M&A Brokers Exempt from SEC Broker-Dealer Registration Requirements

by Eversheds Sutherland (US) LLP
Contact

On January 31, 2014, the U.S. Securities and Exchange Commission’s (SEC) Division of Trading and Markets issued a No-Action Letter (Letter)1 that allows a private business broker (M&A Broker) to receive transaction-based compensation for assisting in effecting sales of privately-held companies without being registered as a broker-dealer under the Securities Exchange Act of 1934 (Exchange Act).

It is important to note that the relief granted in the Letter applies only to federal broker-dealer registration requirements.  M&A Brokers must still consider registration and licensing requirements under state laws that may apply to M&A Brokers.

Background

The registration status of private business brokers was the focus of a 2005 report published by the American Bar Association (ABA). The ABA report noted that private business brokers, sometimes called M&A Brokers, operate only as “finders,” connecting potential buyers and sellers of private companies, and that the traditional broker-dealer registration model would impose significant costs on these brokers.

More recently, the U.S. Congress has introduced legislation, scheduled for consideration in 2014, that would exempt M&A Brokers from SEC registration in certain securities transactions that involve transferring ownership of a privately-held company.3  Importantly, the legislation would be limited to transactions involving companies with annual earnings of less than $25 million and annual gross revenue of less than $250 million.

The SEC No-Action Letter

The Letter permits M&A Brokers to facilitate certain types of securities transactions, including mergers, acquisitions, business sales and business combinations (collectively, M&A Transactions) without registering as a broker-dealer so long as specified conditions (discussed below) are met by the business being sold, the M&A Transaction, the buyer and the M&A Broker.  As explained in the Letter, an M&A Broker is a person engaged in the business of effecting securities transactions solely in connection with the transfer of ownership and control of a privately-held company through the purchase, sale, exchange, issuance, repurchase, or redemption of, or a business combination involving, securities or assets of the company, to a buyer that will actively operate the company or the business conducted with the assets of the company.

Conditions for the Business Being Sold.  The business being sold must be a privately-held company. A “privately-held company” is a company that does not have any class of securities registered, or required to be registered with the SEC under Section 12 of the Exchange Act, or does not file, and is not required to file, periodic information, documents or reports under Section 15(d) of the Exchange Act.  The privately-held company must be a “going concern”4 and not a “shell” company.5   Significantly, the size of the privately-held company is not a consideration. 

Conditions for the M&A Transaction.  The relief is limited to a transaction involving the transfer of ownership and control of a privately-held company through the purchase, sale, exchange, issuance, repurchase, or redemption of, or a business combination involving, securities or assets of the company, to a buyer that will actively operate the company or the business conducted with the assets of the company.  Additionally, the M&A Transaction cannot involve a public offering of securities.  If the M&A Transaction involves an offering or sale of securities, the offering and sale must be conducted in compliance with an applicable exemption from registration under the Securities Act of 1933 (Securities Act).  Moreover, any securities received by the buyer or the M&A Broker in connection with the M&A Transaction must be restricted securities within the meaning of Rule 144(a)(3) under the Securities Act.

Conditions for the Buyer:  Upon completion of the M&A Transaction, the buyer must “control” and “actively operate” the company.  The necessary “control” would exist if the buyer has the power, directly or indirectly, to direct the management or policies of the company, and will be presumed to exist if the buyer, upon completion of the M&A Transaction, has the right to vote, sell or direct the sale of at least 25% of a class of voting securities or, in the case of a partnership or limited liability company, has the right to receive upon dissolution or has contributed 25% or more of the capital.  The Letter also contemplates that a buyer could “actively operate” the company, among other ways, through the power to elect executive officers and approve the annual budget, or by service as an executive or other executive manager.  But the Letter clarifies that the relief would not cover a buyer that is a shell company upon the conclusion of the M&A Transaction (excluding shell companies formed to complete the M&A Transaction or change the corporate domicile).

Conditions for the M&A Broker:  To rely on the Letter, an M&A Broker cannot take custody, control, or possession, or otherwise handle any funds or securities issued or exchanged in connection with the M&A Transaction.  The M&A Broker also cannot provide financing, either directly or indirectly, for the M&A Transaction.  Nor can the M&A Broker have the authority to bind a party to the M&A Transaction. In addition, the M&A Broker cannot rely on the Letter if any officer, director or employee thereof has been barred from association with a broker-dealer by the SEC, any state, or any self-regulatory organization, or suspended from association with a broker-dealer.

Significantly, the Letter explicitly permits the M&A Broker to provide the following services without being registered as a broker-dealer:

  • Advertise the privately-held company for sale with information such as the description of the business, general location and price range.
  • Assess the value of any securities being sold.
  • Represent both the buyer and seller, so long as the M&A Broker gives both parties clear written disclosure of the joint representation and obtains their written consent.
  • Participate in negotiations for the M&A Transaction.
  • Assist buyers in obtaining financing from unaffiliated third parties, so long as the M&A Broker complies with all applicable requirements, including Regulation T, and discloses to the buyer in writing any compensation received by the M&A Broker for such services.
  • Advise the buyer and seller to issue securities, or otherwise effect the transfer of the privately-owned company by means of securities.

Most importantly, the Letter permits the M&A Broker to receive transaction-based compensation without being registered as a broker-dealer.

1 The SEC’s No-Action Letter, dated January 31, 2014, is available at http://www.sec.gov/divisions/marketreg/mr-noaction/2014/ma-brokers-013114.pdf.
2 The ABA Report and Recommendation of the Task Force on Private Placement Broker-Dealers, dated June 20, 2005, is available at http://www.sec.gov/info/smallbus/2009gbforum/abareport062005.pdf.
3 H.R. 2274, 113th Congress, 2d Session (introduced October 6, 2013), “Small Business Mergers, Acquisitions, Sales, and Brokerage Simplification Act,” available at http://docs.house.gov/billsthisweek/20140113/BILLS-113hr2274-SUS.pdf.
4 The Letter explains that a “going concern” need not be profitable, and could even be emerging from bankruptcy, so long as it has actually been conducting business, including soliciting or effecting business transactions or engaging in research and development activities.
5 The Letter explains that a “shell” company is a company with no or nominal operations that has (i) no or nominal assets, (ii) assets consisting solely of cash or cash equivalents, or (iii) assets consisting of any amount of cash and cash equivalents and nominal other assets.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Eversheds Sutherland (US) LLP | Attorney Advertising

Written by:

Eversheds Sutherland (US) LLP
Contact
more
less

Eversheds Sutherland (US) LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.