Senate Votes to Save Startup Seed Financing and Angel Investing!

By Joe Wallin and William Carleton

On a voice vote today (7 pm Eastern time, just a few minutes ago), the United States Senate amended Senator Dodd’s financial regulatory reform bill, fixing what had been previously proposed for startup companies and angel investors.

The amendment, SA 4056, was co-sponsored by Senator Dodd and many others, and we believe it largely incorporates what Senators Bond, Cantwell, Warner and Brown introduced Thursday last week as SA 4037.

Senator Murray joined Senator Cantwell as a co-sponsor of SA 4056, meaning that both Senators from Washington State stood up and acted to protect startups, angels, startup innovation, and the jobs the startup ecosystem creates. Congratulations to Marianne Hudson of the Angel Capital Association, and Dan Rosen of the Seattle Alliance of Angels!

We expect to confirm shortly that SA 4056 does the following:

  • eliminates the industry killing 120 day wait period;
  • eliminates the “go back in time” provision, which would have re-adjusted the accredited investor financial thresholds in a way that would have wiped out 2/3rds of existing angel investors qualifying as “accredited investors”;
  • excludes the value of an investor’s primary residence in determining whether the investor would meet the net worth standard; and
  • adds “bad boy” provisions to Rule 506 offerings.

We expect to find that SA 4056 may improve SA 4037 slightly, by protecting the current accredited investor income thresholds for four years, in addition to protecting the current net worth test for four years (other than the exclusion of home value).

As soon as we obtain a copy of the amendment as passed, we will post it. Thank you Senators Murray and Cantwell!

UPDATE 05-18-10. Here now is the text of SA 4056, from the Congressional Record:

The Senator from Connecticut [Mr. DODD], for Mr. Bond, for himself, Mr. Dodd, Mr. Warner, Mr. Brown of Massachusetts, Ms. Cantwell, Mr. Begich, Mrs. Murray, and Mr. Corker, proposes an amendment numbered 4056 to amendment No. 3739.

   Mr. DODD. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   The amendment is as follows:

(Purpose: To improve section 412 and section 926)

    On page 387, strike line 13 and all that follows through page 388, line 3, and insert the following:

   SEC. 412. ADJUSTING THE ACCREDITED INVESTOR STANDARD.

    (a) In General.–The Commission shall adjust any net worth standard for an accredited investor, as set forth in the rules of the Commission under the Securities Act of 1933, so that the individual net worth of any natural person, or joint net worth with the spouse of that person, at the time of purchase, is more than $1,000,000 (as such amount is adjusted periodically by rule of the Commission), excluding the value of the primary residence of such natural person, except that during the 4-year period that begins on the date of enactment of this Act, any net worth standard shall be $1,000,000, excluding the value of the primary residence of such natural person.

    (b) Review and Adjustment.–

    (1) INITIAL REVIEW AND ADJUSTMENT.–

    (A) INITIAL REVIEW.–The Commission may undertake a review of the definition of the term “accredited investor”, as such term applies to natural persons, to determine whether the requirements of the definition, excluding the requirement relating to the net worth standard described in subsection (a), should be adjusted or modified for the protection of investors, in the public interest, and in light of the economy.

    (B) ADJUSTMENT OR MODIFICATION.–Upon completion of a review under subparagraph (A), the Commission may, by notice and comment rulemaking, make such adjustments to the definition of the term “accredited investor”, excluding adjusting or modifying the requirement relating to the net worth standard described in subsection (a), as such term applies to natural persons, as the Commission may deem appropriate for the protection of investors, in the public interest, and in light of the economy.

    (2) SUBSEQUENT REVIEWS AND ADJUSTMENT.–

    (A) SUBSEQUENT REVIEWS.–Not earlier than 4 years after the date of enactment of this Act, and not less frequently than once every 4 years thereafter, the Commission shall undertake a review of the definition, in its entirety, of the term “accredited investor”, as defined in section 230.215 of title 17, Code of Federal Regulations, or any successor thereto, as such term applies to natural persons, to determine whether the requirements of the definition should be adjusted or modified for the protection of investors, in the public interest, and in light of the economy.

    (B) ADJUSTMENT OR MODIFICATION.–Upon completion of a review under subparagraph (A), the Commission may, by notice and comment rulemaking, make such adjustments to the definition of the term “accredited investor”, as defined in section 230.215 of title 17, Code of Federal Regulations, or any successor thereto, as such term applies to natural persons, as the Commission may deem appropriate for the protection of investors, in the public interest, and in light of the economy.

    On page 388, line 14, strike “1 year” and insert “3 years”.

    On page 998, strike line 12 and all that follows through page 1001, line 25, and insert the following:

   SEC. 926. DISQUALIFYING FELONS AND OTHER “BAD ACTORS” FROM REGULATION D OFFERINGS.

    Not later than 1 year after the date of enactment of this Act, the Commission shall issue rules for the disqualification of offerings and sales of securities made under section 230.506 of title 17, Code of Federal Regulations, that–

    (1) are substantially similar to the provisions of section 230.262 of title 17, Code of Federal Regulations, or any successor thereto; and

    (2) disqualify any offering or sale of securities by a person that–

    (A) is subject to a final order of a State securities commission (or an agency or officer of a State performing like functions), a State authority that supervises or examines banks, savings associations, or credit unions, a State insurance commission (or an agency or officer of a State performing like functions), an appropriate Federal banking agency, or the National Credit Union Administration, that–

    (i) bars the person from–

    (I) association with an entity regulated by such commission, authority, agency, or officer;

    (II) engaging in the business of securities, insurance, or banking; or

    (III) engaging in savings association or credit union activities; or

    (ii) constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct within the 10-year period ending on the date of the filing of the offer or sale; or

    (B) has been convicted of any felony or misdemeanor in connection with the purchase or sale of any security or involving the making of any false filing with the Commission.

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About Joe Wallin

Joe Wallin focuses on emerging, high growth, and startup companies. Joe frequently represents companies in angel and venture financings, mergers and acquisitions, and other significant business transactions. Joe also represents investors in U.S. businesses, and provides general counsel services for companies from startup to post-public.
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  • http://www.venturestab.com/ Jerome Gentolia

    Joe,

    Good work following this up! By the way that is not the amendment above right? Still waiting for it? The 05-18-10 is a date right?

    • http://startuplawblog.com/joewallin Joe Wallin

      This passed. The point is–let’s not forget that we need to watch public policy, carefully, to preserve our ecosystem.