FINRA Overhauls Rules: Investor Protections in Private Securities Deals
Published Date: 4/28/2026
Notice
Summary
FINRA wants to update rules about how companies handle fees and securities when raising money, especially for private sales and underwriting deals. These changes affect investors, companies, and brokers by clarifying how certain securities are valued and who qualifies as an accredited investor. The SEC is now deciding whether to approve these updates by April 30, 2026, which could impact how deals are priced and who can invest.
Analyzed Economic Effects
6 provisions identified: 4 benefits, 1 costs, 1 mixed.
Debt‑for‑Equity Exchanges Exempted
FINRA would add an exclusion so equity acquired by an affiliated lender in a debt‑for‑equity exchange is not treated as underwriting compensation if: the affiliated member subsequently offers all such equity in a firm commitment offering; the debt exchange and subsequent equity terms were negotiated at arm's length based on market price; and customary compensation was negotiated for the subsequent offering.
5123 Filing Exemption Expanded to Large Investors
FINRA would expand Rule 5123's filing exemption to include (1) any entity not formed to buy the securities that owns investments in excess of $5,000,000 (Rule 501(a)(9)), and (2) any family office with assets under management in excess of $5,000,000 that meets the Rule 501(a)(12) criteria. Offerings sold to those categories could rely on the Rule 5123 filing exemption.
New Valuation Method for Underwriting
If you are a broker-dealer participating in a public offering, FINRA would change how securities acquired as underwriting compensation are valued. Instead of using a "bona fide public market" test, the value would be the closing market price on a registered national securities exchange or a designated offshore securities market on the date of acquisition.
Capital Investments in DPPs/REITs Excluded
FINRA would exclude certain capital investments by participating members in direct participation programs (DPPs) and unlisted REITs from being treated as underwriting compensation if: the investments are disclosed in the prospectus; the offering and capitalization are valued and priced based on net asset value (NAV); the offering is subject to Rule 2310; and the acquired securities are restricted for 180 days after sales commence.
Preferred Securities Treated Like Debt
FINRA would treat non-convertible preferred securities the same as non-convertible debt for Rule 5110: if such preferred securities are acquired at a fair price, they would be treated as underwriting compensation that has no compensation value.
Tail Fees Subject to Termination Rules
FINRA would clarify that 'tail fees' in engagement letters are subject to the same requirements that govern termination fees or rights of first refusal under Rule 5110(g)(5)(B). If those requirements are not met, tail fees would be considered unreasonable arrangements under Rule 5110.
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Key Dates
Department and Agencies
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