SEC Clarifies Crowdsourcing Rules, What's the Impact on Renewables?

New Hampshire, USA -- The SEC has finally proposed its rules to allow crowd-funding under the Jumpstart Our Business Startups (JOBS) Act. What do they mean for small-scale investments in renewable energy companies and projects?

Title III of the JOBS Act created an exemption under securities laws for crowdfunding, which set the table for its regulation by the SEC -- that was supposed to happen by the end of last year. Two weeks ago the SEC finally issued its proposed rules on crowdfunding (summary here, full 500+-page PDF here). Here are the highlights:

Companies are capped at raising $1 million cap per year through crowdfunding. Investors with less than $100,000 annual income and net worth, could invest up to $2,000/year or 5 percent of annual income or net worth (whichever is greater).Investors with at least $100,000 annual income and net worth, investment amount levels rise to 10 percent of annual income or net worth (whichever is greater), and purchase no more than $100,000 of securities through crowdfunding.Non-U.S. companies are ineligible for the crowdfunding exemption, as are companies that already report to the SEC, some investment companies, those who aren't compliant with certain reporting rules, and others with no business plan or pending M&A deals.Securities purchased via crowdfunding can't be resold for a year.Under the proposed rules, issuers publishing notices advertising an offering can include terms: the nature and amount of securities offered, their pricing, and the closing date of the offering period.

So how do these proposed rules affect companies seeking to get funded by the masses? "Renewable energy companies seeking to enter the new territory of offering a security legally may find it easier to raise start up capital or additional capital because they can offer investors a return on investment" such as stock or debt with interest payable, explained Debbie A. Klis, attorney with Ballard Spahr. "It would not be difficult to create a compelling campaign to raise funds for renewable energy products especially if it brings revenue and jobs to areas of the U.S. (and abroad) that it need it the most."

For small businesses and entrepreneurs seeking to raise capital, the rules "may be a God Send" to help solve delays common in formal full-blown SEC registration and disclosure, observed Lee Peterson, senior tax manager with CohnReznick. Some entrepreneurs dream of building the next Apple or HP on the renewable energy side; others might see crowdfunding as a way to bridge the "valley of death" in startup-up financing to bring their company to market. "So as long as folks act smart and understand the investment risks," he added, "it may be a good thing."

Of course there's a difference between crowdfunding as a donation, and microfinance as a path toward ROI. SEC's proposed rules address the latter, as a way to opening doors to much more private capital. Selling securities to the public generally requires SEC compliance, and has been allowed until now only if it involves donations with no return on investment (ROI). Sites like Kickstarter and Indiegogo might choose not to help companies issue securities and just continue to facilitate donations, with investors assuming that the company raising money is playing by the rules. Indiegogo, EquityNet, and RocketHub reportedly are interested in pursuing equity crowdfunding, while Kickstarter is not.

One of the early renewables crowdfunding success stories has been Mosaic, which has amassed investments for projects totaling $5.6 million in value and "tens of millions of more dollars in the pipeline," according to a company spokesperson. It has pitched 25 offerings in over 19 projects, with 2,500 investors spanning nearly every U.S. state, and roughly half its projects sell out within a week. Its newest offering is a 12.3-MW installation across more than 500 homes at Joint Base McGuire-Dix-Lakehurst in New Jersey. The company has been working with the SEC as the agency wrestles with understanding how crowdfunding meshes with traditional finance, though it claims it doesn't and won't rely on the JOBS Act for its business. "There are different provisions of the securities laws that we have relied on in the past, and I would expect that this would continue to be the case in the future," noted Nick Olmsted, Mosaic's general counsel and corporate secretary.

The Natural Resources Defense Council (NRDC) recently announced its own crowdfunding plan, to build an online platform to help organize and direct groups how to put solar on schools: site assessment, approvals, funding, the RFP process, etc. "Like most NGOs, we go out to big donors and foundations," explained Jay Orfield, environmental innovation fellow in NRDC’s Center for Market Innovation. This effort, though, means going to "people who are going to use and benefit" from such solar installations, getting them to fund this $5, $10, $50 at a time, he said. "That market validation is specifically what we find really exciting about crowdfunding."

Needs Some Tweaking

Not that the SEC's proposed crowdfunding rules are without criticism. Capping fundraising at $1 million over a 12-month period might be too low of a threshold for many companies. "I think the gist will be that crowdfunding has some very low limits on how much you can raise," said John Marciano, partner at Chadbourne & Parke LLP. "[It] raises the question of whether it is really a viable financing option for building and owning projects, except maybe very small projects." Some companies could be motivated "to create many subsidiaries so each entity can raise money independent of the other," though "we have not heard about rules on aggregation yet," added Debbie A. Klis, attorney with Ballard Spahr.

Another potential sticking point in the rules: Anyone investing more than $500,000 has to provide audited financial statements. Small investors might balk at that, since in some cases that could be part of why they went the crowdfunding route in the first place vs. a more formal investment plan.

These proposed rules now move into a 90-day comment period, which will almost certainly be voluminous, and likely will be extended by the SEC, with final rules coming after that -- likely late 2014 or even 2015, points Adam Wade, associate at Foley Hoag. With that much time, there could be significant difference between these preliminary rules and what gets finalized.

Marciano likens the crowdfunding discussions as similar to those around real estate investment trusts (REIT) and master limited partnerships (MLP), two other potential avenues for funding renewable energy ventures, particularly at smaller scales. "It has the promise of raising cash equity, but not tax-equity. Time will tell whether it is a viable option, but I'm guessing it may be difficult to implement."

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