Corrected to Conform to the Federal Register Version

SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 230, 239 and 242 

Release No. 33-9415; No. 34-69959; No. IA-3624; File No. S7-07-12 

RIN 3235-AL34

Eliminating the Prohibition Against General Solicitation and General Advertising in 

Rule 506 and Rule 144A Offerings 

AGENCY: Securities and Exchange Commission. 

ACTION: Final rules. 

SUMMARY: We are adopting amendments to Rule 506 of Regulation D and Rule 144A 

under the Securities Act of 1933 to implement Section 201(a) of the Jumpstart Our 

Business Startups Act. The amendment to Rule 506 permits an issuer to engage in 

general solicitation or general advertising in offering and selling securities pursuant to 

Rule 506, provided that all purchasers of the securities are accredited investors and the 

issuer takes reasonable steps to verify that such purchasers are accredited investors. The 

amendment to Rule 506 also includes a non-exclusive list of methods that issuers may 

use to satisfy the verification requirement for purchasers who are natural persons. The 

amendment to Rule 144A provides that securities may be offered pursuant to Rule 144A 

to persons other than qualified institutional buyers, provided that the securities are sold 

only to persons that the seller and any person acting on behalf of the seller reasonably 

believe are qualified institutional buyers. We are also revising Form D to require issuers 

to indicate whether they are relying on the provision that permits general solicitation or 

general advertising in a Rule 506 offering. 

Also today, in a separate release, to implement Section 926 of the Dodd-Frank 

Wall Street Reform and Consumer Protection Act, we are adopting amendments to Rule 
2

506 to disqualify issuers and other market participants from relying on Rule 506 if 

“felons and other ‘bad actors’” are participating in the Rule 506 offering. We are also 

today, in a separate release, publishing for comment a number of proposed amendments 

to Regulation D, Form D and Rule 156 under the Securities Act that are intended to 

enhance the Commission’s ability to evaluate the development of market practices in 

Rule 506 offerings and address certain comments made in connection with implementing 

Section 201(a)(1) of the Jumpstart Our Business Startups Act. 

DATES: The final rule and form amendments are effective on September 23, 2013. 

FOR FURTHER INFORMATION CONTACT: Charles Kwon, Special Counsel, or 

Ted Yu, Senior Special Counsel, Office of Chief Counsel, Division of Corporation 

Finance, at (202) 551-3500, or, with respect to private funds, Holly Hunter-Ceci, Senior 

Counsel, Chief Counsel’s Office, or Alpa Patel, Senior Counsel, Investment Adviser 

Regulation Office, Division of Investment Management, at (202) 551-6825 or (202) 551-

6787, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549. 

SUPPLEMENTARY INFORMATION: We are adopting amendments to Rule 144A,1

Form D,

2

 and Rules 500,3 501,4 5025 and 5066 of Regulation D7 under the Securities Act 

 

1

 17 CFR 230.144A.

2

 17 CFR 239.500.

3

 17 CFR 230.500.

4

 17 CFR 230.501.

5

 17 CFR 230.502.

6

 17 CFR 230.506.

7

 17 CFR 230.500 through 230.508.
3

of 1933,8 and to Rules 101,9 10210 and 10411 of Regulation M12 under the Securities 

Exchange Act of 1934.13

TABLE OF CONTENTS

I. INTRODUCTION

II. FINAL AMENDMENTS TO RULE 506 AND FORM D

A. Eliminating the Prohibition Against General Solicitation

1. Proposed Rule Amendment

2. Comments on the Proposed Rule Amendment

3. Final Rule Amendment

B. Reasonable Steps to Verify Accredited Investor Status

1. Proposed Rule Amendment

2. Comments on the Proposed Rule Amendment

3. Final Rule Amendment

 a. Principles-Based Method of Verification

b. Non-Exclusive Methods of Verifying Accredited Investor 

Status

C. Reasonable Belief that All Purchasers Are Accredited Investors

D. Form D Check Box for Rule 506(c) Offerings

1. Proposed Form Amendment

2. Comments on the Proposed Form Amendment

3. Final Form Amendment

E. Specific Issues for Private Funds

F. Technical and Conforming Amendments

III. FINAL AMENDMENT TO RULE 144A

IV. INTEGRATION WITH OFFSHORE OFFERINGS

V. PAPERWORK REDUCTION ACT

A. Background

B. Revisions to PRA Reporting and Cost Burden Estimates

VI. ECONOMIC ANALYSIS

 

8

 15 U.S.C. 77a et seq. 

9

 17 CFR 242.101.

10 17 CFR 242.102.

11 17 CFR 242.104.

12 17 CFR 242.100 through 242.105.

13 15 U.S.C. 78a et seq. 
4

A. Background

B. Economic Baseline

 1. Size of the Exempt Offering Market

2. Affected Market Participants

a. Issuers

 b. Investors 

 c. Investment Advisers 

d. Broker-Dealers

 3. Current Practices

C. Analysis of the Amendment to Rule 506 

1. Benefits to Issuers

2. Benefits to Investors 

3. Costs 

4. Indirect Effects on Other Markets

5. Retention of Rule 506(b) 

D. Verifying Accredited Investor Status in Rule 506(c) Offerings

E. Analysis of the Amendment to Rule 144A 

F. Additional Information Collection and Disclosures

VII. FINAL REGULATORY FLEXIBILITY ANALYSIS

A. Reasons for, and Objectives of, the Action

B. Significant Issues Raised By Public Comments

C. Small Entities Subject to the Final Rule and Form Amendments

D. Projected Reporting, Recordkeeping and Other Compliance Requirements

E. Duplicative, Overlapping or Conflicting Federal Rules

F. Significant Alternatives

VIII. STATUTORY AUTHORITY AND TEXT OF FINAL RULE AND FORM 

AMENDMENTS

I. INTRODUCTION 

On August 29, 2012, we proposed rule and form amendments14 to implement 

Section 201(a) of the Jumpstart Our Business Startups Act (the “JOBS Act”).15 Section 

201(a)(1) of the JOBS Act directs the Commission, not later than 90 days after the date of 

 

14 See Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and 

Rule 144A Offerings, Release No. 33-9354 (Aug. 29, 2012) [77 FR 54464 (Sept. 5, 2012)] (the “Proposing 

Release”).

15 Pub. L. No. 112-106, sec. 201(a), 126 Stat. 306, 313 (Apr. 5, 2012).
5

enactment, to amend Rule 506 of Regulation D16 under the Securities Act of 1933 (the 

“Securities Act”) to permit general solicitation or general advertising in offerings made 

under Rule 506, provided that all purchasers of the securities are accredited investors.17 

Section 201(a)(1) also states that “[s]uch rules shall require the issuer to take reasonable 

steps to verify that purchasers of the securities are accredited investors, using such 

methods as determined by the Commission.” Section 201(a)(2) of the JOBS Act directs 

the Commission, not later than 90 days after the date of enactment, to revise Rule 

144A(d)(1) under the Securities Act18 to permit offers of securities pursuant to Rule 

144A to persons other than qualified institutional buyers (“QIBs”),19 including by means 

 

16 The Commission adopted Regulation D in 1982 as a result of the Commission’s evaluation of the impact 

of its rules on the ability of small businesses to raise capital. See Revision of Certain Exemptions From 

Registration for Transactions Involving Limited Offers and Sales, Release No. 33-6389 (Mar. 8, 1982) [47 

FR 11251 (Mar. 16, 1982)]. Over the years, the Commission has revised various provisions of Regulation 

D in order to address, among other things, specific concerns relating to facilitating capital-raising as well as 

abuses that have arisen under Regulation D. See, e.g., Additional Small Business Initiatives, Release No. 

33-6996 (Apr. 28, 1993) [58 FR 26509 (May 4, 1993)] and Revision of Rule 504 of Regulation D, the 

“Seed Capital” Exemption, Release No. 33-7644 (Feb. 25, 1999) [64 FR 11090 (Mar. 8, 1999)]. 

17 The definition of the term “accredited investor” that is applicable to Rule 506 is set forth in Rule 501(a) 

of Regulation D [17 CFR 230.501(a)] and includes any person who comes within one of the definition’s 

enumerated categories of persons, or whom the issuer “reasonably believes” comes within any of the 

enumerated categories, at the time of the sale of the securities to that person. For natural persons, Rule 

502(a) defines an accredited investor as a person: (1) whose individual net worth, or joint net worth with 

that person’s spouse, exceeds $1 million, excluding the value of the person’s primary residence (the “net 

worth test”); or (2) who had an individual income in excess of $200,000 in each of the two most recent 

years, or joint income with that person’s spouse in excess of $300,000 in each of those years, and has a 

reasonable expectation of reaching the same income level in the current year (the “income test”). 

Although the Dodd-Frank Act did not change the amount of the $1 million net worth test, it did change 

how that amount is calculated – by excluding the value of a person’s primary residence. This change took 

effect upon the enactment of the Dodd-Frank Act. In December 2011, we amended Rule 501 to incorporate 

this change into the definition of accredited investor. See Net Worth Standard for Accredited Investors, 

Release No. 33-9287 (Dec. 21, 2011) [76 FR 81793 (Dec. 29, 2011)].

18 17 CFR 230.144A(d)(1).

19 The term “qualified institutional buyer” is defined in Rule 144A(a)(1) [17 CFR 230.144A(a)(1)] and 

includes specified institutions that, in the aggregate, own and invest on a discretionary basis at least $100 

million in securities of issuers that are not affiliated with such institutions. Banks and other specified 

financial institutions must also have a net worth of at least $25 million. A registered broker-dealer qualifies 

as a QIB if it, in the aggregate, owns and invests on a discretionary basis at least $10 million in securities of 

issuers that are not affiliated with the broker-dealer. 
6

of general solicitation or general advertising, provided that the securities are sold only to 

persons that the seller and any person acting on behalf of the seller reasonably believe are

QIBs. 

The Commission originally adopted Rule 506 as a non-exclusive safe harbor 

under Section 4(a)(2) (formerly Section 4(2)) of the Securities Act,

20 which exempts 

transactions by an issuer “not involving any public offering” from the registration 

requirements of Section 5 of the Securities Act.21 Under existing Rule 506, an issuer

may sell securities, without any limitation on the offering amount, to an unlimited 

number of “accredited investors,” as defined in Rule 501(a) of Regulation D, and to no 

more than 35 non-accredited investors who meet certain “sophistication” requirements.22 

The availability of Rule 506 is subject to a number of requirements23 and is currently 

conditioned on the issuer, or any person acting on its behalf, not offering or selling 

securities through any form of “general solicitation or general advertising.”24 Although 

the terms “general solicitation” and “general advertising” are not defined in Regulation 

D, Rule 502(c) does provide examples of general solicitation and general advertising, 

including advertisements published in newspapers and magazines, communications 

broadcast over television and radio, and seminars where attendees have been invited by 

 

20 15 U.S.C. 77d(a)(2). 

21 15 U.S.C. 77e.

22 Under Rule 506(b)(2)(ii) [17 CFR 230.506(b)(2)(ii)], each purchaser in a Rule 506 offering who is not 

an accredited investor must possess, or the issuer must reasonably believe immediately before the sale of 

securities that such purchaser possesses, either alone or with his or her purchaser representative, “such 

knowledge and experience in financial and business matters that he [or she] is capable of evaluating the 

merits and risks of the prospective investment.” 

23 Offerings under Rule 506 are subject to all the terms and conditions of Rules 501 and 502. If securities 

are sold to any non-accredited investors, specified information requirements apply. See Rule 502(b) [17

CFR 230.502(b)]. 

24 Rule 502(c) of Regulation D [17 CFR 230.502(c)]. 
7

general solicitation or general advertising.

25 By interpretation, the Commission has 

confirmed that other uses of publicly available media, such as unrestricted websites, also 

constitute general solicitation and general advertising.

26 In this release, we refer to both 

general solicitation and general advertising as “general solicitation.” 

Rule 144A is a non-exclusive safe harbor exemption from the registration 

requirements of the Securities Act for resales of certain “restricted securities”27 to QIBs. 

Resales to QIBs in accordance with the conditions of Rule 144A28 are exempt from 

registration pursuant to Section 4(a)(1) (formerly Section 4(1)) of the Securities Act,29

which exempts transactions by any person “other than an issuer, underwriter, or dealer.” 

Although Rule 144A does not include an express prohibition against general solicitation, 

offers of securities under Rule 144A currently must be limited to QIBs, which has the 

same practical effect. By its terms, Rule 144A is available solely for resale transactions; 

however, since its adoption by the Commission in 1990,30 market participants have used 

 

25 Id. 

26 See Use of Electronic Media for Delivery Purposes, Release No. 33-7233 (Oct. 6, 1995) [60 FR 53458, 

53463-64 (Oct. 13, 1995)]; Use of Electronic Media, Release No. 33-7856 (Apr. 28, 2000) [65 FR 25843, 

25851-52 (May 4, 2000)]. 

27 “Restricted securities” are defined in Securities Act Rule 144(a)(3) [17 CFR 230.144(a)(3)] to include, 

in part, “[s]ecurities acquired directly or indirectly from the issuer, or from an affiliate of the issuer, in a 

transaction or chain of transactions not involving any public offering.”

28 In order for a transaction to come within existing Rule 144A, a seller must have a reasonable basis for 

believing that the offeree or purchaser is a QIB and must take reasonable steps to ensure that the purchaser

is aware that the seller may rely on Rule 144A. Further, only securities that were not, when issued, of the 

same class as securities listed on a U.S. securities exchange or quoted on a U.S. automated interdealer 

quotation system are eligible for resale under Rule 144A. Also, the seller and a prospective purchaser 

designated by the seller must have the right to obtain from the issuer, upon request, certain information on 

the issuer, unless the issuer falls within specified categories as to which this condition does not apply.

29 15 U.S.C. 77d(a)(1).

30 See Resale of Restricted Securities; Changes to Method of Determining Holding Period of Restricted 

Securities Under Rules 144 and 145, Release No. 33-6862 (Apr. 23, 1990) [55 FR 17933 (Apr. 30, 1990)].
8

Rule 144A to facilitate capital-raising by issuers.31 The term “Rule 144A offering” in 

this release refers to a primary offering of securities by an issuer to one or more financial 

intermediaries – commonly known as the “initial purchasers” – in a transaction that is 

exempt from registration pursuant to Section 4(a)(2) or Regulation S under the Securities 

Act,

32 followed by the resale of those securities by the initial purchasers to QIBs in 

reliance on Rule 144A. 

Rule 506 offerings and Rule 144A offerings are widely used by U.S. and nonU.S. issuers to raise capital. In 2012, the estimated amount of capital (including both 

equity and debt) reported as being raised in Rule 506 offerings and non-asset-backed 

securities (“non-ABS”) Rule 144A offerings by operating companies was $173 billion 

and $636 billion, respectively, and by pooled investment funds, such as venture capital 

funds, private equity funds and hedge funds, was $725 billion and $4 billion, 

respectively, compared to $1.2 trillion raised in registered offerings.33 In 2011, the 

 

31 While Rule 144A applies to resales of securities of both U.S. and non-U.S. issuers, one of the objectives 

of Rule 144A was to make primary offerings of non-U.S. issuers’ securities available to U.S. institutions in 

the U.S. market through intermediaries (rather than compelling such investors to go to overseas markets) by 

making the private offering market in the United States more attractive to non-U.S. issuers. See Resale of 

Restricted Securities; Changes to Method of Determining Holding Period of Restricted Securities Under 

Rules 144 and 145, Release No. 33-6806 (Oct. 25, 1988) [53 FR 44016 (Nov. 1, 1988)].

32 Regulation S under the Securities Act [17 CFR 230.901 through 230.905] was adopted in 1990 as a safe 

harbor from the registration requirements of the Securities Act for any offer or sale of securities made 

outside the United States. It provides that any “offer,” “offer to sell,” “sell,” “sale” or “offer to buy” that 

occurs outside the United States is not subject to the registration requirements of Section 5. Regulation S 

does not affect the scope or availability of the antifraud or other provisions of the Securities Act to offers 

and sales made in reliance on Regulation S.

33 These statistics are based on a review of Form D electronic filings with the Commission – specifically, 

the “total amount sold” as reported in the filings – and data regarding other types of offerings (e.g., public 

debt offerings and Rule 144A offerings) from Securities Data Corporation’s New Issues database 

(Thomson Financial). See Vladimir Ivanov and Scott Bauguess, Capital Raising in the U.S.: An Analysis 

of Unregistered Offerings Using the Regulation D Exemption, 2009-2012 (July 2013) (the 

“Ivanov/Bauguess Study”), available at: http://www.sec.gov/divisions/riskfin/whitepapers/deraunregistered-offerings-reg-d.pdf. For non-ABS Rule 144A offerings, since the databases we used to obtain 

the Rule 144A data do not distinguish between operating companies and funds, we classified issuers with 

SIC codes between 6200 and 6299 as funds, and the rest as operating companies.
9

estimated amount of capital (including both equity and debt) reported as being raised in 

Rule 506 offerings and non-ABS Rule 144A offerings by operating companies was $71 

billion and $438 billion, respectively, and by pooled investment funds was $778 billion 

and $4 billion, respectively, compared to $985 billion raised in registered offerings.34 

These data points underscore the importance of the Rule 506 and Rule 144A exemptions 

for issuers seeking access to the U.S. capital markets.

To implement Section 201(a) of the JOBS Act, we proposed amending Rule 506 

to add new paragraph (c), under which the prohibition against general solicitation 

contained in Rule 502(c) would not apply, provided that all purchasers of the securities 

are accredited investors and the issuer takes reasonable steps to verify that such 

purchasers are accredited investors. In addition, we proposed amending Form D, which 

is a notice required to be filed with the Commission by each issuer claiming a Regulation 

D exemption, to add a check box to indicate whether an issuer is claiming an exemption 

under Rule 506(c). We also proposed an amendment to Rule 144A to provide that 

securities sold pursuant to Rule 144A may be offered to persons other than QIBs, 

including by means of general solicitation, provided that the securities are sold only to 

persons that the seller and any person acting on behalf of the seller reasonably believe are 

QIBs. 

 

The amount of capital raised through offerings under Regulation D may be larger than what is reported in 

Form D filings because, although the filing of a Form D is a requirement of Rule 503(a) of Regulation D 

[17 CFR 230.503(a)], it is not a condition to the availability of the exemptions under Regulation D. 

Further, once a Form D is filed, the issuer is not required to file an amendment to the filing to reflect a 

change that occurs after the offering terminates or a change that occurs solely with respect to certain 

information, such as the amount sold in the offering. For example, if the amount sold does not result in an 

increase in the total offering amount of more than 10% or the offering closes within a year, the filing of an 

amendment to the initial Form D is not required. Therefore, a Form D filed for a particular offering may 

not reflect the total amount of securities sold in the offering in reliance on the exemption. 

34 See id.
10

The comment period for the proposed rule and form amendments closed on 

October 5, 2012. We received over 225 comment letters on the Proposing Release, 

including from professional and trade associations, investor organizations, law firms, 

investment companies and investment advisers, members of Congress, the Commission’s 

Investor Advisory Committee,35 state securities regulators, issuers, individuals and other 

interested parties. Most of the comment letters focused on the proposed amendments to 

Rule 506. As discussed below, commenters were sharply divided in their views on the 

proposed amendments to Rule 506, whereas commenters generally supported the 

proposed amendments to Rule 144A and Form D. 

We have reviewed and considered all of the comments that we received on the 

proposed rule and form amendments and on Section 201(a) of the JOBS Act.36 We are 

adopting new paragraph (c) to Rule 506 as proposed, with one modification, and the 

amendments to Form D and to Rule 144A as proposed. We are also adopting the 

technical and conforming rule amendments as proposed. We discuss these amendments 

in detail below. 

 

35 The SEC Investor Advisory Committee (“Investor Advisory Committee”) was established in April 2012 

pursuant to Section 911 of the Dodd-Frank Wall Street Reform and Consumer Protection Act [Pub. L. No. 

111-203, sec. 911, 124 Stat. 1376, 1822 (July 21, 2010)] (the “Dodd-Frank Act”) to advise the 

Commission on regulatory priorities, the regulation of securities products, trading strategies, fee structures, 

the effectiveness of disclosure, initiatives to protect investor interests and to promote investor confidence 

and the integrity of the securities marketplace. The Dodd-Frank Act authorizes the Investor Advisory 

Committee to submit findings and recommendations for review and consideration by the Commission.

36 To facilitate public input on JOBS Act rulemaking before the issuance of rule proposals, the

Commission invited members of the public to make their views known on various JOBS Act initiatives in 

advance of any rulemaking by submitting comment letters to the Commission’s website at 

http://www.sec.gov/spotlight/jobsactcomments.shtml. The comment letters relating to Section 201(a) of 

the JOBS Act submitted in response to this invitation are located at http://www.sec.gov/comments/jobstitle-ii/jobs-title-ii.shtml. The comment letters submitted in response to the Proposing Release are located 

at http://www.sec.gov/comments/s7-07-12/s70712.shtml. Many commenters submitted comment letters 

both before and after the issuance of the Proposing Release. Dated comment letters refer to those 

submitted before the issuance of the Proposing Release or by commenters that submitted multiple letters.
11

We acknowledge the concerns of some commenters that the elimination of the 

prohibition against general solicitation for a subset of Rule 506 offerings may affect the 

behavior of issuers and other market participants in ways they believe could compromise 

investor protection.37 Preserving the integrity of the Rule 506(c) market and minimizing

the incidence of fraud are critical objectives for the Commission in implementing Section 

201(a) of the JOBS Act. We are adopting today the bad actor disqualification for Rule 

506 offerings mandated by the Dodd-Frank Act, which may address some of those 

concerns.38 We are also issuing a proposing release to amend Regulation D and Form D 

to enhance the Commission’s ability to analyze the Rule 506 market and to amend Rule 

156 under the Securities Act to provide guidance to private funds on the application of 

the antifraud provisions of the federal securities laws to their sales literature.39 Upon the 

effectiveness of Rule 506(c), the Commission staff will monitor developments in the 

market for Rule 506(c) offerings so as to be able to undertake a review of market 

practices in Rule 506(c) offerings, including the steps taken by issuers and other market 

participants to verify that the purchasers of the offered securities are accredited investors, 

as well as the impact of the amendments to Rule 506 on capital formation. 

II. FINAL AMENDMENTS TO RULE 506 AND FORM D

A. Eliminating the Prohibition Against General Solicitation

Section 4(a)(2) of the Securities Act exempts transactions by an issuer “not 

involving any public offering.” An issuer relying on Section 4(a)(2) is restricted in its 

 

37 See, e.g., letters from Investor Advisory Committee; North American Securities Administrators 

Association, Inc. (“NASAA”); Consumer Federation of America (“Consumer Federation”).

38 Disqualification of Felons and Other “Bad Actors” from Rule 506 Offerings, Release No. 33-9414 (July 

10, 2013) (the “Bad Actor Release”).

39 See Amendments to Regulation D, Form D and Rule 156, Release No. 33-9416 (July 10, 2013).
12

ability to make public communications to attract investors for its offering because public 

advertising is incompatible with a claim of exemption under Section 4(a)(2).40 As noted 

above, Rule 506 currently conditions the availability of the safe harbor under Section 

4(a)(2) on the issuer, or any person acting on its behalf, not offering or selling securities 

through any form of general solicitation.41 Section 201(a)(1) of the JOBS Act directs the 

Commission to amend Rule 506 to provide that the prohibition against general 

solicitation contained in Rule 502(c) shall not apply to offers and sales of securities made 

pursuant to Rule 506, as so amended, provided that all purchasers of the securities are 

accredited investors and the issuer takes reasonable steps to verify their status as 

accredited investors. 

This mandate affects only Rule 506, and not Section 4(a)(2) offerings in 

general,

42 which means that even after the effective date of Rule 506(c), an issuer relying 

on Section 4(a)(2) outside of the Rule 506(c) exemption will be restricted in its ability to 

make public communications to solicit investors for its offering because public 

advertising will continue to be incompatible with a claim of exemption under Section 

 

40 See Non-Public Offering Exemption, Release No. 33-4552 (Nov. 6, 1962) [27 FR 11316 (Nov. 16, 

1962)].

41 See Rule 502(c) and Rule 506(b)(1) of Regulation D [17 CFR 230.506(b)(1)]. The failure to comply 

with Rule 502(c) is deemed to be significant to the offering as a whole, which means that an issuer cannot 

rely on the “insignificant deviation” relief in Rule 508 of Regulation D for violations of Rule 502(c). See

Rule 508(a)(2) [17 CFR 230.508(a)(2)].

