As a privately held corporation, your company isn’t subject to all the regulations and oversight of the U.S. Securities and Exchange Commission (SEC) that a publicly traded company is. But in their mission to protect investors and maintain fair and orderly financial markets, the SEC still has rules that govern the sale of your company’s securities and restrict who can invest in your company. One such restriction commonly results in your investment offering going only or predominantly to “accredited investors”.
Startups are risky endeavors with a high chance of failure. The accredited investor limitation attempts to ensure that only investors with the sufficient means to absorb a complete loss and the sophistication to understand that risk are allowed to invest.
Who is an Accredited Investor?
Investors just have to meet the criteria described in Rule 501(a) of Regulation D of the Securities Act of 1933 to be considered an accredited investor. There’s no application process, rite of passage, certificate of accreditation, secret handshake, or anything like that.
A natural person must meet one or more of these qualifications:
- Income – His/her income must exceed $200,000 per year (or joint income with spouse or spousal-like cohabitant, of more than $300,000 per year) for the past two years with the realistic expectation of the same for the current year.
- Net Worth – His/her net worth exceeds $1 million (either alone or together with a spouse or spousal-like cohabitant) excluding their primary residence.
- Company Insider – He/she is a director, executive officer, or general partner of the company.
- Professional Certification – He/she holds a license relating to securities and investing, currently limited to a Series 7 (licensed general securities representative), Series 65 (licensed investment adviser representative), or Series 82 (licensed private securities offerings representative) license.
- Family Client – certain individuals associated with a “family office”, which essentially refers to an affluent family with more money than you or I will ever own, and that has established a privately held company to manage and spread their wealth across generations of their family.
The rules specifying the entities that can qualify as an accredited investor have recently been expanded. As a result, there are too many entities that can qualify for me to list here (and plus it would bore you to death). Generally, for an entity to qualify as an accredited investor it needs to be a specified entity that is regulated, such as a bank, insurance company, investment company, investment advisor, or broker-dealer, or it has assets or investments exceeding $5 million and it wasn’t formed for the purpose of acquiring the securities being offered, or all of its equity owners are accredited investors.
Confirming Accredited Investor Status
When shares are sold in a private company, the sale should be structured so it fits under an exemption from SEC registration. Speak with your attorney about which exemptions apply in your case. The most commonly used exemptions involve sales to accredited investors, but the steps you are required to take to confirm the status of your investors can vary based on the specific exemption you intend to use.
At a minimum, your investors should confirm that they are accredited investors. Typically, this is done by asking your investor to respond to a questionnaire at the time of the investment. Fidelity has made a sample accredited investor questionnaire template available for you to use with your investors.
Government Filings
If you are raising capital through the sale of securities to accredited investors, you probably also need to file paperwork related to your exemption. This is likely to involve a Form D filing with the SEC (required within 15 days of your first sale) and a review of state regulations in each state the offering is made. Requirements vary from state to state. Check with your attorney to see what filings are required for your company and to make sure you don’t run afoul of the SEC!
Have more questions about your filing status or looking to upgrade your equity management capabilities? Let's talk!
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Fidelity does not provide legal or tax advice. The information herein is general in nature and should not be considered legal or tax advice. Consult an attorney or tax professional regarding your specific situation.
