File Your Fund’s PPM With FINRA?

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FINRA Rule 5123 requires each FINRA member firm that sells securities in a private placement, subject to certain exemptions, to file with FINRA a copy of any private placement memorandum, term sheet or other offering document the firm used within 15 calendar days of the date of the sale, or indicate that it did not use any such offering documents. If you are using a placement agent to help with fundraising, the placement agent will be subject to the FINRA rules. Then the fundraising is potential subject to the FINRA disclosure, unless if falls into an exemption. The exemptions for a private fund split the world into two.

For funds exempt under Section 3(c)(7) of the Investment Company Act, all of the buyers will be “qualified purchasers.” Rule 5123 has an exemption for the filing requirement for offerings sold to qualified purchasers.[5123(b)(1)(B)]

For funds using the Section 3(c)(1) exemption, the analysis in not as clean. Rule 5123 has an exemption for the filing requirement for offerings sold to some types of accredited investors. [5123(b)(1)(J)] It leaves out items 6 and 7 in the definition of accredited investor.

A fundraising triggers the filing requirement if you sell to natural persons who are accredited investors, but don’t meet the standard of qualified purchaser.

In talking with a placement agent, they are including representations that the offering will be a 3(c)(7) offering so that they are protected from having to make the FINRA filing.

Steps to Determine if an Investor is Accredited

Private funds will be able to advertise and solicit for investor, provided all of the investors are “accredited investors.” The will dramatically change the way capital raising for private funds operates.

The drawback is the loss of 35 non-accredited investors in the fund. That exception has been eliminated. Funds will need to wait until the Securities and Exchange Commission issues the rules under Section 201 of the JOBS Act.

Part of those rules may be a mandated approach to determine if someone is an accredited investor.

“Such rules shall require the issuer to take reasonable steps to verify that purchasers of the securities are accredited investors, using such methods as determined by the Commission.”

The SEC may take the opportunity to mandate an approach to validate an investor’s financial standing. As with most regulations, it could clear up uncertainty or create a paperwork headache (or both).

Will you need a copy of an investor’s W-2? A certified financial statement? Those are reasonable requests. However it would create much more personal information that would need to be safeguarded by the fund sponsor.

There is the possibility that the mandated approach would also address the requirements to determine if an investor is “qualified client” under the Investment Advisers Act or a “qualified purchaser” under the Investment Company Act.

We will have to wait and see what comes out of 100 F Street.

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