On November 17, 2016, the Division of Corporation Finance of the Securities and Exchange Commission (the “SEC”) issued a new compliance and disclosure interpretation (“C&DI”) addressing certain provisions of Regulation D (“Regulation D”) under the Securities Act of 1933, as amended (the “Securities Act”).  C&DI 256.34 involves a fact pattern in which an issuer conducted a private offering under Rule 506(b) of Regulation D (“Rule 506(b)”) with no general solicitation or general advertising in compliance with the rule.   Less than six months following the most recent sale in that offering, the issuer engaged in general solicitation as permitted under Rule 506(c) of Regulation D (“Rule 506(c)”) in connection with a subsequent offering. The issue is whether the two offerings are considered integrated in light of their proximity.  In response, the SEC indicated that this would not be the case as under Securities Act Rule 152, a transaction involving a private offering will not lose its status even if the issuer subsequently makes a public offering.

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