Regulation D

Rule 506 of Regulation D is the most widely used capital-raising exemption in the United States securities markets — companies collectively raise hundreds of billions of dollars annually through Regulation D offerings.

The Statutory Foundation — Section 4(a)(2)

Section 4(a)(2) of the Securities Act of 1933 exempts from the registration requirements of Section 5 transactions by an issuer not involving any public offering. This private placement exemption is the foundational authority upon which Regulation D rests. 

The concept of a public offering versus a private offering was not defined by the Act itself — its boundaries were developed through SEC no-action letters and judicial decisions, most influentially the Supreme Court's ruling in SEC v. Ralston Purina Co., 346 U.S. 119 (1953), which held that the availability of the private offering exemption depends on whether offerees need the protection of the Securities Act registration requirements, which in turn depends on whether they are capable of fending for themselves — a standard related to the financial sophistication and access to information of the offerees.

Because the Section 4(a)(2) exemption lacked clear objective standards, issuers faced uncertainty about whether their offerings qualified. Regulation D was adopted to provide a framework of specific objective requirements that, if satisfied, provide a safe harbour confirming that the offering qualifies for the Section 4(a)(2) exemption. Importantly, Regulation D is non-exclusive — an issuer that fails to satisfy the specific technical requirements of Regulation D may still be able to rely directly on Section 4(a)(2) if the offering otherwise satisfies the transactional exemption's substantive requirements, though with less certainty.

Form D — The Notice Filing

Issuers relying on Regulation D must file a notice of the offering with the SEC on Form D within fifteen calendar days after the first sale of securities in the offering. Form D is not a registration statement — it does not require SEC review or approval before the offering may proceed. It is a notice filing containing basic information about the issuer, the type of securities offered, the amount raised, the number and type of investors, and the specific Regulation D rule being relied upon.

Form D is publicly available through the SEC's EDGAR system, providing the SEC and state securities regulators with visibility into the private placement market and enabling surveillance for potential securities violations. Failure to timely file Form D does not invalidate the Regulation D exemption but may be treated as a violation of Regulation D subject to the consequences specified in Rule 507 — most significantly, the SEC may seek to disqualify the issuer from using Regulation D in future offerings for the period of non-compliance.

Rule 504 — Offerings Up to Ten Million Dollars

Rule 504 of Regulation D provides an exemption for offerings of up to ten million dollars in any twelve-month period — raised from five million dollars by SEC amendments effective January 2017. Rule 504 is available only to non-reporting companies — companies that are not required to file reports with the SEC under the Securities Exchange Act — and is not available to investment companies or blank check companies.

Rule 504 imposes no limitation on the number or sophistication of investors — the offering may be made to any investors regardless of their accredited status. However, there are no specific disclosure requirements under Rule 504 — the issuer is not required to provide any particular information to investors, though the antifraud provisions of the Securities Act and Exchange Act continue to apply and the issuer remains liable for material misrepresentations.

Securities sold under Rule 504 are generally restricted securities — they cannot be freely resold without registration or an applicable exemption — unless the offering satisfies specific conditions that allow unrestricted resale. Rule 504 does not preempt state securities law — issuers must comply with applicable state blue sky registration or qualification requirements in each state where the offering is conducted, which significantly increases the practical burden of relying on Rule 504 for multi-state offerings.

Rule 506(b) — The Primary Private Placement Safe Harbour

Rule 506(b) is the most widely used Regulation D provision and the primary safe harbour for private placements in the United States. It permits issuers to raise an unlimited amount of capital — there is no dollar cap — from an unlimited number of accredited investors and up to thirty-five non-accredited investors who meet a sophistication standard.

The sophistication standard for non-accredited investors under Rule 506(b) requires that each non-accredited investor — either alone or with a purchaser representative — have such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of the prospective investment. When non-accredited investors participate, the issuer must provide them with substantially the same information as would be required in a registered offering — the financial statements, risk disclosures, and other material information that a prospectus would contain — though in a format somewhat less formally prescribed than the statutory prospectus.

The most important restriction under Rule 506(b) is the prohibition on general solicitation and general advertising. Issuers may not use any form of mass marketing — newspaper or magazine advertisements, television or radio broadcasts, public seminars, websites, social media posts, or any other communication addressed to the general public — to offer or sell securities. The offering must be conducted through pre-existing substantive relationships with investors or through networks and intermediaries who have such relationships. This no-general-solicitation requirement is the defining constraint of Rule 506(b) and is what makes the offering genuinely private rather than public.

