New FINRA Rule 5123 Regarding the Sale of Private Placements Became Effective December 3, 2012

In an effort to protect investors over the sale of private placements, the new Financial Industry Regulatory Authority (FINRA), Rule 5123, was effective on December 3, 2012. Under the new FINRA Rule 5123, FINRA member firms that sell an issuer’s securities in a private placement will be required, subject to certain exemptions (which include private offerings to most types of institutional investors), to:
•file with FINRA a copy of any offering documents used to sell the private placement, such as private placement memoranda, term sheets or other offering documents or
•indicate that no offering documents were used.

Member firms must make this filing within 15 days from the date the firm makes the first sale of securities in private placements. New FINRA Rule 5123 also requires that firms file any amended versions of offering documents originally filed.

The new FINRA Rule 5123 will be limited primarily to private placements involving individual accredited and non-accredited investors who are not exempt from the Rule’s filing requirements.

Each member firm that participates as a placement agent in the offering is responsible for filing under new FINRA Rule 5123, but one member firm may be designated to file on behalf of the other participating member firms as long as all participating member firms are listed in the FINRA filing. Each firm relying on a designated filer should receive confirmation of the filing from the designated filer to satisfy its own filing obligation. Also, exemptions are applied on a firm-by-firm basis. Firms must electronically file the requisite offering documents in searchable PDF format with FINRA through the Private Placement Filing System on the FINRA Firm Gateway.

Available Exemptions

The new FINRA Rule 5123 includes private placement offerings solely to one or more of the following purchasers:

•Institutional accounts
•Qualified purchasers
•Qualified institutional buyers
•Investment companies
•An entity composed exclusively of qualified institutional buyers
•Banks
•Employees and affiliates of the issuer
•Knowledgeable employees
•Eligible contract participants and
•Institutional accredited investors

Other private placements that are exempt from filing under new FINRA Rule 5123 include, offerings of exempt securities, Rule 144A and Regulation S offerings, and offerings of interests in commodity pools operated by a registered commodity pool operator. New FINRA Rule 5123 will, in practice, be limited primarily to private placements involving individual accredited and non-accredited investors, who are not exempt from the Rule’s filing requirements.

New FINRA Rule 5123 became effective on December 3, 2012, and applies only prospectively to private placements that begin selling efforts on or after that date.

Under Rule 5122, FINRA outlines standards on disclosure, use of proceeds and filing requirements for private placements of securities issued by member firms themselves, rather than sales of securities by other issuers. Also effective December 3, 2012, firms must submit filings regarding member firm private offerings, as required by FINRA Rule 5122, through the FINRA Firm Gateway.

Securities Lawyer, Lars K. Soreide, of Soreide Law Group, represents clients nationwide before FINRA. If you or a loved one have sustained investment losses due to your stock broker or financial advisor’s recommendations, call for a free consultation on how to potentially recover your losses. Visit our website at: https://www.securitieslawyer.com.