A Discussion To Help You Understand Capital Formation And The Federal Securities Laws by the S.E.C.

This discussion of capital formation and the federal securities laws is designed to help you understand some of the fundamental requirements that must be addressed when you wish to raise capital through the sale of securities. It is not intended as legal advice. Therefore, you should consult an attorney before initiating any activities relating to the sale of securities.




In the chaotic securities markets of the 1920s, stocks and bonds were often sold on the basis of glittering promises of fantastic profits - without disclosure of any meaningful information to investors. These conditions were major contributors to the disastrous Stock Market Crash of 1929. The federal securities laws were, in large part, enacted as a reaction to these conditions. In response, Congress passed the:
* Securities Act of 1933 (Securities Act)
* Securities Exchange Act of 1934 (Exchange Act) and established the Securities and Exchange commission (SEC or Commission) to administer those laws.

The Securities Act requires a company to make "full disclosure" of all material facts before it offers its securities to the public. In enforcing this law, the SEC has no authority to evaluate the quality of securities offered or to pass judgment on the merits of each offering. Rather, the "disclosure" approach permits a company to offer its securities for sale if it has disclosed sufficient and accurate information about the business it conducts or proposes to conduct.

The Exchange Act sets up requirements for continued disclosure, on a periodic basis, by most publicly held companies. These companies are required by the Exchange Act to keep shareholders informed of business operations, financial condition, and management.

There are certain alternatives to registration under the Securities Act, and exemptions from the Exchange Act reporting requirements, which are discussed later in this brochure.


The SEC's primary responsibility under the securities laws is to protect investors and ensure that the capital markets operate in a fair and orderly manner. However, the Commission believes that its regulations should not have the effect of inadvertently impairing capital formation by small businesses. Therefore, the SEC has taken a number of steps to facilitate capital-raising by small businesses and reduce undue regulatory burdens arising from the federal securities laws. The Commission is in a continuous process of examining other ways to further aid in accomplishing these goals.

The Office of Small Business Policy

In 1979, the SEC established the Office of Small Business Policy within its Division of Corporation Finance. Their mission is to:

* Direct the SEC's small business rulemaking initiatives;
* Review and comment on the impact of SEC rule proposals on small issuers; and
* Serve as liaison with Congressional committees, government agencies, and other groups concerned with small business.

Registration Alternatives and Exemptions

The SEC has adopted a number of measures designed to facilitate capital formation by small business. Alternatives to, or exemptions from, full registration are discussed in detail elsewhere in this document. These regulations are intended to ease the burden of regulation for small businesses qualified to take advantage of them, and to enable these companies to raise needed capital.


The first thing to be considered when a small business is seeking additional capital is whether or not "going public" is the right step to take. There are both advantages and disadvantages to making a registered public offering of your securities. Both should be considered carefully. Some of the factors to be weighed are listed below.


* Access to capital, through both equity and debt financing,is increased.
* Your company may become more widely known.
* Future financing may be obtained more easily since the company can offer investors a security that is liquid-more freely tradeable and that has an ascertainable market value.
* Controlling shareholders of the company have a ready market for their shares, which means that they can more easily sell their interests (at retirement or for some other reason).
* Your company may be able to attract and retain more highly qualified personnel if it can offer stock options, bonuses, or other incentives with an ascertainable market value.


* The company assumes additional responsibilities to its shareholders and the general public, the most important of which is its continuing obligation to inform shareholders of the company's business operations, financial condition, and management. Such disclosure may be expensive and time-consuming; it also exposes your company and its management to certain liabilities.
* A company may lose some flexibility in managing its affairs, particularly with actions requiring shareholder approval.


Section 5 of the Securities Act requires that a registration statement be filed with the SEC before securities are offered for sale to the public. It also prohibits the sale of those securities until the registration statement becomes "effective." (Although registration statements become public immediately upon filing with the commission, it is illegal to sell the securities until the effective date.) The basic registration statement consists of two principal parts:

Part I is the prospectus (the legal offering or "selling" document), which must be furnished to all purchasers of the securities. Your company- the "issuer" of the securities-is required to put in the printed prospectus the essential facts regarding its business operations, financial condition, and management. The prospectus must be made available to everyone who buys the new issue, and also to anyone who is made an offer to purchase the securities.

