Written By: Daniel DeWolf and Brian Novell of Mintz Levin

If there is one common theme that entrepreneurs tend to have, it is fire – meaning, many entrepreneurs are passionate about an exciting idea that they seek to turn into a business.  However, entrepreneurs often quickly realize that, in order to make their fire glow high and bright for the world to see, they need fuel – meaning, capital.  While bootstrapping is a smart practice that can keep the embers burning for a period of time, even fantastic ideas will likely sooner or later need a major capital injection – thereby adding fuel to the fire – to take the venture to the next level.  This is where the newly revised Rule 504 of Regulation D may be a good option for early stage companies.  For qualifying companies, Rule 504 provides an exemption from the registration requirements of the Securities Act of 1933, thereby facilitating the ability of startups to raise capital.  Often well-suited for friends and family or seed rounds of funding, Rule 504 provides flexibility to smaller companies seeking assistance with capital formation.

The Rule and the Changes.

On October 26, 2016, the SEC adopted final rules that amend Rule 504, thereby increasing the maximum offering amount permitted to be raised from $1 million to $5 million, which will be effective as of 60 days following publication in the Federal Register.  The SEC noted in the adopting release that Rule 504 had been underutilized due to the previous low offering amount limitation.  The main benefit of this new increase is that more small businesses will be able to rely on Rule 504, as it will now be in the consideration set for certain companies seeking funding of up to $5 million.  Entrepreneurs may then find themselves asking:  Is our company eligible for exemption under Rule 504, and does Rule 504 make sense for us?

The Fine Print.

In order to be eligible for Rule 504, a company must not yet be required to file reports under the Securities Exchange Act of 1934, and must not be a “blank check company”, meaning that most early-stage companies with a plan for an operating business are eligible.  What is unique about Rule 504 is that it provides (i) significant freedom in how one goes about raising the capital, and (ii) permits resales of shares with less friction.  Offerings under Rule 504 permit, under certain circumstances, general advertising and solicitation; and, further, the requirement that the securities be restricted from subsequent resale will not apply to offers and sales of securities when following certain requirements.

Is Rule 504 the Right Choice?

While potentially a new tool to raise capital, Rule 504 should be evaluated in comparison to other options for exemption.  Over the last decade, the use of Rule 504 offerings had been in decline, both in absolute terms and relative to Rule 506 of Regulation D.  Rule 506 provides two potential exemptions from registration.  First, Rule 506(b) has no limit on the amount of money that may be raised or the number of accredited investors that may be purchasers, though general solicitation or advertising may not be used and a company may not sell securities to more than 35 non-accredited investors, among other requirements.  Second, under Rule 506(c), the SEC eliminated the prohibition against general advertising, provided that all purchasers are accredited investors and the issuer takes reasonable steps to verify so, among other requirements.

What Does It Mean For Entrepreneurs?

The increase in the maximum amount that may be offered and sold under Rule 504 allows for more companies potentially to leverage Rule 504 for their capital raising needs.  In light of this recent development, Rule 504 may be a good choice for many early stage companies.  It is another tool in the toolkit to consider when raising capital.

Daniel I. DeWolf, Member Chair, Technology Practice Group, Co-Chair, Venture Capital and Emerging Companies

Daniel is Co-chair of the firm’s Venture Capital & Emerging Companies Practice Group and Chair of our Technology Practice Group. In addition to his active legal practice, he is an adjunct professor of law at the NYU Law School and he has a wealth of experience in private equity and venture capital, having co-founded Dawntreader Ventures, an early stage venture capital firm based in New York.


Brian J. Novell, Associate, Technology Practice Group

Brian applies his past experience as an associate in the banking and credit group of a large international law firm to his corporate and securities practice, having counseled domestic and international borrowers and lenders in acquisition financings, project financings, syndicated leveraged financings and other commercial lending transactions. His past firm experience also includes advising companies in complex mergers and acquisitions and capital markets transactions and leading a confidentiality agreement team on behalf of a prominent private equity firm client. Brian was recognized for his outstanding pro bono legal services as the recipient of The Legal Aid Society’s 2015 Pro Bono Publico Award.






  1. Dan and Brian,

    Thanks for your update. The particular issue of the extent to which shares originally issued in reliance on Rule 504 are not subject to resale restrictions — sometimes referred to as “free trading” stock — continues to be the subject of substantial debate. The general consensus — better summarized here than I could do — is that this is a tough result to obtain in practice. That said, for companies that intend to remain private and are not looking to create liquid markets in their shares for the near to medium term, Rule 504 is, as you say, a useful tool.



    Liked by 1 person

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