In Latham's FAQs on the SEC’s general solicitation rules we asked whether issuers would be willing to take advantage of new Rule 506(c) after it takes effect on September 23, given the additional Regulation D requirements that the SEC has proposed but not yet adopted. We also pointed out that the SEC did not express a view on how it anticipates market participants would conduct Rule 506(c) offerings while the proposed additional requirements were still being considered.
SEC Chair Mary Jo White has now provided an answer in this letter: White Response to McHenry Letter.pdf
The key takeaway from the letter is:
You also expressed concern that the issuance of the July 10th rule proposal may have created uncertainty among some issuers and market participants as to whether the new Rule 506(c) exemption, which permits general solicitation, can be used once it becomes effective. The Commission approved the adoption of Rule 506(c) on July 10, 2013, and the rule will be effective on September 23, 2013. Once effective, issuers will be able to rely on the Rule 506(c) exemption for securities offerings as long as they comply with the conditions of that exemption. Issuers are not required to comply with any aspect of the Commission's July 10th rule proposal until such time as the Commission may approve a final rule and such rule becomes effective. Should the Commission ultimately decide to adopt final rules, I expect these rules would consider the need for transitional guidance for ongoing offerings that commenced before the effective date of any final rules, as it did when it adopted the Rule 506(c) exemption.