[Congressional Record (Bound Edition), Volume 161 (2015), Part 11]
[House]
[Pages 15713-15715]
[From the U.S. Government Publishing Office, www.gpo.gov]




  REFORMING ACCESS FOR INVESTMENTS IN STARTUP ENTERPRISES ACT OF 2015

  Mr. GARRETT. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 1839) to amend the Securities Act of 1933 to exempt certain 
transactions involving purchases by accredited investors, and for other 
purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 1839

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Reforming Access for 
     Investments in Startup Enterprises Act of 2015'' or the 
     ``RAISE Act of 2015''.

     SEC. 2. EXEMPTED TRANSACTIONS.

       (a) Exempted Transactions.--Section 4 of the Securities Act 
     of 1933 (15 U.S.C. 77d) is amended--
       (1) in subsection (a), by adding at the end the following 
     new paragraph:
       ``(7) transactions meeting the requirements of subsection 
     (d).'';
       (2) by redesignating the second subsection (b) (relating to 
     securities offered and sold in compliance with Rule 506 of 
     Regulation D) as subsection (c); and
       (3) by adding at the end the following:
       ``(d) Certain Accredited Investor Transactions.--The 
     transactions referred to in subsection (a)(7) are 
     transactions meeting the following requirements:
       ``(1) Accredited investor requirement.--Each purchaser is 
     an accredited investor, as that term is defined in section 
     230.501(a) of title 17, Code of Federal Regulations (or any 
     successor regulation).
       ``(2) Prohibition on general solicitation or advertising.--
     Neither the seller, nor any person acting on the seller's 
     behalf, offers or sells securities by any form of general 
     solicitation or general advertising.
       ``(3) Information requirement.--In the case of a 
     transaction involving the securities of an issuer that is 
     neither subject to section 13 or 15(d) of the Securities 
     Exchange Act of 1934 (15 U.S.C. 78m; 78o(d)), nor exempt from 
     reporting pursuant to section 240.12g3-2(b) of title 17, Code 
     of Federal Regulations, nor a foreign government (as defined 
     in section 230.405 of title 17, Code of Federal Regulations) 
     eligible to register securities under Schedule B, the seller 
     and a prospective purchaser designated by the seller obtain 
     from the issuer, upon request of the seller, and the seller 
     in all cases makes available to a prospective purchaser, the 
     following information (which shall be reasonably current in 
     relation to the date of resale under this section):
       ``(A) The exact name of the issuer and the issuer's 
     predecessor (if any).
       ``(B) The address of the issuer's principal executive 
     offices.
       ``(C) The exact title and class of the security.
       ``(D) The par or stated value of the security.
       ``(E) The number of shares or total amount of the 
     securities outstanding as of the end of the issuer's most 
     recent fiscal year.
       ``(F) The name and address of the transfer agent, corporate 
     secretary, or other person responsible for transferring 
     shares and stock certificates.
       ``(G) A statement of the nature of the business of the 
     issuer and the products and services it offers, which shall 
     be presumed reasonably current if the statement is as of 12 
     months before the transaction date.
       ``(H) The names of the officers and directors of the 
     issuer.
       ``(I) The names of any persons registered as a broker, 
     dealer, or agent that shall be paid or given, directly or 
     indirectly, any commission or remuneration for such person's 
     participation in the offer or sale of the securities.
       ``(J) The issuer's most recent balance sheet and profit and 
     loss statement and similar financial statements, which 
     shall--
       ``(i) be for such part of the two preceding fiscal years as 
     the issuer has been in operation;
       ``(ii) be prepared in accordance with generally accepted 
     accounting principles or, in the case of a foreign private 
     issuer, be prepared in accordance with generally accepted 
     accounting principles or the International Financial 
     Reporting Standards issued by the International Accounting 
     Standards Board;
       ``(iii) be presumed reasonably current if--

       ``(I) with respect to the balance sheet, the balance sheet 
     is as of a date less than 16 months before the transaction 
     date; and
       ``(II) with respect to the profit and loss statement, such 
     statement is for the 12 months preceding the date of the 
     issuer's balance sheet; and

