The wait is over. On Friday, Oct. 30, the Securities and Exchange Commission will vote on long-delayed rulemaking, mandated by the JOBS Act,that will allow for the offer and sale of securities.
A proposed rule, dating back to October 2013, has lingered on the Commission’s to-do-list amid investor concerns that run contrary to the concerted push by proponents to arm emerging companies with a new capital raising tool.
The proposed framework that goes to a vote this week established guidelines for investors and rules for issuers that want to raise up to $1 million a year through crowdfunding and not have to register those publicly offered securities. Whereas private companies are limited to seeking out accredited investors (with a net worth of $1 million or an individual annual income of more than $200,000), crowdfunded ones, as envisioned by the JOBS Act in Title III, could reach out to unaccredited investors. They would not need to register those securities offerings with the SEC, but will need to meet a variety of requirements included in the SEC's proposal.
Regulation Crowdfunding, as the proposed requirements have been named, requires that all offerings be facilitated through an intermediary, defined as either a registered broker-dealer or an online, registered funding portal. The Commission included proposed rules on how those intermediaries will operate.
Among the proposed requirements for funding portals are providing investors with educational materials about the risks of their investment, and compliance with anti-money laundering controls and privacy requirements. They must also register with the SEC and Financial Industry Regulatory Authority.
Crowdfunding, if the final rule hews close to the proposal, will come with a variety of disclosure requirements. Issuers must provide detailed information on the nature of their business and operations; terms of the offering; and use of proceeds. Financial statements, at least initially, must be compliant with U.S. GAAP accounting standards. Those with an annual income of less than $100,000 would be limited to investing $2,000, or 5 percent of their annual income (whichever is larger), every 12 months. Those above that income threshold, would be prohibited from investing more than 10 percent of their annual income through funding portals.
The SEC also proposed “bad actor” rules to protect investors. Also, foreign issuers, SEC-reporting companies, and issuers delinquent with SEC filings are among those prohibited from taking part in these offerings.