“General solicitation" or "general advertising" are undefined in the statutes or rules. Instead, the Securities and Exchange Commission (SEC) takes a case by case approach. Rule 502(c) prohibits:
(1) Any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television and radio; and
(2) Any seminar or meeting whose attendees have been invited by any general solicitation or general advertising."
In no action letters, the SEC has stressed the importance of the existence and substance of a "pre-existing relationship" with potential investors as a key indicator of determining if a communication is a "general solicitation" or constitutes "general advertising.” According to the SEC, the presence of a pre-existing relationship between an issuer and a potential investor is strong evidence that general solicitation or general advertisement has not occurred. The SEC declined to take enforcement action against issuers for any of the following actions:
(1) Submitting a generic questionnaire to investors during the fundraising period, provided that the questionnaire did not specify or promote a particular investment, but simply questioned the suitability of potential investors. These investors cannot participate in any pending offering.
(2) Providing password protected information on the Internet to potential investors who had already been determined by the issuer to qualify as accredited or sophisticated investors.
(3) Speaking (including an interview to the media about a company so long as the discussion is generic in nature and does not reference any investment currently offered or contemplated.
(4) Discussing a company or new product as long as no current funding initiatives or historical investment results are mentioned.
On the other hand, the SEC has indicated that it believes that the following actions violate Rule 502(c):
(1) Mass mailings
(2) Speaking to the media about a solicitation when funding or investment matters are discussed, whether such speech is directed at current fundraising efforts or deemed to be an attempt to "condition the market" by making reference to the success or attractive return of previous investments.
(3) Print, radio and television advertisements or solicitations regarding funding or investment matters
(4) Tombstone advertising (an ad which does no more than give the barest of information) is held by SEC staff to "condition the market" for the securities and therefore constituted an offer even though the tombstone did not specifically mention the transaction in question.
Is a mass mailing to venture capitalists general advertising or solicitation? The SEC has not ruled.
So what is general solicitation and general advertising? Taken together, the no-action letters indicate a staff view that general solicitation does not occur when the solicitor and his targets have a nexus: as the SEC puts it, a "substantial preexisting" relationship. It is assumed by many that vicarious relationships qualify. Presumably, your lawyer, accountant, banker, as well as officers, directors, and management level employees can make the material available to potential purchasers with whom they are acquainted. There is so much uncertainty that no one can say for certain if the offering has qualified for an exemption.
Many entrepreneurs violate the prohibition against general solicitation (at least technically) because they do not have a substantial pre-existing relationship will all the investors in the venture. Often federal rules against commissions and finders’ fees are violated. Typically the SEC takes no enforcement action.
The primary risk is not SEC enforcement, but loss of the private placement exemption through less than strict compliance with the rules of the exemption. General Solicitation is not protected by the substantial compliance safe harbor of Regulation D.
Without an exemption, the issuer, salespeople, officers, directors, and agents may be personally liable to the investor. The investor can recover the principal, interest, and attorney fees.