Part Il contains additional information available at the SEC for inspection by the public. (Copies of all disclosure documents filed with the SEc may be obtained by mail, for a nominal copying charge.)

Basic Registration of Securities

The basic registration form is Form 5-1. It requires companies to disclose, among other things:
* A description of the company's business;
* Its properties;
* Material transactions between the company and its officers and directors;
* Competition;
* Identification of officers and directors and their remuneration;
* Certain pending legal proceedings;
* The plan for distributing the securities; and the intended use of the proceeds. It is not prepared as a fill-in-the-blank form like a tax return but is similar to a brochure, with information provided in a narrative format. There are also detailed requirements concerning financial statements, including the requirement that such statements be audited by an independent certified public accountant.

In addition to the information expressly required by the form, the company must also provide any other information necessary to make the statements complete and not misleading. If sufficient adverse or risk factors exist concerning the offering and the issuer, they must also be set forth prominently in the prospectus, usually in the beginning. Examples of these factors are:
* Lack of business operating history;
* Adverse economic conditions in a particular industry;
* Lack of market for the securities offered; and
* Dependence upon key personnel.

Alternative Registration Forms for Small Business Issuers

In August 1992, the SEC adopted a simplified form (Form SB-2) for use by small business issuers. A small business issuer is a United States or Canadian issuer that had less than $25 million in revenues in its last fiscal year, provided that the value of its outstanding securities in the hands of the public is no more than $25 million.

An alternative to Form 5-1, Form SB-2 permits the offering of an unlimited dollar amount of securities by any small business issuer. The form may be used again and again as long as the issuer meets the definition of small business issuer. Form SB-2 offers certain advantages, including the location of all disclosure requirements in a central repository, Regulation S-B. These disclosure requirements are presented in simple, non-legalistic terminology.

Form SB-2 also permits the issuer to:
* Provide audited financial statements, prepared in accordance with generally accepted accounting principles, for two fiscal years (Form 5-1 requires the issuer to provide audited financial statements, prepared in accordance with more detailed SEC regulations, for three fiscal years);
* Include less extensive narrative disclosure, particularly in the areas of the description of business, and executive compensation, than that required by Form 5-1; and
* File its initial public offering with either the SEC Regional Office nearest to where the company conducts its principal business operations or with the SEC Division of Corporation Finance in Washington DC. The primary advantage of regional filing is that regional office personnel may be more familiar with local economic conditions, the business community, the financial environment, and, in some cases, the background and history of the company.

Registration statements are examined for compliance with disclosure requirements. If a statement appears to be materially incomplete or inaccurate, the registrant usually is informed by letter and given an opportunity to file correcting or clarifying amendments. The Commission can refuse or suspend the effectiveness of any registration statement if it finds that material representations are misleading, inaccurate, or incomplete.


The Exchange Act requires a company to file certain periodic reports once its registration statement has been declared effective. This obligation continues indefinitely unless:
* At the beginning of any subsequent fiscal year, the class of securities offered is held of record by less than 300 persons; or
* At the beginning of any subsequent fiscal year (except the two fiscal years-immediately succeeding the year the registration statement became effective), all securities offered are held of record by less than 500 persons and the issuer has had less than $5 million in total assets for each of its last three fiscal years.

In these cases, the reporting obligation is suspended. Otherwise, a company must continuously disclose certain information about:
* Its operations;
* Its officers, directors, and certain shareholders (including salary, various fringe benefits, and inside transactions between the company and management);
* The financial condition of the business (including audited financial statements by an independent certified public accountant); and
* Its competitive position, material terms of certain contracts or lease agreements, etc.

