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Daily Rules, Proposed Rules, and Notices of the Federal Government

SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 230 and 239

[Release No. 33-9354; 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: Proposed rule.
SUMMARY: We are proposing 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 proposed amendment to Rule 506 would provide that the prohibition against general solicitation and general advertising contained in Rule 502(c) of Regulation D would not apply to offers and sales of securities made pursuant to Rule 506, provided that all purchasers of the securities are accredited investors. The proposed amendment to Rule 506 would also require that, in Rule 506 offerings that use general solicitation or general advertising, the issuer take reasonable steps to verify that purchasers of the securities are accredited investors. The proposed amendment to Rule 144A(d)(1) would provide 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 proposing to revise Form D to add a separate check box for issuers to indicate whether they are using general solicitation or general advertising in a Rule 506 offering.
DATES: Comments should be received on or before October 5, 2012.
ADDRESSES: Comments may be submitted by any of the following methods:
Electronic Comments

* Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml);

* Send an email torule-comments@sec.gov.Please include File Number S7-07-12 on the subject line; or

* Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

* Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number S7-07-12. This file number should be included on the subject line if email is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments are also available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549-1090 on official business days between the hours of 10 a.m. and 3 p.m. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
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 privately offered funds, Holly Hunter-Ceci, Senior Counsel, Office of Chief Counsel, or Alpa Patel, Attorney-Adviser, Private Funds Branch, Office of Investment Adviser Regulation, Division of Investment Management, at (202) 551-6825 or (202) 551-6787, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
SUPPLEMENTARY INFORMATION:

We are proposing amendments to Rule 144A,1 Form D,2 and Rules 500,3 501,4 5025 and 5066 of Regulation D7 under the Securities Act of 1933.8

117 CFR 230.144A.

217 CFR 239.500.

317 CFR 230.500.

417 CFR 230.501.

517 CFR 230.502.

617 CFR 230.506.

717 CFR 230.500 through 230.508.

815 U.S.C. 77aet seq.

Table of Contents I. Introduction II. Proposed Amendments to Rule 506 and Form D A. Eliminating the Prohibition Against General Solicitation B. Reasonable Steps to Verify Accredited Investor Status C. Reasonable Belief that All Purchasers Are Accredited Investors D. Form D Check Box for Rule 506(c) Offerings E. Specific Issues for Privately Offered Funds F. Technical and Conforming Amendments G. Request for Comment III. Proposed Amendment to Rule 144A A. Offers to Persons Other Than Qualified Institutional Buyers B. Request for Comment IV. Integration With Offshore Offerings V. General Request for Comment VI. Paperwork Reduction Act VII. Economic Analysis A. Background and Summary of Proposed Rule and Form Amendments B. Baseline C. Eliminating the Prohibition Against General Solicitation in Rule 506 Offerings and Rule 144A Offerings D. Verifying Accredited Investor Status in Rule 506(c) Offerings E. Form D Check Box for Rule 506(c) Offerings F. Request for Comment VIII. Small Business Regulatory Enforcement Fairness Act IX. Initial Regulatory Flexibility Analysis A. Reasons for, and Objectives of, the Action B. Small Entities Subject to the Proposed Rule and Form Amendments C. Projected Reporting, Recordkeeping and Other Compliance Requirements D. Duplicative, Overlapping or Conflicting Federal Rules E. Significant Alternatives F. General Request for Comment X. Statutory Authority and Text of Proposed Rule and Form Amendments I. Introduction

The Jumpstart Our Business Startups Act (the “JOBS Act”) was enacted on April 5, 2012.9 Section 201(a)(1) of the JOBS Act directs the Commission, notlater than 90 days after the date of enactment, to amend Rule 506 of Regulation D10 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. 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)11 under the Securities Act to permit offers of securities pursuant to Rule 144A to persons other than qualified institutional buyers (“QIBs”),12 including by means 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.

9Public Law 112-106, 126 Stat. 306.

10The 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]. 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] andRevision of Rule 504 of Regulation D, the “Seed Capital” Exemption,Release No. 33-7644 (Feb. 25, 1999) [64 FR 11090].

1117 CFR 230.144A(d)(1).

12The 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.

