New M&A Broker Exemption From SEC Registration: Key Elements, Excluded Activities, Practical Considerations
Understanding the Exemption's Benefits, Limitations, and Impact on M&A Deals
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Commercial Law
- event Date
Wednesday, August 30, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will analyze the recently enacted federal M&A broker exemption from SEC registration. The panel will discuss the benefits and limitations of the exemption, the practical considerations for complying with broker registration requirements under both federal and state securities laws, and the implications of the new exemption on M&A deals.
Ms. Rohrer specializes in securities broker-dealer regulatory matters, including broker-dealer status analysis, registration, compliance, and enforcement defense. She represents a broad range of clients in connection with traditional broker-dealer activities and activities involving new technologies such as digital assets, cryptocurrencies, utility tokens, NFTs, distributed ledger technology, digital wallet providers, DeFi applications and protocols and Web3-related businesses. Ms. Rohrer’s broker-dealer practice includes the assessment of whether proposed activities require broker-dealer registration or qualify for an exemption. For decades, she has successfully shepherded firms through the FINRA new membership application process and the FINRA continuing membership application process to obtain approval for changes of ownership and control.
Mr. Robertson’s practice focuses on business and finance transactions, entity formation, M&A, and securities law. He has experience in sophisticated and complicated business transactions in various practice areas, including corporate, commercial real estate, private equity, oil and gas, and secured lending. He represents entrepreneurs, hospitality firms, REITs, private equity investors, financial institutions and other businesses in a wide variety of matters, including purchases and sales of hotels, restaurants, oil and gas, and other real estate properties, formation of real estate investment funds, sales of REITs, commercial and real estate loans, oil and gas production loans, private and public offerings of securities, securities reporting for public companies, management agreements and leases for hotels, office buildings and oil and gas properties, joint venture and partnership agreements, asset securitizations, merger agreements, purchase and sale agreements, shareholders' agreements, and the structuring and documentation of other transactions of wide variety. Mr. Robertson is a frequent author and lecturer on a variety of legal topics.
Congress recently amended the Securities Exchange Act of 1934 to exempt certain M&A brokers from registration as broker-dealers with the SEC. Previously, M&A brokers relied on the SEC's M&A Brokers No-Action Letter for clarity regarding broker registration. The new exemption closely follows the No-Action Letter, with some differences, including a limitation on the size of eligible privately held companies. While the exemption provides a federal exemption from SEC registration for M&A brokers, the activity of securities brokers is still regulated by individual states, some of which may also have an exemption in place.
An M&A broker is defined as 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 the 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. The new exemption contains an extensive list of activities that, if conducted by the M&A broker, would preclude or disqualify the broker from taking advantage of the exemption.
To be an eligible privately held company under the new exemption, the acquired company must: not have any class of securities registered with the SEC pursuant to Exchange Act Section 12 or subject to Section 15(d)'s filing obligations, and in the fiscal year prior to the engagement of the M&A broker, have earnings of less than $25 million before interest, taxes, depreciation, and amortization and/or gross revenues of less than $250 million.
Listen as our authoritative panel of M&A practitioners discusses the parameters and applicability of the new federal M&A broker exemption. The panel will also discuss the exemption's practical implications on M&A deals and the impact of state broker registration requirements.
- Background
- Key terms of the new federal statutory exemption
- M&A broker
- Eligible privately held company
- Control
- Excluded activities
- Disqualification
- State law requirements
- Practical considerations and next steps
The panel will review these and other key issues:
- What is the background regarding the new federal registration exemption for M&A brokers?
- What are the key terms, elements, and definitions of the new exemption?
- What are the benefits and limitations of the new exemption?
- Does the new federal exemption preempt state broker registration requirements?
- What are the key takeaways and practical considerations of the new exemption on M&A deals?
