September 18, 2012
Re: Form D Check Box for Rule 506(c) Offerings
A hedge fund or other privately-offered fund may in fact wind up being offered under both the proposed Rule 506(c) as well as under the existing Rule 506 safe harbor (the renamed Rule 506(b)). It may have certain investors coming into the fund through the new 506(c) (for example through a website or other general solicitation), as well as others coming in through a pre-existing relationship where it can rely on the old rule.
It appears the proposed new Form D will allow for the selection of both Rule 506(b) and (c). I am wondering whether the Commission can address this situation directly, as I believe it will be a common selection, ie., would there be any consequences to an issuer for selecting both?