Rule 506 is a non-exclusive safe harbor under Section 4(a)(2) (formerly Section 4(2)) of the Securities Act,13 which exempts transactions by an issuer “not involving any public offering” from the registration requirements of Section 5 of the Securities Act.14 Under existing Rule 506, an issuer may offer and 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,15 and to no more than 35 non-accredited investors who meet certain “sophistication” requirements.16 The availability of the Rule 506 safe harbor is subject to a number of requirements17 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.”18 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 whose attendees have been invited by general solicitation or general advertising.19 By interpretation, the Commission has confirmed that other uses of publicly available media, such as unrestricted Web sites, also constitute general solicitation and general advertising.20 In this release, we will refer to both general solicitation and general advertising as “general solicitation.”

1315 U.S.C. 77d(a)(2).

1415 U.S.C. 77e.

15The definition of the term “accredited investor” 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.

16Under 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 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.”

17Offerings 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.SeeRule 502(b) [17 CFR 230.502(b)].

18Rule 502(c) of Regulation D [17 CFR 230.502(c)].

19 Id.

20 See Use of Electronic Media for Delivery Purposes,Release No. 33-7233 (Oct. 6, 1995) [60 FR 53458] at Ex. 20;Use of Electronic Media,Release No. 33-7856 (Apr. 28, 2000) [65 FR 25843] at footnotes 79-80 and accompanying text.

Rule 144A is a non-exclusive safe harbor exemption from the registration requirements of the Securities Act for resales of certain “restricted securities”21 to QIBs. Resales to QIBs in accordance with the conditions of Rule 144A22 are exempt from registration pursuant to Section 4(a)(1) (formerly Section 4(1)) of the Securities Act,23 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, market participants have used Rule 144A to facilitate capital-raising by issuers. 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,24 followed by the immediate resale of those securities by the initial purchasers to QIBs in reliance on Rule 144A.

21“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 chain of transactions not involving a public offering.”

22In 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.

2315 U.S.C. 77d(a)(1).

24Regulation 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 limit the scope or availability of the antifraud or other provisions of the Securities Act to offers and sales made in reliance on Regulation S.

Rule 506 offerings and Rule 144A offerings are widely used by U.S. and foreign issuers to raise capital. In 2011, the estimated amount of capital (including both equity and debt) raised in Rule 506 offerings and Rule 144A offerings was $895 billion and $168 billion, respectively, compared to $984 billion raised in registered offerings. In 2010, the estimated amount of capital (including both equity and debt) raised in Rule 506 offerings and Rule 144A offerings was $902 billion and $233 billion, respectively, compared to $1.07 trillion raised in registered offerings.25 These data points underscore the importance of the Rule 506 and Rule 144A exemptions for issuers seeking access to the U.S. capital markets.

25These statistics are based on a review of Form D electronic filings with the Commission—specifically, the “total amount sold” as reported in Form D—and data regarding other types of offerings (e.g.,public debt offerings and Rule 144A offerings) from Securities Data Corporation's New Issuesdatabase (Thomson Financial).SeeVlad Ivanov and Scott Bauguess,Capital Raising in the U.S.: The Significance of Unregistered Offerings Using the Regulation D Exemption(Feb. 2012) (the “Ivanov/Bauguess Study”), available at:http://www.sec.gov/info/smallbus/acsec/acsec103111_analysis-reg-d-offering.pdf. The amount of capital raised through offerings under Regulation D may be considerably larger than what is reported on Form D 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 notice 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 exceed the offer size by more than 10% or the offer 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.

To implement Section 201(a) of the JOBS Act, we are proposing 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 amended, provided that all purchasers of the securities are accredited investors and the issuer takes reasonable steps to verify that the purchasers are accredited investors. In addition, we are proposing to amend 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 offering is being conducted pursuant to the proposed amendment to Rule 506 that would permit general solicitation. We are also proposing to amend 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.

