Legislature(2015 - 2016)BARNES 124

04/15/2016 10:00 AM House LABOR & COMMERCE

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10:05:16 AM Start
10:05:54 AM SB126
10:43:37 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to 4/16/16 at 8:55 a.m. --
Moved CSSB 126(L&C) Out of Committee
-- Public Testimony <Time Limit May Be Set> --
<Pending Referral>
-- Public Testimony <Time Limit May Be Set> --
                SB 126-SMALL SECURITY OFFERINGS                                                                             
                [Contains discussion of HB 194]                                                                                 
10:05:54 AM                                                                                                                   
CHAIR OLSON announced  that the first order of  business would be                                                               
CS  FOR  SENATE  BILL  NO.  126(L&C),  "An  Act  establishing  an                                                               
exemption for the offering and sale of certain securities."                                                                     
10:06:56 AM                                                                                                                   
SENATOR MIA COSTELLO  stated that [CSSB 126(L&C)]  has been under                                                               
consideration for several years  while related federal securities                                                               
regulations were drafted.  Alaska  is following other states that                                                               
have taken  this action  and are having  success in  this regard.                                                               
The  bill allows  businesses,  entrepreneurs,  and innovators  to                                                               
access  capital by  soliciting donations  on  a portal  or a  web                                                               
site, in a  manner similar to Kickstarter or  GoFundMe.  However,                                                               
[CSSB 126(L&C)] directs the following:   contributions go through                                                               
the  Department of  Commerce,  Community  & Economic  Development                                                               
(DCCED); the amount of a  contribution by an investor is limited;                                                               
and the  contributions are held by  a bank until accessed  by the                                                               
business.  Senator Costello said  the bill would spur the economy                                                               
because small  business growth  has a  significant effect  on the                                                               
economy,  as has  been established  by  governmental and  private                                                               
research  [documents  not provided].    She  noted the  foregoing                                                               
concept is  also included in  other proposed legislation,  and is                                                               
an  exciting   opportunity  for  Alaskans  to   equity-invest  in                                                               
Alaskan-owned businesses.                                                                                                       
10:09:55 AM                                                                                                                   
WESTON  EILER,   Staff,  Senator   Mia  Costello,   informed  the                                                               
committee that [CSSB  126(L&C)] utilizes a concept  new to Alaska                                                               
of  equity   "crowdinvesting"  in  which  small   businesses  and                                                               
entrepreneurs can  solicit investments of  up to $7,500  per year                                                               
each  from a  large group  of people.   Present  options such  as                                                               
GoFundMe and  Kickstarter do  not allow  for equity  ownership in                                                               
the new business, however, [CSSB  126(L&C)] provides an exemption                                                               
from the Alaska  Securities Act that will  allow small businesses                                                               
to  give  equity  ownership  to   investors,  and  also  provides                                                               
safeguards  to  protect investors.    The  exemption is  required                                                               
because the  investments are on  a very  small scale.   Mr. Eiler                                                               
paraphrased  from  the  following  sectional  analysis  [original                                                               
punctuation provided]:                                                                                                          
     Section 1. Amends the Alaska  Securities Act (AS 45.55)                                                                    
     by adding a new  section. Sec. 45.55.l75(a) exempts the                                                                    
     sale  of  securities   through  crowdinvesting  between                                                                    
     Alaska businesses  and residents from  the requirements                                                                    
     of   AS   45.55.070   -  45.55.120   (registration   of                                                                    
     securities)  and AS  45.55.150  (sales and  advertising                                                                    
     literature).  Sets new  limitations and requirements on                                                                    
     the  offer   and  sale  of  this   type  of  securities                                                                    
          (1) issuer's organizational entity must be for-                                                                       
     profit, and located and licensed in Alaska,                                                                                
          (2) securities under this section may only be                                                                         
     sold  to Alaska  residents  and must  be in  compliance                                                                    
     with federal  law's (Securities Act of  1933) residency                                                                    
     requirements for interstate sale of securities,                                                                            
          (3) sale of securities under this section by a                                                                        
     for-profit entity are capped at $1,000,000,                                                                                
          (4) investments by an individual in a business                                                                        
     under this exemption are capped  at $7,500 during a 12-                                                                    
     month period,                                                                                                              
          (5) issuer of securities under this section must                                                                      
     have  a   reasonable  belief   that  the   purchase  of                                                                    
     securities is for investment not resale,                                                                                   
          (6) commissions for persons participating in the                                                                      
     offer or sale for the issuer are prohibited,                                                                               
          (7) requires escrow account deposit of investor                                                                       
     funds until the minimum target for the issuer is met,                                                                      
          (8) notice to the department about solicitation                                                                       
     of sale of securities under this section,                                                                                  
          (9) restrictions on who may issue securities                                                                          