42 In this regard, we also note that bills that would have amended Section 4(a)(2) directly, rather than 

requiring the Commission to amend Rule 506, to permit the use of general solicitation were introduced and 

considered by Congress, but were not enacted. See Access to Capital for Job Creators, H.R. 2940, 112th

Cong., 1st Sess. (2011) (proposing to amend Section 4(a)(2) by adding the phrase “whether or not such 

transactions involve general solicitation or general advertising”); Access to Capital for Job Creators, 

S.1831, 112th Cong., 1st Sess. (2011) (same). 
13

4(a)(2). We are amending Rule 500(c) of Regulation D accordingly to make this clear.43 

Congress’ directive in Section 201(a)(1) of the JOBS Act, and not Section 4(a)(2) of the 

Securities Act or our interpretation of Section 4(a)(2), is the reason that Rule 506, “as 

revised pursuant to [Section 201(a)(1)], shall continue to be treated as a regulation issued 

under section 4[(a)](2) of the Securities Act of 1933” (emphasis added).44 Similarly, 

securities issued in Rule 506(c) offerings are deemed to be “covered securities” for 

purposes of Section 18(b)(4)(E) of the Securities Act,45 only by virtue of Section 

201(a)(1) of the JOBS Act. 

1. Proposed Rule Amendment

To implement the mandated rule change, we proposed new Rule 506(c), which 

would permit the use of general solicitation to offer and sell securities under Rule 506, 

provided that the following conditions are satisfied: 

• all terms and conditions of Rule 50146 and Rules 502(a)47 and 502(d)48 must 

be satisfied;

 

43 As revised, Rule 500(c) reads as follows: “Attempted compliance with any rule in Regulation D does 

not act as an exclusive election; the issuer can also claim the availability of any other applicable exemption. 

For instance, an issuer’s failure to satisfy all the terms and conditions of rule 506(b) (§230.506(b)) shall not 

raise any presumption that the exemption provided by section 4(a)(2) of the Act is not available.” 

(additions italicized). 

44 Section 201(a)(1) of the JOBS Act.

45 15 U.S.C. 77r(b)(4)(E). This means that state blue sky registration requirements do not apply to 

securities offered or sold in Rule 506(c) offerings.

46 Rule 501 sets forth definitions for the terms used in Regulation D, such as “accredited investor.”

47 Rule 502(a) addresses the question of integration by providing a six-month safe harbor from integration 

for successive Regulation D offerings and a five-factor framework to apply in cases in which the six-month 

safe harbor is not available. 

48 Rule 502(d) provides that, for resale purposes, securities acquired in a Regulation D offering, except as 

provided in Rule 504(b)(1), have the status of securities acquired in a transaction under Section 4(a)(2) of 

the Securities Act. Rule 144(a)(3)(ii) [17 CFR 230.144(a)(3)(ii)] defines “restricted securities” as securities 

“acquired from the issuer that are subject to the resale limitations of §230.502(d) under Regulation D....” 
14

• all purchasers of securities must be accredited investors; and

• the issuer must take reasonable steps to verify that the purchasers of the 

securities are accredited investors. 

Offerings under proposed Rule 506(c) would not be subject to the requirement to comply 

with Rule 502(c), which contains the prohibition against general solicitation. While we 

proposed Rule 506(c) to enable issuers to use general solicitation in Rule 506 offerings, 

we also preserved, in current Rule 506(b), the existing ability of issuers to conduct Rule 

506 offerings subject to the prohibition against general solicitation. 

2. Comments on the Proposed Rule Amendment

 Commenters were sharply divided in their views on the proposed amendment to 

Rule 506. Commenters who supported the proposed amendment to Rule 506 stated that 

Rule 506(c), if adopted, would assist issuers, particularly early stage and smaller issuers, 

in raising capital by allowing them to solicit investments from a larger pool of 

investors.49 These commenters generally approved of the flexibility afforded by the 

manner in which we proposed to implement Rule 506(c)’s verification requirement,50 as 

 

Separately, Section 201(b) of the JOBS Act added Section 4(b) of the Securities Act, which provides that 

“[o]ffers and sales exempt under [Rule 506 as amended pursuant to Section 201 of the JOBS Act] shall not 

be deemed public offerings under the Federal securities laws as a result of general advertising or general 

solicitation.” Thus, securities acquired under new Rule 506(c) would also meet the definition of “restricted 

securities” under Rule 144(a)(3)(i) [17 CFR 230.144(a)(3)(i)] (“[s]ecurities acquired directly or indirectly 

from the issuer, or from an affiliate of the issuer, in a transaction or chain of transactions not involving any 

public offering”).

49 See, e.g., letters from Biotechnology Industry Organization (“BIO”); National Small Business 

Association (“NSBA”). 

50 See letters from Linklaters LLP (“Linklaters”) (stating that a “straightforward, focused rule that provides 

issuers with the flexibility to continue to adapt to market practice is the best way to realize the spirit and 

intent of the Jumpstart Our Business Startups Act”); BlackRock (stating that “[o]verall, we believe that the 

Proposed Rule is in accordance with the intent of Congress and will facilitate the formation of capital”); 

Securities Regulation Committee, Business Law Section of the New York State Bar Association (“SRC of 

NYSBA”).
15

further discussed below, and supported retaining, in its current form, the ability of issuers 

under existing Rule 506(b) to conduct Rule 506 offerings subject to the prohibition 

against general solicitation.51 A number of commenters stated that they supported the 

availability of Rule 506(c) for private funds pursuant to the Commission’s guidance in 

the Proposing Release.52

Other commenters opposed the proposed amendment to Rule 506 in its entirety or 

in part. Many of these commenters expressed concern that the proposed amendment, if 

adopted, would increase the risk of fraudulent and abusive Rule 506 offerings and 

asserted that additional investor safeguards are necessary under Rule 506(c).53 A number 

of these commenters urged the Commission to adopt rules concerning bad actor 

disqualifications for Rule 506 offerings, as required by Section 926 of the Dodd-Frank 

Act.54 Other commenters recommended that the Commission amend the definition of 

“accredited investor” by raising the income and net worth thresholds for natural persons 

 

51 See, e.g., letters from the Federal Regulation of Securities Committee, Business Law Section of the 

American Bar Association (“ABA Fed. Reg. Comm.”); Angel Capital Association (“ACA”) (Sept. 27, 

2012); The CrowdFund Intermediary Regulatory Advocates (“CFIRA”); Investment Program Association 

(“IPA”); Montgomery & Hansen, LLP (“Montgomery & Hansen”); NSBA; Committee on Securities 

Regulation of the New York City Bar Association (“NYCBA”); Sullivan & Cromwell LLP (“S&C”); 

Securities Industry and Financial Markets Association (“SIFMA”) and The Financial Services Roundtable 

(“FSR”) (Oct. 5, 2012). 

52 See, e.g., letters from BlackRock; Dukas Public Relations (“Dukas”); Forum for U.S. Securities Lawyers 

in London; Hedge Fund Association (“HFA”); Investment Adviser Association (“IAA”); Managed Funds 

Association (“MFA”) (Sept. 28, 2012); NYCBA; SRC of NYSBA. In the Proposing Release, we stated 

that private funds that engage in general solicitation under proposed Rule 506(c) would not be precluded 

from relying on the exclusions from the definition of “investment company” set forth in Section 3(c)(1) and 

Section 3(c)(7) of the Investment Company Act of 1940. 

53 See, e.g., letters from AARP; AFL-CIO and Americans for Financial Reform (“AFR”); Sen. Levin; CFA 

Institute; Council of Institutional Investors (“CII”); Consumer Federation; Fund Democracy, Inc. (“Fund 

Democracy”); Office of the Secretary of the Commonwealth of Massachusetts Securities Division 

(“Massachusetts Securities Division”); NASAA.

54 Pub. L. No. 111-203, sec. 926, 124 Stat. 1376, 1851 (July 21, 2010) (to be codified at 15 U.S.C. 77d 

note). See, e.g., letters from AFL-CIO and AFR; Consumer Federation; Fund Democracy; Commissioner 

of Securities, State of Hawaii (“Hawaii Commissioner of Securities”); Investor Advisory Committee; Rep. 

Waters; Commissioner of Securities, State of Missouri (“Missouri Commissioner of Securities”); NASAA.
16

or by implementing other measures of financial sophistication.

55 Some commenters 

stated that the Commission should condition the availability of the Rule 506(c) 

exemption on the filing of Form D or require the advance filing of Form D, or both.56 

Other commenters argued that the Commission should adopt specific standards or 

requirements that would govern the content and/or manner of general solicitations in Rule 

506(c) offerings, particularly with respect to advertising by private funds.57 A number of 

commenters urged the Commission to require that the materials used to generally solicit 

investors in Rule 506(c) offerings be filed with or furnished to either the Commission or 

to FINRA.

58

A number of commenters requested that the Commission provide transitional 

guidance with respect to ongoing offerings under existing Rule 506 that commenced 

before the effectiveness of Rule 506(c).59 For example, in some situations, the initial 

closings in these offerings may have already occurred, and could have included nonaccredited investors pursuant to offering procedures that would not have involved any 

form of general solicitation.60 Several commenters suggested that the Commission 

clarify that an issuer would be entitled to conduct the portion of the offering following 

 

55 See, e.g., letters from AARP; AFL-CIO and AFR; BetterInvesting; CFA Institute; Consumer Federation; 

Investor Advisory Committee; Investment Company Institute (“ICI”); Rep. Waters; Massachusetts 

Securities Division (July 2, 2012).

56 See, e.g., letters from AARP; AFL-CIO and AFR; Consumer Federation; Hawaii Commissioner of 

Securities; Investor Advisory Committee; Massachusetts Securities Division (July 2, 2012); Missouri 

Commissioner of Securities; Commissioner of Securities and Insurance, State of Montana (“Montana 

Commissioner of Securities”); NASAA; Ohio Division of Securities. 

57 See, e.g., letters from Sen. Levin; Consumer Federation; ICI; Independent Directors Council (“IDC”); 

Rep. Waters; Montana Commissioner of Securities; NASAA. 

58 See, e.g., letters from AFL-CIO and AFR; Investor Advisory Committee; ICI; Massachusetts Securities 

Division (July 2, 2012). 

59 See letters from ABA Fed. Reg. Comm.; Forum for U.S. Securities Lawyers in London; S&C; IPA.

60 See letter from ABA Fed. Reg. Comm.
17

the effectiveness of Rule 506(c) in accordance with the requirements of new Rule 506(c), 

without the portion of the offering occurring after the rule’s effectiveness affecting the 

portion of the offering that was completed prior to the rule’s effectiveness.61

 3. Final Rule Amendment

After considering the comments, we are adopting Rule 506(c) as proposed, with 

one modification. Under new Rule 506(c), issuers can offer securities through means of 

general solicitation, provided that they satisfy all of the conditions of the exemption.62 

These conditions are: 

• all terms and conditions of Rule 501 and Rules 502(a) and 502(d) must be 

satisfied;63

• all purchasers of securities must be accredited investors;64 and

• the issuer must take reasonable steps to verify that the purchasers of the 

securities are accredited investors.

65 

Issuers relying on Rule 506(c) for their offerings will not be subject to the prohibition 

against general solicitation found in Rule 502(c).66 In addition and as further discussed 

 

61 See letters from ABA Fed. Reg. Comm.; S&C (stating that “[w]e believe that such issuers should be 

allowed, upon effectiveness of the final rule, to use the new Rule 506(c) exemption and use general 

solicitation for the remaining portion of their offerings, provided that they satisfy the requirements of Rule 

506(c) going forward.”). 

62 We also note that broker-dealers participating in offerings in conjunction with issuers relying on Rule 

506(c) would continue to be subject to FINRA rules regarding communications with the public, which, 

among other things, (1) generally require all member communications to be based on principles of fair 

dealing and good faith, to be fair and balanced, and to provide a sound basis for evaluating the facts in 

regard to any particular security or type of security, industry or service; and (2) prohibit broker-dealers 

from making false, exaggerated, unwarranted, promissory or misleading statements or claims in any 

communications. See FINRA Rule 2210.

63 New Rule 506(c)(1). 

64 New Rule 506(c)(2)(i).

65 New Rule 506(c)(2)(ii).
18

below, in response to comments from a wide range of commenters asking for greater 

certainty with respect to satisfying the verification requirement, we are also including in 

Rule 506(c) a non-exclusive list of methods that issuers may use to verify the accredited 

investor status of natural persons. 

Issuers will continue to have the ability under Rule 506(b) to conduct Rule 506 

offerings subject to the prohibition against general solicitation. As we noted in the 

Proposing Release, offerings under existing Rule 506(b) represent an important source of 

capital for issuers of all sizes, and we believe that the continued availability of existing

Rule 506(b) will be important for those issuers that either do not wish to engage in 

general solicitation in their Rule 506 offerings (and become subject to the requirement to 

take reasonable steps to verify the accredited investor status of purchasers) or wish to sell 

privately to non-accredited investors who meet Rule 506(b)’s sophistication 

requirements. Retaining the safe harbor under existing Rule 506(b) may also be 

beneficial to investors with whom an issuer has a pre-existing substantive relationship.67 

In this regard, we do not believe that Section 201(a) requires the Commission to modify 

Rule 506 to impose any new requirements on offers and sales of securities that do not 

involve general solicitation. Therefore, the amendment to Rule 506 we are adopting 

today does not amend or modify the requirements relating to existing Rule 506(b). 

 

66 Offerings under Rule 506(c) will also not be subject to the information requirements in Rule 502(b) for 

non-accredited investors, because all purchasers in Rule 506(c) offerings are required to be accredited 

investors.

67 See Release No. 33-7856, at 25852 (noting that “one method of ensuring that general solicitation is not 

involved is to establish the existence of a ‘pre-existing, substantive relationship’” and that “there may be 

facts and circumstances in which a third party, other than a registered broker-dealer, could established a 

‘pre-existing, substantive relationship’ sufficient to avoid a ‘general solicitation’”). 
19

Finally, with respect to transition matters, for an ongoing offering under Rule 506 

that commenced before the effective date of Rule 506(c), the issuer may choose to 

continue the offering after the effective date in accordance with the requirements of either 

Rule 506(b) or Rule 506(c). If an issuer chooses to continue the offering in accordance 

with the requirements of Rule 506(c), any general solicitation that occurs after the 

effective date will not affect the exempt status of offers and sales of securities that 

occurred prior to the effective date in reliance on Rule 506(b). 

B. Reasonable Steps to Verify Accredited Investor Status

Section 201(a)(1) of the JOBS Act mandates that our amendment to Rule 506 

require issuers using general solicitation in Rule 506 offerings “to take reasonable steps 

to verify that purchasers of the securities are accredited investors, using such methods as 

determined by the Commission.” As noted in the Proposing Release, we believe that the 

purpose of the verification mandate is to address concerns, and reduce the risk, that the 

use of general solicitation in Rule 506 offerings could result in sales of securities to 

investors who are not, in fact, accredited investors.68

1. Proposed Rule Amendment

To implement the verification mandate of Section 201(a)(1), we proposed to 

condition the Rule 506(c) exemption on the requirement that issuers using general 

solicitation “take reasonable steps to verify” that the purchasers of the offered securities 

are accredited investors. As proposed, whether the steps taken are “reasonable” would be 

 

68 See, e.g., Markup of H.R. 2940, Access to Capital for Job Creators Act, Subcommittee on Capital 

Markets and Government Sponsored Enterprises, House Financial Services Committee, 112th Cong. (Oct. 

5, 2011) (remarks of Rep. Waters, explaining that she is introducing the amendment that requires issuers to 

take reasonable steps to verify accredited investor status because “we must take steps to ensure that those 

folks are indeed sophisticated”); 157 Cong. Rec. H7291 (daily ed. Nov. 3, 2011) (remarks of Rep. Maloney

(same)); 157 Cong. Rec. H7294 (daily ed. Nov. 3, 2011) (remarks of Rep. Lee (same)).
20

an objective determination by the issuer (or those acting on its behalf), in the context of 

the particular facts and circumstances of each purchaser and transaction. Under this 

principles-based approach, issuers would consider a number of factors when determining 

the reasonableness of the steps to verify that a purchaser is an accredited investor, such 

as:

• the nature of the purchaser and the type of accredited investor that the 

purchaser claims to be; 

• the amount and type of information that the issuer has about the purchaser; 

and

• the nature of the offering, such as the manner in which the purchaser was 

solicited to participate in the offering, and the terms of the offering, such as a 

minimum investment amount. 

These factors would be interconnected, and the information gained by looking at these 

factors would help an issuer assess the reasonable likelihood that a potential purchaser is 

an accredited investor, which would, in turn, affect the types of steps that would be 

reasonable to take to verify a purchaser’s accredited investor status. 

In the Proposing Release, we considered providing a list of specified methods for 

satisfying the verification requirement, which was suggested by some commenters on 

Section 201(a) prior to the issuance of the Proposing Release.69 We expressed concern 

 

69 See letters from MFA (June 26, 2012) (suggesting that the Commission publish a non-exclusive list of 

the types of third-party evidence that an investor could provide to establish accredited investor status, in 

conjunction with certifying that he or she is an accredited investor); NASAA (July 3, 2012) (recommending 

that the Commission set forth non-exclusive safe harbors to specify the types of actions that would be 

deemed “reasonable steps to verify” for three types of accredited investors: natural persons who purport to 

satisfy the income test; natural persons who purport to satisfy the net worth test; and entities who purport to 

meet one of the other tests set forth in Rule 501(a)).
21

that, in designating such a list – for example, by setting forth particular types of 

information that issuers may rely upon as conclusive means of verifying accredited 

investor status – there may be circumstances where such information will not actually 

verify accredited investor status or where issuers may unreasonably overlook or disregard 

other information indicating that a purchaser is not, in fact, an accredited investor. Also, 

we were concerned that requiring issuers to use specified methods of verification would 

be impractical, burdensome and potentially ineffective in light of the numerous ways in 

which a purchaser can qualify as an accredited investor, as well as the potentially wide 

range of verification issues that may arise, depending on the nature of the purchaser and 

the facts and circumstances of a particular Rule 506(c) offering. Even if the list of 

specified methods was not mandatory, but rather, constituted a non-exclusive list, we 

were concerned that a non-exclusive list of specified methods could be viewed by market 

participants as, in effect, required methods, in which compliance with at least one of the 

enumerated methods could be viewed as necessary in all circumstances to demonstrate 

that the verification requirement has been satisfied, thereby eliminating the flexibility that 

proposed Rule 506(c) was intended to provide. 

We requested comment in the Proposing Release on our proposed principlesbased method and its effectiveness in limiting sales of securities in Rule 506(c) offerings 

to only accredited investors. We also requested comment on possible alternative 

approaches for implementing the verification mandate of Section 201(a)(1), such as a rule 

that specifies mandatory methods for verifying accredited investor status or a nonexclusive list of verification methods that would function as a safe harbor for compliance 

with the verification requirement. 
22

2. Comments on the Proposed Rule Amendment

Commenters expressed a wide range of views on the proposed approach to the 

verification requirement in Rule 506(c). Some commenters commended the Commission 

for proposing a flexible, principles-based standard for verification.70 For example, one 

commenter stated that the Commission’s proposed approach would provide issuers with 

the flexibility to develop tailored, reliable and cost-effective procedures for verification.71 

A number of commenters stated that the discussion in the Proposing Release of the 

factors that issuers may take into account in verifying accredited investor status would 

assist issuers in assessing the reasonableness of their verification processes.72 Other 

commenters asserted that not requiring issuers to use certain specified methods to verify a 

purchaser’s accredited investor status would permit advancements in verification 

methods over time.73 Some commenters expressed support for the Commission’s 

proposal that accredited investor status may be verified through an attestation or 

certification by a third party, provided that the issuer has a reasonable basis to rely on 

such third-party verification.74

 

70 See, e.g., letters from HFA; MFA (Sept. 28, 2012); BIO; ABA Fed. Reg. Comm.; IAA; Linklaters; 

NYCBA; SRC of NYSBA; SIFMA and FSR (Oct. 5, 2012); Artivest Holdings, Inc. (“Artivest”). 

71 See letter from SIFMA and FSR (Oct. 5, 2012). 

72 See, e.g., letters from SRC of NYSBA; S&C; SIFMA and FSR (Oct. 5, 2012); IAA.

73 See letters from ACA (Sept. 27, 2012); CFIRA.

74 See, e.g., letters from IAA; SIFMA and FSR (Oct. 5, 2012); Tannenbaum Helpern Syracuse & 

Hirschtritt LLP (“Tannenbaum Helpern”). A number of commenters noted that the availability of thirdparty verification could address investors’ privacy and security concerns in providing information to an 

issuer. See, e.g., letters from L. Neumann; NSBA. One commenter urged the Commission not to limit 

third-party verification providers to certain types of entities. See letter from Tannenbaum Helpern. One 

commenter suggested the possibility of requiring investors to self-certify as to accredited investor status 

under penalty of perjury. See letter from NSBA. 
23

Other commenters opposed the Commission’s proposed approach, for various 

reasons. A number of these commenters opposed the proposed verification standard 

because, in their view, self-certification by itself should be sufficient to satisfy the 

verification requirement.75 Some commenters opposed the proposed verification 

standard because it did not prescribe specific verification methods, which they believed is 

required in order to satisfy the verification mandate in Section 201(a).

76 One commenter

stated that the Commission should deem the verification requirement to be satisfied if all 

purchasers in a Rule 506(c) offering are in fact accredited investors.

77 Another 

commenter stated that verification of accredited investor status should not be a condition 

of the Rule 506(c) exemption when the purchaser is actually an accredited investor.78

Commenters expressed differing views on whether the Commission should 

include a non-exclusive list of methods in proposed Rule 506(c) for satisfying the 

verification requirement. Many commenters, encompassing a wide range of perspectives

(e.g., state government officials, law firms, investor organizations, professional and trade 

associations, and individuals), urged the Commission to provide such a non-exclusive 

list.79 A number of these commenters cited the lack of legal certainty that the verification 

 

75 See, e.g., letters from C. Hague; G. Brooks; Golenbock Eiseman Assor Bell & Peskoe LLP; P. 

Christenson; W. Johnson.

76 See, e.g., letters from AFL-CIO and AFR; Sen. Levin; Consumer Federation; Fund Democracy; Rep.

Waters; Massachusetts Securities Division; The Options Clearing Corporation (“OCC”); Ohio Division of 

Securities.

77 See letter from IPA. 

78 See letter from S. Keller.

79 See, e.g., letters from ACA (Sept. 27, 2012 and Dec. 11, 2012); BIO; CFIRA; HFA; Hawaii 

Commissioner of Securities; IAA; Investor Advisory Committee (stating that the “facts and circumstances” 

based approach proposed by the Commission does not do enough either to ensure only accredited investors 

purchase in the offering or to provide issuers with the certainty they need to develop appropriate 

procedures); J. McLaughlin; MFA (Sept. 28, 2012); Montana Commissioner of Securities; NASAA; Tufts 
24

requirement has been satisfied in any given situation as the reason why, in their view, the 

Commission should include a non-exclusive list of verification methods in Rule 506(c).80 

In contrast, other commenters stated that the Commission should not include a nonexclusive list of verification methods in Rule 506(c), arguing that such a list could be 

viewed by market participants as the required verification methods, which would thereby 

undermine the flexibility of the Commission’s proposed approach.81

If there were to be a non-exclusive list of verification methods, commenters 

expressed a range of views on what should be included in such a list, such as verification 

by certain third parties or through tax returns and third-party documentary proof such as 

Forms W-2, Forms 1099, bank statements, brokerage account statements, tax assessment 

valuations and appraisal reports.82 With respect to the types of third parties that could 

provide verification services, commenters named registered brokers-dealers,83 banks and 

other financial institutions,84 registered investment advisers,85 certified financial 

planners,86 attorneys,87 and accountants.88 Other commenters suggested including in a 

 

Stephenson & Kasper, LLP; Nevada Securities Division; OCC; Ohio Division of Securities; Pepper 

Hamilton LLP (“Pepper Hamilton”); Plexus Consulting Group, LLC (“Plexus Consulting Group”); Small 

Business Investor Association (“SBIA”); South Carolina Securities Commissioner; Virginia Division of 

Securities. 

80 See, e.g., letters from ACA (Sept. 27, 2012 and Dec. 11, 2012); HFA; Investor Advisory Committee; 

OCC.

81 See, e.g., letters from ABA Fed. Reg. Comm.; Artivest; BlackRock; S&C; SIFMA and FSR (Oct. 5, 

2012). 

82 See, e.g., letters from B. Methven; L. Neumann; NASAA.

83 See, e.g., letters from Massachusetts Securities Division (July 2, 2012); J. McLaughlin; NASAA; OCC; 

Pepper Hamilton; Plexus Consulting Group; SBIA.