All companies with total assets exceeding $5 million and a class of equity securities held by 500 or more persons are required by the Exchange Act to file the same supplementary, periodic, and current reports as noted above. Companies with these characteristics must also comply with the Commission's proxy rules if proxies are solicited from holders of its securities. In such a case, the company must furnish all shareholders proxy statements disclosing all material face concerning matters on which they are being asked to vote. If the proxy solicitation by management relates to an annual meeting at which directors are to be elected, the Commission's proxy rules also require the company to furnish each shareholder an annual report disclosing certain information about the company, including audited financial statements for its latest fiscal year.

Small business issuers are offered an alternative in the Commission's continuous reporting system. This alternative permits them to use Regulation S-B as the appropriate disclosure requirements for registration under the Securities Act, as well as registration and reporting under the Exchange Act.


Yes! The Securities Act provides several exemptions from the registration requirements; the most common are discussed below. Nonetheless, purchases or sales of securities (even in exempt transactions) are subject to the anti-fraud provisions of the federal securities laws. This means that issuers are responsible for false or misleading statements (whether oral or written) which may be redressed through private or government legal action, including criminal sanctions. Also, if all conditions of the exemptions discussed below are not met, purchasers may seek to have their purchase price refunded. In addition, the fact that an offering may be exempt from certain provisions of the federal securities laws does not necessarily mean that it is exempt from the notice and filing obligations of various state laws. Issuers are cautioned to check with the appropriate state authority before proceeding with an offering relying on any of the exemptions discussed below.

Intrastate Offering Exemption

Section 3(a)(11) of the Securities Act is generally known as the "intrastate offering exemption." It exempts from registration any security which is part of an issue offered and sold only to residents of a single state or territory and the issuer is both a resident of and doing business within that state or territory. This exemption is intended to facilitate the local financing of local business operations. In order to qualify for the intrastate offering exemption, your company must:
* Be incorporated in the state where it is making the offering;
* Carry out a significant amount of its business in that state; and
* Make offers and sales only to residents of that state.

Although there is no fixed limit on the size of the offering or the number of purchasers, your company has the obligation to determine the residence of each purchaser. If any of the securities are offered or sold to one out-of-state purchaser, the exemption may be lost. In addition, if any of the securities are resold by an original resident purchaser to a person resident outside the state within nine months after the offering by the issuer is completed, the entire transaction may be in violation of the Securities Act. Therefore, there is usually no significant after-market for any securities issued in an intrastate offering during the nine-month period following the initial sale. Consequently, they must normally be sold at a discount.

It is difficult for you as an issuer to rely on the intrastate exemption unless your company knows the purchasers and the sale is directly negotiated with them. A company with some of its assets outside the state, or deriving a substantial portion of its revenues outside the state where it proposes to offer its securities, will probably have a difficult time justifying the exemption.

The SEC has adopted Rule 147, a "safe harbor" rule, which may be followed by companies to be certain they meet the requirements for this exemption. It is possible, however, that transactions not meeting all requirements of Rule 147 may still qualify for the exemption.

Private Offering Exemption

Section 4(2) of the Securities Act provides exemption from registration for "transactions by an issuer not involving any public offering." There has been much uncertainty as to the precise limits of this private offering exemption. Generally, sales to persons who have access to information about the company and are able to fend for themselves (such as those directly managing the business) fall within the intended scope of the exemption. These are known as "sophisticated investors." As the number of purchasers increase and their relationship to the company and its management becomes more remote, however, it becomes more difficult for an issuer to demonstrate that the transaction does, in fact, qualify for the exemption.

To qualify the offering under this exemption, it is necessary that the persons to whom your company sells the security:
* Have sufficient knowledge and experience in financial and business matters that they are capable of evaluating the risks and merits of the investment (the "sophisticated investor"), or are able to bear the economic risk of the investment;
* Have access to the type of information normally provided in a prospectus; and
* Agree not to resell or distribute the securities.

In addition, your offering may not be made by any form of public solicitation or general advertising.

You should be aware that if the security is offered for sale to even one person who does not meet the necessary conditions, the entire offering may be in violation of the Securities Act.

The SEC has adopted Rule 506, another "safe harbor" rule, which provides objective standards upon which business people may rely in order to be certain they meet the requirements of this exemption. Rule 506 is a part of Regulation D, which is described more fully later.

