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美国证监会(SEC)股权众筹规则

发表时间:2015-11-03 11:24:49

发布者:CEOCLUSBS

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美国证监会(SEC)股权众筹规则

SEC Adopts Rules to PermitCrowdfunding

编者按:

2015年10月30日,美国证监会(SEC)正式通过了股权众筹规则。新的股权众筹规则将在180天后生效。公募股权众筹蓄势待发。

2015年3月25日,美国证监会(SEC)根据JOBS法案的授权制定了关于第四章A+条例(Regulation A+)的监管实施规则,增强了A+条例的适用性。

2012年4月5日,美国总统奥巴马正式签署通过《促进创业企业融资法》(Jumpstart OurBusiness Startups Act,简称“JOBS法案”)。该法案旨在通过宽松的上市准入门槛,简化中小企业在美国证券市场上市流程,降低上市成本,吸引更多企业赴美上市。

JOBS法案对股权众筹融资做了详细的说明和规范,设立了股权众筹豁免,这就是JOBS法第三章的众筹法。JOBS法第四章扩展原来的小额豁免,还发展出了一个大额公募众筹豁免。

 

SEC AdoptsRules to Permit Crowdfunding

Proposes Amendments to Existing Rules toFacilitate Intrastate and Regional Securities Offerings

FOR IMMEDIATERELEASE2015-249

WashingtonD.C., Oct. 30, 2015 

The Securities andExchange Commission today adopted final rules to permit companies to offer andsell securities through crowdfunding. The Commission also voted to proposeamendments to existing Securities Act rules to facilitate intrastate andregional securities offerings. The new rules and proposed amendments aredesigned to assist smaller companies with capital formation and provideinvestors with additional protections.

Crowdfunding is anevolving method of raising capital that has been used to raise funds throughthe Internet for a variety of projects. Title III of the JOBS Act created afederal exemption under the securities laws so that this type of funding methodcan be used to offer and sell securities.

“Thereis a great deal of enthusiasm in the marketplace for crowdfunding, and Ibelieve these rules and proposed amendments provide smaller companies withinnovative ways to raise capital and give investors the protections they need,” said SEC Chair Mary Jo White. “With theserules, the Commission has completed all of the major rulemaking mandated underthe JOBS Act.”

The final rules,Regulation Crowdfunding, permit individuals to invest in securities-basedcrowdfunding transactions subject to certain investment limits. The rules alsolimit the amount of money an issuer can raise using the crowdfunding exemption,impose disclosure requirements on issuers for certain information about theirbusiness and securities offering, and create a regulatory framework for thebroker-dealers and funding portals that facilitate the crowdfundingtransactions.

The newcrowdfunding rules and forms will be effective 180 days after they arepublished in the Federal Register. The forms enabling funding portals toregister with the Commission will be effective Jan. 29, 2016.

The Commission alsoproposed amendments to existing Securities Act Rule 147 to modernize the rulefor intrastate offerings to further facilitate capital formation, includingthrough intrastate crowdfunding provisions. The proposal also would amendSecurities Act Rule 504 to increase the aggregate amount of money that may beoffered and sold pursuant to the rule from $1 million to $5 million and applybad actor disqualifications to Rule 504 offerings to provide additionalinvestor protection.

The SEC is seekingpublic comment on the proposed rule amendments for a 60-day period followingtheir publication in the Federal Register.

# # #

FACT SHEET

RegulationCrowdfunding

SEC OpenMeeting

Oct. 30, 2015

Action

The Securities andExchange Commission will consider whether to adopt final rules that would allowthe offer and sale of securities through crowdfunding. The recommended ruleswould give small businesses an additional avenue to raise capital and provide investorswith important protections. If adopted, this would complete the Commission’s major rulemakingmandated under the JOBS Act.

Highlights ofthe Recommended Final Rules

The recommendedrules would, among other things, enable individuals to purchase securities incrowdfunding offerings subject to certain limits, require companies to disclosecertain information about their business and securities offering, and create aregulatory framework for the intermediaries facilitating crowdfundingtransactions. More specifically, the recommended rules would:

·    Permit a company to raise a maximumaggregate amount of $1 million through crowdfunding offerings in a 12-monthperiod;

·    Permit individual investors, over a12-month period, to invest in the aggregate across all crowdfunding offeringsup to:

·                            $2,000 or

·                            5 percent of the lesser of their annualincome or net worth.

