NASAA's Model Crowdfunding Exemption - the Internal Draft

Today's the day by which the NASAA requested that its members - state securities regulators - give it feedback on the model crowdfunding exemption it circulated last month.

The model exemption had been posted to NASAA's site, at least for a time, but was taken down, possibly due to the fact that it had been disccovered and was being accessed outside the membership (I am speculating; I do not really know why it was taken down).

Since NASAA circulated its draft, the crowdfunding movement has gotten a lift from the announcement of White House support.

The President, as far as I know, has not announced support for any one of the three crowdfunding bills before Congress; nor has he, as far as I know, expressly excluded that idea that state regulators might control the policing of a crowdfunding exemption. But the NASAA's sense of urgency about pulling together a viable, state-run alternative - "in light of the speed with which Congress may proceed on these issue" - would appear to have been validated by the White House announcement.

For future reference, here is the initial NASAA model crowdfunding exemption, as submitted to member regulators for comment:

Rule XXX. Model Crowdfunding Exemption.

(a)  Definitions.  For purposes of this rule, the following definitions shall apply:

(1)  “Executive officer” shall mean the president; any vice president in charge of a 
principal business unit, division or function (such as sales, administration or finance); any 
other officer who performs a policy making function; or, any other person who performs 
similar policy making functions for the issuer.

(2) “Institutional investors” shall have the same meaning as provided in Section XXX 
[Section 102(11) of USA 2002].

(3)  “Intermediary” shall mean an entity that facilitates the offer and sale of securities by 
issuers to investors through an internet-based system that is open to and accessible by the 
general public.

(4)  “Management” shall mean the issuer’s directors, executive officers, or the persons 
that perform such functions for the issuer.

(5) “Qualified custodian” shall mean one of the following entities that is not affiliated 
with the issuer by any direct or indirect common control and has not had a material 
business relationship with the issuer in the previous two years:

(A)  A bank or savings association that has deposits insured by the Federal 
Deposit Insurance Corporation; or

(B)  A registered broker-dealer other than the intermediary.

(b)  Transactional exemption from securities registration requirements.  The offer or sale of a 
security by an issuer in a transaction that meets the requirements of this rule is exempted from 
Sections XXX through XXX [Sections 301 through 306 of USA 2002] and Section XXX 
[Section 504 of USA 2002] and is subject to the limitations contained herein. 

(1)  Aggregate sales limit.  The aggregate amount of securities sold to all investors by the
issuer during the 12-month period preceding the date of the offer or sale, including any
amount sold in reliance upon this exemption, shall not exceed $500,000, other than: 

(A)  Securities sold to institutional investors; and 

(B)  Securities sold to the issuer’s management.

(2)  Individual investment limitation.  The aggregate amount sold to any investor in
reliance upon this exemption within the previous 12-month period shall not exceed $1,000.
For purposes of this individual investment limitation, the following investors shall be
treated as one investor:

(A)  Any relative, spouse or relative of the spouse of an investor who
has the same principal residence as the investor; 

(B) Any trust or estate in which an investor and any related person as specified in 
paragraph (b)(2)(A) or (b)(2)(C) collectively have more than 50 percent of the 
beneficial interest (excluding contingent interests); and

(C)  Any corporation or other organization of which an investor and any related 
person as specified in paragraph (b)(2)(A) or (b)(2)(C) collectively are beneficial 
owners of more than 50 percent of the equity securities (excluding directors' 
qualifying shares) or equity interests. 

(3)  Use of an intermediary.  All offers and sales of securities in reliance upon this 
exemption shall be made through an intermediary’s website in compliance with the 
provisions of this rule.

(4)  Notice to home state Administrator.  Prior to the offer of any security in this state in 
reliance upon this exemption, the issuer shall file a notice electronically or in writing on 
Form CF.  The notice shall be filed with the Securities Administrator of the state in which 
the issuer maintains its principal place of business, and an amended notice shall be filed 
within 30 days of any change in the information provided on the Form CF.

(5)  Disclosure to investors.  Prior to any offer of securities, the issuer shall provide the 
following materials to the intermediary, and these materials shall be made available to 
each offeree through the intermediary’s website:

(A)  The information required in Parts 2 and 3 of Form CF; and

(B)  Information describing the financial condition of the issuer, including, at a 
minimum, unaudited financial statements prepared in accordance with generally 
accepted accounting principles in the United States.

(6)  Restrictions on advertising and communications.  The issuer shall not advertise the 
specific details of the offering, except for notices which direct investors to the 
intermediary’s website.  Potential investors that have reviewed the information 
maintained on the intermediary’s website shall have the opportunity to ask questions and 
receive answers concerning the terms and conditions of the offering and to obtain any 
additional information which the issuer possesses or can acquire without unreasonable 
effort or expense that is necessary to verify the accuracy or clarify the information 
provided on the intermediary’s website.  If such additional information is material, the 
issuer and the intermediary shall immediately amend the information contained on the 
intermediary’s website to provide such information.  The intermediary may also maintain 
a forum on its website whereby potential investors may ask questions of and receive 
answers from the issuer.  Such forum shall be available to all potential investors as well 
as state securities regulators as provided in paragraph (c)(5).

(7)  Target amount, offering period, and escrow requirements.  The issuer shall establish 
a target offering amount and an offering period of not more than 12 months from the date 
of filing the notice as set forth in paragraph (b)(4).  All offering proceeds shall be held in 
an escrow account maintained by a qualified custodian until offering proceeds (less any 
offering proceeds from the issuer, its management or affiliates) totaling at least the target 
offering amount are received.  If the target offering amount is not received by the end of 
the offering period, the proceeds shall be returned to the investors within thirty days.  All 
investors shall have the right to withdraw their investment, without deduction of any 
kind, until such time as offering proceeds (less any offering proceeds from the issuer, its 
management or affiliates) totaling at least the target offering amount are received and the 
offering proceeds are released by the qualified custodian from the escrow account to the 
issuer.

