SEC Lifts 80-Year Ban on the General Solicitation of Private Placement Equity Investments
Today, the United States finally inched its way toward the full implementation of the JOBS Act passed in April 2012, required by federal law to be in place by January 2013, but still not fully realized as intended by President Obama and the both houses of the U.S. Congress.
“We want this new market and the private markets in general to thrive in a safe and efficient manner, and these rules we adopted and proposed are designed to facilitate that objective,” said Mary Jo White, Chairwoman of the SEC. “As we fulfill our mission to facilitate capital formation and maintain fair and efficient markets, the Commission must always focus on strong investor protections.”
Until the general solicitation ban was lifted, hedge funds, VCs, and startups had to quietly raise that money, soliciting by word of mouth and other forms of private communication. Now companies can buy ads, launch PR campaigns, leverage social media and openly announce that they’re seeking investors.
The addition of general solicitation is expected to fuel a new cottage industry of investor matching-making websites that aim to broaden the investment pool to financial stalwarts outside the stanchly protected investment circles of Silicon Valley.
“With general solicitation it will be much easier for investors to find companies they are passionate about supporting,” said Mike Norman of crowdfunding website, WeFunder. The new rule will hopefully open up the capital-starved startup market to the majority of investors. According to WeFunder’s website, only 3% of the US’s 8 million accredited investors are active in the tech startup space.
For example, leading startup investing platform, RockThePost, announced last week that its equity crowdfunding website will provide the following equity crowdfunding investment services:
- Prominent featuring of startups publicly announcing investment rounds
- Investor verification system that shifts the burden off startups
- Secure transactions where Escrow accounts act as a safe haven for early committed investors
- Full transparency – third party identity checks and legal business verification, crowdsourced due diligence, bank-level security
- Smart matching of investors to startup investments that match their preferences
Equity crowdfunding sites such as Angelist, Circleup, Crowdfunder, FundersClub, RockThePost and Wefunder are important the nascent industry because according to the Center for Venture Research, only 258,000 investors have made an angel investment out of the 8.7 million accredited investor households eligible to invest in the U.S.
The general solicitation ban lift will allow startups to publicly fundraise via methods such as equity crowdfunding, harnessing the power of the internet and social media to reach potential investors in all corners of the country.
According to a Forbes article, many states have decided not to wait on the SEC. Kansas, the first state to enact laws requiring the registration of sales of securities to the general public 100 years ago, turned out to be the first in the U.S. to enact an “intrastate” Invest Kansas Exemption law. The state of Georgia passed the Invest Georgia Exemption that provides even more freedom for crowdfunding than the Kansas exemption. North Carolina’s House passed a crowdfunding bill that is expected to move to the full legislature in an updated form and be signed into law next year. The state of Washington is currently teeing up crowdfunding legislation and other states will likely follow suit.
Tanya Prive, a co-founder of RockthePost, points out that “One of the other issues I’ve seen is that there are plenty of startups with a large customer base that they cannot tap into for capital support under existing regulations. These people are the biggest fans and evangelists of the brand, who might be first in line to invest. Once the user base is able to engage with their beloved company in fundraising mode via an investment crowdfunding platform, the company will be able to capitalize on the crowd’s interest in their success and accelerate the fundraising process by converting customers into investors.”
“So although there are strings attached to the ruling, lifting the ban on general solicitation – an 80-year-old rule – will help investors connect with entrepreneurs, and vice versa. The decision also weighs in the favor of entrepreneurs and investors who live outside places like Silicon Valley, where old-school networking and personal connections are how financing deals typically happen,” said Eric Markowitz, crowdfunding reporter for Inc. Magazine. “By lifting the ban, entrepreneurs living outside traditional tech hubs may find it easier to connect with investors, raise money, and grow their start-ups without having to necessarily relocate.”
Although large players like private equity firms Bain Capital and Blackstone Group LP could take advantage of the chance to use television ad campaigns, many lawyers and regulators close to the industry have said that they expect smaller funds with fewer resources to test the new rule first.
“By allowing issuers to solicit to a broader group of potential investors, the SEC has showed its commitment to democratizing the investing process and putting an end to yesterday’s ‘old boy’ investor networks,” said Barry Silbert, founder and chief executive of SecondMarket Inc., a marketplace for private shares.
The next important date to watch for is October 31, 2013, when the 2nd wave of SEC crowdfunding guidelines are expected to be issued for Title III investors that will allow unaccredited investors to participate in private placement investments.
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