·                            If either their annual income or networth is less than $100,000, than the greater of:

·                            If both their annual income and networth are equal to or more than $100,000, 10 percent of the lesser of theirannual income or net worth; and

·    During the 12-month period, theaggregate amount of securities sold to an investor through all crowdfundingofferings may not exceed $100,000.

Under therecommended rules, certain companies would not be eligible to use theexemption. Ineligible companies would include non-U.S. companies, Exchange Actreporting companies, certain investment companies, companies that are subjectto disqualification under Regulation Crowdfunding, companies that have failedto comply with the annual reporting requirements under Regulation Crowdfundingduring the two years immediately preceding the filing of the offeringstatement, and companies that have no specific business plan or have indicatedthat their business plan is to engage in a merger or acquisition with anunidentified company or companies.

Securitiespurchased in a crowdfunding transaction generally could not be resold for oneyear. Holders of these securities would not count toward the threshold thatrequires a company to register its securities under Exchange Act Section 12(g)if the company is current in its annual reporting obligations, retains theservices of a registered transfer agent and has less than $25 million in totalassets as of the end of its most recently completed fiscal year.

In addition, alltransactions relying on the new rules would be required to take place throughan SEC-registered intermediary, either a broker-dealer or a funding portal.

Disclosure byCompanies

Companies that relyon the recommended rules to conduct a crowdfunding offering must file certaininformation with the Commission and provide this information to investors andthe intermediary facilitating the offering, including among other things, todisclose:

·    The price to the public of thesecurities or the method for determining the price, the target offering amount,the deadline to reach the target offering amount, and whether the company willaccept investments in excess of the target offering amount;

·    A discussion of the company’s financialcondition;

·    Financial statements of the companythat, depending on the amount offered and sold during a 12-month period, areaccompanied by information from the company’s tax returns, reviewed by anindependent public accountant, or audited by an independent auditor. A companyoffering more than $500,000 but not more than $1 million of securities relyingon these rules for the first time would be permitted to provide reviewed ratherthan audited financial statements, unless financial statements of the companyare available that have been audited by an independent auditor;

·    A description of the business and theuse of proceeds from the offering;

·    Information about officers and directorsas well as owners of 20 percent or more of the company; and

·    Certain related-party transactions.

In addition,companies relying on the crowdfunding exemption would be required to file anannual report with the Commission and provide it to investors.

CrowdfundingPlatforms

A funding portalwould be required to register with the Commission on new Form Funding Portal,and become a member of a national securities association (currently, FINRA). Acompany relying on the rules would be required to conduct its offeringexclusively through one intermediary platform at a time.

The recommendedrules would require intermediaries to, among other things:

·    Provide investors with educationalmaterials that explain, among other things, the process for investing on theplatform, the types of securities being offered and information a company mustprovide to investors, resale restrictions, and investment limits;

·    Take certain measures to reduce the riskof fraud, including having a reasonable basis for believing that a companycomplies with Regulation Crowdfunding and that the company has establishedmeans to keep accurate records of securities holders;

·    Make information that a company isrequired to disclose available to the public on its platform throughout theoffering period and for a minimum of 21 days before any security may be sold inthe offering;

·    Provide communication channels to permitdiscussions about offerings on the platform;

·    Provide disclosure to investors aboutthe compensation the intermediary receives;

·    Accept an investment commitment from aninvestor only after that investor has opened an account;

·    Have a reasonable basis for believing aninvestor complies with the investment limitations;

·    Provide investors notices once they havemade investment commitments and confirmations at or before completion of atransaction;

·    Comply with maintenance and transmissionof funds requirements; and

·    Comply with completion, cancellation andreconfirmation of offerings requirements.