84 See letter from Massachusetts Securities Division (July 2, 2012).

85 See, e.g., letters from Plexus Consulting Group; SBIA.

86 See, e.g., letters from Plexus Consulting Group; NSBA (stating that “if there must be some kind of 

enhanced verification, we recommend that a certification by the investor’s attorney, CPA, certified 

financial advisor or other licensed professional should be sufficient”).
25

non-exclusive list of verification methods self-certification, plus a minimum investment 

amount such as $25,000,89 $100,000,90 $250,000,91 $500,00092 or $1,000,000.93 

In contrast, one commenter argued that the ability to satisfy a minimum 

investment amount would not necessarily mean a person is an accredited investor, but 

rather, that the investor could be “over-concentrated in the investment.”94 Another 

commenter stated that the verification requirement should not be deemed satisfied simply 

because an issuer possesses general information about the average compensation in the 

investor’s profession or workplace.95

Several commenters stated that there should be a “grandfather” provision from the 

verification mandate for an issuer’s existing investors who purchased securities in a Rule 

506(b) offering prior to the effective date of Rule 506(c),96 and one commenter proposed 

to limit the scope of any grandfather provision to only existing accredited investors.97 

 

87 Id. 

88 Id.

89 See letter from Montgomery & Hansen.

90 See letters from B. Methven; SBIA (provided the issuer is a small business investment company 

(“SBIC”) or a fund that has been authorized to apply to be an SBIC by the U.S. Small Business 

Administration). 

91 See letter from J. Joseph (stating that “[s]ome may feel that that number is $25,000, perhaps $100,000 

but certainly at $250,000 there should be no question that the investor is properly qualified and 

accredited”).

92 See letter from MFA (Sept. 28, 2012) (stating that “[i]n considering the appropriate minimum 

investment level, we have previously recommended a minimum investment level of 50% of the accredited 

investor net worth or total asset thresholds, currently $500,000 for an individual, and $2,500,000 for an 

entity”).

93 See letter from Pepper Hamilton.

94 Letter from Massachusetts Securities Division (July 2, 2012). 

95 See letter from NASAA.

96 See letters from MFA (Sept. 28, 2012); IAA; Tannenbaum Helpern.

97 See letter from Pepper Hamilton.
26

Two of these commenters reasoned that, as issuers are prohibited from engaging in 

general solicitation activities in Rule 506(b) offerings, their existing investors did not 

purchase securities in offerings that used general solicitation, and any future investments 

by these investors would be based on their pre-existing relationship with the issuers, and 

not as a result of general solicitation.98 Therefore, a grandfather provision would be 

appropriate because the purpose of the verification mandate in Section 201(a) of the 

JOBS Act is to require the verification of the accredited investor status of only 

prospective purchasers who come to the issuer “as a result of” the issuer’s general 

solicitation activities.99 One commenter stated that, for existing investors, a 

“reaffirmation representation” of accredited investor status received shortly before or 

simultaneously with any subsequent investment should be sufficient for Rule 506(c) 

purposes.100

3. Final Rule Amendment

After considering the comments and as directed by Section 201(a) of the JOBS 

Act, we are adopting as a condition of new Rule 506(c) the requirement that issuers take 

“reasonable steps to verify” that purchasers of the offered securities are accredited 

investors. This requirement is separate from and independent of the requirement that 

sales be limited to accredited investors, and must be satisfied even if all purchasers 

happen to be accredited investors.101 We are also including in Rule 506(c) a non-

 

98 See letters from MFA (Sept. 28, 2012); Tannenbaum Helpern.

99 See letter from Tannenbaum Helpern.

100 See letter from Pepper Hamilton.

101 This will avoid diminishing the incentive for issuers to undertake the reasonable verification steps 

envisioned by the statute.
27

exclusive list of methods that issuers may use to satisfy the verification requirement. As 

discussed above, a number of commenters urged the Commission to provide greater 

certainty for issuers that the verification requirement has been satisfied by providing a 

non-exclusive list of methods for verifying the accredited investor status of purchasers in 

Rule 506(c) offerings. Upon further consideration, we have concluded that a general 

requirement that issuers take “reasonable steps to verify” that the purchasers are

accredited investors, combined with a non-exclusive list of verification methods that are 

deemed to meet this requirement, would maintain the flexibility of the verification 

standard while providing additional clarity and certainty that this requirement has been 

satisfied if one of the specified methods is used. We have specified methods for 

verifying the accredited investor status of natural persons because we believe that the 

potential for uncertainty and the risk of participation by non-accredited investors is 

highest in offerings involving natural persons as purchasers. 

a. Principles-Based Method of Verification 

Under Rule 506(c), issuers are required to take reasonable steps to verify the 

accredited investor status of purchasers. Consistent with the Proposing Release, whether 

the steps taken are “reasonable” will be an objective determination by the issuer (or those 

acting on its behalf), in the context of the particular facts and circumstances of each 

purchaser and transaction. Among the factors that issuers should consider under this 

facts and circumstances analysis are: 

• the nature of the purchaser and the type of accredited investor that the 

purchaser claims to be; 

• the amount and type of information that the issuer has about the purchaser; 

and
28

• the nature of the offering, such as the manner in which the purchaser was 

solicited to participate in the offering, and the terms of the offering, such as a 

minimum investment amount. 

As noted in the Proposing Release, these factors are interconnected and are 

intended to help guide an issuer in assessing the reasonable likelihood that a purchaser is 

an accredited investor – which would, in turn, affect the types of steps that would be 

reasonable to take to verify a purchaser’s accredited investor status. After consideration 

of the facts and circumstances of the purchaser and of the transaction, the more likely it 

appears that a purchaser qualifies as an accredited investor, the fewer steps the issuer 

would have to take to verify accredited investor status, and vice versa. For example, if 

the terms of the offering require a high minimum investment amount and a purchaser is 

able to meet those terms, then the likelihood of that purchaser satisfying the definition of 

accredited investor may be sufficiently high such that, absent any facts that indicate that 

the purchaser is not an accredited investor, it may be reasonable for the issuer to take 

fewer steps to verify or, in certain cases, no additional steps to verify accredited investor 

status other than to confirm that the purchaser’s cash investment is not being financed by 

a third party. 

Regardless of the particular steps taken, because the issuer has the burden of 

demonstrating that its offering is entitled to an exemption from the registration 

requirements of Section 5 of the Securities Act,102 it will be important for issuers and 

 

102 SEC v. Ralston Purina, 346 U.S. 119, 126 (1953) (“Keeping in mind the broadly remedial purposes of 

federal securities legislation, imposition of the burden of proof on an issuer who would plead the exemption 

seems to us fair and reasonable.”).
29

their verification service providers to retain adequate records regarding the steps taken to 

verify that a purchaser was an accredited investor. 

Nature of the Purchaser. In determining the reasonableness of the steps to verify 

accredited investor status, an issuer should consider the nature of the purchaser of the 

offered securities. The definition of “accredited investor” in Rule 501(a) includes natural 

persons and entities that come within any of eight enumerated categories in the rule, or 

that the issuer reasonably believes come within one of those categories, at the time of the 

sale of securities to that natural person or entity. Some purchasers may be accredited 

investors based on their status, such as: 

• a broker or dealer registered pursuant to Section 15 of the Securities Exchange 

Act of 1934 (the “Exchange Act”);103 or 

• an investment company registered under the Investment Company Act of 

1940 (the “Investment Company Act”) or a business development company as 

defined in Section 2(a)(48) of that Act.104

Some purchasers may be accredited investors based on a combination of their status and 

the amount of their total assets, such as: 

• a plan established and maintained by a state, its political subdivisions, or any 

agency or instrumentality of a state or its political subdivisions, for the benefit 

of its employees, if such plan has total assets in excess of $5 million;105 or 

 

103 See 17 CFR 230.501(a)(1).

104 See id. 

105 See id. 
30

• an Internal Revenue Code (“IRC”) Section 501(c)(3) organization, 

corporation, Massachusetts or similar business trust, or partnership, not 

formed for the specific purpose of acquiring the securities offered, with total 

assets in excess of $5 million.106

Natural persons may be accredited investors based on either their net worth or their 

annual income, as follows: 

• a natural person whose individual net worth, or joint net worth with that 

person’s spouse, exceeds $1 million, excluding the value of the person’s 

primary residence;

107 or 

• a natural person who had an individual income in excess of $200,000 in each 

of the two most recent years, or joint income with that person’s spouse in 

excess of $300,000 in each of those years, and has a reasonable expectation of 

reaching the same income level in the current year.108

As Rule 501(a) sets forth different categories of accredited investors, an issuer 

should recognize that the steps that will be reasonable to verify whether a purchaser is an 

accredited investor will vary depending on the type of accredited investor that the 

purchaser claims to be. For example, the steps that may be reasonable to verify that an 

entity is an accredited investor by virtue of being a registered broker-dealer – such as by 

going to FINRA’s BrokerCheck website109 – will necessarily differ from the steps that

may be reasonable to verify whether a natural person is an accredited investor. 

 

106 See 17 CFR 230.501(a)(3).

107 See 17 CFR 230.501(a)(5).

108 See 17 CFR 230.501(a)(6).

109 This website is available at: http://www.finra.org/Investors/ToolsCalculators/BrokerCheck/. 
31

As we stated in the Proposing Release, the verification of natural persons as 

accredited investors may pose greater practical difficulties as compared to other 

categories of accredited investors, particularly for natural persons claiming to be 

accredited investors based on the net worth test. These practical difficulties likely will be 

exacerbated by privacy concerns about the disclosure of personal financial information. 

As between the net worth test and the income test for natural persons, we recognize that 

commenters have suggested that it might be more difficult for an issuer to obtain 

information about the assets and liabilities that determine a person’s net worth – 

particularly the liabilities – than it would be to obtain information about a person’s annual 

income,110 although there could be privacy concerns with respect to either test. The 

question of what type of information would be sufficient to constitute reasonable steps to 

verify accredited investor status under the particular facts and circumstances will also 

depend on other factors, as described below. 

Information about the Purchaser. The amount and type of information that an 

issuer has about a purchaser can also be a significant factor in determining what 

additional steps would be reasonable to take to verify the purchaser’s accredited investor 

status. The more information an issuer has indicating that a prospective purchaser is an 

accredited investor, the fewer steps it may have to take, and vice versa.111 Examples of 

the types of information that issuers could review or rely upon – any of which might, 

 

110 See letters from NASAA (stating that “[v]erification of net worth is more challenging because an 

individual could provide proof of assets but not liabilities.”); P. Sigelman (Sept. 28, 2012). 

111 If an issuer has actual knowledge that the purchaser is an accredited investor, then the issuer will not 

have to take any steps at all. 
32

depending on the circumstances, in and of themselves constitute reasonable steps to 

verify a purchaser’s accredited investor status – include, without limitation:

• publicly available information in filings with a federal, state or local 

regulatory body – for example, without limitation:

o the purchaser is a named executive officer of an Exchange Act registrant, 

and the registrant’s proxy statement discloses the purchaser’s 

compensation; or

o the purchaser claims to be an IRC Section 501(c)(3) organization with $5 

million in assets, and the organization’s Form 990 series return filed with 

the Internal Revenue Service discloses the organization’s total assets;112

• third-party information that provides reasonably reliable evidence that a 

person falls within one of the enumerated categories in the accredited investor 

definition – for example, without limitation:

o the purchaser is a natural person and provides copies of pay stubs for the 

two most recent years and the current year; or

o specific information about the average compensation earned at the 

purchaser’s workplace by persons at the level of the purchaser’s seniority 

is publicly available; or 

 

112 Such an organization is required to make the Form 990 series returns available for public inspection. 

See Internal Revenue Service, Public Disclosure and Availability of Exempt Organizations Returns and 

Applications: Documents Subject to Public Disclosure, available at: http://www.irs.gov/Charities-&-NonProfits/Public-Disclosure-and-Availability-of-Exempt-Organizations-Returns-and-Applications:-

Documents-Subject-to-Public-Disclosure (last reviewed or updated April 28, 2013).
33

• verification of a person’s status as an accredited investor by a third party, 

provided that the issuer has a reasonable basis to rely on such third-party 

verification.

113

Nature and Terms of the Offering. The nature of the offering – such as the means 

through which the issuer publicly solicits purchasers – may be relevant in determining the 

reasonableness of the steps taken to verify accredited investor status. An issuer that 

solicits new investors through a website accessible to the general public, through a widely 

disseminated email or social media solicitation, or through print media, such as a 

newspaper, will likely be obligated to take greater measures to verify accredited investor 

status than an issuer that solicits new investors from a database of pre-screened 

accredited investors created and maintained by a reasonably reliable third party. We 

believe that an issuer will be entitled to rely on a third party that has verified a person’s 

status as an accredited investor, provided that the issuer has a reasonable basis to rely on 

such third-party verification. We do not believe that an issuer will have taken reasonable 

steps to verify accredited investor status if it, or those acting on its behalf, required only 

 

113 For example, in the future, services may develop that verify a person’s accredited investor status for 

purposes of new Rule 506(c) and permit issuers to check the accredited investor status of possible 

investors, particularly for web-based Rule 506 offering portals that include offerings for multiple issuers. 

This third-party service, as opposed to the issuer itself, could obtain appropriate documentation or 

otherwise take reasonable steps to verify accredited investor status. Several commenters, in fact, have 

recommended that the Commission take action to facilitate the ability of issuers to rely on third parties to 

perform the necessary verification. See letters from NASAA (July 3, 2012) (recommending that the 

Commission allow an issuer to obtain the necessary verification through registered broker-dealers, provided 

that there are independent liability provisions for failure to adequately perform the verification); 

Massachusetts Securities Division (July 2, 2012) (urging the Commission to adopt as a safe harbor or best 

practice the use of an independent party, such as a broker-dealer, bank, or other financial institution, that 

would verify the accredited investor status of purchasers). One commenter, however, expressed concerns 

that some of the websites that currently offer lists of accredited investors could be used to facilitate fraud, 

noting that some offer lists based on “ethnicity, gender, and lifestyle – presumably to make [it] easier for 

scammers to relate to marks – and ominously, ‘seniors.’” Letter from I. Moscovitz and J. Maxfield (June 

27, 2012). 
34

that a person check a box in a questionnaire or sign a form, absent other information 

about the purchaser indicating accredited investor status. 

The terms of the offering will also affect whether the verification methods used 

by the issuer are reasonable. We continue to believe that there is merit to the view that a 

purchaser’s ability to meet a high minimum investment amount could be a relevant factor 

to the issuer’s evaluation of the types of steps that would be reasonable to take in order to 

verify that purchaser’s status as an accredited investor. By way of example, the ability of 

a purchaser to satisfy a minimum investment amount requirement that is sufficiently high 

such that only accredited investors could reasonably be expected to meet it, with a direct 

cash investment that is not financed by the issuer or by any third party, could be taken 

into consideration in verifying accredited investor status. 

Commenters suggested a number of alternative approaches to implementing the 

verification mandate. Some commenters urged us to adopt a requirement that prescribes 

specific methods of verification that issuers must use, either because they believed such 

methods are needed for issuers seeking clarity on how to comply with this condition of 

Rule 506(c)114 or because they believed that such methods are needed to maintain 

investor protection.115 We have decided not to take such an approach. As we stated in 

the Proposing Release, we believe that, at present, requiring issuers to use specified 

methods of verification will be impractical and potentially ineffective in light of the 

numerous ways in which a purchaser can qualify as an accredited investor, as well as the 

potentially wide range of verification issues that may arise, depending on the nature of 

 

114 See, e.g., letter from Handler Thayer, LLP. 

115 See, e.g., letters from AARP; CII.
35

the purchaser and the facts and circumstances of a particular Rule 506(c) offering. We 

are also concerned that a prescriptive rule that specifies required verification methods 

could be overly burdensome in some cases, by requiring issuers to follow the same steps, 

regardless of their particular circumstances, and ineffective in others, by requiring steps 

that, in the particular circumstances, would not actually verify accredited investor status. 

We believe that the approach we are adopting appropriately addresses the 

concerns underlying the verification mandate by obligating issuers to take reasonable 

steps to verify that the purchasers are accredited investors, but not requiring them to 

follow uniform verification methods that may be ill-suited or unnecessary to a particular 

offering or purchaser in light of the facts and circumstances. We also expect that such an 

approach will give issuers and market participants the flexibility to adopt different 

approaches to verification depending on the circumstances, to adapt to changing market 

practices, and to implement innovative approaches to meeting the verification 

requirement, such as the development of reliable third-party databases of accredited 

investors and verification services. In addition, we anticipate that many practices 

currently used by issuers in connection with existing Rule 506 offerings will satisfy the 

verification requirement for offerings pursuant to Rule 506(c). 

b. Non-Exclusive Methods of Verifying Accredited 

Investor Status

In addition to adopting a principles-based method of verification, we are including 

in Rule 506(c) four specific non-exclusive methods of verifying accredited investor status 

for natural persons that, if used, are deemed to satisfy the verification requirement in Rule 

506(c); provided, however, that none of these methods will be deemed to satisfy the 

verification requirement if the issuer or its agent has knowledge that the purchaser is not 
36

an accredited investor.116 While the principles-based method of verification is intended 

to provide an issuer with the flexibility to address the particular facts and circumstances 

surrounding its offering, we appreciate the view of some commenters that the final rule 

should include a non-exclusive list of specific verification methods for natural persons 

that may be relied upon by those issuers seeking greater certainty that they satisfy the 

rule’s verification requirement.117 Accordingly, we are adding a non-exclusive list of 

specific verification methods to supplement our principles-based framework for verifying 

accredited investor status.118 Issuers are not required to use any of the methods discussed 

below, and can apply the reasonableness standard directly to the specific facts and 

circumstances presented by the offering and the investors.119 

First, in verifying whether a natural person is an accredited investor on the basis 

of income, an issuer is deemed to satisfy the verification requirement in Rule 506(c) by 

reviewing copies of any Internal Revenue Service (“IRS”) form that reports income, 

including, but not limited to, a Form W-2 (“Wage and Tax Statement”), Form 1099 

(report of various types of income), Schedule K-1 of Form 1065 (“Partner’s Share of 

Income, Deductions, Credits, etc.”), and a copy of a filed Form 1040 (“U.S. Individual 

 

116 Because an issuer must have a reasonable belief that the purchaser is an accredited investor, the issuer 

could not form such reasonable belief if it has knowledge that the purchaser is not an accredited investor. 

See Section II.C of this release for a discussion of the reasonable belief standard in the definition of 

accredited investor in Rule 501(a).

117 See, e.g., letters from ACA (Sept. 27, 2012 and Dec. 11, 2012); Investor Advisory Committee; MFA 

(Sept. 28, 2012).

118 Information and documentation collected for these verification purposes may be subject to federal 

and/or state privacy and data security requirements. See, e.g., Regulation S-P [17 CFR 248.1 - 248.30] 

(implementing notice requirements and restrictions on a financial institution’s ability to disclose nonpublic 

personal information about customers); Privacy of Consumer Financial Information (Regulation S-P), 

Release No. 34-42974 (June 22, 2000) [65 FR 40334 (June 29, 2000)].

119 We expect that many issuers will conduct Rule 506(c) offerings in reliance on the principles-based 

method of verification, in light of its flexibility and efficiency. 
37

Income Tax Return”),120 for the two most recent years, along with obtaining a written 

representation from such person that he or she has a reasonable expectation of reaching 

the income level necessary to qualify as an accredited investor during the current year. In 

the case of a person who qualifies as an accredited investor based on joint income with 

that person’s spouse, an issuer would be deemed to satisfy the verification requirement in 

Rule 506(c) by reviewing copies of these forms for the two most recent years in regard 

to, and obtaining written representations from, both the person and the spouse. 

 Second, in verifying whether a natural person is an accredited investor on the 

basis of net worth, an issuer is deemed to satisfy the verification requirement in Rule 

506(c) by reviewing one or more of the following types of documentation, dated within 

the prior three months,121 and by obtaining a written representation from such person that 

all liabilities necessary to make a determination of net worth have been disclosed. In the 

case of a person who qualifies as an accredited investor based on joint net worth with that 

person’s spouse, an issuer would be deemed to satisfy the verification requirement in 

Rule 506(c) by reviewing such documentation in regard to, and obtaining representations 

from, both the person and the spouse. For assets: bank statements, brokerage statements 

and other statements of securities holdings, certificates of deposit, tax assessments and 

appraisal reports issued by independent third parties are deemed to be satisfactory; and 

 

120 A person could provide a redacted version of an Internal Revenue Service form so as to disclose only 

information about annual income and to avoid disclosure of personally identifiable information, such as a 

Social Security number, or other information that would not be relevant to the determination of a person’s 

annual income. 

121 A person could provide redacted versions of these documents so as to disclose only information about 

the amounts of assets and liabilities and to avoid disclosure of personally identifiable information, such as a 

Social Security number, or other information that would not be relevant to the determination of a person’s 

net worth. 
38

for liabilities: a consumer report (also known as a credit report) from at least one of the 

nationwide consumer reporting agencies is required.122 Commenters did not provide 

examples of any other type of documentation that would, in our view, adequately 

evidence liabilities.123 We recognize that it will be difficult for an issuer to determine 

whether it has a complete picture of a natural person’s liabilities, and therefore, for 

purposes of this method, consistent with the suggestions of some commenters, we are 

requiring a consumer report and a written representation from such person that all 

liabilities necessary to make a determination of net worth have been disclosed. 

Third, an issuer is deemed to satisfy the verification requirement in Rule 506(c) 

by obtaining a written confirmation from a registered broker-dealer, an SEC-registered 

investment adviser, a licensed attorney, or a certified public accountant that such person 

or entity has taken reasonable steps to verify that the purchaser is an accredited investor

within the prior three months and has determined that such purchaser is an accredited 

investor.124 While third-party confirmation by one of these parties will be deemed to 

satisfy the verification requirement in Rule 506(c), depending on the circumstances, an 

issuer may be entitled to rely on the verification of accredited investor status by a person 

or entity other than one of these parties, provided that any such third party takes 

 

122 We note that the Fair Credit Reporting Act (“FCRA”) [15 U.S.C. 1681 et seq.] requires each of the 

nationwide consumer reporting agencies to provide a person with a free copy of his or her consumer report, 

upon request, once every 12 months. In addition, the FCRA permits third parties to access individual 

consumer reports with the written permission of the individual.

123 One commenter suggested that the Commission “require the issuer to obtain a list of liabilities from the 

investor, which would include a sworn statement that all material liabilities are disclosed.” Letter from 

NASAA. Another commenter noted that liabilities can be cross checked against UCC 1 filings, bankruptcy 

information on Public Access to Court Electronic Records (PACER), and credit reports. See letter from P. 

Sigelman (Sept. 28, 2012). 

124 For purposes of this method, a licensed attorney must be in good standing under the laws of the 

jurisdictions in which the attorney is admitted to practice law, and a certified public accountant must be in 

good standing under the laws of the place of the accountant’s residence or principal office.
39

reasonable steps to verify that purchasers are accredited investors and has determined that 

such purchasers are accredited investors, and the issuer has a reasonable basis to rely on 

such verification. 

Fourth, with respect to any natural person who invested in an issuer’s Rule 506(b) 

offering as an accredited investor prior to the effective date of Rule 506(c) and remains 

an investor of the issuer, for any Rule 506(c) offering conducted by the same issuer, the 

issuer is deemed to satisfy the verification requirement in Rule 506(c) with respect to any 

such person by obtaining a certification by such person at the time of sale that he or she 

qualifies as an accredited investor. 

We are including the first three methods in our non-exclusive list of methods that 

are deemed to satisfy the verification requirement in Rule 506(c) because we believe that 

there will likely be few instances in which they would not constitute reasonable steps to 

verify accredited investor status. With respect to the verification method for the income 

test, there are numerous penalties for falsely reporting information in an Internal Revenue 

Service form, and these forms are filed with the Internal Revenue Service for purposes 

independent of investing in a Rule 506(c) offering. Similarly, we believe that the various 

forms of documentation set forth in the verification method for the net worth test 

ordinarily are generated for reasons other than to invest in a Rule 506(c) offering (with 

the possible exception of appraisal reports) and, in combination with a consumer report 

and a written representation from the investor regarding his or her liabilities, constitute 

sufficiently reliable evidence that such person’s net worth exceeds $1 million, excluding 

the value of the person’s primary residence. With respect to the third-party verification 

method, we have included written confirmations from certain third parties in our non-
40

exclusive list of verification methods because these third parties are subject to various 

regulatory and/or licensing requirements. Registered broker-dealers125 and SECregistered investment advisers126 are regulated by the Commission; and in the United 

States, attorneys and certified public accountants are licensed at the state level and are 

subject to rules of professional conduct127 as well as, to the extent they appear or practice 

before the Commission in any way, to the Commission’s Rules of Practice.128 

 

125 Registered broker-dealers are subject to a comprehensive system of oversight by the Commission as 

well as FINRA. In particular, registered broker-dealers, among other things, must maintain and preserve 

specified books and records, develop effective supervisory policies and controls, and comply with FINRA 

rules regarding registration and qualification requirements for their associated persons as well as general

and specific conduct rules. In addition, registered broker-dealers are subject to examinations by both 

FINRA and Commission staff. 

126 An investment adviser must register with the Commission unless it is prohibited from registering under 

Section 203A of the Investment Advisers Act of 1940 [15 USC 80b-3a] (the “Advisers Act”) or is exempt 

from registration under Advisers Act Section 203 [15 USC 80b-3]. Investment advisers that are prohibited 

from registering with the Commission instead may be subject to regulation by the states, but the antifraud 

provisions of the Advisers Act continue to apply to them. See Advisers Act Sections 203A(b) and 206 [15 

USC 80b-3(a), 15 USC 80b-6]. SEC-registered investment advisers are subject to examinations by 

Commission staff. 

