What are Regulation D exemptions?

Regulation D is the most commonly used set of exemptions for private placement. It consists of Rules 501-508 of the 33 Act. In addition to several statutory exemptions from registration, the SEC adopted Regulation D to provide "safe harbors" for issuers of securities. These exemptions are referred to as safe harbors because compliance with these rules will provide for an exemption from the standard disclosure requirements. Unlike the statutory exemptions, such as Section 4(a)(2) or Section 4(a)(5), failure to achieve or perfect an exemption is not completely detrimental to the validity of the securities offering. Rather, if the validity of the issuance under a Regulation D rule is challenged, the issuer can then attempt to assert a statutory exemption for the issuance. As such, Regulation D provides a safe harbor for pursing an exemption and leaves open other possibilities for seeking exemption if somehow the offering runs afoul of the Regulation D exemptions.

Note: The statutory authority for exemptions under Regulation D are found in Sections 3 and 4. Pursuant to this authority, the SEC used its quasi-legislative authority as an administrative agency to pass these exemption rules.

Next Article: Rule 504 Securities Exemption Back to: SECURITIES LAW

Regulation D, Rule-Based Exemptions

Regulation D, rules 501, 502 and 503 provide definitions and conditions for the applicable exemptions. Rules 504, 505 and 506, are the substantive exemptions. Rules 507 and 508 lay out the consequences for failing to comply with the requirements of an individual exemption. Taken together, these rules provide for the most commonly employed exemptions to securities registration requirements.

Note: Each of the rule-based exemptions are discussed in detail below. It is important, however, to remember that the general provisions of Rules 501- 503 apply to each exemption.

What are the Limitations of Regulation D?

Issuer Protections - A notable limitation of Regulation D safe harbor provisions is that they only provide exemptions for the issuers of the securities during the original issuance of the security. The rules do not exempt individuals who later sell those same securities to third parties.

Note: This restriction is quite important, as some securities sold to equity investors are restricted and limit the investors ability to resell. The importance of this limitation will be become apparent as we review the available exemptions.

General Solicitation - Another important limitation is the restriction on the ability to make offers to sell securities to individuals. Many Regulation D exemptions prohibit issuers from soliciting investors to purchase the securities.

Note: The ability to solicit investors by making offers to sell securities is dependent upon the assumed knowledge and personal wealth of the investor.

Accredited & Sophisticated Investors - Some exemptions limit the ability to sell securities to a certain number of accredited investors or sophisticated investors. Accredited investors are individuals with a net worth (not counting their primary residence) of more than $1 million or an annual income of more than $200,000 or institutions (such as banks and insurance companies). A sophisticated investor is an individual who has sufficient knowledge or experience to assess the risks of an offering themselves.

Note: A sophisticated investor may also be an accredited investor and vice versa. However, it is possible that one may not qualify as the other.

Related Topics

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• What is a Security?
• What qualifies as an Investment contract?
• What are the primary federal securities laws?
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• What is the Securities and Exchange Commission?
• What is an Initial Public Offering?
• What is a Direct Public Offering?
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• Forward Looking
• Red Herring Prospectus (Securities) Definition
• Registration of Securities
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• How are issuers classified for purposes of the registration and offering process?
• What is an issuer allowed to do during the Pre-filing Period?
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• What is an issuer allowed to do during the Post-Effective Period?
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• Section 3(a)?
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• Section 4(a)(5)?
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• What are Regulation D Exemptions?
• What is a Rule 504 Exemption?
• What is a Rule 505 Exemption?
• What is a Rule 506(b) Exemption?
• What is a Rule 506(c) Exemption?
• What is Rule 502(d) and the Rule 144 Safe Harbor?
• Rule 144a
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• What is the requirement to file Form D?
• What is the effect of failing to register an offering under Section 5?
• Liability Under the Securities and Exchange Act of 1933
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• What is civil liability under Section 12 of the 33 Act?
• What are defenses available to charges under Sections 11 and 12?
• What is civil liability under Section 17 of the 33 Act?
• What is potential criminal liability under the 33 Act?
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• What damages are available under Section 10 and Rule 10(b)(5)?
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• Blue Sky Laws State Securities Laws
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