SEC Lifts Ban on General Solicitation by Private Funds

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Elimination of the Ban on General Solicitation and General Advertising -

On July 10, 2013, the Securities and Exchange Commission (the "SEC") adopted an amendment to Rule 506 of Regulation D under the Securities Act of 1933 (the "Securities Act") to implement section 201(a) of the Jumpstart Our Business Startups Act (the "JOBS Act"). The amendment permits issuers such as hedge funds, UCITS funds, private equity funds, and venture capital funds (collectively, "private funds") to engage in general solicitation or general advertising in offering and selling securities pursuant to Rule 506, provided that all purchasers of the securities are accredited investors, and issuers take reasonable steps to verify that such purchasers are accredited investors. General solicitation or advertising may include, but not be limited to, use of advertisements in newspapers or industry magazines, radio or television, and the issuer’s (or private fund sponsor’s) website. The amendment also includes a non-exclusive list of methods that issuers may use to satisfy the verification requirement for purchasers who are natural persons.

Although section 201(a)(1) of the JOBS Act makes no specific reference to private funds, the SEC noted in the Adopting Release that section 201(b) of the JOBS Act provides that offers and sales exempt under Rule 506, as revised pursuant to section 201(a), shall not be deemed public offerings under the federal securities laws as a result of general advertising or general solicitation. As such, the SEC reaffirmed its view that the effect of section 201(b) is to permit private funds to engage in general solicitation in compliance with new Rule 506(c) without losing either the section 3(c)(1) or section 3(c)(7) exclusion under the Investment Company Act of 1940 (the "Investment Company Act"), notwithstanding the fact that private funds are precluded from relying on either of the foregoing two exclusions if they make a public offering of their securities.

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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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