127 Attorneys are subject to state standards for professional competence and ethical conduct, such as those 

based on the American Bar Association (“ABA”) Model Rules of Professional Conduct, which have been 

adopted by most states in the United States. For example, Rule 4.1 of the ABA Model Rules of 

Professional Conduct prohibits an attorney from knowingly making a false statement of material fact or law 

to a third person or failing to disclose a material fact to a third person when disclosure is necessary to avoid 

assisting a criminal or fraudulent act by a client. Accountants are also subject to state standards for 

professional competence and ethical conduct, such as those based on the AICPA Code of Professional 

Conduct. See AICPA Code of Professional Conduct ET 201.01, 202.01; see also, e.g., The Uniform 

Accountancy Act (5th ed. 2007), available at: 

http://www.aicpa.org/Advocacy/State/StateContactInfo/uaa/DownloadableDocuments/UAA_Fifth_Edition

_January_2008.pdf. 

The Commission recognizes that there may be particular considerations a certified public accountant would 

need to take into account to comply with applicable professional standards for attestation engagements to 

provide a report that constitutes a confirmation in the context of this rule.

128 See Rule 102(e) of the Rules of Practice [17 CFR 201.102(e)] (The Commission may censure a person 

or deny, temporarily or permanently, the privilege of appearing and practicing before it in any way to any 

person who is found by the Commission after notice and opportunity for hearing in the matter: (i) Not to 

possess the requisite qualifications to represent others; or (ii) To be lacking in character or integrity or to 

have engaged in unethical or improper professional conduct; or (iii) To have willfully violated, or willfully 

aided and abetted the violation of any provision of the Federal securities laws or the rules and regulations 

thereunder.).
41

We are including the fourth method in our non-exclusive list of methods that are 

deemed to satisfy the verification requirement in Rule 506(c) because we acknowledge 

that existing accredited investors who purchased securities in an issuer’s Rule 506(b) 

offering prior to the effective date of Rule 506(c) would presumably participate in any 

subsequent offering by the same issuer conducted pursuant to Rule 506(c) based on their 

pre-existing relationships with the issuer. Accordingly, for these existing investors who 

were accredited investors in a Rule 506(b) offering prior to the effective date of Rule 

506(c), a self-certification at the time of sale that he or she is an accredited investor will 

be deemed to satisfy the verification requirement in Rule 506(c). This provision does not 

extend to existing investors in an issuer who were not accredited investors in a Rule 

506(b) offering that was conducted prior to the effective date of Rule 506(c). 

While we have not adopted the recommendations of commenters who believe that 

even more prescriptive verification requirements are needed, we do recognize the general 

concern regarding possible misuse of the new Rule 506(c) exemption to sell securities to 

those who are not qualified to participate in the offering. We will closely monitor and 

study the development of verification practices by issuers, securities intermediaries and 

others by undertaking a review of whether such practices are, in fact, resulting in the 

exclusion of non-accredited investors from participation in these offerings, and the 

impact of compliance with this verification requirement on investor protection and capital 

formation. 

C. Reasonable Belief that All Purchasers Are Accredited Investors

In the Proposing Release, we noted that a number of commenters had raised 

concerns that the language of Section 201(a) of the JOBS Act could be interpreted as 

precluding the use of the “reasonable belief” standard in the definition of “accredited 
42

investor” in Rule 501(a) in determining whether a purchaser is an accredited investor, 

such that an issuer’s determination as to whether a purchaser is an accredited investor is 

subject to an absolute, rather than a “reasonable belief,” standard.129 In their view, 

issuers may be more reluctant to use general solicitation in Rule 506 offerings if their 

determinations as to whether a purchaser is an accredited investor are subject to an 

absolute standard. Other commenters had interpreted the difference in the statutory 

language used in Section 201(a)(1) and Section 201(a)(2)130 as indicating Congress’ 

intent that the Commission “raise the ‘reasonable belief’ standard for Rule 506 

offerings....”131 

Commenters on the Proposing Release were divided on the Commission’s 

interpretation that the reasonable belief standard in Rule 501(a) applies to offerings under 

Rule 506(c). Several commenters supported this interpretation;132 and other commenters 

opposed this interpretation.133

 

129 See, e.g., letters from ABA Fed. Reg. Comm. (Apr. 30, 2012); BlackRock (May 3, 2012); NYCBA 

(May 4, 2012); W. Sjostrom, Jr. (Apr. 14, 2012).

130 Section 201(a)(2) of the JOBS Act, which calls for amendments to Rule 144A, specifically refers to a 

“reasonable belief” standard as to whether a purchaser is a QIB, whereas Section 201(a)(1) does not 

mention a similar “reasonable belief” standard with respect to the amendments to Rule 506.

131 Letter from Fund Democracy (May 24, 2012). See also letter from Massachusetts Securities Division 

(July 2, 2012).

132 See letters from ABA Fed. Reg. Comm. (stating that it “strongly support[s] the continued inclusion of 

the reasonable belief standard in the accredited investor definition, whether the offering is conducted under 

Rule 506(b) without general solicitation, or under Rule 506(c) with general solicitation”); IAA; MFA (Sept. 

28, 2012) (stating that “[e]liminating the ‘reasonable belief’ standard in the definition of accredited investor 

would preclude issuers from relying on Rule 506(c)” and that, if this were the case, “[i]ssuers would not 

engage in general solicitation and Section 201 would fail in its intended purposes to modernize the 

securities laws”); NSBA; NYCBA; P. Rutledge. 

133 See letters from AFL-CIO and AFR (stating that “the legislative record reflects unmistakable 

congressional intent that securities sold through general solicitation and advertising under Rule 506 be sold 

only to accredited investors, not individuals issuers reasonably believe to be accredited investors”); Sen. 

Levin (stating that the “Proposed Rule also creates, with no statutory basis, an alternative to the ‘reasonable 

steps’ requirement in the statute by stating that issuers may engage in a general solicitation or advertising 

so long as they ‘reasonably believe’ that the investors to be addressed will be accredited”); Consumer 
43

We are reaffirming the view that we expressed on this issue in the Proposing 

Release. In our view, the difference in the language between Section 201(a)(1) and 

Section 201(a)(2) reflects only the differing manner in which the reasonable belief 

standard was included in the respective rules at the time they were adopted, and does not 

represent a Congressional intent to eliminate the existing reasonable belief standard in 

Rule 501(a) or for Rule 506 offerings.134 We note that the definition of accredited 

investor remains unchanged with the enactment of the JOBS Act and includes persons 

that come within any of the listed categories of accredited investors, as well as persons 

that the issuer reasonably believes come within any such category. 

Further, as discussed in the Proposing Release, we continue to recognize that a 

person could provide false information or documentation to an issuer in order to purchase 

securities in an offering made under new Rule 506(c). Thus, even if an issuer has taken

reasonable steps to verify that a purchaser is an accredited investor, it is possible that a 

person nevertheless could circumvent those measures.135 If a person who does not meet 

 

Federation (stating that a reasonable belief standard “is in direct conflict with the statutory mandate that all 

investors in offerings sold through general solicitation and advertising be accredited investors and that the 

Commission specify methods issuers must follow to ensure that this is the case”); Fund Democracy 

(arguing that “Congress intentionally chose not to make such [a reasonable belief] exception to the mandate 

that Rule 506 purchasers be accredited investors”). 

134 Both Rule 506 and Rule 144A currently provide for a reasonable belief standard regarding the 

eligibility of an investor to participate in an offering under the respective rules, but they reach that result in 

different ways. For Rule 506, the Commission chose to include the reasonable belief standard within the 

Rule 501(a) definition of “accredited investor”; for Rule 144A, the Commission chose to include the 

standard as a condition, in paragraph (d)(1), to the use of the exemption.

135 We note that several federal courts have been unsympathetic to attempts by investors who represented 

that they were accredited investors at the time of the sale of securities to subsequently disavow those 

representations in order to pursue a cause of action under the federal securities laws. See, e.g., Wright v. 

Nat’l Warranty Co., 953 F.2d 256 (6th Cir. 1991) (rejecting the plaintiffs’ argument that Rule 505 was 

unavailable because the plaintiffs “specifically warranted and represented in the subscription agreement ... 

that they were accredited investors”); Goodwin Properties, LLC v. Acadia Group, Inc., No. 01-49-P-C, 

2001 U.S. Dist. LEXIS 9975 (D. Me. 2001) (noting that the plaintiffs “provided the defendants with reason 

to believe that they were accredited investors as defined by 17 C.F.R. § 230.501(a)” and stating that 
44

the criteria for any category of accredited investor purchases securities in a Rule 506(c) 

offering, we believe that the issuer will not lose the ability to rely on Rule 506(c) for that 

offering, so long as the issuer took reasonable steps to verify that the purchaser was an 

accredited investor and had a reasonable belief that such purchaser was an accredited 

investor at the time of sale.

136 

D. Form D Check Box for Rule 506(c) Offerings 

Form D is the notice of an offering of securities conducted without registration 

under the Securities Act in reliance on Regulation D.137 Under Rule 503 of Regulation 

D, an issuer offering or selling securities in reliance on Rule 504, 505 or 506 must file a 

notice of sales on Form D with the Commission for each new offering of securities no 

later than 15 calendar days after the first sale of securities in the offering. Form D is 

currently organized around 16 numbered “items” or categories of information. The 

information required to be provided in a Form D filing includes basic identifying 

information, such as the name of the issuer of the securities and the issuer’s year and 

place of incorporation or organization; information about related persons (executive 

 

therefore “[t]hey cannot now disavow those representations in order to support their claims against the 

defendants”); Faye L. Roth Revocable Trust v. UBS Painewebber Inc., 323 F. Supp. 2d 1279 (S.D. Fla. 

2004) (stating that the plaintiffs “cannot disavow their representations that they were accredited investors” 

and concluding that there was no material dispute that the offering complied with Regulation D).

136 Our views regarding an issuer’s ability to maintain the exemption for a Rule 506(c) offering 

notwithstanding the fact that not all purchasers meet the criteria for any category of accredited investor are 

consistent with our views regarding the effect of attempts by prospective investors to circumvent the 

requirement in Regulation S that offers and sales be made only to non-U.S. persons. See Statement of the 

Commission Regarding Use of Internet Web Sites to Offer Securities, Solicit Securities Transactions or 

Advertise Investment Services Offshore, Release No. 33-7516 (Mar. 23, 1998) [63 FR 14806 (Mar. 27, 

1998)] (“In our view, if a U.S. person purchases securities or investment services notwithstanding adequate 

procedures reasonably designed to prevent the purchase, we would not view the Internet offer after the fact 

as having been targeted at the United States, absent indications that would put the issuer on notice that the 

purchaser was a U.S. person.”).

137 Form D also applies to offerings conducted using the Section 4(a)(5) exemption. The Commission 

adopted Form D when it adopted Regulation D in 1982. Release No. 33-6389 (adopting Form D as a 

replacement for Forms 4(6), 146, 240 and 242). 
45

officers, directors, and promoters); the exemption or exemptions being claimed for the 

offering; and factual information about the offering, such as the duration of the offering, 

the type of securities offered and the total offering amount. 

1. Proposed Form Amendment

We proposed revising Form D to add a separate field or check box for issuers to 

indicate whether they are claiming an exemption under Rule 506(c). Item 6 of Form D 

currently requires the issuer to identify the claimed exemption or exemptions for the 

offering from among Rule 504’s paragraphs and subparagraphs, Rule 505, Rule 506 and 

former Section 4(5), as applicable. Under the proposal, a new check box in Item 6 of 

Form D would require issuers to indicate specifically whether they are relying on the 

Rule 506(c) exemption. In addition, the current check box for “Rule 506” would be 

renamed “Rule 506(b),” and the current check box for “Section 4(5)” would be renamed 

“Section 4(a)(5)” to update the reference to former Section 4(5) of the Securities Act. 

 We explained in the Proposing Release that this revision would provide additional 

information needed to assist our efforts to analyze the use of general solicitation in Rule 

506(c) offerings and the size of this offering market. The information would also help us 

to look into the practices that may develop to satisfy the verification requirement, which 

would assist us in assessing the effectiveness of various verification practices in 

identifying and excluding non-accredited investors from participation in Rule 506(c) 

offerings. 

2. Comments on the Proposed Form Amendment

Most commenters who expressed a view on the proposed checkbox in Form D 

supported the addition of this checkbox for issuers to indicate whether they are relying on 
46

Rule 506(c) for their offerings.

138 Only one commenter opposed the proposed 

checkbox.139 A number of commenters recommended that the Commission include 

additional information requirements in Form D for Rule 506(c) offerings, beyond a 

checkbox to indicate reliance on Rule 506(c).140 Some commenters asked for 

confirmation that issuers may check both the Rule 506(b) box and the Rule 506(c) box in 

a Form D under certain circumstances.141 

3. Final Form Amendment

We are adopting the revision to Form D as proposed. Issuers conducting Rule 

506(c) offerings must indicate that they are relying on the Rule 506(c) exemption by 

marking the new check box in Item 6 of Form D. Further, as proposed, the current check 

box for “Rule 506” will be renamed “Rule 506(b),” and the current check box for 

“Section 4(5)” will be renamed “Section 4(a)(5).” 

We are of the view that an issuer will not be permitted to check both boxes at the 

same time for the same offering. We remind issuers that once a general solicitation has 

been made to the purchasers in the offering,142 an issuer is precluded from making a 

claim of reliance on Rule 506(b), which remains subject to the prohibition against general 

 

138 See, e.g., letters from MFA (Sept. 28, 2012); BIO; S&C; Tannenbaum Helpern; ABA Fed. Reg. 

Comm.; IAA; SIFMA and FSR (Oct. 5, 2012); SRC of NYSBA.

139 Letter from J. McLaughlin (stating that “Section 201(a)(1) does not authorize the Commission to 

impose a separate Form D filing requirement on issuers who choose to engage in general solicitation”). 

140 See, e.g., letters from AARP; AFL-CIO and AFR; Consumer Federation; Investor Advisory Committee; 

NASAA; Massachusetts Securities Division (July 2, 2012); Fund Democracy.

141 See letters from J. Gross; NYCBA; IAA. 

142 That is, the purchasers became interested in the offering because of, or through, the general solicitation, 

and not through some means other than the general solicitation, such as through a substantive, pre-existing 

relationship with the company or direct contact by the company or its agents outside of the general 

solicitation. See Revisions of Limited Offering Exemptions in Regulation D, Release No. 33-8828 (Aug. 3, 

2007) [72 FR 45116, 45129 (Aug. 10, 2007)].
47

solicitation, for that same offering. 

E. Specific Issues for Private Funds

Private funds, such as hedge funds, venture capital funds and private equity funds, 

typically rely on Section 4(a)(2) and Rule 506 to offer and sell their interests without 

registration under the Securities Act.143 In addition, private funds generally rely on one of 

two exclusions from the definition of “investment company” under the Investment 

Company Act – Section 3(c)(1)144 and Section 3(c)(7)145 – which enables them to be 

excluded from substantially all of the regulatory provisions of that Act.146 Private funds 

are precluded from relying on either of these two exclusions if they make a public 

offering of their securities.147 Section 3(c)(1) excludes from the definition of “investment 

company” any issuer whose outstanding securities (other than short-term paper) are 

beneficially owned by not more than 100 beneficial owners,148 and which is not making 

and does not presently propose to make a public offering of its securities. Section 3(c)(7) 

excludes from the definition of “investment company” any issuer whose outstanding 

securities are owned exclusively by persons who, at the time of acquisition of such 

 

143 See, e.g., Implications of the Growth of Hedge Funds, Staff Report to the Securities and Exchange 

Commission (Sept. 2003) (“Staff Report on Hedge Funds”), available at: 

http://www.sec.gov/news/studies/hedgefunds0903.pdf . 

144 15 U.S.C. 80a-3(c)(1).

145 15 U.S.C. 80a-3(c)(7).

146 We also refer in this release to “pooled investment funds” because that term is used in Form D. Issuers 

that rely on Section 3(c)(1) or 3(c)(7) of the Investment Company Act are a subset of pooled investment 

funds.

147 See also Section 202(a)(29) of the Advisers Act [15 U.S.C. 80b-2(a)(29)] (defining a “private fund” as 

an issuer that would be an investment company under the Investment Company Act, but for Sections 

3(c)(1) or 3(c)(7) of that Act). Many ABS issuers also rely on the exclusions contained in Sections 3(c)(1) 

or 3(c)(7) of the Investment Company Act. These ABS issuers frequently participate in Rule 144A 

offerings.

148 See also Rule 3c-5 under the Investment Company Act [17 CFR 270.3c-5] (providing that the section’s 

limit of 100 beneficial owners does not include “knowledgeable employees,” as defined in the rule).
48

securities, are “qualified purchasers,”149 and which is not making and does not at that time 

propose to make a public offering of its securities.

Section 201(a)(1) of the JOBS Act directs the Commission to eliminate the 

prohibition against general solicitation for a new category of Rule 506 offerings, and 

makes no specific reference to private funds. Section 201(b) of the JOBS Act also 

provides that “[o]ffers and sales exempt under [Rule 506, as revised pursuant to Section 

201(a)] shall not be deemed public offerings under the Federal securities laws as a result 

of general advertising or general solicitation.” We historically have regarded Rule 506 

transactions as non-public offerings for purposes of Sections 3(c)(1) and 3(c)(7).150 As 

we stated in the Proposing Release and reaffirm here, the effect of Section 201(b) is to 

permit private funds to engage in general solicitation in compliance with new Rule 506(c)

without losing either of the exclusions under the Investment Company Act. 

A few commenters argued that Section 201(b) does not permit private funds to 

engage in general solicitation under proposed Rule 506(c) without losing their exclusions 

under the Investment Company Act.151 In our view, although Section 201(b) does not 

explicitly reference the meaning of “public offering” under the Investment Company Act, 

it clearly states that “[o]ffers and sales exempt under [Rule 506, as revised pursuant to 

 

149 See Section 2(a)(51) of the Investment Company Act [15 U.S.C. 80a-2(a)(51)] and the rules thereunder. 

See also Rule 3c-5 under the Investment Company Act (excluding “knowledgeable employees” from the 

determination of whether all of the outstanding securities of the fund relying on Section 3(c)(7) are owned 

exclusively by qualified purchasers).

150 See Release No. 33-6389 (noting that the “Commission regards rule 506 transactions as non-public 

offerings for purposes of the definition of ‘investment company’ in section 3(c)(1) of the Investment 

Company Act”); Privately Offered Investment Companies, Release No. IC-22597 (Apr. 3, 1997) [62 FR 

17512 (Apr. 9, 1997)], at n. 5 (noting that the “Commission believes that section 3(c)(7)’s public offering 

limitation should be interpreted in the same manner as the limitation in section 3(c)(1)”). 

151 See letter from Fund Democracy (stating that “Section 201(b) refers only to Rule 506; it makes no 

reference to the meaning of ‘public offering’ under the Investment Company Act exemptions”). See also

letter from AFL-CIO and AFR. 
49

Section 201(a)] shall not be deemed public offerings under the Federal securities laws as 

a result of general advertising or general solicitation” (emphasis added). As the 

Investment Company Act is a federal securities law, the effect of Section 201(b) is to 

permit offers and sales of securities under Rule 506(c) by private funds relying on the 

exclusions from the definition of “investment company” under Section 3(c)(1) or Section 

3(c)(7) of the Investment Company Act. 

Some commenters expressed concerns about private funds engaging in general 

solicitation under proposed Rule 506(c).152 Other commenters, however, supported the 

removal of the prohibition against general solicitation in Rule 506(c) offerings with 

respect to private funds,153 with some commenters stating that the removal of the ban 

would bring greater transparency to the private fund industry and allow managers of 

private funds to communicate more effectively with the public and prospective 

investors.154 

Some commenters who were concerned about private funds engaging in general 

solicitation recommended that we impose additional conditions on private funds that rely 

on Rule 506(c). In particular, a number of commenters believed that private funds 

engaging in general solicitation should be subject to some form of content and/or other 

restrictions, and suggested potential methods.155 For example, some believed that, in 

 

152 See, e.g., letters from A. La Rosa; A. Pierwola; AFL-CIO and AFR; C. Erickson; Consumer Federation; 

E. Guthrie; F. Urling; Fund Democracy; J. Clark; K. Pesson; M. Gessford; M. Trail; M. Zartler; R. Dunn; 

S. Johnston; W. Cunningham. 

153 See, e.g., letters from BlackRock; Dukas; Forum for U.S. Securities Lawyers in London; HFA; IAA; 

MFA (Sept. 28, 2012); NYCBA; SRC of NYSBA.

154 See, e.g., letters from Dukas; HFA. 

155 See, e.g., letters from ICI; AFL-CIO and AFR; C. Corn; Sen. Levin (stating that “Congress did not 

contemplate removing the general solicitation ban – without retaining any limitations on forms of 
50

order to engage in general solicitation, private funds should be held to performance and 

advertising standards that are analogous to mutual fund standards.156 One of these 

commenters suggested that the Commission develop rules tailored to the ways private 

funds calculate and present investment performance, rather than extending mutual fund 

performance rules to private funds.157 Some made other suggestions, such as requiring 

each private fund relying on Rule 506(c) to disclose that the private fund is not registered 

with the Commission and should not be confused with a registered fund, such as a mutual 

fund.158 With respect to private funds sold through broker-dealers subject to FINRA’s 

rules of conduct, some commenters believed that we should direct FINRA to require the 

 

solicitation – for private investment vehicles”); Consumer Federation; D. Kronheim; D. Smith; Fund 

Democracy; G. Lavy; G. Morin; Investor Advisory Committee; IDC; J. Sanders; Rep. Waters; NASAA; P. 

Turney; Sens. Reed, Levin, Durbin, Harkin, Lautenberg, Franken and Akaka.

156 See, e.g., letters from C. Corn; Sen. Levin (noting that “[a]lready, the Commission has determined that 

the manner and substance of solicitation and advertising for investments in registered investment 

companies deserves significant regulatory oversight. Many of those same concerns apply to investments in 

private investment vehicles. Accordingly, the Commission should impose analogous protections for 

investments in private funds.”); Consumer Federation (stating that “[s]hort of an outright prohibition on 

general solicitation and advertising by private funds, the Commission should at the very least adopt clear 

standards for the reporting of performance and fees by private funds, and delay their eligibility from 

engaging in general solicitation and advertising until such time as those standards are in place,” including a 

requirement to include in private fund advertisements “a clear, prominent warning that they are not mutual 

funds and carry special risks.”); D. Kronheim; D. Smith; Fund Democracy (noting that an alternative would 

be to “apply mutual fund advertising and valuation rules to hedge funds that engage in [general solicitation 

and advertising] (and, in any case, require standardized performance and fee reporting for all hedge funds), 

and require explicit, large-font disclaimers that hedge funds are not mutual funds and present special 

risks.”); G. Lavy; ICI (recommending content restrictions on private fund advertising at least as extensive 

as those currently applicable to mutual funds (e.g., disclaimers regarding the performance figures or 

measures displayed in any advertisement), with a prohibition on use of performance advertising until the 

Commission can develop a new rule regarding such advertising); IDC; NASAA (stating that “because the 

investment strategies of private funds are typically more opaque, risky, and illiquid than those of mutual 

funds, private fund advertisements should be subject to restrictions that are comparable to the rules for 

mutual funds.”); P. Turney.

157 See letter from ICI (arguing that the antifraud provisions in Section 206(4) of the Advisers Act [15 

U.S.C. 80b-6(4)] and Rule 206(4)-8 thereunder [17 CFR 275.206(4)-8] would not be enough to protect 

investors because these advertisements will be presented before accredited and non-accredited investors at 

the same time). 

158 See letters from ICI; IDC.
51

filing and review of private fund advertisements.159 

Finally, some commenters opposed the imposition of content and/or other 

restrictions for private funds.160 They asserted that purchasers of the securities of a 

private fund that relies on Rule 506(c), must be, at a minimum, accredited investors and 

thus have met objective criteria demonstrating financial sophistication, which they 

believed eliminates the risk that other types of investors could be defrauded.161 A number 

of commenters pointed out that advertisements of private funds are subject to the 

antifraud provisions of the federal securities laws and suggested that liability under such 

provisions provides sufficient investor protections.162 

We have carefully considered commenters’ suggestions and concerns. We are 

mindful of certain commenters’ concerns that private funds engaging in general 

solicitation may raise certain investor protection issues. We also understand that other 

commenters believe that additional measures regarding private fund advertising are not 

necessary because the antifraud provisions of the federal securities laws continue to 

apply. We will monitor and study the development of private fund advertising and 

 

159 See letters from AFL-CIO and AFR (stating that “FINRA already pre-reviews broker-dealer 

advertising; the same requirement should apply to general solicitation and advertising in Rule 506 offerings 

in light of the significant potential for abuse.”); ICI (noting that “FINRA has developed an infrastructure to 

handle such filings and an expertise to substantively review them, and accordingly is best positioned to 

handle this task.”). 

