (1) five years from the date of the EGC’s initial public offering; (2) the date an EGC has $1 billion in annual gross revenue; or (3) the date an EGC becomes a `large accelerated filer,’ which is defined by the Securities and Exchange Commission (SEC) as a company that has a worldwide public float of
$700 million or more. H.R. 3606 thus provides temporary regulatory relief to small
companies, which encourages them to go public, yet ensures their eventual compliance with regulatory requirements as they grow larger.
H.R. 3606 adapts the SEC’s scaled regulations for smaller companies by more slowly phasing in regulations that impose high costs on issuers, without compromising core investor protections or disclosures. EGCs would still be required to comply with SEC-mandated quarterly and annual disclosures, but they would be exempted from Section 404(b) of the Sarbanes-Oxley Act (P.L. 107-204) of 2002 for a longer transition period–up to
five years–instead of the current transition period of two years. To ensure that investors are adequately protected, an EGC’s management would still be required to establish and maintain internal controls over financial reporting, as mandated by Section 404(a) of the Sarbanes-Oxley Act, and its chief executive officer and chief financial officer would still have to certify the company’s financial statements.
H.R. 3606 requires EGCs to provide audited financial statements for the two years prior to registration, rather than three years as is now required. This two-year period already applies to companies with a public float under $75 million, which are known as `non-accelerated filers.’ Within a year of its initial public offering (IPO), the EGC would report three years’ worth of financial statements, as larger companies are required to do.
H.R. 3606 exempts EGCs from any rules promulgated by the Public Company Accounting Oversight Board (PCAOB) that would require mandatory audit firm rotation, thereby allowing them to avoid the unnecessary costs of changing from an auditor familiar with the company to one that is not. H.R. 3606 gives EGCs the opportunity to `opt in’ to certain regulations by complying with them before they lose their EGC status. However, if the Financial Accounting Standards Board adopts new accounting standards while a company is an EGC, the EGC must comply with either all or none of the new standards while
it remains an EGC.
H.R. 3606 exempts EGCs from two new corporate governance requirements that were established by the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203). First, the bill exempts EGCs from Section 951′s requirement that public companies hold a non-binding stockholder vote on executive compensation arrangements. Second, the bill exempts EGCs from Section 953(b)’s requirement that public companies calculate and disclose the median compensation of all employees compared to the CEO. EGCs would still comply with all stock exchange corporate governance and listing requirements,
including board member independence rules.
H.R. 3606 also improves the flow of information about EGCs to investors by removing burdensome and outdated restrictions on communications between companies, research analysts, and investors. Existing SEC rules prohibit investment banks that underwrite a company’s IPO from publishing research on companies that would be classified as EGCs under the bill. The bill allows investors to obtain research reports about an EGC before or at the same time as its IPO. The bill, however, maintains other investor protections, such
as those set forth in Section 501 of the Sarbanes-Oxley Act, which address potential conflicts of interest that can arise when analysts recommend equity securities.
H.R. 3606 also permits EGCs to gauge the interest in potential IPOs by permitting greater pre-filing communications to institutional and qualified investors to determine whether an IPO is likely to be successful. All of the antifraud provisions of the securities laws still apply, however, and the delivery of a statutory prospectus before securities are sold in an IPO would still be required.
Finally, H.R. 3606 permits EGCs to pre-file confidential registration statements, thereby allowing them to begin the SEC review process without publicly revealing sensitive commercial and financial information to their competitors. Currently, only foreign companies are permitted to file confidential registration statements with the SEC. The bill requires an EGC to publicly file its initial confidential submission at least 21 days before it
begins a pre-IPO `road show’ for potential investors.
