美国股权众筹法案.docx

美国证券交易委员会上周五（30日）投票通过了允许普通投资者参与股权众筹的法案，在此之前，在美国只有符合资格的投资者（资产或年收入达到一定标准）才能进行股权众筹，最新通过的法案意味着今后所有人都能够参与到股权众筹活动中。该法案实际上是JOBS法 案的第三部分（Title III），JOBS法案全称为“Jump-Start Our Business Start-Ups Act”（“启动商业初创法案”），主要致力于通过放松证券监管来鼓励对美国的中小企业的融资，于2012年获得美国国会通过并由美国总统奥巴马签字生 效。该法案的各具体部分的生效由美国证交会执行，其中第一部分（Title I）于2012年生效，主要内容是放松对发展中的营业额10亿美元的初创公司的信息披露的管制，第二部分(Title II)于2013年生效，允许公司向符合资格的投资者进行融资路演。第四部分于2015年初生效，允许公司在有限的证券公开发行下，一年内的融资限额由 500万美元提高至5000万美元，且公司在符合相关披露和审计的条件下，可以向具备资格和不具备资格的投资者融资。30 日由证交会投票通过的第三部分（Title III），是整个JOBS法案中拖延最久，也最具争议的具体条例，一大原因是该法案一旦通过，便意味着普通投资者也将能参与到初创公司的投资，无疑这部分 普通投资者将承担更多的风险。为了控制风险程度，30日最终通过的条款，对于参与股权众筹的投资额也做了如下明确的规定：1、如果该名投资者的年收入或净资产不足10万美元，则他可以投资的最高额是2000美元或他的年收入或净资产的较低值的5%的较大值。2、如果该名投资者的年收入和净资产都等于或高于10万美元，则投资限额为年收入或净资产的较低值得10%。3、在12个月内，通过任何股权众筹渠道发售给某名投资者的额度不超过10万美元。不难看出，证交会在执行JOB法案时慎之又慎，经过反复论证，最终决定以严格明确投资额度的规定来控制风险。对于该法案通过的具体影响和意义，主要通过以下几个方面来探讨：法案的背景：促进中小企业发展 放松融资管制证交会表示，股权众筹是目前正在不断发展的通过网络进行的融资行为，但通常并不用来出售证券，因为在现有的联邦证券法的框架下，出售股权的行为将触发相关证券法规的要求，除非有豁免的情况，否则必须要在美国证交会注册备案。JOBS法案就是在这样的背景下诞生的，该法案根本目的是丰富中小初创公司的融资手段，同时放松相关监管对其的制约，根本目的是更好地帮助中小企业的发展，这也是该法案名称的由来。JOBS法案包含对股权众筹行为的部分合规豁免以及为这些新的交易行为建立监管的框架。对投资者影响：可参与风险投资 但需承担更大风险30 日的投票通过后，所有人都可以参与到股权众筹中，这对于很多希望参与到初创公司投资的普通投资者无疑是利好，但同时，他们也将自己暴露在更大的风险当中， 毋庸置疑，初创公司的投资具有高风险、高回报的特征，过去这一领域的投资多由专业的风险投资机构或风险承受能力和资产实力较强的个人投资者参与，这也是为 何Title III迟迟未获证交会通过的主要原因之一，在经过充分的论证后，证交会通过设置限额的办法来控制投资者参与股权众筹投资的风险。普 通投资者，在美国被称为“Non-accredited Investor”，即净资产不到100万美元，年收入不足20万美元的人群，在全美占到92%的比例。众筹平台SeedInvest创始人兼首席执行官 Ryan Feit说，毫无疑问有很多来自普通投资者的对于初创企业投资的需求，该法案的通过无疑将增加中小企业能够获得的资金量。对初创公司影响：增强融资自由度 仍需有限信息披露该法案对于初创公司无疑是最大的利好，因为法案本身就是为了解决很多初创公司所面临的融资难为题，很多初创公司不愿意按照现有证券法规定公开披露信息，同时又未能获得风投或专业机构的关注。专 注于非公开市场融资的North Capital Private Securities的首席执行官James Dowd说，该法案对于那些不那么受专业投资机构的初创公司来说是一大利好，因为专业的VC只会盯着那些对行业会产生颠覆的少数的初创公司，但实际情况是 并不是所有的初创公司都能够产生颠覆行业的影响，因而这部分公司未来将获得更多的融资途径。该 法案通过后，这些公司可以通过股权众筹平台，为自己的公司或项目筹集资金，同时省去了很多信息披露的麻烦，但需要指出的是，该法案的通过并不意味着进行股 权众筹的初创公司不需要进行任何的信息披露，证交会规定这些公司依然需要进行一定程度的信息披露，包括发售证券的价格和定价方法、目标融资额、达到目标融 资额的截止日期、是否接受超额发售、过去12个月的财务报表（融资额在50万至100万美元之间的公司可以只提交财务概况，而非审计的财务报表）、公司业 务介绍、融资的用途、公司高管信息及20%股权以上所有者信息、部分相关人交易等。对股权众筹平台及VC行业影响：能否颠覆传统VC模式该法案的通过，对于股权众筹平台来说也将具有深远的影响，证交会要求所有众筹平台需要在证交会登记备案，并成为国家证券协会成员。同时，该法案的通过对于风险投资行业也将产生一定意义上的颠覆作用，众筹平台C首席执行官Chance Barnett说，根据Title III的规定，数百万的过去不具备资格的投资者将进入新的在线资本市场，这将使风险投资业发生转变。初创公司不再依赖风投家拿走他们的大部分股权，而是将目光转向普通投资者，长此以往，这些普通投资者汇集起来讲形成新的投资模式，这些数量广泛的投资者成为LP（有限合伙人），而众筹平台将成为新的意义下的VC，平台将代表这些大量的投资者来进行投资。但并非所有股权众筹平台人士都高度看好，众筹平台CircleUp的首席运营官Rory Eakin便认为，股权众筹的比例依然是很小的部分，并不会对行业带来显著的改变。编者按：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 Our Business 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。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。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。SEC Adopts Rules to Permit CrowdfundingProposes Amendments to Existing Rules to Facilitate Intrastate and Regional Securities OfferingsFOR IMMEDIATE RELEASE2015-249Washington D.C., Oct. 30, 2015 The Securities and Exchange Commission today adopted final rules to permit companies to offer and sell securities through crowdfunding. The Commission also voted to propose amendments to existing Securities Act rules to facilitate intrastate and regional securities offerings. The new rules and proposed amendments are designed to assist smaller companies with capital formation and provide investors with additional protections.Crowdfunding is an evolving method of raising capital that has been used to raise funds through the Internet for a variety of projects. Title III of the JOBS Act created a federal exemption under the securities laws so that this type of funding method can be used to offer and sell securities.“There is a great deal of enthusiasm in the marketplace for crowdfunding, and I believe these rules and proposed amendments provide smaller companies with innovative ways to raise capital and give investors the protections they need,” said SEC Chair Mary Jo White. “With these rules, the Commission has completed all of the major rulemaking mandated under the JOBS Act.”The final rules, Regulation Crowdfunding, permit individuals to invest in securities-based crowdfunding transactions subject to certain investment limits. The rules also limit the amount of money an issuer can raise using the crowdfunding exemption, impose disclosure requirements on issuers for certain information about their business and securities offering, and create a regulatory framework for the broker-dealers and funding portals that facilitate the crowdfunding transactions.The new crowdfunding rules and forms will be effective 180 days after they are published in the Federal Register. The forms enabling funding portals to register with the Commission will be effective Jan. 29, 2016.The Commission also proposed amendments to existing Securities Act Rule 147 to modernize the rule for intrastate offerings to further facilitate capital formation, including through intrastate crowdfunding provisions. The proposal also would amend Securities Act Rule 504 to increase the aggregate amount of money that may be offered and sold pursuant to the rule from $1 million to $5 million and apply bad actor disqualifications to Rule 504 offerings to provide additional investor protection.The SEC is seeking public comment on the proposed rule amendments for a 60-day period following their publication in the Federal Register.