160 See, e.g., letters from Verrill Dana LLP (stating that “[t]here is no suggestion in Section 201 that the 

Commission must distinguish between ‘issuers that engage in operational businesses’ and ‘those that are 

merely investment vehicles’”); Artivest (noting that for private funds managed by a registered commodity 

pool operator, the National Futures Association Rule 2-29 contains standards regarding marketing 

materials). 

161 In general, private funds that pay performance fees to their managers are available only to “qualified 

clients” that have at least $1 million in assets under management or that have a net worth of $2 million 

(excluding the value of the client’s primary residence). See Rule 205-3 under the Advisers Act [17 CFR 

275.205-3]. See also letter from BlackRock. 

162 See, e.g., letters from BlackRock; HFA; MFA (Mar. 22, 2013).
52

undertake a review to determine whether any further action is necessary. 

We remind investment advisers to private funds that they are subject to Rule 

206(4)-8 under the Advisers Act.163 Rule 206(4)-8 provides that it shall constitute a 

fraudulent, deceptive or manipulative act, practice or course of business within the 

meaning of Section 206(4) of the Advisers Act for any investment adviser to a pooled 

investment vehicle164 to “(1) [m]ake any untrue statement of a material fact or to omit to 

state a material fact necessary to make the statements made, in light of the circumstances 

under which they were made, not misleading, to any investor or prospective investor in 

the pooled investment vehicle; or (2) otherwise engage in any act, practice or course of 

business that is fraudulent, deceptive, or manipulative with respect to any investor or 

prospective investor in the pooled investment vehicle.”165 

As was stated by the Commission when it adopted Rule 206-4(8), “[t]he rule 

clarifies that an adviser’s duty to refrain from fraudulent conduct under the federal 

securities laws extends to the relationship with ultimate investors and that the 

Commission may bring enforcement actions under the Advisers Act against investment 

advisers who defraud investors or prospective investors in those pooled investment 

vehicles.”166 We further stated that we “intend to employ all of the broad authority that 

Congress provided us in section 206(4) and direct it at adviser conduct affecting an 

 

163 17 CFR 275.206(4)-8.

164 Rule 206(4)-8 defines a pooled investment vehicle to mean any investment company as defined in 

Section 3(a) of the Investment Company Act [15 U.S.C. 80a-3(a)] or any company that would be an 

investment company under Section 3(a) of that Act but for the exclusion provided from that definition by 

either Section 3(c)(1) or Section 3(c)(7) of that Act [15 U.S.C. 80a-3(c)(1) or (7)]. 

165 Id. 

166 Prohibition of Fraud by Advisers to Certain Pooled Investment Vehicles, Release No. IA-2628 (Aug. 3, 

2007) [72 FR 44756 (Aug. 9, 2007)].
53

investor or potential investor in a pooled investment vehicle.”167 Recently, for example, 

we have brought enforcement actions against private fund advisers and others for 

material misrepresentations to investors and prospective investors regarding fund 

performance, strategy, and investments, among other things.168 

We believe that investment advisers that have implemented appropriate policies 

and procedures regarding, among other things, the nature and content of private fund 

sales literature, including general solicitation materials, are less likely to use materials 

that materially mislead investors or otherwise violate the federal securities laws. 

Accordingly, we believe that investment advisers to private funds should carefully review 

any such policies and procedures that have been implemented to determine whether they 

are reasonably designed to prevent the use of fraudulent or materially misleading private 

fund advertising and make appropriate amendments to those policies and procedures, 

particularly if the private funds intend to engage in general solicitation activity.

169 

F. Technical and Conforming Amendments

We proposed a number of technical and conforming amendments to Rules 502 

and 506 of Regulation D. Under the proposal, we would amend various provisions in 

 

167 Id. 

168 See, e.g., In the Matter of Oppenheimer Asset Management Inc. and Oppenheimer Alternative 

Investment Management, LLC, Release No. IA-3566 (Mar. 11, 2013); In the Matter of Sentinel Investment 

Management Corp., Release No. IA-3530 (Dec. 27, 2012); In the Matter of Weizhan Tang, Release No. IA3482 (Oct. 5, 2012); In the Matter of Calhoun Asset Management, LLC, et al., Release No. IA-3428 (July 

9, 2012); In the Matter of Belal K. Faruki, Release No. IA-3405 (May 17, 2012); In the Matter of GMB 

Capital Management LLC, et al., Release No. IA-3399 (Apr. 20, 2012). 

169 We remind investment advisers that are registered or required to be registered under Section 203 of the 

Advisers Act that they must adopt and implement written policies and procedures reasonably designed to 

prevent violations of the Advisers Act which include, but are not limited to, violations of Section 206 of the 

Advisers Act and the rules thereunder. They must also review, no less frequently than annually, the 

adequacy of the written policies and procedures and the effectiveness of the policies and procedures’ 

implementation. See CFR 275.206(4)-7.
54

Rule 502(b) to clarify that the references to sales to non-accredited investors under Rule 

506, and the corresponding informational requirements, would be applicable to offerings 

under Rule 506(b) and not to offerings under Rule 506(c). We proposed to amend Rule 

502(c) to clarify that Rule 502(c)’s prohibition against general solicitation would not 

apply to offerings under Rule 506(c). In addition, as Section 201(c) of the JOBS Act 

renumbered Section 4 of the Securities Act, we proposed to amend Regulation D and 

Rule 144A to update the references to Section 4. Finally, the proposal would update 

references to Section 2 of the Securities Act in these rules as some of the references have 

not been updated to reflect the current numbering scheme in Section 2. We received no 

comments regarding these technical and conforming amendments and are adopting these

rule amendments as proposed. 

III. FINAL AMENDMENT TO RULE 144A

Section 201(a)(2) of the JOBS Act directs the Commission to revise Rule 

144A(d)(1) under the Securities Act to provide that securities sold pursuant to Rule 144A 

may be offered to persons other than QIBs, including by means of general solicitation, 

provided that securities are sold only to persons that the seller and any person acting on 

behalf of the seller reasonably believe is a QIB. To implement the mandated rule change, 

we proposed amending Rule 144A(d)(1) to eliminate the references to “offer” and 

“offeree.” All of the commenters that expressed a view on the proposed amendment to 

Rule 144A(d)(1) stated that they supported the Commission’s proposal.170 We are 

adopting the amendment as proposed. As amended, Rule 144A(d)(1) will require only 

that the securities be sold to a QIB or to a purchaser that the seller and any person acting 

 

170 See letters from IAA; SIFMA and FSR (Oct. 5, 2012); J. Johnson; OTC Markets Group Inc.
55

on behalf of the seller reasonably believe is a QIB.

171 Under this amendment, resales of 

securities pursuant to Rule 144A can be conducted using general solicitation, so long as 

the purchasers are limited in this manner.

172

As a result of the Section 201(a)(2) mandate and the resulting Rule 144A 

revisions, we are also making technical and conforming revisions to the exceptions in 

Regulation M relating to transactions in Rule 144A securities, specifically Regulation M 

Rules 101(b)(10), 102(b)(7) and 104(j)(2). When adopted in 1996, the exceptions 

delineated in Rules 101(b)(10)(i), 102(b)(7)(i) and 104(j)(2)(i) were generally intended to 

permit transactions in securities eligible for resale under Rule 144A during a distribution 

of securities, provided that offers and sales of such securities were made solely to QIBs 

or persons reasonably believed to be QIBs in certain transactions exempt from 

registration.173 

 As explained above, Section 201(a)(2) of the JOBS Act directs the Commission 

to revise Rule 144A to permit offers of securities to persons other than QIBs. As noted 

above, Rule 144A is being amended to eliminate references to “offer” and “offeree,” so 

that the amended rule will require only that securities be sold to a QIB or to a purchaser 

that the seller and any person acting on behalf of the seller reasonably believes is a QIB. 

 

171 Rule 144A(d)(1).

172 The general solicitation that is permitted in Rule 144A resales from the initial purchaser to the QIBs 

will not affect the availability of the Section 4(a)(2) exemption or Regulation S for the initial sale of 

securities by the issuer to the initial purchaser.

173 See Anti-Manipulation Rules Concerning Securities Offerings, Release No. 34-38067 (Dec. 20, 1996)

[62 FR 520 (Jan. 3, 1997)] at 530 (“As adopted, the exception permits transactions in Rule 144A securities 

during a distribution of such securities, provided that sales of such securities within the United States are 

made solely to: qualified institution buyers (‘QIBs’), or persons reasonably believed to be QIBs, in 

transactions exempt from registration under the Securities Act.... The exception covers both the Rule 144A 

security being distributed and any reference security.”). 
56

In order to conform the language in Regulation M to Rule 144A, as amended, we 

are conforming the Regulation M exceptions by similarly eliminating the references to 

“offered” and “offerees.” We believe that these conforming modifications do not result 

in any substantive change to the Regulation M exceptions and are consistent with the 

purpose of the exceptions. 

As a transition matter, for an ongoing Rule 144A offering that commenced before 

the effective date of the amendment to Rule 144A(d)(1), offering participants will be 

entitled to conduct the portion of the offering following the effective date of the 

amendment to Rule 144A(d)(1) using general solicitation, without affecting the 

availability of Rule 144A for the portion of the offering that occurred prior to the 

effective date of the amended rule.

IV. INTEGRATION WITH OFFSHORE OFFERINGS

In the Proposing Release, we noted that the mandate in Section 201(a) that the 

Commission amend Rule 506 and Rule 144A to permit the use of general solicitation in 

transactions under those rules has raised questions from some commenters

174 regarding 

the impact of the use of general solicitation on the availability of the Regulation S safe 

harbors for concurrent unregistered offerings inside and outside the United States.175 

The safe harbors are important when U.S. and non-U.S. companies engage in global 

 

174 See, e.g., letters from ABA Fed. Reg. Comm. (Apr. 30, 2012); L. Neumann (June 12, 2012); NYCBA 

(May 4, 2012); SecuritiesLawUSA, PC (June 26, 2012); SIFMA (Apr. 27, 2012).

175 Regulation S provides a safe harbor for offers and sales of securities outside the United States and 

includes an issuer and a resale safe harbor. Two general conditions apply to both safe harbors: (1) the 

securities must be sold in an offshore transaction and (2) there can be no “directed selling efforts” in the 

United States. Rule 902(c)(1) [17 CFR 230.902(c)(1)] broadly defines “directed selling efforts” as: any 

activity undertaken for the purpose of, or that could reasonably be expected to have the effect of, 

conditioning the market in the United States for any of the securities offered in reliance on Regulation S. 

Such activity includes placing an advertisement in a publication “with a general circulation in the United 

States” that refers to the offering of securities being made in reliance upon Regulation S.
57

offerings of securities in which the U.S. portion of the offering is conducted in 

accordance with Rule 144A or Rule 506 and the offshore portion is conducted in reliance 

on Regulation S. 

We expressed our view on this issue in the Proposing Release, which we are 

reaffirming in this release.176 Concurrent offshore offerings that are conducted in 

compliance with Regulation S will not be integrated with domestic unregistered offerings 

that are conducted in compliance with Rule 506 or Rule 144A, as amended. As 

explained in the Proposing Release, we believe that our view is consistent with the 

historical treatment of concurrent Regulation S and Rule 144A/Rule 506 offerings.177 

V. PAPERWORK REDUCTION ACT

A. Background 

The amendment to Form D contains a “collection of information” requirement 

within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).

178 We published 

a notice requesting comment on the collection of information requirement in the 

Proposing Release for the rule and form amendments. We submitted that requirement to 

 

176 All of the commenters who expressed a view on our interpretation supported it and encouraged us to 

reiterate it in this release. See letters from ABA Fed. Reg. Comm; Forum for U.S. Securities Lawyers in 

London; IAA; IPA; NYCBA.

177 See Offshore Offers and Sales, Release No. 33-6863 (Apr. 24, 1990) [55 FR 18306 (May 2, 1990)] 

(stating that “[o]ffshore transactions made in compliance with Regulation S will not be integrated with 

registered domestic offerings or domestic offerings that satisfy the requirements for an exemption from 

registration under the Securities Act.”). In addressing the offshore transaction component of the Regulation 

S safe harbor, the Commission also stated, “Offers made in the United States in connection with 

contemporaneous registered offerings or offerings exempt from registration will not preclude reliance on 

the safe harbors.” Id. at n. 36. Likewise, in addressing directed selling efforts, the Commission stated, 

“Offering activities in contemporaneous registered offerings or offerings exempt from registration will not 

preclude reliance on the safe harbors.” Id. at n. 47. See also Rule 500(g) of Regulation D [17 CFR 

230.500(g)] (formerly Preliminary Note No. 7 to Regulation D) (“Regulation S may be relied upon for such 

offers and sales even if coincident offers and sales are made in accordance with Regulation D inside the 

United States.”).

178 44 U.S.C. 3501 et seq. 
58

the Office of Management and Budget (“OMB”) for review and approval in accordance 

with the PRA and its implementing regulations.179 The title of this requirement is: 

“Form D” (OMB Control No. 3235-0076).180 

We adopted Regulation D and Form D as part of the establishment of a series of 

exemptions for offerings and sales of securities under the Securities Act. The Form D 

filing is required to be made by issuers as a notice of sales without registration under the 

Securities Act based on a claim of exemption under Regulation D or Section 4(a)(5) of 

the Securities Act. The Form D filing is required to include basic information about the 

issuer, certain related persons, and the offering. This information is needed for 

implementing the exemptions and analyzing their use. The information collection 

requirements related to the filing of Form D with the Commission are mandatory to the 

extent that an issuer elects to make an offering of securities in reliance on the relevant 

exemption. Responses are not confidential. The hours and costs associated with 

preparing and filing forms and retaining records constitute reporting and cost burdens 

imposed by the collection of information requirements. An agency may not conduct or 

sponsor, and a person is not required to respond to, a collection of information 

requirement unless it displays a currently valid OMB control number. 

As discussed above, we proposed to amend Form D to add a check box to indicate 

an offering relying on the Rule 506(c) exemption. In the Proposing Release, we 

requested comment on our PRA burden hour and cost estimates and the analysis used to 

derive such estimates. One commenter responded to our request for comment on the 

 

179 44 U.S.C. 3507(d); 5 CFR 1320.11.

180 Form D was adopted under the authority of Sections 2(a)(15), 3(b), 4(a)(2), 19(a) and 19(c)(3) of the 

Securities Act [15 U.S.C. 77b(a)(15), 77c(b), 77d(a)(2), 77s(a) and 77s(c)(3)].
59

PRA analysis and stated that it believed that the cost estimates in the PRA and economic 

analysis are too low.181

B. Revisions to PRA Reporting and Cost Burden Estimates

Consistent with the PRA analysis in the Proposing Release, we believe that the 

addition of a check box on Form D to indicate that an issuer is relying on the Rule 506(c) 

exemption for its offering will have a negligible effect on the paperwork burden of the 

form. Form D already contains a check box for each basis of exemption claimed under 

Regulation D; this change simply conforms the form to the new rule amendment. 

Accordingly, we estimate that under the amendment to Form D, the burden for 

responding to the collection of information in Form D will be substantially the same as 

before the amendment to Form D. We believe, however, that the amendment to Rule 506 

could increase the number of Form D filings that are made with the Commission because 

we expect issuers may conduct more Rule 506 offerings. 

The table below shows the current total annual compliance burden, in hours and 

in costs, of the collection of information pursuant to Form D. For purposes of the PRA, 

we estimate that, over a three-year period, the average burden estimate will be four hours 

per Form D filing. Our burden estimate represents the average burden for all issuers. 

This burden is reflected as a one hour burden of preparation on the issuer and a cost of 

$1,200 per filing. In deriving these estimates, we assume that 25% of the burden of 

preparation is carried by the issuer internally and that 75% of the burden of preparation is 

 

181 See letter from NSBA (stating that “the compliance cost estimates should include the time required by 

the issuer and their advisors to familiarize themselves with the rule and to comply with the additional 

verification requirements and the time and costs of investors to comply (for example, with a third-party 

verification requirement)”). For PRA purposes, we consider only the burden of responding to the 

collection of information in Form D; we do not consider any of the other costs, direct or indirect, of 

conducting a Rule 506(c) offering. 
60

carried by outside professionals retained by the issuer at an average cost of $400 per 

hour. The portion of the burden carried by outside professionals is reflected as a cost, 

while the portion of the burden carried by the issuer internally is reflected in hours. 

Table 1. Estimated paperwork burden under Form D, pre-amendment to Rule 506

Number of 

responses

(A)182

Burden 

hours/form

(B)

Total burden 

hours

(C)=(A)*(B)

Internal issuer

time

(D)

External 

professional 

time

(E)

Professional 

costs

(F)=(E)*$400

Form D 18,187 4 72,748 18,187 54,561 $21,824,400

According to our Division of Economic and Risk Analysis (“DERA”), in 2012, 

16,067 companies made 18,187 new Form D filings. The annual number of new Form D 

filings rose from 13,764 in 2009 to 18,187 in 2012, an average increase of approximately 

1,474 Form D filings per year, or approximately 10%. Assuming that the 

macroeconomic factors underlying this increase persist and the number of Form D filings 

continues to increase by 1,474 filings per year for each of the next three years, the 

average number of Form D filings in each of the next three years, absent the elimination 

of the prohibition against general solicitation, would be approximately 21,135. 

We anticipate that new paragraph (c) of Rule 506 could result in an even greater 

annual increase in the number of Form D filings than the 10% annual increase estimated 

above. As a reference point for the potential increase, we use the impact of another past 

rule change on the market for Regulation D offerings. In 1997, the Commission amended 

 

182 We had previously estimated the number of responses to be 25,000, as reflected in OMB’s Inventory of 

Currently Approved Information Collections (available at: 

http://www.reginfo.gov/public/do/PRAMain;jsessionid=D37174B5F6F9148DB767D63DF6983A65), but 

we are revising this estimate to reflect the number of new Form D filings made in 2012. 
61

Rule 144(d) under the Securities Act183 to reduce the holding period for restricted 

securities from two years to one year,184 thereby increasing the attractiveness of 

Regulation D offerings to investors and to issuers. There were 10,341 Form D filings in 

1996. This was followed by a 20% increase in the number of Form D filings in each of 

the subsequent three calendar years, reaching 17,830 by 1999. Although it is not possible 

to predict with any degree of accuracy the increase in the number of Rule 506 offerings 

following the elimination of the prohibition against general solicitation for a new 

category of Rule 506 offerings, we assume for purposes of this analysis that there could 

be a similarly significant increase. 

For purposes of the PRA and based on our analysis above, we estimate that the 

amendment to Rule 506 will result in a 20% increase in Form D filings relying on the 

Rule 506 exemption, or approximately 3,637 filings.

185 We also assume that the number 

of Form D filings will increase by approximately 3,637 in each year following the 

adoption of the rule. 

Based on this increase, we estimate that the annual compliance burden of the 

collection of information requirements for the first year in which issuers will make Form 

D filings after the adoption of Rule 506(c) will be an aggregate of 21,824 hours of issuer

personnel time and $26,188,800 for the services of outside professionals per year. 

 

183 17 CFR 230.144(d). 

184 See Revision of Holding Period Requirements in Rules 144 and 145, Release No. 33-7390 (Feb. 20, 

1997) [62 FR 9242 (Feb. 28, 1997)].

185 This number is based on the 18,187 new Form D filings that were made in 2012. 
62

Table 2. Estimated paperwork burden under Form D, post-amendment to Rule 506

Number of 

responses

(A)186

Burden 

hours/form

(B)

Total burden 

hours

(C)=(A)*(B)

Internal issuer

time

(D)

External 

professional 

time

(E)

Professional 

costs

(F)=(E)*$400

Form D 21,824 4 87,296 21,824 65,472 $26,188,800

VI. ECONOMIC ANALYSIS

A. Background

We are adopting amendments to Rule 506 and Rule 144A to implement the 

requirements of Section 201(a) of the JOBS Act.187 Section 201(a)(1) directs the 

Commission to revise Rule 506 to provide that the prohibition against general solicitation 

contained in Rule 502(c) shall not apply to offers and sales of securities made pursuant to 

Rule 506, as amended, provided that all purchasers of the securities are accredited 

investors. Section 201(a)(1) also provides that “such rules shall require the issuer to take 

reasonable steps to verify that purchasers of the securities are accredited investors, using 

such methods as determined by the Commission.” Section 201(a)(2) of the JOBS Act 

directs the Commission to revise Rule 144A(d)(1) to provide that securities sold pursuant 

to Rule 144A may be offered to persons other than QIBs, including by means of general 

solicitation, provided that securities are sold only to persons that the seller and any person 

acting on behalf of the seller reasonably believe are QIBs.

We are mindful of the costs imposed by and the benefits obtained from our rules. 

 

186 The information in this column is based on the 18,187 new Form D filings that were made in 2012, plus 

the additional 3,637 filings we estimate would be filed in the first year after the effectiveness of Rule 

506(c).

187 As explained above, the Commission in this release is adopting only those rule and form amendments 

that are specifically mandated by Section 201(a). Correspondingly, we analyze the economic impacts – 

including the benefits and costs – only of those rules and form amendments considered within the scope of 

this release. 
63

The discussion below addresses the economic effects of the amendments to Rule 506, 

Rule 144A and Form D, including the likely benefits and costs of the amendments as well 

as the effect of the amendments on efficiency, competition and capital formation.188 

Some of the costs and benefits stem from the statutory mandate of Section 201(a), 

whereas others are affected by the discretion we have exercised in implementing this 

mandate. These two types of costs and benefits may not be entirely separable to the 

extent that our discretion is exercised to realize the benefits that we believe were intended 

by Section 201(a). 

B. Economic Baseline

The baseline analysis that follows is in large part based on information collected 

from Form D filings submitted by issuers relying on Regulation D to raise capital. As we 

describe in more detail below, we believe that we do not have a complete view of the 

Rule 506 market, particularly with respect to the amount of capital raised. Currently, 

issuers are required to file a Form D within 15 days of the first sale of securities, and are 

required to report additional sales through amended filings only under certain conditions. 

In addition, issuers may not report all required information, either due to error or because 

they do not wish to make the information public. Commenters have suggested and we 

also have evidence that some issuers do not file a Form D for their offerings in 

 

188 Section 2(b) of the Securities Act [15 U.S.C. 77b(b)] requires the Commission, when engaging in 

rulemaking that requires it to consider whether an action is necessary or appropriate in the public interest, 

to consider, in addition to the protection of investors, whether the action would promote efficiency, 

competition, and capital formation. 
64

compliance with Rule 503.189 Consequently, the analysis that follows is necessarily 

subject to these limitations in the current Form D reporting process.

1. Size of the Exempt Offering Market

Exempt offerings play a significant role in capital formation in the United States. 

Offerings conducted in reliance on Rule 506 account for 99% of the capital reported as 

being raised under Regulation D from 2009 to 2012, and represent approximately 94% of 

the number of Regulation D offerings.190 The significance of Rule 506 offerings is 

underscored by the comparison to registered offerings. In 2012, the estimated amount of 

capital reported as being raised in Rule 506 offerings (including both equity and debt) 

was $898 billion, compared to $1.2 trillion raised in registered offerings.191 Of this $898 

billion, operating companies (issuers that are not pooled investment funds) reported 

raising $173 billion, while pooled investment funds reported raising $725 billion.192 The

amount reported as being raised by pooled investment funds is comparable to the amount 

of capital raised by registered investment funds. In 2012, registered investment funds 

 

189 Many commenters asserted that non-compliance with Form D filing obligations is widespread. See, 

e.g., letters from Investor Advisory Committee (stating that “[i]t is generally acknowledged that a 

significant number of issuers do not currently file Form D...”); AARP (stating that “[s]imply adding a 

checkbox to a form that too often goes unfiled and then only after the fact is inadequate to the task at 

hand.”); AFL-CIO and AFR (stating that “many issuers today flout the Form D filing requirement for such 

offerings, further limiting the Commission’s ability to provide effective oversight”). See also Securities 

and Exchange Commission, Office of Inspector General, Regulation D Exemption Process (Mar. 31, 2009) 

(“OIG Report”), available at: http://www.sec-oig.gov/Reports/AuditsInspections/2009/459.pdf (stating 

that while the Commission staff “strongly encourage companies to comply with Rule 503, they are aware 

of instances in which issuers have failed to comply with Rule 503...”). Based on its analysis of the filings

required by FINRA Rules 5122 and 5123 during the period of December 3, 2012 to February 5, 2013, 

DERA estimates that as many as 9% of the offerings represented in the FINRA filings for Regulation D or 

other private offerings that used a registered broker did not have a corresponding Form D.