We have considered comment letters received to date on Section 201(a) of the JOBS Act, and we are requesting comment on various issues relating specifically to the proposed amendments described above.26 In this release, we are proposing only those rule and form amendments that are, in our view, necessary to implement the mandate in Section 201(a). We recognize that commentators have urged us to consider and propose other amendments to Regulation D or to Form D that they believe are appropriate in connection with implementation of the rule and form amendments proposed here. For example, several commentators have recommended that the Commission also amend the definition of “accredited investor” as it relates to natural persons.27 Other commentators have suggested that we amend the Form D filing requirement, including conditioning the availability of the proposed Rule 506 exemption on the filing of Form D,28 requiring the Form D to be filed in advance of any general solicitation,29 and adding to the information requirements of Form D.30 Other commentators have suggested that we propose rules governing the content and manner of advertising and solicitations used in offerings conducted under the proposed Rule 506 exemption,31 particularly with respect to privately offered funds.32

26To facilitate public input on JOBS Act rulemaking before the issuance of rule proposals, the Commission has 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 Web site athttp://www.sec.gov/spotlight/jobsactcomments.shtml.Comment letters received to date on Section 201(a) of the JOBS Act are available athttp://www.sec.gov/comments/jobs-title-ii/jobs-title-ii.shtml,and we cite to many of them in this release. Comment letters on this release should be submitted as directed in “Addresses” above.

27 Seeletters from Cambridge Innovation Center (suggesting that the Commission consider offering investor education classes whereby investors who meet a lower financial threshold but pass a qualifying test could be granted accredited investor status); Fund Democracy, Consumer Federation of America, Consumer Action, AFL-CIO, and Americans for Financial Reform (“Fund Democracy”) (recommending higher financial thresholds for natural persons claiming to be accredited investors); Investment Company Institute (“ICI”) (May 21, 2012) (recommending increased income and net worth thresholds in the accredited investor definition and inclusion of a new category of “accredited natural persons” in the accredited investor definition); Managed Funds Association (“MFA”) (May 4, 2012) (recommending adding “knowledgeable employee” under the Investment Company Act to the definition of “accredited investor”); Public Citizen (recommending higher income and net worth thresholds in the accredited investor definition); Office of the Secretary of the Commonwealth of Massachusetts Securities Division (“Massachusetts Securities Division”) (same); Ilan Moscovitz and John Maxfield (“Moscovitz and Maxfield”) (same); Ohio Division of Securities (“Ohio Division”) (same). One commentator opposed increasing the thresholds for accredited investor status.Seeletter from National Small Business Association (“NSBA”) (June 12, 2012).

28 Seeletters from Massachusetts Securities Division (“The filing of a Form D should be a condition of the availability of the new Rule 506 exemption.”); North American Securities Administrators Association, Inc. (“NASAA”) (July 3, 2012) (recommending that the failure to file a Form D prior to the use of general solicitation must result in the loss of the exemption and warning that without such a filing requirement, regulators would “have no way of knowing whether a promoter is legitimately trying to comply with Rule 506, so a fraudulent offering will be allowed to continue until the regulators have gathered sufficient evidence to prove fraud has already occurred”).

29 Seeletters from Fund Democracy; NASAA (July 3, 2012); Public Citizen.

30 See, e.g.,letters from NASAA (July 3, 2012) (listing a number of recommended amendments to Form D, such as the disclosure of the issuer's Web site address); Ohio Division (recommending that Form D provide more background information to allow broker-dealers, regulators, and investors to assess whether an issuer has been disqualified from using Rule 506).

31Letters from NASAA (July 3, 2012) (stating that advertising materials used in Rule 506 offerings should include a “balanced presentation of risks and rewards” and be subject to a requirement that statements in the advertising materials are consistent with representations in the offering documents); Ohio Division (recommending that, among other things, the Commission adopt a uniform set of required disclosures and content restrictions for general solicitation materials, such as a mandatory legend disclosing those jurisdictions where the offering is being made (and disclaiming sales in any others) and a prohibition on financial projections or statements of future performance).

32 See, e.g.,letters from ICI (May 21, 2012); Moscovitz and Maxfield; and Fund Democracy (Aug. 16, 2012).

We appreciate the suggestions made by these commentators; however, at this time, we are not proposing these or any other amendments to Regulation D or to Form D.