Regulation A

Section 3(b) of the Securities Act gives the SEC authority to exempt from registration certain offerings where the securities to be offered involve relatively small dollar amounts. Under this provision, the SEC has adopted Regulation A, a conditional exemption for certain public offerings not exceeding $5 million in any 12-month period. An offering statement (consisting of a notification, offering circular, and exhibits) must be filed with the SEC Regional Office in the region where the company's principal business activities are conducted. Although Regulation A is technically an exemption from the registration requirements of the Securities Act, it is often referred to as a "short form" of registration since the offering circular (similar in content to a prospectus) must be supplied to each purchaser and the securities issued are freely tradeable in an after-market. The principal advantages of Regulation A offerings, as opposed to full registration on either Form 5-1 or SB-2, are:
* Required financial statements are simpler and need not be audited; and
* There are no periodic SEC reporting requirements (other than sales reports following the sale of the securities) unless the issuer has more than $5 million in total assets and more than 500 shareholders.
* There are three permitted offering circular formats under Regulation A, one of which is a simplified question-and-answer document. This style of disclosure is useful to potential investors and may offer significant benefits to the issuer in the time expended and the costs of preparation.

All types of companies which are not reporting under the Exchange Act may use Regulation A, except "blank check" companies (i.e., those with the business of seeking an unspecified business) and investment companies registered or required to be registered under the Investment Company Act of 1940. In most cases, Regulation A may also be used by shareholders for the resale of up to $1.5 million of securities.

Regulation A includes a provision which allows an issuer to "test the water" to determine whether or not there is any investor interest in its securities before the filing of a complete offering document. Thus, an issuer may publish factual information about its business or proposed business before incurring a full range of legal, accounting and other costs, in order to gauge potential investor interest in a possible securities offering; however, the provision specifically provides that no money may be solicited or accepted until an offering statement has been qualified by the Commission, and prescribed offering materials have been delivered to potential investors.

Regulation D

Under Sections 4(2) and 3(b) of the Securities Act, the SEC in March, 1982, adopted Regulation D to coordinate the various limited offering exemptions and to streamline the existing requirements applicable to private offers and sales of securities. The Regulation establishes three exemptions from registration in Rules 504, 505, and 506.

Rule 504

Rule 504, which provides an exemption for non-reporting companies unless they are "blank check" issuers, for sales of securities up to $1,000,000, stipulates that:
* The sale of up to $1,000,000 of securities in a 12-month period is permitted;
* No limitation is placed on the number of persons purchasing securities;
* The offering may be made with general solicitation or general advertising;
* The securities received in the offering are not "restricted securities"; and
* A Form D notice be filed with SEC headquarters within 15 days after the first sale of securities under the Rule.

Unlike Rules 505 and 506, Rule 504 does not mandate that specified disclosure be provided to purchasers. Nonetheless, the businessperson should take care that sufficient information is provided to meet the full disclosure obligations which exist under the antifraud provisions of the securities laws.

Rule 505

Rule 505 was adopted by the SEC to provide small businesses more flexibility in raising capital than under Rule 504 - but without the uncertainty of determining the quality of the purchasers that generally is involved in using Rule 506. Rule 505 provides issuers a limited offering exemption for sales of securities totaling up to $5 million in any 12- month period.

Rule 505 contains certain restrictions regarding "accredited investors" and non-accredited persons. The term "accredited investor" includes:
* Banks, insurance companies, registered investment companies, business development companies, or small business investment companies;
* Certain employee benefit plans for which investment decisions are made by a bank, insurance company, or registered investment adviser;
* Any employee benefit plan (within the meaning of Title of the Employee Retirement Income Security Act) with total assets in excess of $5 million;
* Charitable organizations, corporations or partnerships with assets in excess of $5 million;
* Directors, executive officers, and general partners of the issuer;
* Any entity in which all the equity owners are accredited investors;
* Natural persons with a net worth of at least $1 million;
* Any natural person with an income in excess of $200,000 in each of the two most recent years or joint income with a spouse in excess of $300,000 for those years and a reasonable expectation of the same income level in the current year; and
* Trusts with assets of at least $5 million, not formed to acquire the securities offered, and whose purchases are directed by a sophisticated person.