       ``(iv) if the balance sheet is not as of a date less than 6 
     months before the transaction date, be accompanied by 
     additional statements of profit and loss for the period from 
     the date of such balance sheet to a date less than 6 months 
     before the transaction date.
       ``(K) To the extent that the seller is a control person 
     with respect to the issuer, a brief statement regarding the 
     nature of the affiliation, and a statement certified by such 
     seller that they have no reasonable grounds to believe that 
     the issuer is in violation of the securities laws or 
     regulations.
       ``(4) Issuers disqualified.--The transaction is not for the 
     sale of a security where the seller is an issuer or a 
     subsidiary, either directly or indirectly, of the issuer.
       ``(5) Bad actor prohibition.--Neither the seller, nor any 
     person that has been or will be paid (directly or indirectly) 
     remuneration or a commission for their participation in the 
     offer or sale of the securities, including solicitation of 
     purchasers for the seller is subject to an event that would 
     disqualify an issuer or other covered person under Rule 
     506(d)(1) of Regulation D (17 C.F.R. 230.506(d)(1)) or is 
     subject to a statutory disqualification described under 
     section 3(a)(39) of the Securities Exchange Act of 1934.
       ``(6) Business requirement.--The issuer is engaged in 
     business, is not in the organizational stage or in bankruptcy 
     or receivership, and is not a blank check, blind pool, or 
     shell company that has no specific business plan or purpose 
     or has indicated that the issuer's primary business plan is 
     to engage in a merger or combination of the business with, or 
     an acquisition of, an unidentified person.
       ``(7) Underwriter prohibition.--The transaction is not with 
     respect to a security that constitutes the whole or part of 
     an unsold allotment to, or a subscription or participation 
     by, a broker or dealer as an underwriter of the security or a 
     redistribution.
       ``(8) Outstanding class requirement.--The transaction is 
     with respect to a security of a class that has been 
     authorized and outstanding for at least 90 days prior to the 
     date of the transaction.
       ``(e) Additional Requirements.--
       ``(1) In general.--With respect to an exempted transaction 
     described under subsection (a)(7):
       ``(A) Securities acquired in such transaction shall be 
     deemed to have been acquired in a transaction not involving 
     any public offering.
       ``(B) Such transaction shall be deemed not to be a 
     distribution for purposes of section 2(a)(11).
       ``(C) Securities involved in such transaction shall be 
     deemed to be restricted securities within the meaning of Rule 
     144 (17 C.F.R. 230.144).
       ``(2) Rule of construction.--The exemption provided by 
     subsection (a)(7) shall not be the exclusive means for 
     establishing an exemption from the registration requirements 
     of section 5.''.
       (b) Exemption in Connection With Certain Exempt 
     Offerings.--Section 18(b)(4) of the Securities Act of 1933 
     (15 U.S.C. 77r(b)(4)) is amended--
       (1) by redesignating the second subparagraph (D) and 
     subparagraph (E) as subparagraphs (E) and (F), respectively;
       (2) in subparagraph (E), as so redesignated, by striking 
     ``; or'' and inserting a semicolon;
       (3) in subparagraph (F), as so redesignated, by striking 
     the period and inserting ``; or''; and
       (4) by adding at the end the following new subparagraph:
       ``(G) section 4(a)(7).''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New 
Jersey (Mr. Garrett) and the gentlewoman from New York (Mrs. Carolyn B. 
Maloney) each will control 20 minutes.
  The Chair recognizes the gentleman from New Jersey.


                             General Leave

  Mr. GARRETT. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days in which to revise and extend their remarks and 
include extraneous materials on this bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New Jersey?
  There was no objection.
  Mr. GARRETT. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I want to again commend the sponsor of this bill, the 
gentleman from North Carolina (Mr. McHenry), who just joined us, for 
all of his work on this bill and the earlier bills as well and for his 
continued work on capital formation issues.
  Mr. Speaker, there is no doubt that the JOBS Act of 2012 has been a 
tremendous success, a huge success, for the American public and the 
public marketplace.
  The number of companies that have gone public has risen dramatically 
ever since the barriers to capital formation that existed for several 
years have been lifted, if you will, helping to make our capital 
markets more attractive to companies and investors in the United States 
and all around the world as well.
  But the JOBS Act also did something else, somewhat ironically. It 
included a number of provisions that helped companies to stay private 
for a longer period of time.

