This guest column was written by Jeffrey C. Hart, a shareholder of Robinson, Bradshaw & Hinson, P.A., a corporate and commercial law firm with over 130 attorneys. The firm has offices in Chapel Hill and Charlotte, North Carolina, and Rock Hill, South Carolina. Bradshaw & Hinson, P.A. has been an active CED member since 2002.
Do you help businesses raise debt or equity capital in exchange for fees? Are you compensated for matching buyers and sellers in business acquisitions? If so, you may need to register as a broker-dealer under applicable securities laws. Many individuals, consulting firms and small investment banks are unaware that engaging in capital raise and acquisition activities for third parties may require them to register as broker-dealers with the Securities and Exchange Commission (the "SEC"). The failure to register can result in the inability to enforce fee obligations, the imposition of government sanctions and fines and a prohibition on future securities and acquisition activities.
Section 15 of the Securities Exchange Act of 1934 (the "Exchange Act") requires a person acting as a "broker" or a "dealer" in securities to register with the SEC. Both brokers and dealers are persons who are "engaged in the business of" buying and selling securities. Brokers arrange securities transactions for others, whereas dealers purchase and sell securities for their own accounts.
For purposes of the Exchange Act, persons are "engaged in the business of" of buying and selling securities if they demonstrate a "regularity of participation" in such transactions. A person's participation in a single, isolated transaction is insufficient to require registration. Nevertheless, the SEC and the courts interpret the phrase "engaged in the business" broadly. Generally, if a person engages in more than one broker-dealer transaction, this part of the broker-dealer definition is satisfied.
The courts and the SEC have identified a number of indicia that business practices constitute broker-dealer activity. These so-called "badges" of broker-dealer activity include, but are not limited to: (1) actively soliciting buyers or investors for a business; (2) advising buyers or investors as to the merits of a securities transaction and (3) actively participating in the negotiation or execution of a securities transaction. If a person engages in these activities (e.g., a private placement of securities or a business acquisition structured as a stock sale or merger) and receives transaction-based compensation (e.g., a commission based on the size of the transaction or a success fee), the person likely must register with the SEC as a broker-dealer.
To learn more about engaging in activities that may trigger the Exchange Act's broker-dealer registration requirements, click here.