190 See Ivanov/Bauguess Study.

191 See id. 

192 See id. 
65

(which include money market mutual funds, long-term mutual funds, exchange-traded 

funds, closed-end funds and unit investment trusts) raised approximately $727 billion.193 

In 2011, the estimated amount of capital (including both equity and debt) reported 

as being raised in Rule 506 offerings was $849 billion compared to $985 billion raised in 

registered offerings.194 Of the $849 billion, operating companies reported raising $71 

billion, while pooled investment funds reported raising $778 billion.195 More generally, 

when including offerings pursuant to other exemptions – Rule 144A, Regulation S and 

Section 4(a)(2) – significantly more capital appears to be raised through exempt offerings 

than registered offerings (Figure 1).196 

 

193 In calculating the amount of capital raised by registered investment funds, we use the net amounts (plus 

reinvested dividends and reinvested capital gains), which reflect redemptions, and not gross amounts, by 

open-ended registered investment funds because they face frequent redemptions and do not have 

redemption restrictions and lock-up periods common among private funds. In addition, we use the new 

issuances of registered closed-end funds and the new deposits of registered unit investment trusts. See

2013 Investment Company Institute Factbook, available at: http://www.icifactbook.org. 

194 See Ivanov/Bauguess Study.

195 See id. 

196 See id. 
66

Figure 1: Capital Raised in U.S. Capital Markets during 2009-2012197 

 

At present, issuers are required to file a Form D not later than 15 days after the 

first sale of securities in a Regulation D offering and an amendment to the Form D only 

under certain circumstances. Since issuers are not required to submit a Form D filing 

when an offering is completed, and submit amendments only under certain 

circumstances, we have no definitive information on the final amounts raised. Figure 2, 

below, illustrates that at the time of the Form D filing, only 39% of offerings by nonpooled investment fund issuers were completed relative to the total amount sought. 

Separately, 70% of pooled investment funds state their total offering amount to be 

“Indefinite” in their Form D filings. As a result, the Form D filings of these pooled 

investment funds likely do not accurately reflect the total amount of securities offered or 

sold. 

 

197 The 2012 non-ABS Rule 144A offerings data is based on an extrapolation of currently available data 

through May 2012 from Sagient Research System’s Placement Tracker database. For more detail, see the 

Ivanov/Bauguess Study.
67

Figure 2: Amount Sold as Percentage of Total Offering Amount by Non-Pooled 

Investment Fund Issuers in Regulation D Offerings at the Time of Form 

D Filing: 2009-2012

2. Affected Market Participants

The amendments to Rule 506 we are adopting today will affect a number of 

different market participants. Issuers of securities in Rule 506 offerings include both 

reporting and non-reporting operating companies and pooled investment funds. 

Investment advisers organize and sponsor pooled investment funds that conduct Rule 506 

offerings. Intermediaries that facilitate Rule 506 offerings include registered brokerdealers, finders and placement agents. Investors in Rule 506 offerings include accredited 

investors (both natural persons and legal entities) and non-accredited investors who meet 

certain “sophistication” requirements. Each of these market participants is discussed in 

further detail below.

a. Issuers

Based on the information submitted in 112,467 new and amended Form D filings 

between 2009 and 2012, there were 67,706 new Regulation D offerings by 49,740 unique 
68

issuers during this four-year period.198 The size of the average Regulation D offering 

during this period was approximately $30 million, whereas the size of the median 

offering was approximately $1.5 million.199 The difference between the average and 

median offering sizes indicates that the Regulation D market is comprised of many small 

offerings, which is consistent with the view that many smaller businesses are relying on 

Regulation D to raise capital, and a smaller number of much larger offerings. 

Some information about issuer size is available from Item 5 in Form D, which 

requires issuers in Regulation D offerings to report their size in terms of revenue ranges 

or, in the case of certain pooled investment funds, net asset value ranges. All issuers can 

currently choose not to disclose this size information, however, and a significant majority 

of issuers that are not pooled investment funds declined to disclose their revenue ranges 

in the Forms D that they filed between 2009 and 2012. For those that did, most reported 

a revenue range of less than $1 million (Figure 3).200 During the 2009-2011 period, 

approximately 10% of all public companies raised capital in Regulation D offerings; in 

2012, approximately 6% of such companies did so.201 These public companies tended to 

be smaller and less profitable than their industry peers, which illustrates the significance 

of the private capital markets to smaller companies, whether public or private.202 

 

198 See Ivanov/Bauguess Study.

199 See id. A study of unregistered equity offerings by publicly-traded companies over the period 1980-

1996 found that the mean offering amount was $12.7 million, whereas the median offering amount was 

$4.5 million. See Michael Hertzel, Michael Lemmon, James Linck and Lynn Rees, Long-Run Performance 

Following Private Placements of Equity, 57 Journal of Finance 2595 (2002).

200 See Ivanov/Bauguess Study.

201 Id. (explaining the methodology of using listings in the Standard & Poor’s Compustat database and the 

University of Chicago’s Center for Research in Securities Prices database to determine which companies 

were public companies).

202 Id. 
69

Figure 3: Distribution of Non-Pooled Investment Fund Issuers in Regulation D 

Market by Revenue: 2009-2012

During this period, pooled investment funds conducted approximately 24% of the 

total number of Regulation D offerings and raised approximately 81% of the total amount 

of capital raised in Regulation D offerings.203 More than 75% of pooled investment 

funds declined to disclose their net asset value range. 

 

203 Id. 
70

Figure 4: Distribution of Pooled Investment Fund Issuers in Regulation D Market 

by Net Asset Value: 2009-2012 

Between 2009 and 2012, approximately 66% of Regulation D offerings were of 

equity securities, and almost two-thirds of these were by issuers other than pooled 

investment funds.204 Non-U.S. issuers accounted for approximately 19% of the amount 

of capital raised in Regulation D offerings, indicating that the U.S. market is a significant 

source of capital for these issuers.205 

Unlike in Regulation D offerings, issuers conducting Rule 144A offerings are not 

required to disclose information about their offerings to the Commission, which limits 

our ability to measure the size of the Rule 144A market. Based on transaction 

 

204 Id. 

205 Id. 
71

information collected by third-party data providers,206 we can broadly characterize the 

Rule 144A market as being divided between ABS and non-ABS offerings. These sources 

indicate that, over the four-year period from 2009 to 2012, there were 3,510 non-ABS 

Rule 144A offerings by 1,965 unique issuers. During this period, the average non-ABS 

offering size was approximately $526 million, while the median non-ABS offering size 

was $350 million. These offering sizes are significantly larger than the average and 

median amounts of Regulation D offerings, as discussed above, indicating that the Rule 

144A market, as compared to the Regulation D market, is characterized by much larger 

issues (which we presume correlate to larger issuers, as well) and, based on the number 

of Rule 144A offerings, far fewer issuers. Another significant difference from 

Regulation D offerings is the type of security offered. During this period, over 99% of 

the non-ABS offerings in the Rule 144A market were debt offerings,207 compared to 13% 

of Regulation D offerings.208

b. Investors 

We have relatively little information on the types and number of investors in Rule 

506 offerings. Form D currently requires issuers in Rule 506 offerings to provide 

information about the total number of investors who have already invested in the offering 

and the number of persons who do not qualify as accredited investors.209 In 2012, 

 

206 These statistics are based on a review of data from Securities Data Corporation’s New Issues database 

(Thomson Financial) and Sagient Research System’s Placement Tracker database. 

207 This statistic is based on a review of data from Securities Data Corporation’s New Issues database 

(Thomson Financial) and Sagient Research System’s Placement Tracker database. 

208 See Ivanov/Bauguess Study. 

209 See Item 14 of Form D. Form D does not require any other information on the types of investors, such 

as whether they are natural persons or legal entities.
72

approximately 153,000 investors participated in offerings by operating companies, while 

approximately 81,000 investors invested in offerings by pooled investment funds.210 

Because some investors participate in multiple offerings, these numbers likely 

overestimate the actual number of unique investors in these reported offerings. In 

offerings under Rule 506(b), both accredited investors and up to 35 non-accredited 

investors who meet certain sophistication requirements are eligible to purchase securities. 

In offerings under new Rule 506(c), only accredited investors will be eligible to purchase 

securities. 

Information collected from Form D filings indicates that most Rule 506 offerings 

do not involve broad investor participation. More than two-thirds of these offerings have 

ten or fewer investors, while less than 5% of these offerings have more than 30 investors. 

Although Rule 506 currently allows for the participation of non-accredited investors who 

meet certain sophistication requirements, such non-accredited investors reportedly 

purchased securities in only 11% of the Rule 506 offerings conducted between 2009 and 

2012.211 Only 8% of the offerings by pooled investment funds included non-accredited 

investors, compared to 12% of the offerings by other issuers.212

 

210 These numbers are based on initial Form D filings submitted in 2012.

211 See Ivanov/Bauguess Study.

212 Id. 
73

Figure 5: Distribution of Regulation D Offerings by Number of Investors: 2009-

2012 

0 10 20 30 40 50 60 70 80 90 100 110 120 130 140 150 160

0

10

20

30

40

50

60

70

80

Percent

numinvestors

As stated above, between 2009 and 2012, the size of the median Regulation D 

offering, based on the information in Form D filings, was approximately $1.5 million. 

The presence of so many relatively small offerings suggests that a sizable number of 

current investors in Rule 506 offerings are natural persons or legal entities in which all 

equity owners are natural persons. This is because smaller offerings may not provide 

sufficient scale for institutional investors to earn a sizable return. Institutional investors 

typically have a larger investible capital base and more formal screening procedures 

compared to investors who are natural persons, and the associated costs of identifying 

potential investments and monitoring their investment portfolio lead them to make larger 

Number of Investors

Percentage 

of 

Offerings
74

investments than natural persons.213 As for whether natural persons investing in these 

offerings are accredited investors or non-accredited investors, almost 90% of the 

Regulation D offerings conducted between 2009 and 2012 did not involve any nonaccredited investors.214 

While we do not know what percentage of investors in Rule 506 offerings are 

natural persons, the vast majority of Regulation D offerings are conducted without the 

use of an intermediary,215 suggesting that many of the investors in Regulation D offerings 

likely have a pre-existing relationship with the issuer or its management because these 

offerings would not have been conducted using general solicitation. This category of 

investors is likely to be much smaller than the total number of eligible investors for Rule 

506(c) offerings, which is potentially very large. We estimate that at least 8.7 million 

U.S. households, or 7.4% of all U.S. households, qualified as accredited investors in 

2010, based on the net worth standard in the definition of “accredited investor” (Figure 

6).216 

 

213 See, e.g., George Fenn, Nellie Liang and Stephen Prowes, The Economics of Private Equity Markets 

(1998); Steven Kaplan and Per Strömberg, Leveraged Buyouts and Private Equity, 23 Journal of Economic 

Perspectives 121 (2009). 

214 See Ivanov/Bauguess Study.

215 An analysis of all Form D filings submitted between 2009 to 2012 shows that approximately 11% of all 

new offerings reported sales commissions of greater than zero because the issuers used intermediaries. See

Ivanov/Bauguess Study. We assume that the lack of a commission indicates the absence of an 

intermediary.

216 This estimate is based on net worth and household data from the Federal Reserve Board’s Triennial 

Survey of Consumer Finances 2010. Our calculations are based on all 32,410 observations in the 2010 

survey. 
75

Figure 6: Number of U.S. Households that Qualify as Accredited Investors Based 

on 2010 Net Worth

Our analysis, however, leads us to believe that only a small percentage of these 

households are likely to participate in securities offerings, especially exempt offerings. 

First, as mentioned above, data from Form D filings in 2012 suggests that fewer than

234,000 investors (of which an unknown subset are natural persons) participated in 

Regulation D offerings, which is small compared to the 8.7 million households that 

qualify as accredited investors. Second, evidence suggests that only a small fraction of 

the total accredited investor population has significant levels of direct stockholdings. 

Based on an analysis of retail stock holding data for 33 million brokerage accounts in 

2010, only 3.7 million accounts had at least $100,000 of direct investments in equity 

securities issued by public companies listed on domestic national securities exchanges, 

while only 664,000 accounts had at least $500,000 of direct investments in such equity 
76

securities (Figure 7).

217 Assuming that investments in publicly-traded equity securities 

are a gateway to investments in securities issued in exempt offerings, and accredited 

investors with investment experience in publicly-traded equity securities are more likely 

to participate in an exempt offering than accredited investors who do not, the set of 

accredited investors likely to be interested in investing in Rule 506(c) offerings could be 

significantly smaller than the total accredited investor population.

Figure 7: Direct Stock Holdings of Retail Investors, 2010 

Investors in Rule 144A offerings are QIBs, which comprise a broad range of U.S. 

entities, including mutual funds, pension funds, banks, savings and loan associations, 

investment companies, insurance companies and entities whose equity owners are all 

 

217 This analysis by DERA is based on the stock holdings of retail investors from more than 100 brokerage 

firms covering more than 33 million accounts during the period June 2010-May 2011.
77

QIBs.218 As there is no obligation for issuers in Rule 144A offerings to publicly disclose 

the characteristics of their investors, the information available on the number and types of 

QIBs in the Rule 144A market is not broadly known, and is generally available only to 

those financial intermediaries who act as initial purchasers in the offerings. 

c. Investment Advisers

As of December 2012, there were 10,870 Commission-registered investment 

advisers that filed Form ADV with the Commission, representing approximately $50 

trillion total assets under management.219 The average investment adviser registered with 

the Commission has assets under management of approximately $4.6 billion; the median 

size of assets under management for these registered investment advisers is $258 million. 

Approximately one-fourth of registered investment advisers (2,842) currently 

advise (or advised) private funds that filed Form D between 2002 and 2012, while 

another 1,250 registered investment advisers currently advise (or advised) private funds 

that did not file Form D during the same period. The registered investment advisers 

advising private funds that submitted Form D filings during this period had average 

assets under management of $8.7 billion, while the ones advising private funds that did 

not submit Form D filings had average assets under management of $8.6 billion. 

Registered investment advisers that did not advise private funds (6,623) are considerably 

smaller, with average assets under management of $2.1 billion. 

 

218 Non-U.S. investors generally do not participate in Rule 144A offerings; rather, they participate in 

Regulation S offerings. Issuers will frequently conduct side-by-side Rule 144A and Regulation S offerings.

219 For the same time period, 2,303 exempt reporting advisers filed a Form ADV with the Commission. 

Certain investment advisers that are ineligible to register with the Commission may also be exempt from 

registration with any state.
78

d. Broker-Dealers

As of December 2012, there were 4,450 broker-dealers registered with the 

Commission who file on Form X-17A-5, with average total assets of approximately $1.1 

billion per broker-dealer. The aggregate total assets of these registered broker-dealers are 

approximately $4.9 trillion. Of these registered broker-dealers, 410 are dually registered 

as investment advisers. The dually registered broker-dealers are larger (average total 

assets of $6.4 billion) than those that are not dually registered. Among the dually 

registered broker-dealers, we identified 24 that currently have or have had private funds 

that submitted Form D filings between 2002 and 2012. 

3. Current Practices

The extent of the economic impact of the amendments to Rule 506 will depend on 

the current practices of issuers and market participants in Rule 506 offerings. As issuers 

in the Regulation D market are not required to disclose in Form D how they formed a 

reasonable belief that the purchasers in their Rule 506 offerings are accredited investors 

or sophisticated investors and are not currently required to take reasonable steps to verify 

the accredited investor status of these purchasers, the Commission does not have any data 

on current verification practices used in such offerings, if any. Commenters, however, 

provided examples of current practices of how issuers collect information from a 

potential purchaser to form a reasonable belief that he or she is an accredited investor. 

One commenter suggested that a large number of issuers rely on lists of accredited 

investors created and maintained by a reliable third party, such as registered broker-
79

dealers,220 which would be consistent with the Commission’s view that an issuer would 

not contravene Rule 502(c)’s prohibition against general solicitation if the issuer or its 

agent has a pre-existing substantive relationship with the offerees.221 Other commenters 

asserted that many issuers rely on the services of placement agents to obtain information 

about accredited investor status and to complete a Rule 506 transaction.222 One 

commenter stated that the most common practice was a combination of an investor 

suitability questionnaire and investor self-certification.223 These commenters, however, 

did not provide data to allow for an estimate of the frequency of usage and the costs 

associated with these practices. 

C. Analysis of the Amendment to Rule 506

Congress has mandated that we eliminate the prohibition against general 

solicitation for a subset of Rule 506 offerings.224 Below, we analyze the benefits and 

costs associated with the amendments to Rule 506 in light of the baseline discussed 

above. Because existing Rule 506 has always been subject to the prohibition against 

 

220 See letter from J. McLaughlin.

221 See Release No. 33-7856. 

222 See letters from SIFMA and FSR (Oct. 5, 2012); IAA.

223 See letters from NSBA; MFA (May 4, 2012) (noting that, in the hedge fund industry, a potential hedge 

fund investor must complete “a subscription document provided by the fund’s manager that provides a 

detailed description of, among other things, the qualification standards that a purchaser must meet under the 

federal securities laws”).

224 The legislative history of a bill that was introduced (but not adopted) at or around the time of the JOBS 

Act may be instructive with respect to how Congress viewed the effect of eliminating the prohibition 

against general solicitation in private offerings. In its report on a bill that would have amended Section 

4(a)(2) of the Securities Act to permit the use of general solicitation, the House Committee on Financial 

Services stated that “regulations such as the prohibition of general solicitation and advertising in 

Regulation D Rule 506 offerings inhibit capital formation.” Access to Capital for Job Creators Act, H.R. 

Rep. 112-263, at 2 (2011). Accordingly, “[t]he legislation would allow companies greater access to 

accredited investors and to new sources of capital to grow and create jobs, without putting less 

sophisticated investors at risk.” Id. 
80

general solicitation, there are significant data and informational limitations on our ability 

to quantify the economic impact of eliminating that prohibition in certain Rule 506 

offerings. As discussed above, we do not believe that the Form D filings available on the 

Commission’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system

present a complete view of the Rule 506 market, as there are some Rule 506 offerings for 

which a Form D is not filed and the information presented in the Forms D that are filed is 

not necessarily comprehensive.225 In addition, as discussed below, we believe that there 

are sufficient differences between Rule 504, as amended to permit general solicitation 

from 1992 to 1999, and Rule 506(c) such that it would not be useful to look to the Rule 

504 market during that period to make meaningful predictions as to the type or magnitude 

of the effects of eliminating the prohibition against general solicitation for Rule 506(c) 

offerings. For example, the amount of capital that could be raised under Rule 504, as 

amended during this period, was capped at $1 million over a 12-month period; the 

securities in a Rule 504 offering could be sold to an unlimited number of non-accredited 

investors; and the securities sold in Rule 504 offerings were not restricted securities for 

purposes of resale. We provide below a qualitative analysis of the potential costs and 

benefits of eliminating the prohibition against general solicitation in certain Rule 506 

offerings, supplementing that analysis with quantification, where possible, based on 

existing data.

 

225 Because filing a Form D is not a condition for relying on Regulation D, commenters have noted that 

many issuers do not file a Form D when raising capital under Rule 506. Issuers are currently required to 

file an initial Form D within 15 days of the first sale of securities, but are required to report additional sales 

through amended filings only under certain conditions, which means that in many cases, the total amount of 

capital raised in a Regulation D offering is not reported on Form D. Finally, issuers do not report all 

required information, either due to error or because they do not wish to make the information public. For 

example, issuers have the option in Form D to decline to disclose their revenues or net asset values. 
81

1. Benefits to Issuers

The elimination of the prohibition against general solicitation for a subset of Rule 

506 offerings will enable issuers to solicit potential investors directly, through both 

physical (such as mailings, newspaper advertisements and billboards) and electronic 

(such as the Internet, social media, email and television) means. As a result, we 

anticipate that issuers will be able to reach a much greater number of potential investors 

than is currently the case, thereby increasing their access to sources of capital. We note 

that many commenters, including those representing small businesses, biotechnology 

companies and angel investors, stated that the elimination of the prohibition against 

general solicitation will facilitate capital formation by allowing businesses, particularly 

early-stage companies, to solicit investments from a larger pool of investors.226 This 

could increase overall capital formation if issuers that previously did not raise capital 

from individual investors because it was too costly to solicit them through intermediaries 

now choose to solicit investors directly using general solicitation in accordance with Rule 

506(c). Alternatively, if issuers use new Rule 506(c) in lieu of other methods of raising 

capital, such as registered offerings or unregistered non-Rule 506(c) offerings, then Rule 

506(c) would replace one source of capital for another, thereby potentially improving the 

efficiency of capital flow through lower issuance costs, but not necessarily increasing the 

gross amount raised. 

We believe that it is reasonable to conclude that allowing issuers to have wider 

access to accredited investors by eliminating the prohibition against general solicitation 

for a category of Rule 506 offerings will significantly improve their access to capital and 

 

226 See, e.g., letters from BIO; NSBA.
82

potentially enhance capital formation and lower the issuance cost. Although the lack of 

available data on the economic impact of eliminating the prohibition against general 

solicitation in Rule 506 offerings precludes us from quantifying the magnitude of this 

effect, the Commission has some evidence of the effect of the availability of general 

solicitation on issuers’ ability to raise capital based on information about the number of 

Rule 504 offerings from 1992 to 2001, which covers the period during which the 

prohibition against general solicitation was lifted for Rule 504,227 and subsequently 

reinstated in 1999.228 In particular, and as shown in the chart below, the number of Rule 

504 offerings increased at an average annual rate of 10.6% from 1992 through 1999.229 

In 2000, following the reinstatement of the ban, the number of Rule 504 offerings 

declined by almost 44%. This decline is coincident with the general market decline in 

2000, including the collapse of the Internet bubble, which may have been the cause or at 

least a significant contributing factor to the rate of decline. During 2000, however, there 

was not a concurrent decline in either the number of Rule 505 offerings or the number of 

Rule 506 offerings. To the contrary, the number of Rule 506 offerings increased by 

about 54% in 2000, while the number of Rule 505 offerings remained largely unchanged 

(Figure 8). Declines in the numbers of Rule 505 and Rule 506 offerings followed in 

2001, when presumably both types of offerings were negatively affected by the general 

market decline, although Rule 504 offerings experienced a sharper decline (-35%) 

compared to Rule 506 offerings (-30%). While it is not possible to disentangle the 

 

227 See Small Business Initiatives, Release No. 33-6949 (July 30, 1992) [57 FR 36442 (Aug. 13, 1992)]. 

228 See Release No. 33-7644.

229 This is based on an analysis of Form REGDEX filings on EDGAR.
83

broader market effects in 2000 from the reinstatement of the prohibition against general 

solicitation on the number of Rule 504 offerings, the steady increase in the number of 

Rule 504 offerings during the seven-year period following the elimination, in 1992, of the 

prohibition against general solicitation and the subsequent sharp decline in the number of 

Rule 504 offerings is consistent with the view that issuers’ ability to generally solicit may 

enhance their ability to raise capital.

Figure 8: Number of New Regulation D Offerings: 1992-2001 

The development of the venture capital (VC) industry in the United States may 

also be a relevant example to illustrate the potential for enhanced capital formation that 

may result from allowing issuers to have access to a wider range of investors. Under the 

Employment Retirement Income Security Act of 1974, pension fund managers are 

subject to a “prudent man” standard of care in making investments.230 Prior to 1979, 

there was uncertainty under the U.S. Department of Labor’s then-existing interpretations 

 

230 29 U.S.C. 1104(a). 
84

of this standard as to whether pension funds could invest in venture capital and start-up 

companies. In 1979, the Department clarified its interpretation of this standard by 

indicating that portfolio diversification is a factor in determining whether an investment 

is prudent, which indicated that pension funds would not be precluded from making 

investments in VC funds.231 Following this regulatory change, the VC industry 

experienced substantial growth: VC commitments increased from $218 million in 1978 

(of which pension funds supplied approximately 15%) to $3 billion in 1988 (of which 

pension funds supplied approximately 46%).232 

We also anticipate that allowing issuers to solicit potential investors directly will

lower the direct costs of Rule 506 offerings. Although none of the commenters provided 

data on direct cost savings, and although Form D filings do not present a complete view 

of the market, we do have estimates of the direct offering costs paid by issuers that use an 

intermediary to locate investors in Rule 506 offerings. An analysis of all Form D filings 

submitted between 2009 to 2012 shows that approximately 11% of all new Regulation D 

offerings reported sales commissions of greater than zero because the issuers used 

intermediaries.233 The average commission paid to these intermediaries was 5.9% of the 

offering size, with the median commission being approximately 5%. Accordingly, for a 

$5 million offering, which was the median size of a Regulation D offering with a 

commission during this period, an issuer could potentially save up to $250,000 if it 

solicits investors directly rather than through an intermediary, minus the cost of its own 

 

231 See 29 CFR 2550.404a-1(b)(1)(i).

232 See Paul A. Gompers and Josh Lerner, The Venture Capital Cycle (2006); Paul Gompers, The Rise and 

Fall of Venture Capital, 23 Business and Economic History 1 (1994). 

233 See Ivanov/Bauguess Study.
85

solicitation efforts and the cost associated with verifying accredited investor status.234 

This potential benefit would likely be larger on a percentage basis for smaller offerings. 