II. Proposed Amendments to Rule 506 and Form D A. Eliminating the Prohibition Against General Solicitation

Section 4(a)(2) exempts transactions by an issuer “not involving any public offering.” An issuer relying on Section 4(a)(2) is restricted in its 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).33 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.34 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 purchasers of the securities are accredited investors. This mandate affects only the Rule 506 safe harbor, and not Section 4(a)(2) offerings in general.35

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

34 SeeRule 502(c) and Rule 506(b)(1) of Regulation D [17 CFR 230.506(b)(1)].

35In this regard, we note that bills that would have amended Section 4(a)(2) itself to permit the use of general solicitation were introduced and considered by Congress but not enacted.SeeAccessto Capital for Job Creators, H.R. 2940, 112th Cong. (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. (2011) (same).

To implement the mandated rule change, we are proposing new Rule 506(c), which would permit the use of general solicitation to offer and sell securities under Rule 506, provided that certain conditions are satisfied.36 These conditions are:

36We note that broker-dealers participating in offerings in conjunction with issuers relying on proposed Rule 506(c) would continue to be subject to the rules of the Financial Industry Regulatory Authority (“FINRA”) regarding communications with the public.SeeFINRA Rule 2210.

• The issuer must take reasonable steps to verify that the purchasers of the securities are accredited investors;

• All purchasers of securities must be accredited investors, either because they come within one of the enumerated categories of persons that qualify as accredited investors or the issuer reasonably believes that they do, at the time of the sale of the securities;37 and

37Rule 501(a) of Regulation D.

• All terms and conditions of Rule 501 and Rules 502(a) and 502(d) must be satisfied.38

38Securities acquired under proposed Rule 506(c) would be subject to the resale limitations under Rule 502(d) [17 CFR 230.502(d)] and therefore would be “restricted securities” as defined in Rule 144(a)(3)(ii) [17 CFR 230.144(a)(3)(ii)]. Further, 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 proposed 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”).

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.39

39Offerings under proposed Rule 506(c) would also not be subject to the information requirements in Rule 502(b), because all purchasers in proposed Rule 506(c) offerings would be accredited investors.

While we are proposing Rule 506(c) to allow for Rule 506 offerings that use general solicitation, we are preserving, under existing Rule 506(b), the existing ability of issuers to conduct Rule 506 offerings without the use of general solicitation. We recognize that offerings under existing Rule 506 represent an important source of capital for issuers of all sizes and believe that the continued availability of existing Rule 506 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 new 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 may also be beneficial to investors with whom an issuer has a pre-existing substantive relationship.40 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 amendments to Rule 506 we are proposing today would not amend or modify the requirements relating to existing Rule 506.

40In a series of no-action and interpretive letters, the Commission staff has indicated that an issuer would not contravene Rule 502(c)'s prohibition against general solicitation if the issuer has a pre-existing substantive relationship with the offerees.See, e.g., Mineral Lands Research and Marketing Corp.(Nov. 3, 1985). The Commission staff has also addressed how an intermediary, such as a broker-dealer acting as a placement agent, can establish a sufficient pre-existing substantive relationship with its customers such that there would be no general solicitation when an issuer engages that intermediary to offer securities to the intermediary's customers.See, e.g., E.F. Hutton & Co.(Dec. 3, 1985). The framework set forth by this staff guidance on pre-existing substantive relationships has also provided flexibility in the use of the Internet in Regulation D offerings.See, e.g., IPONET(July 26, 1996);Lamp Technologies, Inc.(May 29, 1998).

B. Reasonable Steps to Verify Accredited Investor Status

While Section 201(a)(1) of the JOBS Act mandates that our amendments 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,” it does not specify the methods necessary to satisfy this requirement and instead requires issuers to use “such methods as determined by the Commission.” We believe that the purpose of the verification mandate is to address concerns, and reduce the risk, that the use of general solicitation under Rule 506 may result in sales to investors who are not, in fact, accredited investors.41 We also recognize, however, that it would be necessary that our proposed amendment to Rule 506 provide sufficient flexibility to accommodate the different types of issuers that would conduct offerings under proposed Rule 506(c) and the different types of accredited investors (such as natural persons, public and private for-profit and not-for-profit corporations, general and limited partnerships, business and other types of trusts, and funds and other types of collective investment vehicles) that may purchase securities in these offerings.