     under this section,                                                                                                        
          (10) disclosures to investors about this type of                                                                      
     securities  exemption  in  statute and  restriction  on                                                                    
          (11) requires signed investor acknowledgement of                                                                      
     investment risk,                                                                                                           
          (12) exemption for sale of this type of                                                                               
     securities may not be used  along with other exemptions                                                                    
     to the Alaska Securities Act,                                                                                              
          (13) sale of this type of securities are covered                                                                      
     by anti-fraud  statutes and  other provisions  under AS                                                                    
     45.55.010 - 45.55.028.                                                                                                     
     Sec.  45.55.175(b). Allows  the department  to deny  or                                                                    
     revoke  an exemption  under this  section  if the  sale                                                                    
     would   lead   to   a   fraud   on   purchasers.   Sec.                                                                    
     45.55.l75(c).  Requires  the  Department  of  Commerce,                                                                    
     Community,   &  Economic   Development  to   charge  an                                                                    
     applicant  a filing  fee for  an  exemption under  this                                                                    
     section.  Sec. 45.55.l75(d).  Prohibits an  issuer from                                                                    
     using the  exemption under this  section if  the entity                                                                    
     or  its officers  are subject  to a  disqualifier under                                                                    
     the   Dodd-Frank  Wall   Street  Reform   and  Consumer                                                                    
     Protection Act -  U.S.C. 78c(a)(39). Sec. 45.55.175(e).                                                                    
     Defines terms for the section.                                                                                             
     Section   2.   Adds    a   sec.   45.55.175   exempting                                                                    
     transactions   under  this   bill   to   the  list   of                                                                    
     transactions  that  are   exempt  from  basic  security                                                                    
     registration  requirements under  AS  45.55.070 and  AS                                                                    
     45.55.075  (the  section   addressing  federal  covered                                                                    
10:16:20 AM                                                                                                                   
MR.  EILER   further  explained  that  the   bill  establishes  a                                                               
different  set  of  regulations   for  a  small-scale  securities                                                               
offering  in that  the business  would apply  to the  Division of                                                               
Banking  and Securities,  DCCED, for  authorization to  issue and                                                               
solicit  investments,  and  the  safeguards in  the  bill  ensure                                                               
certain  protections  to  investors.    This is  a  way  to  help                                                               
economic development  - especially in  rural areas -  by removing                                                               
traditional barriers,  and has garnered positive  results in over                                                               
24 states.                                                                                                                      
REPRESENTATIVE   HUGHES  expressed   her  support   for  economic                                                               
development.     She   asked  how   Alaska  residency   would  be                                                               
MR. EILER deferred to DCCED.                                                                                                    
REPRESENTATIVE HUGHES  directed attention  to [page 2,  lines 4-7                                                               
which read]:                                                                                                                    
     (3) the sum  of all cash and other  consideration to be                                                                    
     received for all  sales of the security  in reliance on                                                                    
     this  exemption may  not  exceed  $1,000,000, less  the                                                                    
     aggregate amount  received for all sales  of securities                                                                    
     by the  issuer within  the 12  months before  the first                                                                    
     offer or sale made in reliance on this exemption;                                                                          
REPRESENTATIVE  HUGHES asked  whether the  cap of  $1 million  is                                                               
overall, or per year.                                                                                                           
MR.  EILER read  from [paragraph]  3 [text  previously provided].                                                               
He said he would confirm whether it is $1 million per year.                                                                     
REPRESENTATIVE HUGHES directed attention  to [page 2, lines 18-25                                                               
which read]:                                                                                                                    
     (7)  the issuer  of the  security shall  deposit in  an                                                                    
     escrow   account  in   a  bank   or  other   depository                                                                    
     institution  authorized to  do business  in this  state                                                                    
     all  funds received  from investors  until the  minimum                                                                    
     target dollar amount for the  security offering is met;                                                                    
     the  issuer shall  file the  escrow agreement  with the                                                                    
     administrator,   and  the   contents   of  the   escrow                                                                    
     agreement must  include a  statement that  the proceeds                                                                    
     of the  sale under  this section  will not  be released                                                                    
     from  the  escrow  account  until  the  minimum  target                                                                    
     dollar  amount for  the security  offering is  met; all                                                                    
     funds shall be used  in accordance with representations                                                                    
     made to investors;                                                                                                         
REPRESENTATIVE HUGHES  asked who  determines the  minimum target,                                                               
and whether the minimum is based on a case-by-case basis.                                                                       
MR. EILER  advised that the intention  was to create a  bill with                                                               
