SEC Changes Course and Allows Business Brokers to Receive Commissions on Business Stock Sales

Prior to 1985, the SEC did not consider the sale of a business structured as a stock sale to be a sale of securities under the securities laws. This was known as the Sale of Business Doctrine. As a result, the penalties and rules that apply to securities sales did not apply to the sale of a business, and business brokers and merger and acquisition brokers were able to receive commissions in connections with those sales without being registered as a broker dealer. This changed in 1985 when the Supreme Court of the United States took the position that the sale of a business structured as a stock sale was indeed the sale of securities. As a result, business brokers and merger and acquisition brokers were prohibited from earning commissions in connection with those sales unless they were registered as a broker dealer. This created substantial implications for business brokers and mergers and acquisition brokers, especially where a transaction started out structured as a sale of assets and then during the course of negotiations, the transaction was restructured to be a sale of stock. In that case, business brokers and merger and acquisition brokers that were not registered as broker dealers were theoretically prohibited from earning a commission, simply because the structure of the transaction had changed. This result was often thought of as unfair in the industry.

The ABA task force on private placement broker dealers noted in its year 2000 final report that the broker dealer registration process involved significant costs as well as a regulatory model that is not the right size to accommodate the particular role played by business brokers in connection with the sale of a business. The requirement to register as a broker dealer is a lengthy process and there are substantial costs and fees, together with start up and first year expenses, including legal, accounting, and operating costs that can equal several hundred thousand dollars. Persons effecting one or several transactions a year simply cannot bear this financial burden. These firms do not hold customer funds or securities and generally they merely introduce the parties to one another and transmit documents between the parties. They do not participate in structuring or negotiating these transactions or otherwise advise the parties. Both buyers and sellers in this type of transaction are typically represented by legal counsel who can assist with due diligence, draft the transactional documents and advise their clients on structure, tax considerations and contractual provisions and there are remedies, both contractual and by operation of law, that are available to the parties in these types of transactions.

On January 31, 2014, the SEC changed its mind about these matters and issued a long awaited no action letter permitting certain merger and acquisition brokers to receive commissions in connection with the sale of a business even where the sale is structured as a stock sale.

Under the new interpretation, merger and acquisition brokers are permitted to facilitate acquisitions, mergers, business sales, and business combinations on behalf of buyers and sellers of privately-held companies and receive commissions in connection with the transaction. Moreover, the letter does not limit the amount or type of compensation that a merger and acquisition broker may receive, and it does not limit the size of the privately-held company. The letter also permits merger and acquisition brokers to advertise the sale of a privately-held company and include in such advertisements a description, general location and price range of the business.

For purposes of this letter ruling, a privately-held company is one 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 to which it is required to file periodic reports under Section 15(d) of The Exchange Act. Also the company must be a going concern and not a shell company.

As is so often the case in these matters, there is a catch. In this case, the catch is that the relief available under this no action letter is only available if the transaction satisfies ten (10) very specific conditions.

Those conditions are as follows:

1. The “merger and acquisition broker” must not have the ability to bind a party to a merger and acquisition transaction. A “mergers and acquisition broker” for the purpose of the letter is a person engaged in the business of effecting the securities transaction 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 business combination involving securities or assets of the company, to a buyer that will actively operate the company or the business with the assets of the acquired company.

2. The merger and acquisition broker must not directly or indirectly through any of its affiliates provide financing for the merger and acquisition transaction. The merger and acquisition broker may assist the purchaser in obtaining financing from an unaffiliated third party but they must comply with all applicable legal requirements and disclose to their client, in writing, the receipt of any compensation in connection with the financing.

3. The mergers and acquisition broker is prohibited from having custody, control or possession of or otherwise handling funds or securities issued or exchanged in connection with the merger and acquisition transaction or other securities transactions for the account of others. The merger and acquisition transaction cannot involve a public offering. Any offering of securities must be conducted in compliance with an applicable exemption from registration.

4. No party to a merger and acquisition transaction may be a shell company, other than a business combination related company.

5. If a merger and acquisition broker represents both the buyer and the seller in a transaction it must provide clear written disclosure of the potential conflict to the parties it represents and it must obtain written consent from both parties to the joint representation.

6. A merger and acquisition broker may only facilitate a merger and acquisition transaction with a group of buyers if the group is formed without the assistance of the merger and acquisition broker.

7. Buyers or a group of buyers in a merger and acquisition transaction must control and actively operate the business acquired with the assets of that business. In this regard, control will be considered to be achieved if the buyers have the power directly or indirectly to manage the company or the policies of the company through ownership of securities by contract or otherwise. Under the view of the SEC, a buyer could be considered to actively operate an acquired company simply by possessing the power to elect executive officers and approve annual budgets or by service as an executive or other executive manager, among other things. The necessary control will be presumed if at the completion of the transaction the buyer or group of buyers has the right to vote 25% or more of the class of voting securities; has the power to sell or direct the sale of 25% or more of a class of voting securities; or in the case of a partnership or limited liability company has the right to receive, upon dissolution 25% or more of the proceeds from the dissolution, or has contributed 5% or more of the capital to the transaction. In addition, the buyer or a group of buyers must actively operate the company or the business acquired with the assets of the company.

