Philip A. Dunlap
Associate, Business Group

 

Specialties
• Private Equity
• Mergers & Acquisitions
• Corporate
• Investment Funds
Contact Information
T 832-615-4226
F 713-552-1758
pdunlap@boyarmiller.com
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Quick Facts
• Graduate of the SMU Dedman School of Law
• Houston Bar Association
• Houston Young Lawyers Association

Biography

Philip joined BoyarMiller's Business Group in April 2011. His practice primarily consists of corporate, private securities and real estate transactions as well as serving as outside general counsel in a variety of matters including mergers and acquisitions, financing, employment agreements and raising capital through private offerings. Philip has represented hedge funds, private equity funds, venture capital funds and real estate funds in their formation, operation and compliance in multiple jurisdictions.

Prior to joining the firm, Philip worked for several years in a mid-size law firm advising a variety of investment funds and real estate developers on all matters of corporate and real estate transactions. He also served in the General Counsel's office of a large mortgage servicer where he advised the company on securitized mortgages, mergers and acquisitions, joint ventures, SEC reporting issues and a variety of corporate transactions and contracts. Having worked in house gives Philip a unique ability to understand clients' needs and better serve each client with their business goals in mind.

Representative Matters

  • Represented Core International, LLC, a Houston-based manufacturer and supplier of highly engineered rubber components and supply chain solutions, and its shareholders in a majority recapitalization by Rock Hill Capital Group.
  • Represented a Houston-based investment advisor in its formation of a $60 million investment fund focusing on investments in Canadian capital pool companies to be listed on the Toronto Venture Exchange.
  • Represented various U.K. and Norwegian entities in structuring and creating U.S. subsidiaries of foreign parent companies, ranging from start-ups with few employees to new entities formed to acquire businesses in the U.S.
  • Represented an Ingleside-based provider of engineering, procurement and constructions service offerings to the oil and gas industry in a $26.25 million recapitalization by a Dallas-based private equity fund.
  • Represented a real estate investment advisor in the creation of a $50 million private investment fund focusing on the purchase of pools of distressed real estate properties.
  • Represented a Dallas based fund-of-funds and investment advisor in the placement of over $100 million in private equity funds for a variety of institutional investors and public pension plans.

Education

  • JD, Southern Methodist University Dedman School of Law
  • BBA, Baylor University (cum laude)

Affiliations

Community

Representative Matters

  • Represented a West-Texas oilfield services provider operating throughout the Permian Basin in a $34 million majority recapitalization by a Houston-based private equity fund.
  • Represented a Houston-based private equity fund in its $7 million investment in a Houston-based provider of installation, maintenance and repair of critical rotating equipment for customers in the downstream, power and midstream segments of the energy markets.
  • Represented a Houston-based private equity fund in its $13.5 million purchase of a Louisiana-based supplier of dredging services.
  • Represented a Texas-based provider of wireless analytics, mobile-devise bill auditing and related software in its recapitalization by Huntsman Gay Global Capital.
  • Represented a Houston-based private equity fund with a primary focus on developing free-standing emergency rooms.
  • Represented a Houston-based supplier of industrial gas cylinders and welder’s supply materials in its sale to a NYSE-listed, global Fortune 300 company.
  • Represented the purchaser in its purchase of all Jackson Hewitt locations throughout the Dallas, Texas and Knoxville, Tennessee markets.
  • Represented a Woodlands-based company in the acquisition of an oilfield services company based in the South Texas Eagle Ford Shale Formation.
  • Represented a Houston-based private equity fund in the acquisition of an independent coil and air handler manufacturer.
  • Ongoing representation of a $25 million private equity fund, having as its primary investment focus investments in low budget film productions, in connection with the fund's formation, capitalization and investments
  • Ongoing representation of a Houston-based mezzanine fund in its acquisition, financing and sale of interests in various portfolio companies.
  • Represented UK-based companies in connection with their global expansion into the United States and formation of US based subsidiaries
  • Represented a Houston-based real estate acquisition and development company in connection with a retail development in Bellaire, Texas.

