Webster Management Assured Return Equity Management Group Trust (available Feb. 7, 1987), dealt with no prior relationship solicitation. Although the broker-dealer proposed to solicit only highly sophisticated offerees, it planned a relatively unrestricted solicitation: “Kidder would like to authorize its registered representative to make potential customers [qualified employee benefit plans in which 'in almost every case' the investment decision would be made by a bank, insurance company or registered investment adviser] aware of the [securities offered], if appropriate. As a result, Kidder would be offering Units to investors with which [none of the offerors, including Kidder] had a relationship prior to commencement of the Offering.”

The staff declined a no-action position:

We note that in addition to the fact that there would be no preexisting relationships with these trusts, some offerees would not even be accredited as defined in Rule 501(a)(1), although highly sophisticated. Furthermore, no limitation has been proposed in the nature of the manner of contacting such trusts.


Although the Webster Management letter can be read narrowly, it raises a question about the common assumption that an offering without general advertising to highly sophisticated persons will not be considered a “general solicitation.” The assumption is grounded (improperly) on the notion that sophistication is the core basis for both the “accredited investor” definition and Rule 506 in Regulation D and the long-standing and numerous private placements by world-class issuers with large institutional investors under Section 4(2). The no “general solicitation” requirement is in addition to the nature of the final purchaser requirements of Rules 505 and 506. The manner of the offering and the nature of the purchasers are separate requirements under Regulation D.

Use of referrals. Offers to “new investors through referrals” violates the preexisting substantive relationship rule. See, Robert T. Willis, Jr., P.C., SEC No-Action Letter (available Jan. 18, 1988). In order to identify potential purchasers or interest in real estate partnerships organized by the parent of a broker-dealer, the latter proposed to enter into agreements with a large number of independent insurance agencies nationwide and with a real estate brokerage company under which these parties would be paid a fee for “collecting certain financial information concerning, and for providing to the broker-dealer the names of, and introducing to it, potential investors in the limited partnerships.” The staff stated that the proposal “may raise questions regarding whether there would be an impermissible general solicitation” under Rule 502(c). See, Colonial Equities Corp., SEC No-Action Letter (available Sept. 2, 1988).

Using a business database to select investors. In AgriStar Global Networks, Ltd., SEC No-Action Letter (available Feb. 9, 2004) the SEC staff rejected AgriStar’s argument that its proposal for identifying and qualifying prospects for unregistered offerings of its own securities would not violate Rule 502(c). AgriStar, a satellite-based communications company that linked commercial farms and ranches, and the companies with which they transacted business, charged basic subscription and service fees from the more than 100,000 farms and ranches that subscribed to AgriStar services. A Regulation D offering to a limited number of selected accredited investors to be qualified by AgriStar pursuant to the procedures described below was the subject of the no-action letter request.

The AgriStar Global Top Farm Database (the “AgriStar Database”) has broad statistical information on approximately 250,000 leading U.S. farms and ranches (collectively, the “Farms”), including their respective ownerships, acreages, estimated crop yields, approximate annual gross incomes per Farm and estimates of the fair market value of each Farm. This information, which is updated annually, has enabled AgriStar to focus on those Farms most likely to utilize its subscription and other program services described above. As a result, AgriStar presently has an extensive and exhaustive database of information on approximately 250,000 Farms that enables it to identify the most successful and prosperous U.S. Farms and their owners and/or operators (hereinafter the “Farm Principals”). To date, AgriStar has established meaningful communications with more than 100,000 of these Farms and other farms that have requested more information about AgriStar and its services.

AgriStar now would like to create an accredited investor database by augmenting and focusing the statistical information it already possesses concerning the Farm Principals across the United States. Although AgriStar has extensive, reliable information and basic financial and other data on approximately 250,000 of these Farm Principals, it expects to select no more than the top 3 percent of them to send written invitations to complete extensive and thorough investor qualification questionnaires.

The questionnaires will be used to determine whether a potential investor is “accredited” within the meaning of Rule 501(a) of Regulation D. AgriStar does not intend to obtain information from potential investors using the Internet or Web site postings. By virtue of the AgriStar Database, before AgriStar solicits Farm Principals with the investor qualification questionnaires it will already possess significant amounts of material financial and other statistical information regarding each Farm Principal.

The purpose of the questionnaire will be to specifically focus on qualifying the Farm Principals as “accredited investors” for purposes of Regulation D by soliciting information about their previous investment experience, net worth, annual income, and other relevant questions specifically targeted to the issue of their status as accredited investors . . .

The written invitation explaining the questionnaire and its purpose and the request to complete the qualifying questionnaire as well as the questionnaire itself will be completely generic in nature and will not refer to any specific private offering to be made by AgriStar at any time in the future. Further, AgriStar intends to allow for a sufficient waiting period prior to the time that a potential investor who has been qualified will receive any information relating to any proposed private offering of AgriStar securities.

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