[[Page 15714]]

  You see, these provisions have allowed pre-IPO companies to expand 
their investor base, if you will, and have allowed them to open up the 
doors to capital that were previously shut out to them.
  But, you see, as these companies raise more capital and as these 
companies issue more shares to investors, it can become even more 
difficult and even more costly for shareholders to find a willing buyer 
or to exit their position in that company.
  That is what this bill is all about. That is where H.R. 1839, the 
RAISE Act, would come in. The RAISE Act would build upon the success of 
the JOBS Act of 2012 by creating an environment, if you will, where 
restricted securities of pre-IPO companies can be traded in a more 
liquid secondary market, which then could ultimately have the effect of 
lowering the cost of capital for businesses.
  So the RAISE Act does this how? By codifying the longstanding 
exemption developed by the courts, the SEC, and the securities laws 
that would provide a means for the resale, if you will, of these 
private restricted securities.
  Now, for those just listening here, this sounds a little bit 
technical. Maybe it sounds a lot technical to be effective. But, 
really, it is a simple fix that could ultimately have the effect of 
helping literally thousands of businesses all across this country to do 
what? To raise more capital and put it to use, put it to use to 
innovating or to hiring more employees.
  That is at the end of the day exactly the type of bipartisan solution 
our constituents are calling on Congress to implement. I urge all of my 
colleagues, again, on both sides of the aisle to vote in favor of the 
underlying bill.
  Mr. Speaker, I reserve the balance of my time.
  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I yield myself such 
time as I may consume.
  I rise today in support of H.R. 1839, which is an excellent example 
of bipartisan compromise that I think we should do more of in this 
body.
  I would like to thank Mr. McHenry and Ranking Member Waters for all 
of their work on this bill on which I am pleased to be the lead 
Democrat.
  This bill codifies a longstanding rule that has been recognized in 
the securities law, known informally as rule 4(1)(\1/2\), which allows 
investors to resell private restricted securities without registering 
with the SEC.
  Rule 4(1)(\1/2\) has long been recognized by the SEC and has been 
recognized by the Federal courts on numerous occasions as well.
  But no one has ever bothered to codify this rule, even though 
everyone is okay with it and supports it, with investors relying on 
this informal rule.
  The reason that the SEC and the courts have long recognized this rule 
is that it fully complies with the spirit of the Securities Act of 
1933. These sales are really just transactions between two 
sophisticated investors.
  As a result, different law firms have different interpretations of 
what rule 4(1)(\1/2\) requires and the market has become very 
fragmented.
  So I think it is a very good idea to finally codify rule 4(1)(\1/2\) 
so that everyone knows the rules of the road and investors can have 
confidence that they are complying with the law when they resell 
private securities to other sophisticated investors.
  But this bill doesn't just codify rule 4(1)(\1/2\). It actually 
improves upon it by establishing minimum standards for disclosure, 
marketing, and a holding period that will protect investors, foster 
transparency, and make this market even stronger.