During this four-year period, of the issuers that paid a commission in connection with a 

Regulation D offering, issuers raising up to $1 million in capital paid on average a 6.5% 

commission, whereas issuers raising over $50 million in capital paid on average a 1.9% 

commission.235 

Even for issuers that do not currently use an intermediary, allowing issuers to 

generally solicit would likely lower the search costs associated with finding accredited 

investors who would be interested in a particular offering, thus enhancing economic 

efficiency.236 If lower search costs expand the pool of interested investors for offerings, 

there could be greater competition among investors, thereby lowering the costs of capital 

for issuers.

237 

The elimination of the prohibition against general solicitation would also reduce 

the uncertainty for issuers as to whether a Rule 506 offering can be completed in certain 

situations, and would eliminate the costs of complying with the prohibition.238 Under 

existing Rule 506, an inadvertent release of information about an offering to entities or 

persons with whom the issuer does not have a pre-existing substantive relationship has 

 

234 We recognize that intermediaries can provide benefits to issuers in addition to locating investors. For 

example, an intermediary may be able to help an issuer obtain better pricing and terms or provide access to 

investors that can provide strategic or other advice to the issuer. An intermediary could also provide 

accreditation services. Unfortunately, we do not have data to quantify these benefits.

235 See Ivanov/Bauguess Study.

236 See, for example, Erik Sirri and Peter Tufano, Costly Search and Mutual Fund Flows, 53 Journal of 

Finance 1589 (1998), for a similar argument with respect to investors in mutual funds. 

237 For example, a study on offerings involving venture capitalists finds that increased competition among 

them results in higher valuations for issuers. See Paul Gompers and Josh Lerner, Money Chasing Deals? 

The Impact of Fund Inflows on Private Equity Valuations, 55 Journal of Financial Economics 281 (2000). 

238 See letter from MFA (May 4, 2012).
86

been viewed by some as raising questions about the issuer’s ability to rely on the 

exemption for the entire offering.239 In addition, some private funds have been reluctant 

to respond to press inquiries or to correct inaccurate reports due to concerns about these 

discussions being misconstrued as a general solicitation.240 Under Rule 506(c), any such 

uncertainty as to the availability of the exemption due to the public disclosure of 

information will be reduced. Nevertheless, there is no data available to quantify or 

estimate these effects.

2. Benefits to Investors

The elimination of the prohibition against general solicitation in Rule 506(c)

offerings will likely increase the amount and types of information about issuers and 

offerings that are communicated to investors, which could also lead to more efficient 

pricing for the offered securities. In addition, accredited investors who previously have 

found it difficult to find investment opportunities in Rule 506 offerings may be able to 

find and potentially invest in a larger and more diverse pool of potential investment 

opportunities, which would result in a more efficient allocation of investments by 

accredited investors.

241 Thus, Rule 506(c) could increase capital formation and at the 

 

239 See, e.g., letter from S. Lorne and J. McLaughlin (Aug. 5, 2008) on Release No. 33-8828 (stating that 

“[o]n occasion, the prohibition forces issuers to delay or even cancel offerings because of communications 

– sometimes inadvertent – that could be viewed in hindsight as a solicitation. The need to police 

communications by transaction participants, and to analyze and remedy inadvertent communications, also 

adds significantly to the cost of effecting private placements.”). 

240 See, e.g., letters from D.E. Shaw & Co. (Apr. 3, 2006) on Exposure Draft of Final Report of Advisory 

Committee on Smaller Public Companies, Release No. 33-8666 (Feb. 28, 2006); MFA (May 4, 2012). 

241 This benefit may not be applicable with respect to every issuer (e.g., certain private funds that offer 

their shares continuously at net asset value).
87

same time improve its allocative efficiency.242 One commenter argued that we do not 

provide data to support the statements that accredited investors need new opportunities or 

cannot find new opportunities under the current rules prohibiting the use of general 

solicitation in Rule 506 offerings.243 While we do not have data to test the validity of 

these statements since general solicitation has heretofore been prohibited in Rule 506 

offerings, economic theory suggests that expanding investors’ opportunities for 

investment generally results in more efficient allocation of capital. For example, one 

seminal study suggests that if some investors have incomplete information and are not 

aware of all firms in the economy, risk sharing is incomplete and inefficient.244 

Information that makes investors aware of the existence of these firms and enlarges the 

investor base leads to improved risk sharing and lower cost of capital. 

With respect to private funds in particular, in the Proposing Release, we noted 

that eliminating the prohibition against general solicitation would allow accredited 

investors to gather information about private funds at relatively lower costs and to 

allocate their capital more efficiently.245 Increased information about private fund

strategies, management fees and performance information would likely lead to greater 

competition among private funds for investor capital. 

 

242 Allocative efficiency is a condition that is reached when resources are allocated in a way that allows the 

maximum possible net benefit from their use. In this context, it means the right number of dollars from the 

right types of investors going to the most suitable investments on efficient terms.

243 See letter from Consumer Federation.

244 See Robert Merton, A Simple Model of Capital Market Equilibrium with Incomplete Information, 42 

Journal of Finance 483 (1987).

245 See, e.g., letter from MFA (May 4, 2012); and Managed Funds Association, Petition for Rulemaking on 

Rule 502 of Regulation D under the Securities Act of 1933, File No. 4-643 (Jan. 9, 2012) (“MFA 

Petition”). 
88

Some commenters noted that greater transparency about private funds’ activities 

would benefit investors in these funds, and communications about these activities would 

be subject to the antifraud provisions of the federal securities laws and FINRA 

regulations on the preparation of marketing materials.246 Other commenters believed that 

private funds engaging in general solicitation should be subject to form, content and/or 

other restrictions, such as performance and advertising standards that are analogous to the 

standards that are applicable to mutual funds in order to engage in general solicitation.247 

One of the commenters suggested that the Commission develop a rule tailored to the 

ways private funds calculate and present performance, rather than extending mutual fund 

performance rules to private funds.248 With respect to private funds sold through brokerdealers subject to FINRA’s rules of conduct, some commenters believed that we should 

direct FINRA to require the filing and review of private fund advertisements.249 

While the lack of data does not allow us to quantify the costs and benefits of 

eliminating the prohibition against general solicitation under Rule 506(c) for private 

funds, we believe that the potential for an increase in fraudulent or deceptive issuer 

behavior due to the elimination of the prohibition may be limited to some extent by the 

competitive nature of the private funds industry as well as by the fact that there are often 

repeat interactions between private funds and their investors.250 

 

246 See letters from IAA; BlackRock; MFA (Sept. 28, 2012).

247 See, e.g., letters from AFL-CIO and AFR; Sen. Levin; Consumer Federation; Fund Democracy; 

Investor Advisory Committee; ICI; IDC; Rep. Waters; NASAA; P. Turney; and Sens. Reed, Levin, 

Durbin, Harkin, Lautenberg, Franken and Akaka.

248 See letter from ICI. 

249 Letters from AFL-CIO and AFR; ICI. 

250 See, e.g., William Fung and David Hsieh, Hedge Fund Benchmarks: Information Content and Biases,

58 Financial Analysts Journal 22 (2002); Rajarishi Nahata, Venture Capital Reputation and Investment 
89

3. Costs

Eliminating the prohibition against general solicitation could result in heightened 

fraudulent activity in Rule 506(c) offerings because it will be easier for promoters of 

fraudulent schemes to reach potential investors through general solicitation. An increase 

in fraud would not only harm those investors who are defrauded, it would undermine 

investor participation in Rule 506(c) offerings and could negatively affect capital-raising 

by legitimate issuers – for example, by reducing investor participation in Rule 506(c)

offerings – thereby inhibiting capital formation and reducing efficiency. One commenter

was concerned that investors may confuse private funds with registered investment 

companies.251 In such cases, fraud that occurs with private funds may cause investors to 

associate the wrongdoing with registered investment companies, and therefore refrain 

from investing in registered investment companies. In addition, some issuers with 

publicly-traded securities may use general solicitation for a purported Rule 506(c)

offering to generate investor interest in the secondary trading markets, especially in the 

over-the-counter markets, which could be used by insiders to resell securities at inflated 

prices. This would impose costs to investors in these secondary markets, as well as 

investors in Rule 506(c) offerings, and could erode investor participation in Rule 506(c) 

offerings, thus potentially raising the cost of capital for issuers in this market. As 

discussed above, we cannot quantify these potential costs because the existence of the 

prohibition against general solicitation in Rule 506 offerings until now means that data on 

the economic impact of eliminating the prohibition is not available. 

 

Performance, 90 Journal of Financial Economics 127 (2008); Douglas Cumming and Uwe Walz, Private 

Equity Returns and Disclosure Around the World, 41 Journal of International Business Studies 727 (2010). 

251 See letters from ICI; ICI re: MFA Petition (Feb. 7, 2012).
90

Several commenters echoed concerns regarding the potential of fraud related to 

private funds in the Rule 506(c) market.252 Empirical evidence on the extent of fraud 

involving private funds is not readily available. While a few economic studies suggest 

that certain hedge funds engage in various types of misreporting, such as misrepresenting 

past performance,253 delaying disclosure of returns254 and inflating returns at the end of 

the fiscal year in order to earn higher fees,255 these studies do not provide information 

about the extent or magnitude of any such misreporting activities. In a 2003 report, the 

Commission staff noted that there was no evidence that hedge funds were 

disproportionately involved in fraudulent activity and that the charges brought by the 

Commission in 38 enforcement actions against hedge fund advisers and hedge funds 

between 1999 and 2003 were similar to the charges against other types of investment 

advisers.256 Evidence on the extent of fraud involving other types of pooled investment 

funds also is sparse. A more recent study has identified 245 lawsuits (both federal and 

state) involving 200 venture capitalists as defendants between 1975 and 2007, and has 

shown that VC funds that are older and have a larger presence in terms of size and 

network are less likely to be sued.257

 

252 See letters from Consumer Federation; Fund Democracy; IDC.

253 See Andrew Patton, Tarun Ramadorai, and Michael Streatfield, Change You Can Believe In? Hedge 

Fund Data Revisions (Duke University, Working Paper, 2013). But see letter from MFA (June 20, 2013) 

(questioning the reliability of the underlying data used in the study).

254 See George Aragon and Vikram Nanda, Strategic Delays and Clustering in Hedge Fund Reported 

Returns (Arizona State University, Working Paper, 2013). 

255 See Vikas Agarwal, Naveen Daniel, and Naranyan Naik, Do Hedge Funds Manage Their Reported 

Returns?, 24 Review of Financial Studies 3282 (2011). 

256 See Staff Report on Hedge Funds. 

257 See Vladimir Atanasov, Vladimir Ivanov, and Kate Litvak, Does Reputation Limit Opportunistic 

Behavior in the VC Industry? Evidence From Litigation Against VCs, 67 Journal of Finance 2215 (2012). 
91

A number of commenters258 noted the Commission’s experience with the 

elimination of the prohibition against general solicitation for Rule 504 offerings in 

1992,259 and its subsequent reinstatement in 1999 as a result of heightened fraudulent 

activity.260 We do not believe that our experience with offerings conducted pursuant to 

Rule 504, as amended in 1992, is particularly instructive with respect to the potential 

incidence of fraud resulting from our implementation of Section 201(a) of the JOBS Act, 

for a number of reasons. In 1992, when we amended Rule 504 to eliminate the 

prohibition against general solicitation, we also provided that the securities issued in 

these Rule 504 offerings would not be “restricted securities” for purposes of resale 

pursuant to Rule 144 under the Securities Act.261 As a result, a non-reporting company 

could sell up to $1 million of immediately freely-tradable securities in a 12-month period 

and be subject only to the antifraud and civil liability provisions of the federal securities 

laws. 

By 1998, we concluded that securities issued in these Rule 504 offerings 

facilitated a number of fraudulent secondary transactions in the over-the-counter markets, 

and that these securities were issued by “microcap” companies, characterized by thin 

capitalization, low share prices and little or no analyst coverage.262 At that time, we 

stated that, while “we believe that the scope of abuse is small in relation to the actual 

 

258 See letters from Consumer Federation; Fund Democracy; Sen. Levin.

259 See Release No. 33-6949. 

260 See Release No. 33-7644.

261 17 CFR 230.144. 

262 Revision of Rule 504 of Regulation D, the “Seed Capital” Exemption, Release No. 33-7541 (May 21, 

1998) [63 FR 29168 (May 28, 1998)]. 
92

usage of the exemption, we also believe that a regulatory response may be necessary.”263

As the freely-tradable nature of the securities facilitated the fraudulent secondary 

transactions, we proposed to “implement the same resale restrictions on securities issued 

in a Rule 504 transaction as apply to transactions under the other Regulation D 

exemptions,” in addition to reinstating the prohibition against general solicitation. 

Although we recognized that resale restrictions would have “some impact upon small 

businesses trying to raise ‘seed capital’ in bona fide transactions,” we believed that such 

restrictions were necessary so that “unscrupulous stock promoters will be less likely to 

use Rule 504 as the source of the freely tradable securities they need to facilitate their 

fraudulent activities in the secondary markets.”264 

In contrast, issuers using Rule 506(c) can sell only to accredited investors, and the 

securities issued in these offerings are deemed to be “restricted securities” for purposes of 

resale under Rule 144. As a result, schemes involving price manipulation to defraud 

unknowing investors in the immediate resale of securities purchased directly from issuers 

(colloquially referred to as “pump and dump” schemes)265 are not the types of fraud we 

believe are likely to occur in Rule 506(c) offerings, given the holding period requirement 

in Rule 144(d) and other structural impediments, such as restricted transfer legends on 

stock certificates. 

 

263 Id. at 29169. 

264 Id.

265 See, e.g., Testimony of Arthur Levitt, Chairman, U.S. Securities and Exchange Commission, before the 

Permanent Subcommittee on Investigations, Senate Committee on Governmental Affairs, Sept. 22, 1997; 

SEC v. Huttoe, Litigation Release No. 15237 (Jan. 31, 1997), 63 SEC Docket 2383 (Mar. 4, 1997); SEC v. 

Spencer, Litigation Release No. 14856 (Mar. 29, 1996), 61 SEC Docket 1960 (Apr. 30, 1996), and 

Litigation Release No. 15042 (Sept. 12, 1996), 62 SEC Docket 2409 (Oct. 8, 1996). 
93

The risks to investors of fraudulent offerings conducted under Rule 506(c) may be 

mitigated to some extent by the requirement that issuers sell only to accredited investors 

(and take reasonable steps to verify such status), who, by virtue of meeting the 

requirements of the definition, may be better able to assess their ability to take financial 

risks and bear the risk of loss than investors who are not accredited investors. Issuers 

will still be subject to the antifraud provisions under the federal securities laws, and the 

public nature of these solicitations may also facilitate detection of fraudulent activity in 

that the fraudulent nature of some offerings may be inferred from particular statements 

contained in solicitation materials, for example, representations of guaranteed high rates 

of return. 

Several commenters asserted that satisfying the definition of accredited investor 

does not equate to financial sophistication and that it is questionable whether accredited 

investors will be better able to identify the financial risks of the offerings and detect 

fraudulent offerings as compared to non-accredited investors.266 They also noted that the 

income test and the net worth test have been significantly eroded by inflation. These 

commenters also stated that not all general solicitation activities are widely known or 

accessible, and that fraudulent offerings sold through telemarketing calls and email 

solicitations, for example, will be difficult if not impossible to detect until after 

significant damage has occurred.

4. Indirect Effects on Other Markets

Although Rule 506(c) will directly affect the private offering market, it could also 

have an indirect effect on other markets. The lower search costs associated with finding 

 

266 See, e.g., letters from Consumer Federation; Fund Democracy. 
94

Rule 506(c) offerings may cause some investors that currently invest in public equity and 

debt markets or other non-registered offering markets to reallocate capital to offerings 

made under Rule 506(c). If a significant number of investors make a greater proportion 

of their investments in Rule 506(c) offerings, such investor behavior may reduce the 

supply of capital and prices in the public equity and debt markets and in other nonregistered offering markets. For example, issuers currently using the exemptions in 

Regulation A under the Securities Act267 and in Rules 504(b)(1)(i) through (iii) of 

Regulation D268 to solicit investors could prefer to rely on the exemption under Rule 

506(c) because they would be able to raise unlimited amounts of capital under Rule 

506(c) and state blue sky securities registration requirements do not apply to Rule 506(c) 

offerings.269 Although it is difficult to estimate how many of these issuers will choose to 

rely on Rule 506(c) in lieu of other available exemptions from registration, we believe 

that it is likely that Rule 506(c) will have a larger impact on issuers using Rule 504 rather 

than Regulation A because very few issuers have been using the Regulation A exemption 

in recent years.270 In addition, to the extent that accredited investors have invested in 

registered investment companies instead of private funds because of information 

asymmetry between private funds and registered investment companies, it is possible that 

registered investment companies’ assets may decrease if these investors now transfer 

 

267 17 CFR 230.251 through 17 CFR 230.263.

268 17 CFR 230.504(b)(1)(i)-(iii). 

269 17 CFR 230.251 through 17 CFR 230.263. 

270 The Ivanov/Bauguess Study reported that 1,852 issuers relied on the Rule 504 exemption to raise 

capital between 2009 to 2012, and 20 issuers relied on Regulation A. The number of issuers using 

Regulation A to raise capital may increase once the Commission adopts rules implementing Title IV of the 

JOBS Act, which directs the Commission to adopt an exemption based on Regulation A to permit offerings 

of up to $50 million. 
95

their assets to private funds. Because we cannot predict how issuers will use the various 

exemptions from registration after the elimination of the prohibition against general 

solicitation in Rule 506(c) offerings, we cannot quantify these potential effects. 

5. Retention of Rule 506(b)

We believe that retaining existing Rule 506(b) will have benefits for both issuers 

and investors. It will allow issuers that do not wish to generally solicit in their private 

offerings to avoid the added expense of complying with the rules applicable to Rule 

506(c) offerings. It will also allow issuers to continue selling privately to up to 35 nonaccredited investors who meet existing Rule 506’s sophistication requirements. The 

continued availability of Rule 506(b) may also be beneficial to investors with whom the 

issuer has a pre-existing substantive relationship and who do not wish to bear additional 

verification costs that may be associated with participation in Rule 506(c) offerings. All 

but one commenter supported the Commission’s decision to retain Rule 506(b).271 

D. Verifying Accredited Investor Status in Rule 506(c) Offerings

As there is no information available to us on the costs currently incurred by 

issuers to form a reasonable belief that a purchaser in a Rule 506 offering is an accredited 

investor, we are unable to quantify the estimated costs and benefits of the verification 

requirement in Rule 506(c). Comments from the public on this issue also did not provide 

any estimates. 

 

271 See, e.g., letters from ABA Fed. Reg. Comm.; ACA (Sept. 27, 2012); CFIRA; IPA; Montgomery & 

Hansen; NSBA; NYCBA; S&C; SIFMA and FSR (Oct. 5, 2012). Only one commenter opposed retaining 

it. Letter from J. McLaughlin (stating that “[t]here is no basis in the statute for the Commission to continue 

to apply the prohibition to a set of offerings exempt under Rule 506, especially since the effect of 

maintaining a parallel rule may have the effect of discouraging some issuers from using general 

solicitation....”).
96

The requirement in Rule 506(c) for issuers to take reasonable steps to verify that 

purchasers are accredited investors will likely make it more difficult for issuers to sell 

securities to non-accredited investors. This, in turn, may reduce the likelihood that 

fraudulent offerings would be completed because those who are eligible to purchase are 

more likely to be able to protect their interests than investors who are not accredited 

investors. Issuers would also benefit from measures that improve the integrity and 

reputation of the Rule 506(c) market because the measures would facilitate investor 

participation, which could result in issuers having greater access to capital. 

The verification requirement in Rule 506(c) would impose costs as well. Because 

the requirement is to take “reasonable” steps to verify, and not every conceivable step to 

verify, it is possible that some investors in Rule 506(c) will not be accredited investors, 

even if the issuer takes reasonable steps to verify their status as accredited investors. If 

so, then these investors will participate in offerings for which they are not qualified and 

that may not be appropriate for them, thereby resulting in a potentially inefficient 

allocation of capital for these investors. These investors could also face an additional 

cost in the form of heightened risk of significant losses on their investments, which they 

may not be able to manage or diversify in a way that accredited investors could. 

In addition, some potential investors likely would have to provide more 

information to issuers than they currently provide, while issuers may have to apply a 

stricter and more costly process to determine accredited investor status than what they 

currently use. While commenters provided us with examples of the methods currently 

used by issuers in the Rule 506 market to collect information about purchasers, they did 

not provide any data on the costs of these methods. While it is reasonable to expect that 
97

the costs associated with the verification requirement could be offset somewhat by its 

benefits, it is also reasonable to expect that some accredited investors who would 

participate in existing Rule 506(b) offerings would decline to participate in Rule 506(c) 

offerings in light of the verification requirement. 

To the extent that issuers require investors to provide personally identifiable 

information (e.g., Social Security numbers, tax information, bank or brokerage account 

information) in order to verify their accredited investor status, these investors may be 

reluctant to do so in the context of making an investment in an issuer, particularly an 

issuer with which they may have no prior relationship.272 In addition to concerns about 

maintaining personal privacy, investors may be concerned that their personally 

identifiable information could be stolen or accessed by third parties or used by 

unscrupulous issuers in various ways (e.g., identity theft), which could impose costs to 

investors that go well beyond the costs typically associated with investing. As a 

consequence, some potential investors may elect not to participate in Rule 506(c) 

offerings, thus impeding capital formation to some extent.

Our decision not to specify the verification methods that an issuer must use in 

taking reasonable steps to verify accredited investor status would provide issuers with the 

flexibility to use methods that are appropriate in light of the facts and circumstances of 

each offering and each purchaser. Such flexibility could mitigate the cost to issuers of 

complying with Rule 506(c) because it would allow them to select the most cost-effective 

verification method for each offering. We anticipate, however, that issuers or their 

verification service providers will document the particular verification methods used in 

 

272 See letter from SecondMarket Holdings, Inc. (May 25, 2012). 
98

the event of any question being raised about the availability of the exemption. Although 

we do not specify the nature or extent of any such documentation, we acknowledge that it 

will create some cost. 

On the other hand, the greater flexibility of the principles-based “reasonableness” 

verification method could result in less rigorous verification, thus allowing some 

unscrupulous issuers to more easily sell securities to purchasers who are not accredited 

investors and perpetrate fraudulent schemes, or it could create or promote legal 

uncertainty about the availability of Rule 506(c), which may cause some issuers to

interpret “reasonable steps to verify” in a manner that is more burdensome than if specific 

verification methods were prescribed, thus incurring higher cost. We believe that the 

non-exclusive list of specific methods of verification we are including in Rule 506(c), as 

adopted, should help to mitigate the impact of these costs. 

Some commenters suggested that using a flexible verification standard is optimal 

for issuers because it closely resembles current market practices which they believe have 

worked well in this market.273 Such flexibility will allow issuers to adopt different 

approaches based on the types of accredited investors, types of offerings and changing 

market practices. In contrast, other commenters questioned the benefits of the flexibility 

provided by the principles-based verification method and criticized the Commission for 

not quantifying the costs and benefits of currently used verification methods.274 They 

argued that the application of the reasonableness standard in the principles-based method 

 

273 See letters from SIFMA and FSR (Oct. 5, 2012); and IAA. 

274 See letters from Consumer Federation; Fund Democracy. 
99

will lead to lax verification practices by issuers, which would lessen investor protection 

by allowing sales of securities to non-accredited investors. 

Our decision to provide a non-exclusive list of specified methods that issuers can 

use to verify a purchaser’s accredited investor status will provide legal certainty in those 

circumstances in which there is a question as to whether or not the steps taken are 

reasonable in light of the facts and circumstances. Using a specified method would 

reduce issuers’ verification costs to the extent that they would otherwise incur costs to 

analyze whether or not the steps they had taken or proposed to take satisfied the 

reasonableness standard in Rule 506(c). It could also reduce investors’ costs, since the 

methods for verifying income and net worth rely mostly on documents prepared by third 

parties at no cost to the investors. On the other hand, some investors may be reluctant to 

provide the personal financial information required by the income and net worth 

methods; and with respect to the third-party method, it may be relatively costly to pay for 

the verification services of a lawyer or accountant as they may be concerned about 

professional liability. The grandfather method – which permits self-certification by 

existing investors who purchased securities as accredited investors in an issuer’s Rule 

506(b) offering before the effective date of Rule 506(c) – could result in investors that do 

not meet the definition of “accredited investor” participating in Rule 506(c) offerings 

because issuers conducting Rule 506(b) offerings are not required to take reasonable 

steps to verify the accredited investor status of their purchasers. 