41 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 Representative 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 Representative Maloney (same)); 157 Cong. Rec. H7294 (daily ed. Nov. 3, 2011) (remarks of Representative Lee (same)).

We are proposing a requirement in Rule 506(c) that issuers using general solicitation “take reasonable steps to verify” that the purchasers of the offered securities are accredited investors. Whether the steps taken are “reasonable” would be an objective determination, based on the particular facts and circumstances of each transaction.

Under this proposed approach, issuers would consider a number of factors when determining the reasonableness of the steps to verify that a purchaser is an accredited investor. Some examples of these factors include:

• 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.

We discuss each of these factors in greater detail below.

Nature of the Purchaser.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”);42 or

42 See17 CFR 230.501(a)(1).

• 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.43

43 See id.

Some purchasers may be accredited investors based on a combination oftheir 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;44 or

44 See id.

• 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.45

45 See17 CFR 230.501(a)(3).

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 (the “net worth test”);46 or

46 See17 CFR 230.501(a)(5).

• 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 (the “income test”).47

47 See17 CFR 230.501(a)(6).

As Rule 501(a) sets forth different categories of accredited investors, we expect the steps that would be reasonable for an issuer to take to verify whether a purchaser is an accredited investor under proposed Rule 506(c) would likely 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 Web site48 —would necessarily differ from the steps that would be reasonable to verify whether a natural person is an accredited investor.

48This Web site is available athttp://www.finra.org/Investors/ToolsCalculators/BrokerCheck/.

We recognize that taking reasonable steps to verify the accredited investor status of natural persons poses greater practical difficulties as compared to other categories of accredited investors, and these practical difficulties likely would be exacerbated by natural persons' privacy concerns about the disclosure of personal financial information.49 As between the net worth test and the income test for natural persons, we recognize that commentators have suggested that it might be more difficult for an issuer to obtain information about a person's assets and liabilities than it would be to obtain information about a person's annual income,50 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 of each purchaser would also depend on other factors, as described below.

49 See, e.g.,letters from BrokerBank Securities, Inc. (“BrokerBank”) (“By the time most people accumulate a net worth of $1,000,000+ not counting their principal residence, they usually really want to keep their financial information very close to the vest.”); Federal Regulation of Securities Committee of the Business Law Section of the American Bar Association (“ABA”) (stating that “the Commission should be sensitive to the legitimate privacy concerns of purchasers” when considering the steps that issuers should take to verify accredited investor status); SecondMarket Holdings, Inc. (“SecondMarket”) (“In addition, legitimate privacy concerns may result in potential investors being unwilling to provide highly sensitive personal information outside of a clearly protective framework, which may cause such investors to avoid participating in Rule 506 offerings.”).

50 Seeletters from NASAA (July 3, 2012) (“Verification of net worth is more challenging because an individual could provide proof of assets but not liabilities.”); SecondMarket (indicating that, in its experience, the majority of natural persons who indicated that they were accredited investors did so based on the income test of Rule 501(a)(6), which can be verified through tax returns, Form W-2, Form 1099, or other income documentation, in addition to a pay stub from the current year, whereas verifying that a purchaser satisfies the net worth test may be very difficult; therefore, this commentator recommended that a “substantial minimum investment requirement,” coupled with representations by the purchaser, should be deemed sufficient evidence to presume that a purchaser satisfies the net worth test without requiring additional verification of that purchaser's accredited investor status).

Information about the Purchaser.The amount and type of information that an issuer has about a purchaser would be a significant factor in determining what additional steps would be reasonable 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 would have to take, and vice versa.51 Examples of the types of information that issuers could review or rely upon—any of which might, depending on the circumstances, in and of themselves constitute reasonable steps to verify a purchaser's accredited investor status—include, without limitation:

51If an issuer has actual knowledge that the purchaser is an accredited investor, then the issuer would not have to take any steps at all.