There is no specific information the issuer must furnish to accredited investors. However, non-accredited investors must be advised of and furnished, upon request, all material information furnished to accredited investors, as well as certain specified information.

Financial statement requirements include:
* Only financial statements for the most recent fiscal year need be certified by an independent public accountant;
* If an issuer other than a limited partnership cannot obtain audited financial statements without unreasonable effort or expense, only the issuer's balance sheet (to be dated within 120 days of the start of the offering) must be audited;
* Limited partnerships unable to obtain required financial statements without unreasonable effort or expense may furnish financial statements prepared on the basis of federal income tax requirements and examined and reported on by an independent public or certified accountant in accordance with generally accepted auditing standards; and
* The issuer must also be available to answer questions by prospective purchasers about the issuer or the offering.

Further restrictions under Rule 505 include:
* The total offering price of each issue of securities may not exceed $5 million.
* The offering may not be made by means of general solicitation or general advertising.
* The issuer may sell the securities to an unlimited number of "accredited investors" and to 35 non-accredited persons. There are no requirements of "sophistication" or "wealth" for persons to whom the securities are sold.
* A company must take any necessary steps to ensure that the purchasers are acquiring securities for investment only, not for resale. The securities are thus "restricted" and investors must be informed that they may not be able to sell for at least two years.
* The issuer is not required to file any offering materials with the Commission. Fifteen days after the first sale in the offering, the issuer must file a notice of sales on Form D. The notice also contains an undertaking under this Rule for the issuer to furnish the Commission, upon its staff's request, any information given to non-accredited purchasers in connection with the offering.

Rule 506

Offers and sales of securities by an issuer that satisfy the conditions stated below are deemed transactions not involving any public offering within the meaning of Section 4(2) of the Securities Act. For an offering to be considered exempt from the registration requirements, Rule 506 stipulates:
* There is no ceiling on the amount of money which may be raised.
* No general solicitation or general advertising is permitted.
* The issuer may sell its securities to an unlimited number of accredited investors and 35 non-accredited purchasers. Unlike Rule 505, all non-accredited purchasers (either alone or with a purchaser representative) must be sophisticated that is, have sufficient knowledge and experience in financial and business matters to render them capable of evaluating the merits and risks of the prospective investment.
* The term "accredited investor" is defined as above under Rule 505.
* There is no specific information which the issuer must furnish to accredited investors. However, non-accredited investors must be advised of and furnished, upon request, all material information furnished to accredited investors, as well as certain specified information.
* The information requirements are generally the same as those on the registration form the issuer would be entitled to use. If the issuer cannot obtain audited financial statements without unreasonable effort or expense, then financial statements may be provided in accordance with the special treatment described under Rule 505 above.
* The securities sold are "restricted" under the same stipulations in Rule 505.
* A company is required to file a notice of the offering on Form D at SEC headquarters within 15 days after the first sale in the offering. There is no requirement to file the offering memorandum with the Commission.

Accredited Investor Exemption: Section 4(6)

The Small Business Investment Incentive Act of 1980 created a new statutory exemption from registration under the Securities Act for transactions involving offers and sales of securities by any issuer solely to one or more accredited investors." Under Section 4(6):
* The total offering price of each issue of securities under the exemption may not exceed the limit on small offerings set by Section 3(b) the Securities Act, which currently is $5 million per issue.
* The offering may not be made by means of any form of advertising or public solicitation.
* The term "accredited investor" is defined to include the same individuals and entities as included for purposes of Rules 505 and 506.
* The issuer is required to file a notice of sales on Form D with the Commission 15 days after the initial sale is made in reliance on the exemption.
* The Section 4(6) exemption does not contain any specific disclosure requirements. The issuer is cautioned however, that, as in the case of the other exemptions, Section 4(6) does not exempt the issuer from the antifraud provisions of the securities laws.


