Last October, the Securities and Exchange Commission adopted amended rules in several areas designed to facilitate capital formation by small businesses, in large part by coordinating federal requirements with requirements of state “crowdfunding” statutes and rules adopted by approximately 35 states since 2011.
Specifically, the SEC amended Rule 504 of Regulation D to raise the offering limit from $1,000,000 to $5,000,000, and created new Rule 147A, broadening the parameters under which intrastate offerings under existing Rule 147 could be conducted. Rule 147A, among other things, allows unlimited solicitation of offerings, including on the Internet, loosens requirements for issuers to qualify as “doing business in” a state, and allows corporate entities formed out-of-state to conduct intrastate offerings in the state where they primarily do business. Also, the previous requirement that intrastate offerings could only be offered to residents of a single state has been eliminated; the single-state restriction now considers only actual sales.
The effective date for the Rule 504 changes was January 20. However, the effective date of the new Rule 147A does not occur until April 20. Most states’ small business crowdfunding exemptions, whether adopted by statute or by rule, are conditioned upon compliance with Section 3(a)(11) of the 1933 Act or Rule 147. In order for issuers in those states to be able to fully utilize the new Rule 147A, those states will have to amend their exemptions to remove that condition.