• Publicly available information in filings with a federal, state or local regulatory body—for example, without limitation:

○ The purchaser is a named executive officer of an Exchange Act registrant, and the registrant's proxy statement discloses the purchaser's compensation for the last three completed fiscal years; or

○ 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;52

52Such an organization is required to make the Form 990 series returns available for public inspection.SeeInternal Revenue Service,Public Disclosure and Availability of Exempt Organizations Returns and Applications: Documents Subject to Public Disclosure, http://www.irs.gov/charities/article/0,,id=135008,00.html(last updated Sept. 21, 2011).

• 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:

○ The purchaser is a natural person and provides copies of Forms W-2; or

○ The purchaser works in a field where industry or trade publications disclose average annual compensation for certain levels of employees or partners, and 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

• Verification of a person's status as an accredited investor by a third party, such as a broker-dealer, attorney or accountant, provided that the issuer has a reasonable basis to rely on such third-party verification.53

53For example, in the future, services may develop that verify a person's accredited investor status for purposes of proposed 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 verify accredited investor status. Several commentators, 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.Seeletters 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 (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 potential purchasers). One commentator, however, expressedconcerns that some of the Web sites 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 Moscovitz and Maxfield.

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 Web site accessible to the general public or through a widely disseminated email or social media solicitation would 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, such as a registered broker-dealer. In the case of the former, we do not believe that an issuer would have taken reasonable steps to verify accredited investor status if it required only that a person check a box in a questionnaire or sign a form, absent other information about the purchaser indicating accredited investor status. In the case of the latter, we believe an issuer would 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.

The terms of the offering would also affect whether the verification methods used by the issuer are reasonable. Some commentators have expressed the view that a purchaser's ability to meet a high minimum investment amount could be relevant 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.54 We believe that there is merit to this view. 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 other third party, could be taken into consideration in verifying accredited investor status.

54 See, e.g.,letters from MFA (May 4, 2012) (stating that many hedge funds managed by its members obtain further assurance that investors meet the qualification standards in the Investment Company Act or the Investment Advisers Act of 1940, as applicable, through minimum investment thresholds that meet or exceed the net worth test of the accredited investor definition); NASAA (July 3, 2012) (“For example, if an investor makes an investment of $1 million in the issuer's securities, it would be reasonable for the issuer to assume that the investor has $1 million in net worth, even though it is not necessarily a certainty. NASAA would not oppose the creation of this type of specific safe harbor, provided the factors used to demonstrate the requisite net worth are set sufficiently high.”); SecondMarket (recommending that a “substantial minimum investment requirement,” coupled with representations by the purchaser, should be deemed sufficient evidence to presume that a purchaser satisfies the net worth test without requiring additional verification of that purchaser's accredited investor status). One commentator, however, disagreed with this approach, noting that “[w]hile a large investment amount may indicate that the investor is wealthy, it also might indicate that a non-wealthy investor is over-concentrated in the investment.” Letter from Massachusetts Securities Division.

These factors are 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. After consideration of the facts and circumstances of the purchaser and of the transaction, if it appears likely that a person qualifies as an accredited investor, the issuer would have to take fewer steps to verify accredited investor status, and vice versa. For example, if an issuer knows little about the potential purchaser who seeks to qualify under the natural person tests for accredited investor status, but the terms of the offering require a high minimum investment amount, then it may be reasonable for the issuer to take no steps to verify accredited investor status other than to confirm that the purchaser's cash investment is not being financed by the issuer or by a third party, absent any facts that may indicate that the purchaser is not an accredited investor.

Regardless of the particular steps taken, it would be important for issuers to retain adequate records that document the steps taken to verify that a purchaser was an accredited investor. Any issuer claiming an exemption from the registration requirements of Section 5 has the burden of showing that it is entitled to that exemption.55

55 SECv.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.”).

We are mindful of the differing views expressed by commentators to date on how the Commission should implement the verification mandate of Section 201(a). A number of commentators have cautioned that unduly prescriptive or burdensome rules for verifying a purchaser's accredited investor status would have the potential to result in significant economic harm, could lead to reluctance on the part of issuers to access the relevant capital markets, or would contravene the purposes of the JOBS Act.56 Some commentators recommended approaches based on current practices or standards.57 One commentator, for example, stated that whether a purchaser is an accredited investor depends on the particular facts and circumstances, that the current practices already take these considerations into account, and that the Commission should therefore refrain from imposing any additional burdens on issuers or purchasers.58 Another commentator expressed similar views, recommending that the Commission adopt a principles-based non-exclusive safe harbor that would be flexible enough to accommodate new offering techniques and that would build on existing practices (such as broker-dealers' account-opening and suitability procedures).59

