Reg D (aka Regulation D) is a Securities and Exchange Commission (SEC) regulation comprised of various rules related to private placement exemptions. It enables certain companies to raise capital without registering the securities with the SEC. A private placement memorandum is prepared and delivered with other syndication documents to the investors. Within 15 days after the first securities are sold, the entrepreneur or the company needs to file a Form D with the SEC. All Form D information (company’s name, address, directors, offering size, etc.) is publicly available.
This regulation’s benefits are available only to the issuer of the securities, not the affiliates or individuals that may try to resell them. Moreover, the exemptions apply only to the offerings, not the actual securities.
Regulation D also allows companies to take advantage of Rule 506 of Regulation D, which allows them to make an unlimited number of sales to an unlimited number of accredited investors and up to 35 unaccredited investors. This rule permits the company to solicit investors without registering the securities with the SEC, as long as the company provides potential investors with certain disclosure documents and complies with other conditions. The company is also required to provide potential investors with an investment letter that outlines the details of the investment opportunity. Additionally, the company must take reasonable steps to ensure that the investors are accredited and are able to bear the economic risk of their investments.
What is Reg D?
Reg D contains a set of rules set forth by the United States Securities and Exchange Commission (SEC) that allow an entrepreneur or a company to sell securities without registering with the SEC. It’s intended to help small companies that otherwise couldn’t bear the costs of a standard SEC registration gain access to the capital market. Thanks to this regulation, introduced in 1982, companies can raise capital selling equities and debt securities.
Regulation D defines essential terms, conditions that need to be met, and potential exemptions for certain offerings. Companies that meet all requirements don’t have to register their offering of securities, but they do need to file Form D with the SEC. This needs to be done no later than 15 days after the first securities are sold.
Reg D and the SEC
The Securities Act of 1933 states that every offer to sell securities needs to be registered with the SEC. However, there are certain exceptions. If an offer meets specific criteria, it’s eligible for an exemption from such registration. The SEC’s Reg D is one such exemption to registration.
Regulation D contains the rules a company or an entrepreneur needs to follow to qualify for the exemption. It defines the conditions one needs to meet, forms that need to be filed, and guidelines under which the SEC enforces the regulation. SEC Reg D is not to be confused with the Federal Reserve Board Regulation D that sets definite limits for withdrawals from savings accounts.
The SEC and its Regulation D is a complex topic, with many questions that need to be answered for those looking to raise capital. It is important to understand the eligibility requirements and filing process of Form D in order to stay compliant with the SEC’s regulations. Additionally, it should not be assumed that using Regulation D is necessary for any business seeking financing or fundraising as there are other options available.
Those who wish to utilize Regulation D for funding purposes should familiarize themselves with all aspects of this rule before proceeding, an experienced syndication attorney can help. Knowing what makes a company eligible, how to disclose required information to investors with a private placement memorandum (PPM), how often forms must be filed, and potential consequences are crucial components that must be taken into consideration prior engaging in any activities regulated by the SEC and its Regulation D .
Blue Sky Laws
Blue Sky Laws represent safety regulations for protecting investors from securities fraud. These laws vary depending on the state and require issuers of securities to register in their own state and states in which they intend to conduct business. Sellers are obliged to provide financial details of every deal they make, including information about involved entities. Hence, the investors have all the data necessary to make informed decisions.
Essentially, blue sky laws serve to prevent sellers from taking advantage of investors who lack experience and knowledge. That being said, there are several exceptions for offerings that don’t have to be registered. These are securities listed on national stock exchanges and those that comply with Rule 506 of Regulation D.
The enforcement of blue sky laws is handled by the state’s securities regulator, often referred to as the Securities Commissioner. The Securities Commissioner typically handles investigations, audits, and disciplinary actions related to securities fraud. The Securities Commissioner may also issue orders to stop or restrict certain securities transactions or issue cease and desist orders to prevent a particular person or organization from engaging in securities fraud. In addition, the Commissioner can impose fines, issue warnings, or take other disciplinary action.
Overall, blue sky laws are an important tool in the fight against securities fraud and provide an extra level of protection for investors. These laws help to ensure that all parties involved in the sale of securities are in compliance with the applicable regulations and that investors are provided with the necessary information to make informed decisions.
Reg D Offerings
Reg D offerings are a security, put together by the Sponsor, and sold to investors. These can be real estate, equity or debt in a business (like a venture capital or shares in a single business), or a private equity fund that invests into any number of assets including digital assets, mineral rights, or tax credits.
Reg D offerings (aka syndications) are typically exempt from the registration requirements of the Securities Act of 1933, as long as the securities are offered only to accredited investors who meet certain criteria. This exemption makes it easier for the issuer to sell securities without having to go through the lengthy and costly process of registering with the SEC. In addition, the offering can be done without having to register with any state regulatory agency. As such, Reg D offerings can be a great way for a company, especially a smaller one, to raise capital quickly and easily.
What Industries Raise Capital With Reg D?
- Raise capital from investors,
- Be in control of the entity, business, or asset (as opposed to having the investors all sharing control), and
- Not go through the time and expense of registering a security with the SEC.
While the most common industry for a Reg D offering is real estate (real estate syndication and real estate development funds), syndicators also use it to raise money for new and established businesses that are looking for cheaper capital, crypto-mining, blockchain businesses, private equity funds, and hedge funds.
Regulation D is also used to raise capital for small business startups and existing businesses that need additional funding for growth, expansion, or debt consolidation. These types of businesses typically look to Regulation D to raise capital from accredited investors. Additionally, Regulation D can be used to raise capital for projects that involve some kind of intellectual property, such as film, television, and software production, as well as for crowdfunding campaigns. By using Regulation D, these types of businesses can raise the capital they need without having to register the security with the SEC.
Tilden Moschetti, Esq., is a highly sought-after syndication attorney with nearly two decades of experience. His clientele ranges from real estate developers and startups to established businesses and private equity funds. Tilden’s expertise in syndication law comes not only from his knowledge of syndication and securities law but from real, hands-on experience as an active syndicator himself in every real estate product type and nearly all markets in the US. His knowledge and experience set him apart and established him as the Reg D legal services leader.