The Securities and Exchange Commission’s (SEC) Division of Trading and Markets and the Financial Industry Regulatory Authority (FINRA) recently published items of particular interest to firms following the progress of the implementation of the Jumpstart Our Business Startups Act of 2012 (the JOBS Act). On February 5, 2013, the staff of the Division of Trading and Markets published a series of frequently asked questions (FAQ) regarding Section 201(c) of the JOBS Act, which offers a limited exemption from broker-dealer registration for intermediaries facilitating Rule 506 offerings under Regulation D of the Securities Act of 1933 (the Securities Act). On January 10, 2013, FINRA issued the Interim Form for Crowdfunding Portals (the Interim Form). FINRA invited firms that plan to operate crowdfunding platforms to voluntarily submit information about their proposed business models, activities and operations via the Interim Form to assist FINRA in developing rules specific to such platforms as required by the JOBS Act.

BACKGROUND

The JOBS Act makes a number of important changes to federal securities laws that are meant to ease and expand methods of capital raising by private companies. Two such changes are: (i) the elimination of the ban on general solicitation in Rule 506 offerings and the exemption from broker-dealer registration available to certain intermediaries facilitating offerings that use general solicitation under Title II of the JOBS Act, and (ii) the exemption from registration for crowdfund investing through the use of intermediaries (funding portals) under Title III of the Act.

1. Rule 506(c) and Broker-Dealer Registration Exemption

a. The Old Rule 506 and Intermediaries

Rule 506, which exempts offerings by issuers not involving public distribution from registration with the SEC, is a primary means by which companies raise capital through the sale of securities. Under Rule 506, issuers can sell securities to an unlimited number of "accredited investors" and, subject to certain restrictions, up to 35 non-accredited investors in order to raise an unlimited amount of money.^[1]

Today, issuers are prohibited from generally soliciting or advertising a Rule 506 offering. Thus, while issuers may conduct private placements themselves, many issuers engage broker-dealers or "finders" to assist placement efforts in Rule 506 offerings. A broker-dealer is a person in the business of effecting transactions in securities for his own account or the accounts of others and must be registered with the SEC under the Securities Exchange Act of 1934 (the Exchange Act). A finder need not register with the SEC but can only be engaged for the limited purpose of introducing issuers to potential investors. Where broker-dealers can charge a commission connected to the size of the capital raise, finders can only charge an introduction fee.

b. The New Rule 506(c) and the New Intermediaries

The JOBS Act mandates the amendment of the Securities Act to eliminate the ban on general solicitation in Rule 506 offerings, provided all investors are accredited investors.^[2] In connection with this statutory change, Section 201(c) of the JOBS Act adds the new Section 4(b) to the Securities Act, which provides that an entity need not register as a broker-dealer solely because:

that person maintains a platform or mechanism that permits the offer, sale, purchase, or negotiation of or with respect to securities, or permits general solicitations, general advertisements, or similar related activities by issuers of such securities, whether online, in person, or through any other means. . .

The intent of this provision is to allow parties to operate a platform to facilitate the sale of securities in Rule 506(c) offerings that use general solicitation without becoming subject to broker-dealer registration and the obligations attendant thereto.

In order to take advantage of the broker-dealer registration exemption provided in the new Section 4(b) of the Securities Act, however, a platform facilitating Rule 506(c) transactions must meet a number of requirements. Among other things, the entity seeking to rely on the exemption: (i) cannot have possession of customer funds or securities; (ii) cannot be subject to statutory bad-boy disqualifications; and (iii) cannot receive compensation in connection with the purchase or sale of securities.

2. Crowdfund Investing and Funding Platforms

The JOBS Act amends Section 4 of the Securities Act to create a new exemption from registration for crowdfund investing. Prior to passage of the JOBS Act, crowdfunding was limited to four models: (i) the philanthropic model, where investors donate their contributions to businesses and receive nothing in return; (ii) the reward model, where investors receive a reward, such as a coffee mug or their name in a film’s credits, in return for their contribution; (iii) the pre-purchase model, where investors receive the product the enterprise is intending to sell in return for contributions; and (iv) the lending model, where investors make loans to enterprises and are repaid the principal amount with or without interest. Capital raises using these crowdfunding models were conducted at well-known online sites such as Kiva, Kickstarter, RocketHub and Indiegogo. Such offerings often are in the aggregate enough to fund the low capital "seeding" needs of musicians, artists and very small business entrepreneurs seeking to build affinity relationships with consumers, while at the same time permitting people who are not professional investors to "vote with their dollars."

Under the new exemption, issuers will be able to raise up to $1 million over a 12-month period. Investors in securities issued in crowdfund investing transactions will be limited in their annual investments to: (i) the greater of $2,000 or five percent of an investor’s annual income or net worth for investors with an annual income or net worth of less than $100,000 or (ii) the lesser of $100,000 or 10 percent of an investor’s annual income or net worth for investors with an annual income or net worth of greater than $100,000.

Crowdfund investing transactions will require the use of an intermediary, and any such intermediary must be registered with the SEC as either a broker-dealer or a funding portal. Funding portals will also need to become members of a self-regulatory organization (SRO). The JOBS Act requires the SEC and "a national securities association" (i.e., FINRA) to write new rules to implement the crowdfund investing provisions of the JOBS Act, including rules addressing the form of and process for the registration of funding portals.

EXEMPTION FROM BROKER-DEALER REGISTRATION

Related to the proposed rule to eliminate the ban on general solicitation in Rule 506 offerings, the staff of the SEC’s Division of Trading and Markets recently published the FAQ which addresses some of the questions that have arisen with regard to the broker-dealer exemption for platforms planning to facilitate new Rule 506(c) offerings that use general solicitation.^[3] Among other things, the FAQ notes that the exemption from registration contemplated by Section 4(b) is a narrow one given the restrictions on permissible compensation that can be received by platforms seeking to rely on the exemption.