Securities sold under Rule 506(b) are restricted securities — they cannot be freely resold without registration or an applicable exemption such as Rule 144. The restricted nature of Rule 506(b) securities means purchasers cannot immediately liquidate their positions, and issuers typically include prominent legend language on share certificates and in subscription agreements noting the restricted status.

Rule 506(b) preempts state securities law with respect to covered securities — state regulators cannot require registration or impose merit review on Rule 506(b) offerings. States may require notice filings and payment of filing fees but may not substantively regulate the offering terms or require registration. This federal preemption under Section 18 of the Securities Act makes Rule 506(b) particularly attractive for multi-state private placements where compliance with fifty different state registration regimes would be prohibitively burdensome.

Rule 506(c) — General Solicitation to Accredited Investors

Rule 506(c) was added to Regulation D effective September 23, 2013, implementing Section 201(a) of the JOBS Act of 2012 — the provision that Congress specifically directed the SEC to adopt to permit general solicitation in private placements conducted under Rule 506. Rule 506(c) permits issuers to broadly solicit and generally advertise a securities offering — using any form of public communications including social media, websites, newspapers, and public events — without losing the Regulation D exemption, provided that two conditions are satisfied.

First, all purchasers in the offering must be accredited investors — unlike Rule 506(b) which permits up to thirty-five sophisticated non-accredited investors, Rule 506(c) requires that every purchaser qualify as an accredited investor under Rule 501(a). The ability to use general solicitation is therefore contingent on maintaining a purely accredited investor purchaser base throughout the offering.

Second, the issuer must take reasonable steps to verify that each purchaser is an accredited investor. This verification requirement is more demanding than the Rule 506(b) standard, which permits issuers to rely on investor representations of accredited status without independently verifying them. 

Under Rule 506(c), mere representation is not sufficient — the issuer must take affirmative steps to verify accredited status, using one of the non-exclusive verification methods specified in the rule or a reasonable alternative approach based on the facts and circumstances. 

For individuals claiming accredited status based on income, the rule specifies that review of IRS Forms W-2, 1040, K-1, or other tax documents from the two most recent years satisfies the verification standard. For net worth, review of bank statements, brokerage account statements, credit reports, and other financial documentation satisfies the standard.

The practical consequence of the verification requirement is that Rule 506(c) offerings involve more compliance infrastructure than Rule 506(b) offerings — issuers or their placement agents must collect and review financial documentation for every purchaser rather than simply obtaining a subscription agreement with accredited investor representations. Many private fund managers and startup issuers prefer Rule 506(b) precisely because the absence of a verification requirement reduces administrative burden, accepting the limitation on general solicitation as a reasonable trade-off.

The Accredited Investor Definition — Rule 501(a)

The accredited investor definition under Rule 501(a) of Regulation D is the gateway concept that determines who may participate in Rule 506 private placements without the protections of SEC registration. The definition has two categories — individual investors and institutional entities.

Individual investors qualify as accredited investors on the basis of financial sophistication — originally measured purely by wealth — if they satisfy one of the following financial thresholds. An individual with income exceeding two hundred thousand dollars in each of the two most recent years with a reasonable expectation of the same level of income in the current year qualifies. An individual with joint income with their spouse or spousal equivalent exceeding three hundred thousand dollars in each of the two most recent years with the same reasonable expectation qualifies. An individual with a net worth — individually or jointly with their spouse — exceeding one million dollars at the time of purchase, excluding the value of the primary residence and any indebtedness secured by it, qualifies.

The SEC's August 2020 amendments to Rule 501(a) expanded the accredited investor definition to include individuals who qualify on the basis of professional knowledge and expertise rather than wealth alone. Individuals holding in good standing any of the following FINRA licences — the Series 7, Series 65, or Series 82 — qualify as accredited investors based on demonstrated securities expertise regardless of their income or net worth. This amendment reflects the SEC's recognition that financial knowledge is a more direct indicator of the ability to evaluate private offering risks than wealth alone, and that experienced securities professionals should not be excluded from accredited investor opportunities simply because their wealth happens to fall below the threshold.

Entity accredited investors include insurance companies, registered investment companies, business development companies, employee benefit plans with total assets in excess of five million dollars, trusts with total assets above five million dollars not formed specifically to acquire the offered securities, and any other entity with total assets exceeding five million dollars not formed specifically to acquire the offered securities.

