When a “Public Offering” Is Not a “Public Offering”: The SEC Rule Proposal Eliminating the Ban on General Solicitation and Advertising in Securities Offerings

Introduction - On April 5, 2012, the Jumpstart Our Business Startups Act (the “JOBS Act”) was enacted. The stated objective for the JOBS Act is to improve access to the public capital markets for startup and emerging companies and thus increase job creation and economic growth in the United States.

Title II of the JOBS Act (“1 (“2 (“here3Title II”) mandated the Securities and Exchange Commission (the “Commission”) to amend applicable rules within 90 days of its enactment (i.e., July 5, 2012) in order to eliminate the prohibitions against general solicitation or general advertising (collectively, “General Solicitation”) in Rule 506 of Regulation DRule 506”) under the Securities Act of 1933, as amended (the “Securities Act”), and under Rule 144A under the Securities ActRule 144A”). These changes are intended to allow issuers to advertise broadly when conducting private placements and thus enable them directly to reach a greater number of potential investors at lower costs without an intermediary, subject to certain requirements, as described more fully below. For a complete overview of all provisions of the JOBS Act, please click .

On August 29, 2012, the Commission issued Release No. 33-93544 (the “Release”) which, belatedly, proposed a new Rule 506(c) (“Proposed Rule 506(c)”) and an amendment to Rule 144A (collectively, the “Proposed Rules”) to implement Title II. The Proposed Rules would:

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