1. General Solicitation is Prohibited Until Rule 506(c) is Adopted by the SEC

The FAQ clarifies that while the broker-dealer exemption is technically operative at present and permits a person to operate a platform without registering as a broker-dealer, the exemption is of limited utility currently because the platform cannot permit an issuer to conduct a general solicitation under Rule 506(c) until the SEC approves the rules permitting such general solicitations. Additionally, the staff notes the exemption under Section 4(b) is not available to a platform that facilitates offerings other than pursuant to Rule 506(c).

2. Limits to Compensation

The FAQ also addresses the question of what types of compensation a platform can permissibly receive if it seeks to rely on the Section 4(b) exemption from broker-dealer registration. The FAQ notes that the SEC broadly interprets compensation as any form of direct or indirect economic benefit to persons operating a platform or to associated persons. The receipt of any such compensation would generally disqualify the platform from the exemption.

Despite this, the staff acknowledges that Congress expressly included co-investment in securities offered on a platform as a permitted form of compensation under Section 4(b). The FAQ states that an entity, such as a venture capital fund, could operate an Internet website to list securities offered by its portfolio companies (in compliance with Rule 506(c)) without registering as a broker-dealer if the compensation the venture capital fund receives in connection with the offering of such securities is realized as a result of co-investment by the fund in those securities with other investors. The staff explained, "[w]e believe that the prohibition on compensation makes it unlikely that a person outside the venture capital area would be able to rely on the exemption from broker-dealer registration."

While the staff’s explicit acknowledgment of co-investment clarifies that this form of compensation is permissible under Section 4(b), it fails to directly address the question of what, if any, other types of compensation, such as a listing fee or an introduction fee, might be permissible under the broker-dealer registration exemption.

3. The Exemption From Broker-Dealer Registration Does Not Preempt State Law

Finally, the FAQ highlights the fact that Title II of the JOBS Act does not extend the exemption from federal broker-dealer registration to registration as a broker or a dealer under applicable state laws. While many states have certain limited exemptions to registration as a broker or a dealer, it is questionable whether such exemptions will apply to a platform that is using the Internet to potentially solicit a large number of investors in multiple states. Firms that rely on Rule 506(c) to engage in general solicitation are encouraged to consult with counsel with respect to the laws in all states in which the platform will solicit potential investors to determine whether the platform must register as a broker or a dealer.

INTERIM FORM

In connection with the launch of crowdfund investing under the Act, FINRA published the Interim Form to collect information from funding portals on a voluntary and confidential basis.^[4] According to FINRA, information submitted via the Interim Form will help the staff to better understand funding portals, which will aid it in developing and implementing rules specific to the registration of such funding portals.

The Interim Form solicits information including:

• the funding portal’s name, address, legal status and place of formation;
• the direct and indirect ownership of the funding portal;
• sources of funding of the funding portal;
• information about the management personnel of the funding portal, including disclosures regarding statutory disqualifications of or disciplinary actions against such personnel;
• information regarding certain business relationships, the business model, and forms and sources of compensation of personnel of the funding portal; and
• a description of how the funding portal will address certain JOBS Act requirements of funding portals, including investor education, fraud reduction measures, aggregate selling limits controls and investor information privacy protections.

Completion of the Interim Form will not result in FINRA membership, and funding portals will not be able to legally operate until the SEC adopts final funding portal rules and approves FINRA’s funding portal rules. FINRA did not provide an updated timeline for the promulgation of such rules.

Funding portals will need to complete new membership applications once final SEC and FINRA rules become effective. Voluntary filers will not be bound by their responses on Interim Forms, but FINRA indicates that it intends to prepopulate future membership forms with the information provided by prospective funding portals on the Interim Form. Outside of the time savings associated with a membership application being prepopulated, the only other potential advantage to voluntary filers may be limited to the opportunity to inform FINRA about the community and to influence future FINRA rules regarding crowdfund investing.

CONCLUSIONS

The FAQ and the Interim Form raise a number of potential issues for firms that are looking to raise capital through general solicitation or that plan to operate a funding portal. Companies looking to raise capital through a funding portal that is not registered as a broker-dealer should not pay any type of compensation that would invalidate the funding portal’s exemption from broker-dealer registration. While the FAQ indicates co-investments are permitted, the plain language of the Act and the guidance in the FAQ leaves open the question of whether private companies may pay funding portals a fee that would be comparable to the types of fees paid to finders (i.e., an introduction fee).

The Interim Form also raises questions regarding the level of supervision that FINRA will apply to crowdfunding platforms that are not operated by broker-dealers. As the primary regulator of broker-dealers, FINRA has substantial experience supervising such entities. FINRA has little experience regulating the new class of funding portals. It is unclear the level of scrutiny that FINRA will apply to applicants that seek to register as funding portals. However, based on the concerns about the Act that have been raised by state securities regulators, we do not believe FINRA will apply a light touch in regulating such entities. Finally, the FAQ raises the specter of state securities regulators asserting jurisdiction over funding portals that plan to facilitate Rule 506(c) offerings.

We hope you find this information helpful. If you have any questions about the material presented in this alert, please contact any member of BakerHostetler's Securities Offerings and Reporting Team or the authors, Richard B. Levin at rlevin@bakerlaw.com or 202.861.1506 or Stephanie A. Wong at swong@bakerlaw.com or 303.764.4157.