Bad Actor Disqualification — Rule 506(d)

Rule 506(d) — adopted by the SEC in September 2013 implementing requirements of the Dodd-Frank Act — disqualifies issuers and covered persons from using Rule 506 if they have been subject to specified disqualifying events including criminal convictions for securities-related offences, SEC cease-and-desist orders, suspension or expulsion from FINRA membership, and other specified regulatory sanctions. The bad actor provisions ensure that the Rule 506 safe harbour is not available to entities and individuals with histories of securities violations.

Issuers must disclose to purchasers in writing a reasonable time before the sale any disqualifying events that occurred before the September 2013 effective date — these prior events do not disqualify the offering but must be disclosed. Events occurring after September 2013 trigger automatic disqualification.

Integration — Avoiding Combining Exempt Offerings With Registered Offerings

Integration is the doctrine under which the SEC may treat two or more separate offerings as a single combined offering — if the integrated offering does not qualify for an exemption, both offerings lose their exempt status. Rule 502(a) provides a safe harbour from integration for successive Regulation D offerings that are separated by at least six months — two Rule 506 offerings conducted more than six months apart are not integrated with each other.

The SEC adopted more flexible integration rules in 2020 providing a facts-and-circumstances framework for evaluating integration outside the six-month safe harbour, considering factors including whether the offerings are part of a single plan of financing, whether the offerings involve the same class of securities, whether the offerings are made at the same time, and whether the proceeds are used for the same purpose.

Regulation D Versus Regulation A — Comparison

The practical distinction between Regulation D and Regulation A is fundamental to understanding the private capital markets landscape.

Regulation D permits unlimited capital raises with no SEC review of offering materials, no prospectus delivery obligation, no ongoing reporting requirements, and no investment limitations on accredited investors — at the cost of limiting the investor base to accredited and sophisticated non-accredited investors, prohibiting general solicitation under Rule 506(b), and producing restricted securities that cannot be freely resold.

Regulation A permits genuinely public offerings to any investor with SEC qualification of the offering circular, ongoing reporting for Tier 2 issuers, investment limitations on non-accredited investors in Tier 2, and freely tradeable securities — at the cost of offering limits of twenty million and seventy-five million dollars for Tiers 1 and 2 respectively and the SEC qualification process.

Companies that want speed, flexibility, unlimited amounts, and sophisticated investor bases choose Regulation D. Companies that want retail investor participation, freely tradeable securities, and access to public marketing choose Regulation A.

Examination Relevance and Key Takeaways

Regulation D is tested on the Series 7 examination in the context of Securities Act exemptions, private placement mechanics, accredited investor eligibility, the distinction between Rule 506(b) and 506(c), and the restricted securities status of Regulation D offerings.

The key points to retain are these.

Regulation D — codified at 17 CFR Part 230, Rules 500 through 508 — provides safe harbour exemptions from Securities Act Section 5 registration, adopted in 1982 as objective standards implementing the Section 4(a)(2) private placement exemption from SEC v. Ralston Purina. Form D must be filed with the SEC within fifteen calendar days of the first sale — it is a notice filing, not a registration statement, requiring no SEC approval before the offering proceeds.

Rule 504 permits up to ten million dollars annually from any investors with no specific disclosure requirements but does not preempt state blue sky law. Rule 506(b) permits unlimited capital from unlimited accredited investors and up to thirty-five sophisticated non-accredited investors — no general solicitation permitted, restricted securities, state law preempted. Rule 506(c) — added by the JOBS Act of 2012, effective September 23, 2013 — permits unlimited capital from accredited investors only with general solicitation permitted, requiring reasonable steps to verify accredited status beyond mere representation.

The accredited investor definition under Rule 501(a) includes individuals with two hundred thousand dollars annual income, three hundred thousand dollars joint income, or one million dollars net worth excluding primary residence — and since the August 2020 amendments, individuals holding in good standing the Series 7, Series 65, or Series 82 FINRA licences regardless of wealth. Rule 506(d) bad actor disqualification bars issuers with specified regulatory violations from using Rule 506. Rule 506 offerings preempt state securities law registration requirements. All Rule 506 securities are restricted securities — not freely resaleable without registration or a Rule 144 exemption. The six-month safe harbour under Rule 502(a) prevents integration of successive Regulation D offerings separated by at least six months.