Is There a “Friends and Family” Securities Law Offering Exemption?

Friends and Family ExemptionEarly stage companies frequently want to raise money from friends and family. There is a common misconception that somehow the U.S. securities laws do not apply to these transactions, and that there is a “friends and family” exemption from the U.S. securities law registration requirements.

Unfortunately, under the U.S. securities laws, there is no such thing as a “friends and family” exemption from registration. To sell shares of stock or securities in a company, the company either has to register the securities with the SEC (an expensive and onerous process), or issue the securities pursuant to a securities law exemption. The most common exemption relied upon by early stage companies is the exemption for securities issued pursuant to the all “accredited investor” offering exemption under Rule 506 of Regulation D promulgated under the Securities Act of 1933, as amended.

See the definition of accredited investor.

Please be advised, however, that the individual net worth definition has changed, as explained here. Also, be aware that there are a number of conditions that must be met in a Rule 506 offering, not just making sure that your investors are accredited.

If you raise money from friends and family members who are not “accredited investors,” this can complicate future offerings that otherwise would have qualified as all “accredited investor” offerings. For example, under Rule 502 of Regulation D, a friends and family offering might be considered part of a subsequent offering that would have otherwise qualified as an all “accredited investor” offering, causing the subsequent offering to not qualify as exempt as a Rule 506 offering. Non-exempt, non-registered offerings can also upset strategic transactions, or give rise to government investigations and expensive rescission offerings.

Always consult with counsel before selling securities in your startup company.

About Joe Wallin

Joe Wallin focuses on emerging, high growth, and startup companies. Joe frequently represents companies in angel and venture financings, mergers and acquisitions, and other significant business transactions. Joe also represents investors in U.S. businesses, and provides general counsel services for companies from startup to post-public.
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