# # #FACT SHEETRegulation CrowdfundingSEC Open MeetingOct. 30, 2015ActionThe Securities and Exchange Commission will consider whether to adopt final rules that would allow the offer and sale of securities through crowdfunding. The recommended rules would give small businesses an additional avenue to raise capital and provide investors with important protections. If adopted, this would complete the Commissions major rulemaking mandated under the JOBS Act.Highlights of the Recommended Final RulesThe recommended rules would, among other things, enable individuals to purchase securities in crowdfunding offerings subject to certain limits, require companies to disclose certain information about their business and securities offering, and create a regulatory framework for the intermediaries facilitating crowdfunding transactions. More specifically, the recommended rules would: Permit a company to raise a maximum aggregate amount of $1 million through crowdfunding offerings in a 12-month period; Permit individual investors, over a 12-month period, to invest in the aggregate across all crowdfunding offerings up to: $2,000 or 5 percent of the lesser of their annual income or net worth. If either their annual income or net worth is less than $100,000, than the greater of: If both their annual income and net worth are equal to or more than $100,000, 10 percent of the lesser of their annual income or net worth; and During the 12-month period, the aggregate amount of securities sold to an investor through all crowdfunding offerings may not exceed $100,000.Under the recommended rules, certain companies would not be eligible to use the exemption. Ineligible companies would include non-U.S. companies, Exchange Act reporting companies, certain investment companies, companies that are subject to disqualification under Regulation Crowdfunding, companies that have failed to comply with the annual reporting requirements under Regulation Crowdfunding during the two years immediately preceding the filing of the offering statement, and companies that have no specific business plan or have indicated that their business plan is to engage in a merger or acquisition with an unidentified company or companies.Securities purchased in a crowdfunding transaction generally could not be resold for one year. Holders of these securities would not count toward the threshold that requires a company to register its securities under Exchange Act Section 12(g) if the company is current in its annual reporting obligations, retains the services of a registered transfer agent and has less than $25 million in total assets as of the end of its most recently completed fiscal year.In addition, all transactions relying on the new rules would be required to take place through an SEC-registered intermediary, either a broker-dealer or a funding portal.Disclosure by Companies Companies that rely on the recommended rules to conduct a crowdfunding offering must file certain information with the Commission and provide this information to investors and the intermediary facilitating the offering, including among other things, to disclose: The price to the public of the securities or the method for determining the price, the target offering amount, the deadline to reach the target offering amount, and whether the company will accept investments in excess of the target offering amount; A discussion of the companys financial condition; Financial statements of the company that, depending on the amount offered and sold during a 12-month period, are accompanied by information from the companys tax returns, reviewed by an independent public accountant, or audited by an independent auditor. A company offering more than $500,000 but not more than $1 million of securities relying on these rules for the first time would be permitted to provide reviewed rather than audited financial statements, unless financial statements of the company are available that have been audited by an independent auditor; A description of the business and the use of proceeds from the offering; Information about officers and directors as 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 an annual report with the Commission and provide it to investors.Crowdfunding Platforms A funding portal would be required to register with the Commission on new Form Funding Portal, and become a member of a national securities association (currently, FINRA). A company relying on the rules would be required to conduct its offering exclusively through one intermediary platform at a time.The recommended rules would require