Rule 504 of Regulation D provides an exemption from the registration requirements of the federal securities laws for some companies when they offer and sell up to $1,000,000 of their securities in any 12-month period.
A company can use the Rule 504 exemption so long as it is not a blank check company and is not obligated to file reports with the Securities and Exchange Commission under the Securities Exchange Act of 1934.
Also, the exemption generally does not allow companies to solicit or advertise their securities to the public, and purchasers receive “restricted” securities, meaning that they may not sell the securities without registration or an applicable exemption.
Rule 504 does allow companies to sell securities that are not restricted, if one of the following conditions applies:
Even if a company makes a private sale where there are no specific disclosure delivery requirements, a company should take care to provide sufficient information to investors to avoid violating the anti-fraud provisions of the securities laws.
This means that any information a company provides to investors must be free from false or misleading statements. Similarly, a company should not exclude any information if the omission makes what is provided to investors false or misleading.
While companies using the Rule 504 exemption do not have to register their securities and usually do not have to file reports with the SEC, they must file what is known as a “Form D” after they first sell their securities.
Form D is a brief notice that includes the names and addresses of the company’s owners and stock promoters, but contains little other information about the company.
In February 2008, the SEC adopted amendments to Form D, requiring that electronic filing of Form D be phased in during the period September 15, 2008 to March 16, 2009.
Although as amended, the electronic Form D requires much of the same information as the paper Form D, the amended Form D requires disclosure of the date of first sale in the offering. Previously, the first date of sale was not required.
The Office of Small Business Policy has posted information on its web page about the filing requirements for the new Form D.
If you are thinking about investing in a Reg D company, you should access the EDGAR database to determine whether the company has filed Form D. If the company has not filed a Form D, this should alert you that the company might not be in compliance with the federal securities laws.
Investors should exercise caution when investing in Rule 504 offerings particularly where they are offered free trading shares.