JOBS Act, Accredited Investors, and Flaming Hoops


I’ve heard it multiple times now, from angel investors and entrepreneurs alike, that the JOBS Act changed the definition of accredited investorin order to make it easier to be one. It’s as if President Obama and the Congress had with the JOBS Act done away with the many flaming hoops that investors and companies have had to jump through for decades in order to raise capital in compliance with the securities laws.

In fact, I’ve heard it stated that the JOBS Act reduced the income or net worth requirement to $100,000.

I’ve always responded to these assertions with: ”No. It didn’t.”

But the last time this type of encounter occurred I was upbraided. “Yes, it did!” my conversant declared.

He proceeded to whip out the statute to show me. As I watched him thumb through the pages, I wondered what he would find. He finally found what he was looking for, it said:

“B)   the aggregate amount sold to any investor by an issuer, including any amount sold in reliance on the exemption provided under this paragraph during the 12-month period preceding the date of such transaction, does not exceed—

  1. the greater of $2,000 or 5 percent of the annual income or net worth of such investor, as applicable, if either the annual income or the net worth of the investor is less than $100,000, and;
  2. 10 percent of the annual income or net worth of such investor, as applicable, not to exceed a maximum aggregate amount sold of $100,000, if either the annual income or net worth of the investor is equal to or more than $100,000.”

“There!” my inquisitor said.

I had to explain to him that the above definition has nothing to do with the definition of “accredited investor.”

“Accredited investor” offerings under Rule 506 are completely different from what will be “crowdfunding” offerings under the JOBS Act, when the rules for crowdfunding offerings are finally done and crowdfunding is actually legal (it is not legal yet).

The best way to think of it is this way: Rule 506 “all accredited investor” offerings are on a completely different planet from crowdfunded offerings. Definitions helpful in one world don’t necessarily have any meaning in the other. The below table shows some of the differences between the two offerings. As you can see, they are dramatically different. Two different worlds.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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