    Awards and Recognitions

    • Selected for inclusion as a Texas Super Lawyers Rising Star (2014)

    Alerts

    Exempt Reporting Advisers Must Monitor Political Contributions
    by Philip A. Dunlap
    June 19, 2012

    The U.S. Securities and Exchange Commission (SEC) recently amended Rule 206(4)-5 of the Investment Advisers Act, otherwise known as the “Pay to Play” Rule, so that it applies to exempt reporting advisers also.  Exempt reporting advisers are those who (i) advise solely venture capital funds or (ii) advise solely private funds having less than $150 million aggregate assets under management.  Rule 206(4)-5 provides the following prohibitions:

    1. a ban on an adviser receiving compensation for services provided to a government entity for a two-year period after a political contribution has been made by the adviser or any of its “covered associates” to officials of such entity;
    2. a ban on an adviser using third-party solicitors who are not registered broker-dealers or registered investment advisers subject to the pay-to-play restrictions; and
    3. a ban on an adviser or any of its “covered associates” attempting to solicit or coordinate other persons or PACs to make political contributions to certain officials of a government entity to which the adviser is attempting to provide advisory services.

    Under Rule 206(4)-5, a “covered associate” includes (i) any partner, managing member or executive officer, (ii) any employee who solicits a government entity for the adviser and (iii) any PAC controlled by the adviser or a covered associate.

    An “official” includes incumbents, candidates or successful candidates for elected office of a governmental entity if such office can directly or indirectly influence the outcome of the hiring of an investment adviser by a government entity.

    The prohibition on receiving compensation for two years applies whether or not the adviser has actual knowledge of the contribution that triggered the two-year “time-out”.  However, as a fiduciary to its clients, the adviser may be required to continue providing advisory services during any “time-out” period.

    Rule 206(4)-5 also contains a “look back” provision pursuant to which advisers must look back in time to ascertain if covered associates have made prohibited contributions.  Any contributions made by a person within two (2) years of becoming a covered associate (if the covered associate solicits clients) and six (6) months if the covered associate does not solicit clients, will be attributed to the adviser.  As a result, the adviser will be subject to a “time-out” for the remainder of the applicable period (2 years or 6 months) that such person is a covered associate of the adviser.  Because of this provision, advisers should carefully consider the past actions of its covered associates (and potential covered associates) to determine if any “time-out” applies to the covered associate and would be attributed to the adviser.

    Thankfully, the SEC has provided an exception to the prohibited contributions.  A natural person covered associate may contribute (i) up to $350 to an official per election (primary and general elections are considered separate elections) if the covered associate was entitled to vote for such official at the time of the contribution and (ii) up to $150 if the covered associate was not entitled to vote for such official at the time of the contribution. 

    Furthermore, if a “time-out” period is triggered because such covered associate was not entitled to vote for the official at the time of the contribution, the adviser may cure such inadvertent contribution if (i) the contribution was $350 or less, (ii) the adviser discovers the contribution within four (4) months of the date of the contribution and (iii) ensures the return of the triggering contribution within sixty (60) days of discovering the triggering contribution.

    As a result of the revisions to Rule 206(4)-5, it is especially important in this election year for advisers to (i) ensure that its employees are aware of the prohibitions on political contributions, (ii) conduct proper due diligence on previous political contributions of existing covered associates and potential new hires that would be covered associates and (iii) engage a compliance officer to develop internal policies for political contributions, monitoring of employee’s political activity and contact with placement agents or other third-party solicitors.

    The final adoption of Rule 206(4)-5 can be found at http://www.sec.gov/rules/final/2010/ia-3043.pdf.

    If you have questions about Rule 206(4)-5 and its impact on your business, please contact BoyarMiller.


    Dodd-Frank Act Imposes Filing Obligations on Exempt Reporting Advisers
    by Philip A. Dunlap
    November 7, 2011

    The Dodd-Frank Act provides for private fund advisers certain exemptions from registration with the Securities and Exchange Commission (SEC).  The most relied upon exemptions are for private fund advisers that (i) advise solely venture capital funds or (ii) advise solely private funds having less than $150 million aggregate assets under management. 

    However, the SEC has issued a rule that requires these "exempt reporting advisers" to file a limited Form ADV by March 30, 2012, including all associated filing fees.  The form can be found at http://www.sec.gov/about/forms/formadv-part1a.pdf.

    Exempt reporting advisers must also file sections of Schedules A, B, C and D of the Form ADV.

    Additionally, the SEC will require exempt reporting advisers to file amendments to its Form ADV at least annually, within 90 days of the end of the adviser's fiscal year and more frequently if required by the instructions to the Form ADV (such as updating identification information, form of organization and any disciplinary information).

    As a result of these new requirements, it is recommended that exempt private fund advisers begin to operate as if they were subject to the SEC reporting requirements.  They should conduct their business with the understanding that all of the information required to be included in their Form ADV will become public knowledge upon filing the Form ADV.

    If you have questions about the Form ADV and the information necessary to disclose, please contact us.


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