In addition, our non-exclusive list of specified verification methods could be 

mistakenly viewed by market participants as the required verification methods, in which 

compliance with at least one of the enumerated methods could be viewed, in the practical 
100

application of the verification requirement, as necessary in all circumstances to 

demonstrate that the verification requirement has been satisfied, thereby eliminating the 

flexibility that Rule 506(c) is intended to provide.275 If issuers choose not to use 

verification methods different from those on the non-exclusive list, then some potential 

investors may limit their participation in the Rule 506(c) market, which may impede 

capital formation to some extent. Finally, even if a specified method has been used, 

thereby satisfying the verification requirement, there may be circumstances in which 

issuers may unreasonably overlook or disregard other information indicating that a 

purchaser is not, in fact, an accredited investor. This could lead to sales being made to 

persons who are not accredited investors. Because, as stated above, the Commission does 

not have data on current verification practices, we cannot quantify the effect of the new 

verification requirement in Rule 506(c). 

E. Analysis of the Amendment to Rule 144A 

We expect the potential benefits of the amendments to Rule 144A to be lower 

(i.e., less available) for issuers in Rule 144A offerings as compared to issuers in Rule 

506(c) offerings because QIBs, which are the only permitted investors in Rule 144A 

offerings, are generally fewer in number, known by market participants, and better 

networked than accredited investors. Thus, as we noted in the Proposing Release, we 

believe that eliminating the prohibition against general solicitation for Rule 144A 

offerings is unlikely to dramatically increase issuers’ access to QIBs in such offerings or 

to lower the cost of capital in Rule 144A offerings. 

 

275 The use of any of the specified methods is optional. We expect that many issuers will conduct Rule 

506(c) offerings in reliance on the principles-based method of verification, in light of its flexibility and 

efficiency. 
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We expect that there would be fewer potential occurrences of general solicitationinduced fraud in Rule 144A offerings, as compared to Rule 506(c) transactions, because 

Rule 144A offerings involve an intermediary that, as the initial purchaser of the 

securities, typically performs a due diligence investigation and assists the issuer in 

preparing the offering materials, thereby adding a layer of protection against fraud. Also, 

Rule 144A investors are generally large institutions, which are thought to be better able 

to identify fraudulent activities than smaller institutions and retail investors in general. 

We also anticipate that eliminating the prohibition against general solicitation 

would significantly affect private trading systems by permitting information vendors to 

provide more information about Rule 144A securities. Indeed, because offers will be 

able to be made to the public, the information on private trading systems for Rule 144A 

securities could be made available to all investors, even though sales would be limited to 

QIBs.276 In addition, currently there is no public dissemination through Trade Reporting 

and Compliance Engine (“TRACE”) of transactions in Rule 144A securities.277 Now that 

Rule 144A is being amended to permit offers to be made to persons other than QIBs, 

transaction information with respect to Rule 144A securities can be publicly 

disseminated. Such improvements in the information available to potential investors 

could enhance efficiency in the Rule 144A market.

 

276 Under the PORTAL Trading System developed by the Nasdaq Stock Market for trading Rule 144A 

securities, access is restricted to QIBs. Other privately developed Rule 144A trading systems, such as 

Portal Alliance, have similar restrictions. 

277 See FINRA Rule 6750. There is mandatory reporting of over-the-counter trades in fixed income 

securities. On April 19, 2013, the FINRA Board of Governors announced that it has authorized FINRA to 

file with the Commission “proposed amendments to FINRA Rules 6750 and 7730 to provide for the 

dissemination of transactions in TRACE-eligible securities effected pursuant to Securities Act Rule 144A 

(Rule 144A transactions).” See Letter from Richard G. Ketchum, Chairman and CEO, FINRA (Apr. 19, 

2013), available at: http://www.finra.org/Industry/Regulation/Guidance/CommunicationstoFirms/P244913. 
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F. Additional Information Collection and Disclosures 

We are amending Form D to add a new check box in Item 6 of Form D that will

require an issuer to indicate whether it is relying on Rule 506(c) in conducting its 

offering. With this information, the Commission will be able to more effectively analyze

the use of Rule 506(c). The marginal cost to issuers of providing this information is 

likely to be low because Form D already requires issuers to identify the exemption on 

which they are relying. Commenters generally supported the proposal to have a new 

check box in Item 6 of Form D as a way to identify Rule 506(c) offerings.278 One 

commenter, however, questioned the usefulness of the information provided by the new 

check box.279 

Much of what we know about the size and characteristics of the private offering 

market comes from Form D filings. The information collected to date and described in 

this release illustrates and underscores the importance of the private offering market to

the U.S. economy. The continued collection of this information following the 

elimination of the prohibition against general solicitation in Rule 506(c) and Rule 144A 

offerings will be an important tool in assessing the ongoing economic impact of the new 

rule amendments. 

VII. FINAL REGULATORY FLEXIBILITY ANALYSIS

This Final Regulatory Flexibility Analysis (“FRFA”) has been prepared in 

accordance with Section 603 of the Regulatory Flexibility Act.280 It relates to the 

 

278 See letters from MFA (Sept. 28, 2012); SIFMA and FSR (Oct. 5, 2012); IAA. 

279 See letter from Consumer Federation. 

280 See 5 U.S.C. 603. 
103

amendments to Rules 500, 501, 502 and 506 of Regulation D, Form D and Rule 144A 

that we are adopting in this release. An Initial Regulatory Flexibility Analysis (“IRFA”) 

was prepared in accordance with the Regulatory Flexibility Act and included in the 

Proposing Release. 

A. Reasons for, and Objectives of, the Action 

 The primary reason for, and objective of, the amendments to Rule 502 and Rule 

506 is to implement the statutory requirements of Section 201(a)(1) of the JOBS Act, 

which directs the Commission to revise Rule 506 to provide that the prohibition against 

general solicitation in Rule 502(c) shall not apply to offers and sales of securities made 

pursuant to Rule 506, provided that all purchasers of the securities are accredited 

investors. Consistent with the language in Section 201(a), the amendment to Rule 506 

requires issuers to take reasonable steps to verify that purchasers in any Rule 506 offering 

using general solicitation are accredited investors. The primary reason for, and objective 

of, the amendment to Form D is to assist our efforts to analyze the use of general 

solicitation in Rule 506(c) offerings and the size of this offering market. 

The primary reason for, and objective of, the final amendment to Rule 144A is to 

implement the statutory requirements of Section 201(a)(2) of the JOBS Act, which 

directs the Commission to revise Rule 144A(d)(1) to provide that securities sold pursuant 

to Rule 144A may be offered to persons other than QIBs, including by means of general 

solicitation, provided that securities are sold only to persons that the seller and any person 

acting on behalf of the seller reasonably believe are QIBs.

B. Significant Issues Raised By Public Comments

 In the Proposing Release, we requested comment on any aspect of the IRFA, 

including the number of small entities that would be subject to the proposed rule and 
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form amendments and the nature of the effects of the proposed amendments on small 

entities. We received one comment addressing the IRFA.281 This commenter stated that 

the Commission failed in its IRFA to consider the alternative of eliminating Form D or 

significantly reducing the scope of information required to be disclosed on Form D. As 

Form D provides meaningful information about the Regulation D market, and our need 

for information about this market will only increase once Rule 506(c) is in effect, we are 

not considering eliminating Form D or significantly reducing the scope of information 

required to be disclosed on Form D.

C. Small Entities Subject to the Final Rule and Form Amendments

For purposes of the Regulatory Flexibility Act, under our rules, an issuer, other 

than an investment company, is a “small business” or “small organization” if it has total 

assets of $5 million or less as of the end of its most recent fiscal year and is engaged or 

proposing to engage in an offering of securities which does not exceed $5 million.282 For 

purposes of the Regulatory Flexibility Act, an investment company is a small entity if it, 

together with other investment companies in the same group of related investment 

companies, has net assets of $50 million or less as of the end of its most recent fiscal 

year.283 

Rule 506(c) will affect small issuers (including both operating businesses and 

investment funds that raise capital under Rule 506) relying on this exemption from 

Securities Act registration. All issuers that sell securities in reliance on Regulation D are 

 

281 See letter from K. Bishop.

282 17 CFR 230.157. 

283 17 CFR 270.0-10(a).
105

required to file a Form D with the Commission reporting the transaction. For the year 

ended December 31, 2012, 16,067 issuers made 18,187 new Form D filings, of which 

15,208 issuers relied on the Rule 506 exemption. Based on the information reported by 

issuers on Form D, there were 3,958 small issuers284 relying on the Rule 506 exemption 

in 2012. This number likely underestimates the actual number of small issuers relying on 

the Rule 506 exemption, however, because over 60% of issuers that are not pooled 

investment funds and over 80% of issuers that are pooled investment funds declined to 

report their amount of revenues in 2012. 

The final amendment to Rule 144A will affect small entities that engage in Rule 

144A offerings.285 Unlike issuers that use Regulation D, issuers conducting Rule 144A 

offerings are not required to file any form with the Commission. This lack of data 

significantly limits our ability to assess the number and the size of issuers that conduct 

Rule 144A offerings. Still, we are able to obtain some data on non-ABS Rule 144A 

offerings during the 2009 to 2012 period from two commercial databases.286 Based on 

these data, we identified 3,510 offerings involving 1,965 issuers from 2009 to 2012. We 

were able to obtain 2011 financial information for 598 of these issuers,287 of which only 

11 issuers reported total assets of less than $50 million. 

 

284 Of this number, 3,627 of these issuers are not investment companies, and 331 are investment 

companies. We also note that issuers that are not investment companies disclose only revenues on Form D, 

and not total assets. Hence, we use the amount of revenues as a measure of issuer size.

285 While it may be theoretically possible for a small entity to meet one part of the definition of “qualified 

institutional buyer” (e.g., an “entity, all of the equity owners of which are qualified institutional buyers, 

acting for its own account or the accounts of other qualified institutional buyers”), we do not have any 

information to suggest that there are such small entities. Accordingly, the regulatory flexibility analysis in 

regard to Rule 144A is focused on small issuers that engage in Rule 144A offerings.

286 These databases are Thomson Financial’s SDC Platinum Service and Sagient Research System’s 

Placement Tracker database. 

287 Financial data for fiscal year 2011 was obtained from Compustat, a product of Standard and Poor’s.
106

D. Projected Reporting, Recordkeeping and Other Compliance 

Requirements

The final amendment to Rule 506 will impose certain reporting and compliance 

requirements on issuers that engage in general solicitation in Rule 506 offerings. As 

discussed above, issuers taking advantage of Rule 506(c) to engage in general solicitation 

in Rule 506 offerings will be required to take reasonable steps to verify that the 

purchasers of the securities are accredited investors. The steps required will vary with 

the circumstances, but we anticipate that some potential investors may have to provide 

more information to issuers than they currently provide, while issuers may have to apply 

a stricter and more costly process to verify accredited investor status than what they

currently use. We expect that the costs of compliance will vary depending on the size 

and nature of the offering, the nature and extent of the verification methods used, and the 

number and nature of purchasers in the offering. Rule 506(c) does not impose any 

recordkeeping requirements; however, we anticipate that issuers or their verification 

service providers will document the steps taken to verify that purchasers are accredited 

investors in Rule 506 offerings involving general solicitation because the issuer has the 

burden of demonstrating that its offering is entitled to an exemption from the registration 

requirements of Section 5 of the Securities Act. To promote legal certainty, we are 

including in Rule 506(c) a non-exclusive list of verification methods that in and of 

themselves will be deemed to satisfy the verification requirement. 

The final amendment to Form D will also impose an information requirement 

with respect to Rule 506 offerings that use general solicitation. Each issuer submitting a 

Form D for a Rule 506 offering will be required to check a box on the form to indicate 

whether the issuer is relying on the Rule 506(c) exemption. We do not believe that this 
107

revision to Form D will increase in any material way the time or information required to 

complete the Form D that must be filed with the Commission in connection with a Rule 

506 offering. 

The final amendment to Rule 144A contains no reporting, recordkeeping or 

compliance requirements for issuers that engage in Rule 144A offerings. 

E. Duplicative, Overlapping or Conflicting Federal Rules 

The Commission believes that there are no rules that duplicate, overlap or conflict 

with the final amendments to Rule 144A, Form D, and Rules 500, 501, 502 and 506 of 

Regulation D. 

F. Significant Alternatives 

The Regulatory Flexibility Act directs us to consider significant alternatives that 

would accomplish the stated objectives of our amendments, while minimizing any 

significant adverse impact on small entities. In regard to the final amendment to Rule 

144A and the final amendment to Rule 506 to remove the prohibition against general 

solicitation in Rule 506 offerings where all purchasers are accredited investors and 

issuers have taken reasonable steps to verify purchasers’ accredited investor status, there 

are no significant alternatives to these amendments that would accomplish the stated 

objectives of Section 201(a) of the JOBS Act. Eliminating the prohibition against general 

solicitation for a subset of Rule 506 offerings is intended to assist small entities – and 

other entities – seeking to raise capital. Small entities are not required to use Rule 506(c) 

to raise capital and would do so presumably only if it would be useful to them. 

In connection with the final amendment to Form D and the final amendment to 

Rule 506 that requires issuers to take reasonable steps to verify that purchasers of 

securities are accredited investors, the Commission considered the following alternatives: 
108

(1) establishing different compliance or reporting standards that take into account the 

resources available to small entities; (2) clarifying, consolidating or simplifying 

compliance requirements under the rule; (3) using design rather than performance

standards; and (4) exempting small entities from coverage of all or part of the amendment 

to Rule 506. 

With respect to using design rather than performance standards, we note that the 

“reasonable steps to verify” requirement in Rule 506(c) is a performance standard. We 

believe that the flexibility of a performance standard accommodates different types of 

offerings and purchasers without imposing overly burdensome methods that may be illsuited or unnecessary to a particular offering or purchaser, given the facts and 

circumstances. The Commission is not adopting different compliance or reporting 

requirements or timetables for small entities under Rule 506(c). The particular steps 

necessary to meet the requirement to take reasonable steps to verify that purchasers are 

accredited investors will vary according to the circumstances. Different compliance 

requirements for small entities may create the risk that the requirements may be too 

prescriptive or, alternatively, insufficient to verify a purchaser’s accredited investor 

status. Special requirements for small entities may also lead to investor confusion or 

reduced investor participation in Rule 506 offerings if they create the impression that 

small entities have a different standard of verification than other issuers of securities. As 

the verification requirement is intended to protect investors by limiting participation in 

unregistered offerings to those who are most able to bear the risk, we are of the view that 

a flexible standard applicable to all issuers better accomplishes the goal of investor 

protection that this requirement is intended to serve. At the same time, the non-exclusive 
109

list of verification methods that we are including in the final rule will provide additional 

legal certainty to all issuers, including small entities. The Commission is not adopting a 

different reporting requirement for small entities because the additional information that 

will be required in Form D is minimal and should not be unduly burdensome or costly for 

small entities.

We similarly believe that it does not appear consistent with the objective of the 

final amendments or the considerations described above regarding investor confusion and 

investor participation to further clarify, consolidate or simplify the amendments for small 

entities. With respect to exempting small entities from coverage of these final

amendments, we believe such an approach would be contrary to the requirements of, and 

the legislative intent behind, Section 201(a) of the JOBS Act, as evidenced by the plain 

language of the statute.

VIII. STATUTORY AUTHORITY AND TEXT OF FINAL RULE AND FORM 

AMENDMENTS

The final amendments contained in this release are being adopted under the 

authority set forth in Sections 4(a)(1), 4(a)(2), 7, 17(a), 19 and 28 of the Securities Act, as 

amended, Sections 2, 3, 9(a), 10, 11A(c), 12, 13, 14, 15(c), 15(g), 17(a), 23(a) and 30 of 

the Exchange Act, as amended, Sections 23, 30 and 38 of the Investment Company Act, 

as amended, and Section 201(a) of the JOBS Act.288

List of Subjects in 17 CFR Parts 230, 239 and 242 

 Reporting and recordkeeping requirements, Securities.

 

288 Although 15 U.S.C. 77d note is not an authority for the amendments in this release, it is being included 

in the instruction below for the general authority citation for Part 230 to ensure that the Code of Federal 

Regulations is correctly updated for purposes of the bad actor disqualification rule for Rule 506 offerings 

also published today. See Bad Actor Release.
110

 For the reasons set out above, the Commission is amending Title 17, chapter II of 

the Code of Federal Regulations, as follows: 

PART 230–-GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 

1933 

1. The general authority citation for Part 230 is revised to read as follows: 

Authority: 15 U.S.C. 77b, 77b note, 77c, 77d, 77d note, 77f, 77g, 77h, 77j, 77r, 

77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78o-7 note, 78t, 78w, 78ll (d), 

78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-37, and Pub. L. No. 112-106, sec.

201(a), 126 Stat. 313 (2012), unless otherwise noted. 

* * * * * 

2. Amend § 230.144A by:

a. In Preliminary Note 7, removing the reference to “section 4(2)” 

and adding in its place “section 4(a)(2)”;

b. In paragraph (a)(1)(i)(A), removing the reference to “section 

2(13)” and adding in its place “section 2(a)(13)”; 

c. In paragraph (b), removing the reference to “sections 2(11) and 

4(1)” and adding in its place “sections 2(a)(11) and 4(a)(1)”; 

d. In paragraph (c), removing the references to “section 4(3)(C)”, 

“section 2(11)” and “section 4(3)(A)” and adding in their place “section 4(a)(3)(C)”, 

“section 2(a)(11)” and “section 4(a)(3)(A),” respectively; 

e. In paragraph (d)(1), first sentence, removing the phrase “offered 

or”; and

f. In paragraph (d)(1), first sentence, removing the phrase “an offeree 

or” and adding in its place “a”. 
111

3. Amend § 230.500(c) by: 

a. Removing the reference to “section 4(2)” and adding in its place 

“section 4(a)(2)”; and

b. In the second sentence, adding “(b)” after “rule 506” and after 

“(§230.506”. 

4. Amend § 230.501 by: 

a. In paragraph (a)(1), removing the reference to “section 2(13)” and 

adding in its place “section 2(a)(13)”; and

 b. In paragraph (g), removing the reference to “section 2(4)” and 

adding in its place “section 2(a)(4)”.

 5. Amend § 230.502 by: 

a. In paragraphs (b)(1), (b)(2)(iv), (b)(2)(v) and (b)(2)(vii), removing

the reference to “§ 230.506” and adding in its place “§ 230.506(b)”; 

b. In paragraph (c), first sentence, adding the phrase “or § 

230.506(c)” after the phrase “Except as provided in § 230.504(b)(1)”; 

c. In paragraph (d), removing the reference to “section 4(2)” and 

adding in its place “section 4(a)(2)”; and

d. In paragraph (d), removing the reference to “section 2(11)” and 

adding in its place “section 2(a)(11).” 

6. Amend § 230.506 by: 

a. In paragraph (a), adding the phrase “or (c)” after the phrase 

“satisfy the conditions in paragraph (b)”; 
112

b. In paragraph (a), removing the phrase “section 4(2)” and adding in 

its place “section 4(a)(2)”; 

c. In the heading of paragraph (b), adding the phrase “in offerings 

subject to limitation on manner of offering” after the phrase “Conditions to be met”;

d. In the note following paragraph (b)(2)(i), removing the phrase “this 

section” and adding in its place “paragraph (b) of this section”; and

e. Adding paragraph (c) to read as follows: 

§ 230.506 Exemption for limited offers and sales without regard to dollar amount of 

offering. 

* * * * * 

(c) Conditions to be met in offerings not subject to limitation on manner of 

offering -- (1) General conditions. To qualify for exemption under this section, sales 

must satisfy all the terms and conditions of §§ 230.501 and 230.502(a) and (d). 

(2) Specific conditions -- (i) Nature of purchasers. All purchasers of 

securities sold in any offering under paragraph (c) of this section are accredited investors.

(ii) Verification of accredited investor status. The issuer shall take reasonable 

steps to verify that purchasers of securities sold in any offering under paragraph (c) of 

this section are accredited investors. The issuer shall be deemed to take reasonable steps 

to verify if the issuer uses, at its option, one of the following non-exclusive and nonmandatory methods of verifying that a natural person who purchases securities in such 

offering is an accredited investor; provided, however, that the issuer does not have 

knowledge that such person is not an accredited investor: 

(A) In regard to whether the purchaser is an accredited investor on the basis of 

income, reviewing any Internal Revenue Service form that reports the purchaser’s income 
113

for the two most recent years (including, but not limited to, Form W-2, Form 1099, 

Schedule K-1 to Form 1065, and Form 1040) and obtaining a written representation from 

the purchaser that he or she has a reasonable expectation of reaching the income level 

necessary to qualify as an accredited investor during the current year; 

(B) In regard to whether the purchaser is an accredited investor on the basis of 

net worth, reviewing one or more of the following types of documentation dated within 

the prior three months and obtaining a written representation from the purchaser that all 

liabilities necessary to make a determination of net worth have been disclosed: 

(1) With respect to assets: bank statements, brokerage statements and other 

statements of securities holdings, certificates of deposit, tax assessments, and appraisal

reports issued by independent third parties; and 

(2) With respect to liabilities: a consumer report from at least one of the 

nationwide consumer reporting agencies; or 

(C) Obtaining a written confirmation from one of the following persons or 

entities that such person or entity has taken reasonable steps to verify that the purchaser is 

an accredited investor within the prior three months and has determined that such 

purchaser is an accredited investor: 

(1) A registered broker-dealer; 

(2) An investment adviser registered with the Securities and Exchange 

Commission; 

(3) A licensed attorney who is in good standing under the laws of the 

jurisdictions in which he or she is admitted to practice law; or 
114

(4) A certified public accountant who is duly registered and in good standing 

under the laws of the place of his or her residence or principal office.

(D) In regard to any person who purchased securities in an issuer’s Rule 

506(b) offering as an accredited investor prior to September 23, 2013 

and continues to hold such securities, for the same issuer’s Rule 

506(c) offering, obtaining a certification by such person at the time of sale that he or she 

qualifies as an accredited investor.

Instructions to paragraph (c)(2)(ii)(A) through (D) of this section: 

1. The issuer is not required to use any of these methods in verifying the 

accredited investor status of natural persons who are purchasers. These methods are 

examples of the types of non-exclusive and non-mandatory methods that satisfy the 

verification requirement in § 230.506(c)(2)(ii).

2. In the case of a person who qualifies as an accredited investor based on 

joint income with that person’s spouse, the issuer would be deemed to satisfy the 

verification requirement in § 230.506(c)(2)(ii)(A) by reviewing copies of Internal 

Revenue Service forms that report income for the two most recent years in regard to, and 

obtaining written representations from, both the person and the spouse. 

3. In the case of a person who qualifies as an accredited investor based on 

joint net worth with that person’s spouse, the issuer would be deemed to satisfy the 

verification requirement in § 230.506(c)(2)(ii)(B) by reviewing such documentation in 

regard to, and obtaining written representations from, both the person and the spouse. 

PART 239 – FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933 

7. The authority citation for Part 239 continues to read, in part, as follows: 
115

Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78l, 78m, 

78n, 78o (d), 78o-7 note, 78u-5, 78w(a), 78ll, 78mm, 80a-2(a), 80a-3, 80a-8, 80a-9, 80a10, 80a-13, 80a-24, 80a-26, 80a-29, 80a-30, and 80a-37, unless otherwise noted. 

8. Amend Form D (referenced in § 239.500) by: 

a. In Item 6, removing the phrase “Rule 506” and adding in its place 

“Rule 506(b)” next to the appropriate check box, and removing the phrase “Securities Act 

Section 4(5)” and adding in its place “Securities Act Section 4(a)(5)” next to the 

appropriate check box; 

b. In Item 6, adding a check box that reads “Rule 506(c)” after the 

newly redesignated Rule 506(b) check box; and 

c. In the instruction “Who must file:”, removing the reference to 

“Section 4(5)” and adding in its place “Section 4(a)(5).” 

(Note: The text of Form D does not, and the amendments will not, appear in the Code of 

Federal Regulations.) 

PART 242–-REGULATIONS M, SHO, ATS, AC, AND NMS AND CUSTOMER 

MARGIN REQUIREMENTS FOR SECURITY FUTURES

9. The authority citation for Part 242 continues to read as follows: 

Authority: 15 U.S.C. 77g, 77q(a), 77s(a), 78b, 78c, 78g(c)(2), 78i(a), 78j, 78k1(c), 78l, 78m, 78n, 78o(b), 78o(c), 78o(g), 78q(a), 78q(b), 78q(h), 78w(a), 78dd-1, 

78mm, 80a-23, 80a-29, and 80a-37. 

10. Amend § 242.101 by: 

a. In paragraph (b)(10) introductory text, removing the phrase 

“offered or”; and

b. In paragraph (b)(10)(i), removing the phrase “offerees or”. 
116

11. Amend § 242.102 by: 

a. In paragraph (b)(7) introductory text, removing the phrase “offered 

or”; and

b. In paragraph (b)(7)(i), removing the phrase “offerees or”. 

12. Amend § 242.104 by: 

a. In paragraph (j)(2) introductory text, removing the phrase “offered 

or”; and

b. In paragraph (j)(2)(i), removing the phrase “offerees or”. 

By the Commission.

 Elizabeth M. Murphy 

 Secretary

July 10, 2013