“Why I Support North Carolina’s Proposed Crowdfunding Law, The NC JOBS Act”
By Joe Wallin
The North Carolina General Assembly has a unique opportunity in front of it right now. It can pass a state-specific crowdfunding law known as the North Carolina JOBS Act.
You can read the bill here, which has already passed the NC House by a vote of 103 to 1.
The bill would allow North Carolina businesses to raise up to $1 million during any 12-month period from North Carolina residents in a crowdfunding campaign, and up to $2 million with audited financials. The funds could be raised from non-accredited investors, as well as accredited investors.
The trouble with securities law exemptions on the books today is that many of them are not usable — except at great and impractical expense to businesses that want to use them. This puts entrepreneurs who want to raise money in a difficult spot, slows down or completely inhibits their ability to raise funds, and hampers economic growth.
This is the reason almost all startups raise money solely from accredited investors under what is known as Rule 506 of Regulation D. If you raise money under that rule, as long as you take money only from accredited investors, there are less complex and less costly requirements than other exemptions.
- Rule 506 does not require companies to work with a registered broker-dealer (which is required under the federal crowdfunding law).
- Rule 506 does not require a company to have audited financials (which is required under the federal crowdfunding law if you are raising more than $500,000).
- Under Rule 506, you have to file a form known as Form D, but it is a short form, and you don’t have to file it until 15 days after you actually raise money. So, if you don’t succeed in raising money, you don’t have to file the form.
Rule 506 is practical and usable, and that is why a very high percentage of financings fall under it. Other laws passed over the years to try to allow companies to raise money through the sale of securities languish on the books unused because they are impractical.
Of course, the trouble with Rule 506 is that you have to limit your offerings to accredited investors. There is no ability under Rule 506 to raise small amounts of money from lots of people, including non-accredited investors, in a crowdfunding campaign.
If you don’t know any accredited investors, raising funds can be tough. A real slog. Like persistence hunting.
Enter state level crowdfunding. Several states have realized that to support startups and small and emerging growing businesses, they need state securities law exemptions that are more usable and practical, yet balance capital formation with investor protection in a reasonable way. Wisconsin and Michigan passed state crowdfunding bills. Both Kansas and Georgia have regulations in place. (See Bill Carleton’s web site statecrowdfundinglaw.com for detail on the various state initiatives).
It is time for the North Carolina Senate to pass the NC JOBS Act in the short session beginning in May.
The North Carolina bill, H680, is sponsored by a bi-partisan group including Representatives Murry, Moffitt, Shepard, Hastings, R. Brawley, Brody, Brown, Cotham, Faircloth, Harrison, Jones, S. Martin, McGrady, R. Moore, Ramsey, S. Ross, Samuelson, Setzer, and Steinburg..
It is an important bill. It would send a signal to the entire world that North Carolina takes the business of starting and growing companies seriously, and is willing to amend its laws to bring them up to date with the 21st century.
You might ask: Isn’t a federal crowdfunding bill on the horizon? Shouldn’t we just wait for that?
The answer is no. The federal bill is too complex.
It will cost companies a lot to raise money in compliance with its requirements. For example, suppose you want to raise $1 million under the federal bill. You’re probably going to have to spend something on the order of $250,000 in legal, accounting and broker fees to raise the cash. That’s impractical. It doesn’t make sense. Unfortunately, the federal bill is going to go the way so many prior attempts to write sensible laws have gone. I suspect it will not be used nearly as much as advocates hoped. This is truly unfortunate.
But states have the opportunity to put their own laws in place that will actually work.
The NC JOBS Act would not put companies trying to raise money in such a difficult spot.
Joe Wallin is an attorney at Davis Wright Tremaine in Seattle. He’s the editor of the Startup Law Blog.
- Find and contact your North Carolina State Legislators and express your support.
- Tweet, email, or post a link to www.jobsnc.blogspot.com using #jobsnc #crowdfunding
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