                              {time}  1645

  This bill addresses several concerns that we heard from investor 
groups and regulators:
  First, it requires that the seller provide the buyer with some basic 
information about the company, which ensures that buyers have the 
standard information they need before making an investment decision.
  Second, it prohibits bad actors, such as people who have been banned 
from the securities industry, from taking advantage of the rule.
  Third, it prohibits the securities of shell companies from being sold 
under this new rule, 4(1)(\1/2\).
  So I am pleased that we were able to work together with the gentleman 
from North Carolina (Mr. McHenry) on this bill and that we were able to 
add these important investor protections because now we have a bill 
that will enjoy strong bipartisan support.
  I urge my colleagues to support this bill.
  I reserve the balance of my time.
  Mr. GARRETT. Again, I thank the gentlewoman from New York.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from North Carolina (Mr. McHenry), the sponsor of the legislation.
  Mr. McHENRY. Mr. Speaker, I thank the gentleman from New Jersey (Mr. 
Garrett), the chairman of the Capital Markets and Government Sponsored 
Enterprises Subcommittee, for yielding time.
  I thank the gentlewoman from New York (Mrs. Carolyn B. Maloney), the 
ranking member of the subcommittee, for working with me on the 
provisions of the bill we are talking about this afternoon.
  I also want to thank the gentlewoman from California (Ms. Maxine 
Waters), the ranking member of the full committee, for working with us 
to craft this compromise we have on the floor here today.
  I have joined together with my colleagues from across the aisle to 
offer a Federal exemption from registering for the resale of private 
company securities, which is vital for adding liquidity to the 
secondary markets and driving economic growth.
  Today private growth companies are not only disrupting existing 
industries, but are creating entirely new markets. Thanks to private 
markets, in particular, the advancement in American technology and 
entrepreneurship is thriving.
  Funding the growth of these private companies, however, has created a 
paradigm shift. This shift requires our regulatory framework to achieve 
a balance between encouraging innovation and growth while ensuring that 
shareholders and investors are protected, and those investor 
protections need to remain strong.
  Unfortunately, as successful entrepreneurs and startup employees look 
to sell their private shares in the secondary markets, they encounter a 
regulatory framework that is inefficient. That inefficiency is costly 
and dries up the liquidity of these securities and is harmful to 
economic growth.
  Most private secondary transactions rely on a broadly accepted 
exemption known as section 4(1)(\1/2\). While widely known and applied, 
section 4(1)(\1/2\) has never been formally codified into securities 
law. The result has been a disjointed collection of case law and no-
action SEC letters that have shaped these private secondary 
transactions.
  Our bill attempts to fix this problem. The bill would provide an 
exemption for these types of transactions, allowing startup employees 
the ability to execute trades in a way that is consistent, clear, and 
certain.
  That is why we have Federal securities laws, for that certainty, that 
clarity, and that consistency. It would allow for private companies to 
find a much better way to raise capital by opening up the secondary 
markets.
  Although the bill is a technical fix, we have worked hard to seek 
compromise and find commonsense solutions to this complicated 
exemption.
  While we have negotiated in good faith on this bill, as has the party 
across the aisle, my goal is to ensure that the language and operation 
of this compromise will work in the real world.
  Further improvements to the bill may be necessary to fully codify 
existing uses of that authority, and I am committed to working with my 
colleagues across the aisle as well as folks in the Senate to clarify 
the intent here.
  I look forward to continuing to work with our ranking member of the 
full Committee on Financial Services, as necessary, to ensure that the 
law is a useful tool and serves as an example of how policy can meet 
the demands of a changing marketplace.
  The bottom line is this bill is a sensible way forward. This bill 
will lower

[[Page 15715]]

costs and provide transparent standards for the issues that are 
important in the private and secondary transactions. Additionally, the 
bill will give today's private growth companies a foundation on which 
they can confidently plan their trajectory through the capital markets, 
both private and public.
  Ultimately, codifying this exemption will ensure the United States 
remains the best market in the world for the world's innovators to 
build their businesses here and employ Americans and grow our economy.
  I am pleased that this legislation enjoys bipartisan support, and I 
urge my colleagues to support it.
  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I have no 
additional speakers on the floor. I urge my colleagues to support this 
important legislation.
  I yield back the balance of my time.
  Mr. GARRETT. Mr. Speaker, I yield myself the balance of my time.
  Again I thank the gentlewoman from New York for her support on this 
and the prior legislation, and I thank the gentleman from North 
Carolina.
  When the gentleman from North Carolina makes a reference to the 
regulations of 4(1)(\1/2\), then you know there is something wrong out 
there that there are just too many obscure regulations that are holding 
back and being impediments to our capital markets.
  The gentleman from North Carolina also came up with the right 
summation of this. It is a technical bill to deal with all of these 
absurdities and technicalities just to make it easier for people to be 
able to start a business, grow a business, sell a business, hire 
employees, grow capital formation and the number of employees in this 
country as well.
  With that being said, I look forward to strong, bipartisan support, 
as we have seen in the past on this type of legislation.
  I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from New Jersey (Mr. Garrett) that the House suspend the 
rules and pass the bill, H.R. 1839, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. GARRETT. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

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