56 See, e.g.,letters from Committee on Securities Regulation of the New York City Bar Association (“NYC Bar Association”) (stating that unduly detailed or prescriptive verification rules would “have the potential to result in significant economic harm”); SecondMarket (asserting that “[p]lacing too heavy a burden on issuers and investors could have the undesired effect of inhibiting private capital formation” and that “issuers are likely to be unwilling or unable to assume the liability and cost that would arise from a significant documentary verification requirement”); NSBA (Aug. 2, 2012) (stating that “imposing additional burdens on Rule 506 issuers who engage in general solicitation or general advertising would make it more difficult for small firms to raise capital”); Small Biotechnology Business Coalition (“SBBC”) (stating that additional burdens on issuers seeking to utilize Rule 506 would make it more difficult for small firms to raise capital, and make it less likely that investors will invest in small firms); ABA (asserting that a verification requirement that imposes additional burdens on issuers or purchasers “would contravene the fundamental impetus for the JOBS Act”); MFA (June 26, 2012) (stating that “overly restrictive procedures * * * would have the effect of thwarting the purposes of Title II of the JOBS Act”).

57 See, e.g.,letters from BrokerBank (noting that self-certification of accredited investor status has been the “procedure that has been followed by the industry for decades” and urging the Commission to continue to allow self-certification of accredited status of individuals wishing to participate in Rule 506 offerings that utilize general solicitation); Phillip Goldstein, Bulldog Investors (“Goldstein”) (July 18, 2012) (urging that the Commission “promptly create a simple form that an issuer can provide to an investor to certify that he or she is accredited”); MFA (May 4, 2012) (stating that methods similar to those currently used by hedge fund managers, which include the identification by the purchaser of the qualification standards that it meets and minimum investment thresholds, would achieve the objectives of Section 201(a)); Securities Industry and Financial Markets Association (“SIFMA”) (urging that the requirement to take reasonable steps to verify should not impose a higher burden than the “reasonable belief” standard currently applicable to Rule 506 offerings and that an issuer should be deemed to have taken reasonable steps to verify if it has reasonable belief that the offeree is an eligible offeree).

58Letter from ABA.

59Letter from NYC Bar Association. For example, in connection with complying with anti-money laundering requirements, broker-dealers already obtain certain identifying information about their customers.

Other commentators stated that the verification mandate of Section 201(a) requires the Commission to enhance the current standard under which issuers determine that purchasers are accredited investors.60 In their view, the verification mandate of Section 201(a) calls for a standard that is higher than the current reasonable belief standard in the Rule 501(a) definition of accredited investor and such higher standard is needed in light of the greater likelihood of fraudulent activities resulting from the removal of the prohibition against general solicitation. Therefore, these commentators believe that the Commission must mandate the specific steps that issuers must take in order to form a reasonable belief that a purchaser is an accredited investor.61

60 Seeletters from Fund Democracy; Moscovitz and Maxfield; NASAA (July 3, 2012); Ohio Division; Public Citizen.

61 Id.

We also received a number of comments on specific methods that should or should not be viewed as reasonable steps for verifying accredited investor status. For example, some viewed a representation from the purchaser that it is an accredited investor as sufficient,62 while others asserted that such a representation alone would not be enough.63 Several commentators stated that the verification of accredited investor status should require the production of documentary evidence.64 One commentator recommended that only registered broker-dealers, and not other intermediaries, be permitted to verify accredited investor status on behalf of issuers because registered broker-dealers are subject to existing regulatory schemes, including Commission oversight.65 Other commentators recommended allowing issuers to rely on third-party firms to verify accredited investor status.66 Some commentators suggested that purchasers be required to submit a letter from a third party with knowledge of the purchaser's financial status (such as a certified public accountant or attorney) indicating that the purchaser is an accredited investor,67 while another commentator suggested that, in combination with an independent professional's certification as to the purchaser's accredited investor status, the purchaser be required to certify his or her accredited investor status under penalty of perjury.68 Another commentator stated that issuers should be allowed to rely on basic information about a purchaser that they may already have (for example, that the purchaser is an officer of a Fortune 500 company).69 One commentator suggested that the Commission adopt an approach under which a minimum investment of 50% of the net worth or total assets requirement under the applicable category of accredited investor, coupled with a certification by the investor, would be deemed to constitute “reasonable steps” to verify accredited investor status.70 Another commentator suggested that investors be permitted to self-certify their accredited investor status so long as at least 30 days have passed between the first date of public solicitation and the date of investment.71