intermediaries to, among other things: Provide investors with educational materials that explain, among other things, the process for investing on the platform, the types of securities being offered and information a company must provide to investors, resale restrictions, and investment limits; Take certain measures to reduce the risk of fraud, including having a reasonable basis for believing that a company complies with Regulation Crowdfunding and that the company has established means to keep accurate records of securities holders; Make information that a company is required to disclose available to the public on its platform throughout the offering period and for a minimum of 21 days before any security may be sold in the offering; Provide communication channels to permit discussions about offerings on the platform; Provide disclosure to investors about the compensation the intermediary receives; Accept an investment commitment from an investor only after that investor has opened an account; Have a reasonable basis for believing an investor complies with the investment limitations; Provide investors notices once they have made investment commitments and confirmations at or before completion of a transaction; Comply with maintenance and transmission of funds requirements; and Comply with completion, cancellation and reconfirmation of offerings requirements.The rules also would prohibit intermediaries from engaging in certain activities, such as: Providing access to their platforms to companies that they have a reasonable basis for believing have the potential for fraud or other investor protection concerns; Having a financial interest in a company that is offering or selling securities on its platform unless the intermediary receives the financial interest as compensation for the services, subject to certain conditions; and Compensating any person for providing the intermediary with personally identifiable information of any investor or potential investor.Regulation Crowdfunding would contain certain rules that are specific to registered funding portals consistent with their more limited activities than that of a registered broker-dealer. The rules would prohibit funding portals from, among other things: offering investment advice or making recommendations; soliciting purchases, sales or offers to buy securities; compensating promoters and other persons for solicitations or based on the sale of securities; and holding, possessing, or handling investor funds or securities.The rules would provide a safe harbor under which funding portals could engage in certain activities consistent with these restrictions. The rules also would require funding portals to maintain certain books and records related to their transactions and business.BackgroundCrowdfunding is an evolving method of raising money through the Internet, but it has generally not been used to offer and sell securities. That is because offering a share of the financial returns or profits from business activities could trigger the application of the federal securities laws, and an offer or sale of securities must be registered with the SEC unless an exemption is available.The JOBS Act included an exemption to permit securities-based crowdfunding and established the foundation for a regulatory structure for these transactions. It also created a new entity a funding portal and allows these Internet-based platforms or intermediaries to facilitate the offer and sale of securities without having to register with the SEC as brokers. The SEC was tasked with adopting rules to implement these provisions, which are intended to facilitate capital raising by small businesses while providing significant investor protections.Staff Report The staff would undertake to study and submit a report to the Commission no later than three years following the effective date of Regulation Crowdfunding on the impact of the regulation on capital formation and investor protection.Whats Next?The new rules and forms would be effective 180 days after they are published in the Federal Register, except that the forms enabling funding portals to register with the Commission would be effective January 29, 2016.FACT SHEETProposed Amendments to Facilitate Intrastate and Regional Securities OfferingsSEC Open MeetingOct. 30, 2015ActionThe Securities and Exchange Commission is considering whether to propose amendments to Securities Act Rule 147 and Rule 504 of Regulation D. The proposed amendments would be part of the Commissions efforts to assist smaller companies with capital formation consistent with its investor protection mission.Highlights of the Proposed AmendmentsProposed Amendments to Rule 147The proposed amendments would modernize Rule 147 to permit companies to raise money from investors within their state without concurrently registering the offers and sales at the federal level. The proposed amendments to Rule 147 would, among other things: