Under the federal securities laws, any offer or sale of a security must either be registered with the SEC or meet an exemption. Regulation A is an exemption from the registration requirements, allowing companies to offer and sell their securities without having to register the offering with the SEC.
Companies relying on a Regulation A exemption can offer and sell their securities to the public under two different tiers that have two different requirements—Tier 1 and Tier 2. Under both tiers, the issuer must file an offering statement on Form 1-A with the SEC. The offering statement includes the offering circular, which is the primary disclosure document for investors. Investors must be provided with, or given information on how to access, the offering circular. An issuer can only accept payment for the sale of its securities once its offering statement is qualified by the staff at the SEC. The SEC’s qualification, however, does not mean that the SEC has approved of the securities offering. The SEC also does not assess the accuracy or completeness of any of the offering documents or solicitation materials.
Under Tier 1, an issuer can raise up to $20 million in any 12-month period, including no more than $6 million on behalf of selling securityholders that are affiliates of the issuer. In addition to qualification by SEC staff, companies offering securities pursuant to Tier 1 of Regulation A will also need to file and have their offering statements qualified by the state securities regulators in the states in which the issuer plans to sell its securities. Companies offering securities under Tier 1 do not have ongoing reporting requirements other than a final report on Form 1-Z on the status of the offering.
Under Tier 2, an issuer can raise up to $50 million in any 12-month period, including no more than $15 million on behalf of selling securityholders that are affiliates of the issuer. Unlike Tier 1 offerings, the offering statement does not have to be qualified by a state securities regulator, and the issuer is subject to ongoing reporting requirements in the form of an annual report on Form 1-K, a semiannual report on Form 1-SA and a current report on Form 1-U.
Importantly, there are investment limitations for offerings under Tier 2 if the securities offered are not going to be listed on a national securities exchange upon qualification. Investors either have to be an accredited investor or are limited in how much they can invest to no more than 10% of the greater of the person’s, alone or together with a spouse, annual income or net worth (excluding the value of the person’s primary residence and any loans secured by the residence (up to the value of the residence)).
If you are considering an investment, you should always check with your state securities regulator to see if they have more information about the issuer and the people behind it. You can get the address and telephone number for your state securities regulator by calling the North American Securities Administrators Association at (202) 737-0900 or by visiting its website. In addition, you can access the SEC’s EDGAR database in order to review the company’s offering circular and other filings related to the offering.