The federal government and state governments each have separate and autonomous securities laws and regulations. Compliance with the laws and rules of one does not constitute compliance with the laws and regulations of the other. A company selling securities must comply with federal securities laws as well as with the laws of each state in which it intends to offer its securities. In addition, the fact that a particular offering may be exempt from certain provisions of the federal securities laws does not necessarily mean that it is exempt from the notice and filing requirements of state laws.

In certain states, the law permits a state official to judge the merits of an offering. In these "merit states," even though a company complies with the registration or filing procedures, the state may prohibit the offering because the state official does not consider it to be "fair, just, and equitable" for purchase by citizens of that state. Consequently, an issuer of securities must be careful to make sure there is compliance with all the appropriate state requirements, as well as with the federal securities laws.


The staff of the Office of Small Business Policy, as well as the personnel of the SEC Regional Offices, will be glad to assist you with any questions you may have regarding federal securities laws. For information about state securities laws, contact the appropriate state securities commissioner, whose office is usually located in the capital city.

The entire text of the Commission's rules and regulations is available through the U.S. Government Printing Office or from several private publishers of legal information. In addition, numerous books on this subject have been published, and some are available at public libraries. As of this writing, the following volumes of Title 17 of the Code of Federal Regulations (the SEC's rules and regulations) were available from the Government Printing Office:

* Vol. II - Parts 200 to 239. SEC Organization; Conduct and Ethics; Information and Requests; Rules of Practice; Regulation S-X and Securities Act of 1933.
* Vol III - Parts 240 to End. Securities Exchange Act of 1934; Public Utility Holding Company, Trust Indenture, Investment Company, Investment Advisers, and Securities Investor Protection Corporation Acts.

For additional information, contact:

Superintendent of Documents
Government Printing Office
Washington DC 20402-9325

For information concerning matters relating particularly to small business:

Office of Small Business Policy U.S. Securities and
Exchange Commission 450 Fifth Street NW, Stop 7-8
Washington DC 20549
Telephone: 202/272-2644

For copies of Commission forms and recently adopted rules:

Publications Section
U.S. Securities and Exchange Commission 450 Fifth
Street NW, Stop C-11 Washington, DC 20549
Telephone: 202/272-7460

For information regarding state securities laws and regulations, contact the relevant state securities administration.

For information concerning alternative ways of financing small business activities:

Office of Chief Counsel for Advocacy
U.S. Small Business Administration
409 Third Street, SW
Washington DC 20416
Telephone: 202/205-6533

For further information regarding any aspect of SEC operations, you may contact the Regional Office most convenient to you.


Northeast Regional Office
7 World Trade Center, Suite 300
New York, New York 10048
(212) 748-8000

Philadelphia District Office
The Curtis Center, Suite 1005 E.
601 Walnut Street
Philadelphia, Pennsylvania 19016-3322
(215) 597-3100

Boston District Office
75 Tremont Street, Suite 600
Boston, Massachusetts 02108-3912
(617) 424-5900

Southeast Regional Office
1401 Brickell Avenue, Suite 200
Miami, Florida 33131
(305) 536-5765

Atlanta District Office
3475 Lenox Road, N.E., Suite 1000
Atlanta, Georgia 30326-1232
(404) 842-7600

Midwest Regional Office
Citicorp Center
500 West Madison Street, Suite 1400
Chicago, Illinois 60661-2511
(312) 353-7390

Central Regional Office
1801 California Street, Suite 4800
Denver, Colorado 80202-2648
(303) 391-6800

Fort Worth District Office
801 Cherry Street, 19th Floor
Fort Worth, Texas 76102
(817) 334-3821

Salt Lake City District Office
500 Key Bank Tower
50 S. Main Street, Suite 500 Box 79
Salt Lake City, Utah 84144-0402
(801) 524-5796

Pacific Regional Office
5670 Wilshire Boulevard, 11th Floor
Los Angeles, California 90036-3648
(213) 965-3998

San Francisco District Office
44 Montgomery Street, Suite 1100
San Francisco, California 94104
(415) 705-2500
by the Office of Small Business Policy, Division of Corporation Finance and the Office of Public Affairs, U.S. Securities and Exchange Commission prepared in cooperation with the U.S. Small Business Administration February, 1993

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