1. Except as provided in subsection 2, a merger and acquisition broker is exempt from the licensing requirements described in NRS 90.310.2. A merger and acquisition broker is not exempt from licensing if the broker:(a) Directly or indirectly, in connection with the transfer of ownership of an eligible privately held company, receives, holds, transmits or has custody of the funds or securities to be exchanged by the parties to the transaction;(b) Engages on behalf of an issuer in a public offering of any class of securities that is registered or is required to be registered with the Securities and Exchange Commission under section 12 of the Securities Exchange Act of 1934, or with respect to which the issuer files or is required to file periodic information, documents and reports under section 15(d) of the Securities Exchange Act of 1934;(c) Engages on behalf of any party in a transaction involving a public shell company; or(d) Is subject to: (1) Suspension or revocation of registration under section 15(b)(4) of the Securities Exchange Act of 1934;(2) A statutory disqualification described in section 3(a)(39) of the Securities Exchange Act of 1934;(3) A disqualification under the rules adopted by the Securities and Exchange Commission under section 926 of the Dodd-Frank Wall Street Reform and Consumer Protection Act;(4) A final order described in paragraph (4)(H) of section 15(b) of the Securities Exchange Act of 1934; or(5) Chapter 645 of NRS and fails to comply with that chapter.3. Nothing in this section shall be construed to limit any other authority of the Administrator to exempt any person or class of persons from any provision of this chapter or chapter 90 of NRS.4. As used in this section: (a) "Control" means the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract or otherwise. There is a presumption of control for any person who:(1) Is a director, general partner, member or manager of a limited-liability company, or an officer who exercises executive responsibility or has a similar status or function to a director, general partner, member or manager;(2) Has the right to vote 20 percent or more of a class of voting securities or the power to sell or direct the sale of 20 percent or more of a class of voting securities; or(3) In the case of a partnership or limited-liability company, has the right to receive upon dissolution, or has contributed, 20 percent or more of the capital.(b) "Eligible privately held company" means a company which:(1) Does not have any class of securities registered or required to be registered with the Securities and Exchange Commission under section 12 of the Securities Exchange Act of 1934, or with respect to which the company files or is required to file periodic information, documents and reports under section 15(d) of the Act; and(2) In the fiscal year ending immediately before the fiscal year in which the services of the merger and acquisition broker are initially engaged with respect to the securities transaction, and as determined by the historical financial accounting records of the company:(I) The earnings of the company before interest, taxes, depreciation and amortization were less than $25,000,000;(II) The gross revenues of the company were less than $250,000,000; or(III) The company satisfied both sub-subparagraphs (I) and (II).(c) "Merger and acquisition broker" means a broker and any person associated with a broker engaged in the business of effecting securities transactions solely in connection with the transfer of ownership of an eligible privately held company, regardless of whether that broker acts on behalf of a seller or buyer, through the purchase, sale, exchange, issuance, repurchase or redemption of, or a business combination involving, securities or assets of the eligible privately held company if: (1) The broker reasonably believes that upon consummation of the transaction, any person acquiring securities or assets of the eligible privately held company, acting alone or in concert, will control and, directly or indirectly, be active in the management of the eligible privately held company or the business conducted with the assets of the eligible privately held company; and(2) A person who is offered securities in exchange for securities or assets of the eligible privately held company, before becoming legally bound to consummate the transaction, receives or has reasonable access to the most recent fiscal year-end financial statements of the issuer of the securities as customarily prepared by its management in the normal course of operations and, if the financial statements of the issuer are audited, reviewed or compiled, any related statement by the independent accountant, a balance sheet dated not more than 120 days before the date of the exchange offer and information pertaining to the management, business, results of operations for the period covered by the foregoing financial statements and any material loss contingencies of the issuer.(d) "Public shell company" is a company that at the time of a transaction with an eligible privately held company: (1) Has any class of securities registered or required to be registered pursuant to section 12 of the Securities and Exchange Act of 1934, or with respect to which the company files or is required to file periodic information, documents and reports under section 15(d) of the Act;(2) Has no or nominal operations; and(3) Has: (I) No or nominal assets;(II) Assets consisting solely of cash and cash equivalents; or(III) Assets consisting of any amount of cash and cash equivalents and nominal other assets.Nev. Admin. Code § 90.Sec. 25
Added to NAC by Sec'y of State by R018-21A, eff. 6/2/2023