Users of Regulation D (§§ 230.500et seq.) should note the following:
(a) Regulation D relates to transactions exempted from the registration
requirements of section 5 of the Securities Act of 1933 (the Act) (15 U.S.C.77a et
seq., as amended). Such transactions are not exempt from the
antifraud, civil liability, or other provisions of the federal securities
laws. Issuers are reminded of their obligation to provide such further
material information, if any, as may be
necessary to make the information required under Regulation D, in light of
the circumstances under which it is furnished, not misleading.
(b) Nothing in Regulation D obviates the need to comply with any applicable
state law relating to the offer and sale of
securities. Regulation D is intended to be a basic element in a uniform
system of federal-state limited offering exemptions consistent with the provisions of
sections 18 and 19(c) of the Act (15 U.S.C. 77r and 77(s)(c)). In those states that have adopted Regulation D, or any version of
Regulation D, special attention should be directed to the applicable
state laws and regulations, including those
relating to registration of persons who receive remuneration in connection
with the offer and sale of securities, to disqualification of issuers
and other persons associated with offerings based on
state administrative orders or judgments, and
to requirements for filings of notices of sales.
(c) Attempted compliance with any rule in Regulation D does not act as an exclusive election; the issuer can also claim the availability of any other
applicable exemption. For instance, an issuer's failure to satisfy all the terms and
conditions of rule 506(b) (§ 230.506(b)) shall not raise any presumption that the exemption provided by
section 4(a)(2) of the Act (15 U.S.C. 77d(2)) is not available.
(d) Regulation D is available only to the issuer of the securities and not to any affiliate of that issuer or to any other person for resales of the issuer's securities. Regulation D provides an exemption
only for the transactions in which the securities are offered or sold by the
issuer, not for the securities
(e) Regulation D may be used for business combinations that involve sales by
virtue of rule 145(a) (§ 230.145(a)) or otherwise.
(f) In view of the objectives of Regulation D and the policies underlying the
Act, Regulation D is not available to any
issuer for any transaction or chain of
transactions that, although in technical compliance with Regulation D, is
part of a plan or scheme to evade the registration provisions of
the Act. In such cases, registration under the
Act is required.
(g) Securities offered and sold outside the United States in accordance with Regulation S (§ 230.901 through 905) need not be registered under the Act. See Release No. 33-6863. Regulation S may be relied
upon for such offers and sales even if coincident offers and sales are made
in accordance with Regulation D inside the United States. Thus, for example, persons who are offered
and sold securities in accordance with Regulation S would not be counted in
the calculation of the number of purchasers under Regulation D. Similarly,
proceeds from such sales would not be included in the aggregate offering price. The provisions of this paragraph (g),
however, do not apply if the issuer elects to rely solely on Regulation D for offers
or sales to persons made outside the United States.