Previously, I reported that the Massachusetts Securities Division had proposed an exemption from investment adviser registration for advisers to private funds. In late winter, the division adopted these regulations as final (with small changes). They are, more or less, identical to the NASAA model rule and include the model rule’s grandfathering provisions.
As part of the rule, advisers to 3(c)(1) private funds (that are not venture capital funds) must, among other requirements, accept only qualified clients (as defined in SEC regulations) as investors. However, under the grandfathering provision, an adviser to a 3(c)(1) private fund may have non-qualified clients as investors only if the fund ceased to accept non-qualified clients as of February 3, 2012. (In the previous proposed rule, this date was March 30, 2012).
The new exemption takes effect August 3, 2012. Prior to that, private fund managers can continue to make use of “institutional buyer” exemption, which exempts any adviser that only advises entities (i) whose investors are solely accredited investors each of which has invested a minimum of $50,000, (ii) existed prior to February 3, 2012, and (iii) ceased accepting new investors or new capital from existing investors after February 3, 2012. If a fund manager does keep accepting new investments, then it must comply with the requirements of the new exemption.
© 2012 Alexander J. Davie — This article is for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.