The rules alsowould prohibit intermediaries from engaging in certain activities, such as:

·    Providing access to their platforms tocompanies that they have a reasonable basis for believing have the potentialfor fraud or other investor protection concerns;

·    Having a financial interest in a companythat is offering or selling securities on its platform unless the intermediaryreceives the financial interest as compensation for the services, subject tocertain conditions; and

·    Compensating any person for providingthe intermediary with personally identifiable information of any investor orpotential investor.

RegulationCrowdfunding would contain certain rules that are specific to registeredfunding portals consistent with their more limited activities than that of aregistered broker-dealer. The rules would prohibit funding portals from, amongother things: offering investment advice or making recommendations; solicitingpurchases, sales or offers to buy securities; compensating promoters and otherpersons for solicitations or based on the sale of securities; and holding,possessing, or handling investor funds or securities.

The rules wouldprovide a safe harbor under which funding portals could engage in certainactivities consistent with these restrictions. The rules also would requirefunding portals to maintain certain books and records related to theirtransactions and business.

Background

Crowdfunding is anevolving method of raising money through the Internet, but it has generally notbeen used to offer and sell securities. That is because offering a share of thefinancial returns or profits from business activities could trigger theapplication of the federal securities laws, and an offer or sale of securitiesmust be registered with the SEC unless an exemption is available.

The JOBS Actincluded an exemption to permit securities-based crowdfunding and establishedthe foundation for a regulatory structure for these transactions. It alsocreated a new entity –a funding portal – and allows these Internet-basedplatforms or intermediaries to facilitate the offer and sale of securitieswithout having to register with the SEC as brokers. The SEC was tasked withadopting rules to implement these provisions, which are intended to facilitatecapital raising by small businesses while providing significant investorprotections.

Staff Report

The staff wouldundertake to study and submit a report to the Commission no later than threeyears following the effective date of Regulation Crowdfunding on the impact ofthe regulation on capital formation and investor protection.

What’s Next?

The new rules andforms would be effective 180 days after they are published in the FederalRegister, except that the forms enabling funding portals to register with theCommission would be effective January 29, 2016.

FACT SHEET

ProposedAmendments to Facilitate Intrastate and Regional Securities Offerings

SEC OpenMeetingOct. 30, 2015

Action

The Securities andExchange Commission is considering whether to propose amendments to SecuritiesAct Rule 147 and Rule 504 of Regulation D. The proposed amendments would be partof the Commission’sefforts to assist smaller companies with capital formation consistent with itsinvestor protection mission.

Highlights ofthe Proposed Amendments

ProposedAmendments to Rule 147

The proposedamendments would modernize Rule 147 to permit companies to raise money frominvestors within their state without concurrently registering the offers andsales at the federal level. The proposed amendments to Rule 147 would, amongother things:

·    Eliminate the restriction on offers,while continuing to require that sales be made only to residents of theissuer’s state or territory.

·    Refine what it means to be an intrastateoffering and ease some of the issuer eligibility requirements in the currentrule.

·    Limit the availability of the exemptionto offerings that are registered in-state or conducted under an exemption fromstate law registration that limits the amount of securities an issuer may sellto no more than $5 million in a 12-month period and imposes an investmentlimitation on investors.

ProposedAmendments to Rule 504

The proposedamendments to Rule 504 of Regulation D would increase the aggregate amount ofsecurities that may be offered and sold under Rule 504 in any 12-month periodfrom $1 million to $5 million and disqualify certain bad actors fromparticipation in Rule 504 offerings. The proposed rules would facilitatecapital formation and increase investor protection in such offerings.

Background

The Commissionadopted Rule 147 in 1974 as a safe harbor to a statutory intrastate exemption – Section 3(a)(11) – that was included in the Securities Act upon its adoption in 1933.Market participants and state regulators have indicated that the combinedeffect of the statutory limitation on offers to persons residing in the samestate or territory as the issuer and the prescriptive eligibility requirementsof Rule 147 limit the availability of the exemption for companies that wouldotherwise conduct intrastate offerings.

What’s Next?

The Commission willseek public comment on the proposed rules for 60 days. The Commission will thenreview the comments and determine whether to adopt the proposed rules.