safeguards  for investors  and which  also could  accommodate new                                                               
types of  investment.  Although  the escrow account is  a statute                                                               
of  the  bill, the  web  site  or  portals  would be  handled  in                                                               
regulation.    A small  business  or  entrepreneur must  make  an                                                               
application to the  division, and at that time  the business plan                                                               
would be assessed,  thus the division is  involved throughout the                                                               
process to provide oversight.                                                                                                   
10:22:46 AM                                                                                                                   
REPRESENTATIVE LEDOUX referred to  similar legislation in another                                                               
proposed bill, and said there  should be consistency between both                                                               
bills.  She cautioned against a possible conflict.                                                                              
SENATOR  COSTELLO  said  the  sponsors are  aware  of  the  other                                                               
legislation; if  both bills  pass, the  related section  would be                                                               
removed from the other bill.                                                                                                    
REPRESENTATIVE   LEDOUX  questioned   whether  the   crowdfunding                                                               
investment amount is the same in both bills.                                                                                    
MR. EILER  confirmed that the  two bills currently differ  in the                                                               
following  ways:   the investment  amount; the  placement of  the                                                               
escrow  account   in  statute   or  regulation;   and  additional                                                               
10:25:52 AM                                                                                                                   
KEVIN  ANSELM, Director,  Anchorage Office,  Division of  Banking                                                               
and  Securities, Department  of  Commerce,  Community &  Economic                                                               
Development,  offered to  explain the  differences between  [CSSB
126(L&C)] and  [HB 194].   In response to  Representative Hughes'                                                               
question on residency,  she said residency in  [CSSB 126(L&C)] is                                                               
established by  employment, living conditions, and  the intent to                                                               
remain, but is not based upon  the receipt of an Alaska permanent                                                               
fund dividend (PFD) received through  the Permanent Fund Dividend                                                               
Division, Department of Revenue.                                                                                                
REPRESENTATIVE  HUGHES   surmised  residency   requires  physical                                                               
MS. ANSELM  said the participant has  to be a citizen  in Alaska.                                                               
Regarding the  $1 million amount per  year that could be  used by                                                               
one  of the  crowdfunded businesses,  she explained  that if  the                                                               
business accrues  more than $1  million, the provision  exceeds a                                                               
federal  exemption,  and "kicks  into  federal  laws relating  to                                                               
securities."   Regarding  escrow,  in [CSSB  126(L&C)] escrow  is                                                               
addressed in regulation.   Currently, when the  division needs to                                                               
put funds  in escrow  because of  other securities  provisions in                                                               
the  law, the  division  looks at  the  investment and  sometimes                                                               
disburses funds in stages.   The division would also consider the                                                               
background of the business, or  of the entrepreneur, to determine                                                               
the escrow requirement.   Ms. Anselm said, "There'll be  a lot of                                                               
information  that  needs  to  be   provided,  but  not  near  the                                                               
information  that  would be  provided  for  a regular  securities                                                               
registration prospectus which, as you know, can be quite thick."                                                                
REPRESENTATIVE  TILTON   asked  Ms.   Anselm  to   define  "other                                                               
depository institution authorized" as found  on [page 2, line 19]                                                               
[text previously provided].                                                                                                     
MS. ANSELM  stated other depository institutions  would be credit                                                               
unions.  In  further response to Representative  Tilton, she said                                                               
her  understanding from  the  bill's sponsors  is  the banks  and                                                               
credit unions would be chartered in Alaska.                                                                                     
REPRESENTATIVE LEDOUX  asked for the current  investment limit in                                                               
[HB 194].                                                                                                                       
10:30:43 AM                                                                                                                   
MS.  ANSELM stated  that  HB  194 proposed  a  $5,000 limit,  was                                                               
amended in the House Judiciary  Standing Committee to $10,000; in                                                               
further response  to Representative  LeDoux, she said  there were                                                               
no changes made in the House Finance Committee.                                                                                 
REPRESENTATIVE KITO  directed attention  to page 2,  beginning on                                                               
line 11 which read:                                                                                                             
     (5) the issuer reasonably  believes that all purchasers                                                                    
     of  securities are  purchasing for  investment and  not                                                                    
     for  sale  in connection  with  a  distribution of  the                                                                    
REPRESENTATIVE KITO  asked how the  issuer would ensure  that its                                                               
investors would not resell their investment.                                                                                    
MS. ANSELM responded:                                                                                                           
     First, the  issuer is responsible for  determining that                                                                    
     and  typically, and  this is  true  in other  exemption                                                                    
     sorts  of  securities  investments,  the  issuer  would                                                                    
     typically have  a written assertion from  the investor,                                                                    
     that they  have no intent  to, to sell  the securities.                                                                    