(8)  Compensation restrictions. Neither the issuer nor the intermediary may employ or 
compensate promoters, finders, lead generators, or other persons to attract or provide the 
personal information of any potential investor.

(9)  Disqualification.  This exemption shall not be available if any of the following 
persons is subject to a disqualifying event as described in the regulations adopted in 
accordance with section 926 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act:

(A)  The issuer or its management; or

(B)  The intermediary or any of its executive officers or directors, or persons 
occupying similar roles.

(10)  Restricted securities.  A security issued in a transaction that is exempt under this 
rule may not be sold by the purchaser during the 12 month period beginning on the date 
of purchase, unless the security is sold:

(A)  to the issuer, an institutional investor, or a family member of the purchaser;

(B)  as part of a registered offering; or

(C)  in connection with the death of the purchaser.

(11)  Exclusions.  This exemption shall be available only to business organizations duly 
organized and registered under the laws of a state. This exemption shall not be available 
to any of the following:

(A)  A foreign issuer;

(B)  An investment company, as defined in Section 3 of the Investment Company 
Act of 1940;

(C)  A development stage company that either has no specific business plan or 
purpose or has indicated that its business plan is to engage in a merger or 
acquisition with an unidentified company or companies, or other entity or person; 
or

(D)  A company with a class of securities registered under the Securities 
Exchange Act of 1934.

(12)  Sales Reports.  Upon request from the Administrator, the issuer shall provide a sales 
report detailing the amount of securities sold in this state from the beginning of the 
offering to the most recently completed fiscal quarter, unless the issuer has already 
provided this information to the Securities Administrator in the state in which the issuer 
filed its notice under paragraph (b)(4).

(13)  Offering Price.  The offering price of the securities offered and sold pursuant to this 
exemption shall be the same for all investors, and shall not be increased during the 
offering period.  The offering price may be lowered, but only if all previous investors in 
the particular offering are notified of the change and allowed to rescind their previous 
investment and participate at the lower offering price.

(c)  Requirements for intermediaries in connection with offerings of securities pursuant to this 
exemption.  An intermediary shall comply with each of the following requirements.

(1)  Investor screening.  Before a security is sold through the intermediary, the 
intermediary shall ensure that the investor does all of the following:

(A)  Reviews the information provided in Part 3 of Form CF; and

(B)  Positively affirms that the investor understands that the investor is risking the 
loss of the entire investment, and that the investor has the capacity to bear such a 
loss.

(2)  Reduction of fraud risk.  The intermediary shall take reasonable measures to reduce 
the risk of fraud in connection with the offer or sale of the securities.  Such measures 
shall include obtaining a criminal background check and securities enforcement 
regulatory check on the issuer and the issuer’s management, and notifying the issuer of 
any information that may disqualify the issuer from using this exemption pursuant to 
paragraph (b)(9).  Upon request from the Administrator, the intermediary shall provide 
the results of the background check and securities enforcement regulatory check, unless 
the intermediary has already provided this information to the Securities Administrator in 
the state in which the issuer filed its notice under paragraph (b)(4).

(3)  Enforcement of investment limits.  The intermediary shall take reasonable measures 
to ensure that no investor exceeds the investment limits set forth in subsection (b)(2).  In 
addition, the intermediary shall take reasonable measures to ensure that no investor has 
purchased securities in multiple offerings conducted in reliance upon this exemption that, 
in the aggregate, would exceed the greater of: 

(A)  $2,000, if the investor has an annual income of less than $50,000;

(B)  Four percent of the annual income of the investor, if the investor has an 
annual income of at least $50,000 but less than $100,000; or

(C)  Eight percent of the annual income of the investor, if the investor has an 
annual income of at least $100,000.

(4)  Conflicts of interest.  The intermediary and its management shall have no ownership 
or other financial interest in the issuer.

(5)  Administrator access.  The intermediary shall provide the Administrator with 
continuous investor-level access to the intermediary’s website.

(d)  Registration requirements for intermediaries.  An intermediary is a broker-dealer that is 
subject to the registration requirements of [Section 401 of the 2002 USA], but if an 
intermediary’s activity as a broker-dealer is limited to offerings conducted in accordance with 
this rule, the intermediary is exempt from the requirements of the following rules: 

(1)  Rule XXX [any rule that incorporates by reference or is the substantial equivalent of 
section 15(b)(8) of the Securities Exchange Act of 1934, which pertains to membership in 
a self-regulatory organization];

(2)  Rule XXX [any rule that incorporates by reference or is the substantial equivalent of 
section 15(e) of the Securities Exchange Act of 1934, which pertains to customer notices 
regarding short sales];

(3)  Rule XXX [any rule that incorporates by reference or is the substantial equivalent of 
section 15(h) of the Securities Exchange Act of 1934, which pertains to sales of penny 
stocks];

(4)  Rule XXX [paragraph 1.c. of the NASAA Model Rule on Dishonest or Unethical 
Business Practices of Broker-Dealers and Agents, which requires a determination of 
suitability]; and

(5)  Rule XXX [paragraph 1.j. of the NASAA Model Rule on Dishonest or Unethical 
Business Practices of Broker-Dealers and Agents, which requires prospectus delivery].

Picture: Jarek Tuszynsk/Wikimedia Commons.