Intrastate Crowdfunding Exemption
The State Corporation Commission has adopted rule 21VAC5-40-190, the Intrastate Crowdfunding Exemption (ICE), to provide Virginia-based companies greater access to capital in order to expand existing operations and develop new business ventures.
The ICE takes advantage of a federal securities exemption that exempts securities registration requirements with respect to certain securities offerings conducted on an entirely intrastate basis (i.e., between issuers residing in, and doing business in, the same state as all of its investors.)
The ICE is available to Virginia corporations, limited liability companies (LLC’s), limited partnerships and limited liability partnerships. The business must be formed under Virginia law.
Virginia businesses may offer only equity (not debt) securities under the ICE.
Virginia businesses may raise up to $1 million in a twelve month period, and up to $2 million if the company has audited financial statements.
Each individual investor may purchase an amount of securities up to $10,000. The business must not accept more than $10,000.00 from any single purchaser unless the purchaser is an accredited investor.
An accredited investor is defined by federal law, rule 501 of SEC regulation D, 17 CFR 230.501.
No commission or fee may be paid to any person for soliciting a transaction under the ICE unless that person is registered as a broker-dealer or agent in Virginia.
Issuers shall specify a minimum offering amount to be raised under ICE. Until the minimum offering amount is reached, investor funds must be held at a depository institution located in Virginia.
The ICE is not available to certain types of issuers: blind pool and blank check offerings; investment companies; hedge funds, commodity pools, and similar investment vehicles; and business involving oil and gas exploration or production, mining, or other extractive industries.
The ICE is tied to the federal intrastate offering exemption provided under Section 3(a)(11) of the Securities Act of 1933 and SEC Rule 147. Issuers will be responsible to make sure their transactions meet the requirements of those federal exemptions. Offerings that fail to meet the requirements of those exemptions will lose the federal exemptions, and as a consequence would also lose the benefit of the Virginia ICE.
The ICE requires issuers to provide full and fair disclosure of material facts relating to the company and the offering, including a description of the company and the planned use of proceeds of the offering, as well as the risks involved.
The ICE requires all issuers to provide a disclosure that the offering is not registered under the federal and state law. Issuers are also required to provide written disclosure of the limitations on the resale of securities that are purchased pursuant to the exemption provided by SEC Rule 147.
The ICE is not available for issuers whose officers, directors, or major shareholders have been found to have violated the securities laws or other financial regulations, or have committed other types of misconduct or fraud.
The business must file a notice using Form ICE with the SCC’s Division of Securities and Retail Franchising at least 20 day before making any offers or sales. A $250.00 filing fee (payable to the Treasurer of Virginia) must also be submitted.
The business must provide an annual report to the purchasers for three years after the offering.