     The other issue here is  that these securities are, are                                                                    
     really, they're  not easily  tradable, in  other words,                                                                    
     if someone wants  to sell the security,  or bequeath it                                                                    
     to someone,  there are  certain, it  has to  fall under                                                                    
     another exemption,  otherwise it has to  be registered.                                                                    
      ... Investors need to know that they are not easily                                                                       
       alienable, so to speak, so they're not going to be                                                                       
     trading these on a market.                                                                                                 
REPRESENTATIVE  KITO surmised  the investment  is not  similar to                                                               
receiving a  stock certificate; there  is not  actually ownership                                                               
by  the  investor  until  the   crowdfunding  activity  has  been                                                               
MS.   ANSELM  advised   the  investor   would  receive   a  stock                                                               
certificate or  a note,  however, the  document would  state that                                                               
the securities  are not  transferable unless  there is  a further                                                               
REPRESENTATIVE  HUGHES asked  how marijuana  businesses would  be                                                               
handled, given federal restrictions on banking.                                                                                 
MS. ANSELM observed  that rules related to  marijuana require the                                                               
residency of  investors to  be established by  receipt of  a PFD,                                                               
which  is a  higher status  of residency  than required  by [CSSB
126(L&C)].   Otherwise, there is  no prohibition on  investing in                                                               
securities  related  to  marijuana businesses;  in  fact,  larger                                                               
businesses have  begun registering  with the U.S.  Securities and                                                               
Exchange Commission.                                                                                                            
10:35:44 AM                                                                                                                   
REPRESENTATIVE LEDOUX returned to  her understanding that if both                                                               
bills  pass,  crowdfunding  would  be removed  from  the  omnibus                                                               
securities  bill;  however,  there is  substantive  inconsistency                                                               
between the bills related to the investment amount.                                                                             
MS.  ANSELM stated  that in  addition  to HB  194, its  companion                                                               
bill, SB  108, is  held in the  Senate Finance  Committee (SFIN),                                                               
and if  HB 194 passes  from the House,  it would also  advance to                                                               
SFIN, where  a committee  substitute would  be drafted  to remove                                                               
crowdfunding  from  HB  194.   At  that  time,  the  crowdfunding                                                               
provisions in [CSSB 126(L&C)] would prevail.                                                                                    
CHAIR OLSON suggested  the revisor of statutes  would resolve the                                                               
MS. ANSELM was unsure.                                                                                                          
REPRESENTATIVE KITO stated that  if the bills reflected different                                                               
investment  amounts it  would  be difficult  for  the revisor  to                                                               
glean legislative intent.                                                                                                       
CHAIR OLSON surmised one bill would precede the other.                                                                          
MS.  ANSELM offered  that  two  bills cannot  apply  to the  same                                                               
statute.  In  further response to Chair Olson,  she restated that                                                               
SB 108 is held in SFIN.                                                                                                         
REPRESENTATIVE  HUGHES  noted  that  HB 194  originally  set  the                                                               
investment amount at $5,000, and  she inquired as to the original                                                               
MS.  ANSELM explained  that since  the bill  was first  proposed,                                                               
almost two  years ago,  there has been  more experience  in other                                                               
states;  in  fact,  $10,000  is the  federal  limit  allowed  for                                                               
crowdfunding.  In further response  to Representative Hughes, she                                                               
said the amount is set at the will of the legislature.                                                                          
REPRESENTATIVE  LEDOUX  questioned  how  to  propose  a  friendly                                                               
amendment  raising   the  investment  limit  to   $10,000,  since                                                               
Alaskans "tend to have a higher income."                                                                                        
CHAIR OLSON suggested proposing an amendment on the floor.                                                                      
10:43:04 AM                                                                                                                   
CHAIR OLSON opened  public testimony.  After  ascertaining no one                                                               
wished to testify, public testimony was closed.                                                                                 
10:43:15 AM                                                                                                                   
REPRESENTATIVE HUGHES moved to report  CSSB 126(L&C), Version 29-                                                               
LS1284\W, out  of committee  with individual  recommendations and                                                               
the accompanying  zero fiscal notes.   There being  no objection,                                                               
CSSB  126(L&C) was  reported from  the House  Labor and  Commerce                                                               
Standing Committee.                                                                                                             

Document Name Date/Time Subjects
SB126 ver W.PDF HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Sponsor Statement.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Sectional Analysis.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Summary of Changes ver A to ver W.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Fiscal Note-DCCED-DBS-02-05-16.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Supporting Documents-Letter Alaska Independent Power Producers Association 3-4-2016.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Supporting Documents-Letter Anchorage Economic Development Corporation 4-6-2016.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Supporting Documents-Letter HiSpeed Gear Randy Daly 2-11-2016.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Supporting Documents-LetterThomas Daly 04-13-16.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Supporting Documents-NASAA State Crowdfunding Legislation Index 1-1-2016.pdf HL&C 4/15/2016 10:00:00 AM
SB 126
SB126 Supporting Documents-NCSL Intrastate Crowdfunding Update 8-3-2015.pdf HL&C 4/15/2016 10:00:00 AM
SB 126