62Letters from Goldstein (June 3, 2012); Mona Shah & Associates; SIFMA; JC Williams II, Tucson Business Development Group (“Williams”).

63Letters from Fund Democracy (stating that a representation from the purchaser that it is an accredited investor would not satisfy the statutory mandate that the issuer take steps to verify accredited investor status); John C. Nimmer (“Nimmer”); Ohio Division (“A `check-the-box' approach to investor self-verification of accredited status will not suffice because the Title II issuer must have more than a belief that a prospective purchaser is accredited.”).

64 Seeletters from Massachusetts Securities Division (stating that verification should require issuers to determine whether investors are accredited based on documentary evidence, rather than just representations from potential investors); NASAA (July 3, 2012) (recommending that the Commission require issuers to obtain documents such as tax returns, recent pay stubs, brokerage statements, tax assessment valuations, appraisals, list of liabilities (including a sworn statement that all material liabilities have been disclosed), organizational documents, balance sheets, and quarterly statements); Ohio Division (recommending that the issuer should “review financial statements and/or tax returns evidencing actual satisfaction of accredited investor thresholds” and, with respect to entities claiming to be accredited investors, should review “regulatory letters or certificates approving or confirming the entity's status as a bank, insurance company, registered investment company, business development company, or small business investment company”).

65Letter from SecondMarket (also suggesting that the Commission establish specific guidelines that registered broker-dealers must follow with respect to the verification process in order to be an approved “accreditation verification provider”).

66 Seeletters from National Investment Banking Association (“NIBA”) (recommending that if a FINRA member firm is not involved in the offering, then the issuer could satisfy the verification mandate by relying on a third-party report obtained from an investigatory firm indicating that a purchaser is an accredited investor; if a broker-dealer is involved in the offering as a placement agent, the issuer could satisfy the verification mandate by obtaining and reviewing a form from the broker-dealer that describes the process undertaken by the broker-dealer to establish accredited investor status for a purchaser); NSBA (Aug. 2, 2012) (stating that “[r]equiring investors to provide to issuers an independent professional's certification as to the investor's accredited investor status and requiring the investor to certify his or her own status under penalty of perjury would provide a high degree of protection against non-accredited investors asserting accredited investor status in Regulation D offerings”); Sigelman Law Corporation (asserting that third-party verification of accredited investor status should not be limited to broker-dealers but that independent third-party professional intermediaries “registered with the Commission and sworn to follow the protocol rules” should be allowed to provide such services).

67 Seeletters from Frank Nagy; Williams.

68Letter from NSBA (Aug. 2, 2012) (stating that Section 1746 of Title 28 of the United States Code authorizes this approach). One commentator stated that self-certification under penalty of perjury, in and of itself, should be sufficient. Letter from Nimmer.

69Letter from AngelList.

70Letter from MFA (June 26, 2012).

71Letter from SBBC (noting that such a “cooling off” period will help discourage impulse investments and will permit the issuer and the investor to assess one another).

We believe that the approach we are proposing appropriately addresses these concerns by obligating issuers to take reasonable steps to verify that the purchasers are accredited investors, as mandated by Section 201(a), but not requiring them to follow uniform verification methods that may be ill-suited or unnecessary to a particular offering or purchaser, given the facts and circumstances. We also expect that such an approach would 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 third-party databases of accredited investors. In addition, we anticipate that many practices currently used by issuers in connection with existing Rule 506 offerings would satisfy the verification requirement proposed for offerings pursuant to Rule 506(c).

We considered