The Distinction Between Rule 506 And Crowdfunding

Securities Lawyer 101 Blog

The JOBS Act’s new rules permitting general solicitation and advertising in Rule 506 private placements will become effective on September 23, and there is still some confusion about the difference between crowdfunding and general solicitation and advertising in Rule 506(c) offerings. While Rule 506(c) becomes effective in two weeks, the crowdfunding rules have not been implemented by the Securities and Exchange Commission (“SEC”).  Rule 506 offerings are the most commonly used exemption for raising capital in connection with going public transactions that involve filing a registration statement on Form S-1.

While the public, and perhaps even some companies, may think of advertising and crowdfunding as the same thing, for the SEC they are not.  Crowdfunding is generally defined as raising small amounts of money from many people, rather than large amounts from a few.  In recent years, it’s often been used to provide funding for disaster relief, political campaigns, and other “causes” of interest to many people.  It is a concept and a technique.  The SEC doesn’t regulate concepts,  but it does have jurisdiction over companies that choose to apply those concepts, and to those who participate in their application.

General Solicitation and Rule 506(c) 

Until now, companies have been forbidden to use general solicitation and advertising to promote their securities.  In less than two weeks, that will be permitted in conjunction with offerings of unregistered securities conducted pursuant to Regulation D.  Companies are not required to advertise, and if that is their choice, they may use the “old” Rule 506, which does not allow solicitation of any kind.  If they wish to advertise, they must use Rule 506(c).  In a Rule 506 placement, there may be an unlimited number of accredited investors, and up to 35 unaccredited investors.  The new Rule 506(c) permits advertising, but excludes non-accredited investors from participation.  In addition, issuers will be expected to make an effort to verify whether their accredited investors qualify for that status.  The SEC has suggested several methods they may use to accomplish that.

Crowdfunding

The SEC has yet to implement new rules that will permit crowdfunding in Regulation D offerings.  Pressed for a date, spokespersons will only say “soon.”

The JOBS Act provides that “crowdfunding portals” or qualified broker-dealers may be used to raise money.  The companies receiving the money may not advertise on their own behalf; the issuer can only direct interested parties to the portal being used.  The portal operators’ job is only to match investors with issuers.  They cannot offer investment advice, solicit sales, or handle investors’ money.  They must register with the SEC and FINRA as investment portals.

If a company takes the crowdfunding route, it may raise no more than $1 million every 12 months from that offering or any other offering.  In other words, if an issuer uses crowdfunding, it may not float any other kind of offering to raise additional funds until a year has passed.

There will also be strict limits on how much an investor whose net worth is less than $100,000 can spend, which will be the greater of $2000 or 5% of his income.  If he’s worth more than that, there is still a maximum investment size of $100,000.

The company will have to provide additional information to the SEC, depending on the amount of money to be raised.  If its goal is, for example, $500,000 or more, audited financials will be required.

Implications for Issuers

General solicitation and crowdfunding will provide new ways for small businesses to attract investors; with luck, they will help them grow more quickly and easily than before.  But the rules are complicated, and a failure to understand them could result in securities laws violations.  Companies should seek advice from an qualified securities attorney before embarking upon the unknown.

For further information about Rule 506 and crowdfunding please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 201 S, Boca Raton Florida, (561) 416-8956, by email at info@securitieslawyer101.com

This memorandum is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. For more information concerning the rules and regulations affecting the use of Rule 144, Form 8K, FINRA Rule 6490, Rule 506 private placement offerings, Regulation A, Rule 504 offerings, SEC reporting requirements, SEC registration on Form S-1 and Form 10, Pink Sheet listing, OTCBB and OTCMarkets disclosure requirements, DTC Chills, Global Locks, reverse mergers, public shells, go public direct transactions and direct public offerings please contact Hamilton and Associates at (561) 416-8956 or info@securitieslawyer101.com. Please note that the prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates Securities Law
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 N
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.SecuritiesLawyer101.com

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