8. No merger and acquisition transaction can result in the transfer of interests to a passive buyer or a group of passive buyers.

9. Any securities received by the buyer in the merger and acquisition transaction will be restricted securities within the meaning of Rule 144(a)(3) of The Securities Act.

10. A merger and acquisition broker must meet the following conditions:

(a) The broker has not been barred from association with a broker dealer by the SEC or any state or self-regulatory organization.

(b) The broker must not be suspended from association with a broker dealer.

These rules make very clear who will be entitled to the exemption provided in the no action letter. As a result of these changes, business brokers and merger and acquisition brokers will no longer have to worry whether or not they will be able to receive their commission in the event that a transaction is ultimately cast as a stock purchase. The SEC’s actions in this instance are grounded in an understanding of the realities of the typical sale of business transaction. The truth is that those transactions are structured on the basis of accounting or tax considerations, and not on the application of federal securities laws. The sale of a business between sellers and buyers of privately-owned companies are qualitatively different in virtually every respect from traditional retail or institutional brokerage transactions.

We are encouraged that the SEC recognized these distinctions. This decision will clarify a tricky area of the law and provide appropriate relief to business brokers and mergers and acquisition brokers who work in this area.

Choosing the Right Business Brokers

Whether you’re buying or selling a business, having a broker on your side can make the difference between a successful outcome and a nightmare. However, not all business brokers will be suitable for your specific situation. Use the tips below to choose the right broker for your needs.

Start by asking for referrals from your inner circle of business advisers and colleagues. Have any used a business broker in the past? Were they satisfied? Does the broker handle the type of transaction you have in mind?

You may need to widen your net to find a pool of qualified business brokers that specialize in brokering deals such as yours. Once you have several potential brokers, it’s time to get down to business and narrow the field down. Below are several key factors to consider:

– Is the individual or firm professional? Professionalism shows in numerous ways including personal appearance, the presentation of marketing materials, website, language, mannerisms, and expertise. Use both objectivity and your gut instinct. Remember, the broker you choose will be representing your business so make sure you’re fully comfortable with the person and firm you choose.

– Does the broker have experience working with businesses like yours? While it’s not necessary for the business broker to have specific experience in your exact niche, it’s helpful for the broker to understand the nature of your business and have experience brokering deals with similar characteristics. For example, if you run a family-owned microbrewery, a broker with a successful track record brokering deals for small wineries, family-owned specialty food manufacturers, or small brewpubs may not know the finer points of brewing beers but could be an excellent choice thanks to experience with similar businesses.

– What qualifications does the broker have? Look for licensing, education, certification, experience, and membership in professional associations.

– Is the broker well prepared? In other words, did the business broker do his or her research prior to your initial meeting? Brokers use comparable sales, business and industry reports, and other tools to price businesses. Your business broker should be able to support any suggested listing prices, which should be presented in writing, with documentation.

– If you are selling your business, find out how the broker intends to market your business. Brokers have many marketing tools available to market their business listings. However, some prefer to use specific marketing techniques over others. Make sure to ask the broker to present a detailed marketing plan.

– What type of businesses does the broker work with? For example, if your business has annual revenues in the $50 million range, you’ll need a special type of buyer making it important to choose a business broker capable of attracting those high net worth individuals and investors.

– Check references. No matter how professional, personable, experienced, qualified, and prepared potential broker appear, cover your bases by checking references. Ideally, the broker should give you references from businesses with similarities to yours.

Choosing the right broker to sell your business or help you find a business to buy is a process. Do your part to ensure a successful outcome by choosing wisely.

Why Should I Use A Business Broker?

You’ve come to the decision that buying a business or selling your business is the path that you want to take. The best piece of advice, although biased, I can offer is to retain the services of a business broker or business transfer adviser. Although business brokers usually work on behalf of the seller, there are sell-side business brokers and buy-side advisers. Even if you’re a buyer and you decide not to retain the services of a business broker or transfer adviser, you’ll receive the benefits because a business broker is working with the seller.

The broker is sort of like a clamp that holds things together as the business buyer and seller progress through the business transaction. Below I’m going to explain to you how both business seller and business buyer can and will benefit from the services of a business broker:

Let’s meet-

The good thing about the business broker is, the profession requires face to face meetings. Even though the broker is getting paid by the business seller, the buyer has to meet with the broker in order to view the business as well as so the broker can determine if the buyer is a compatible buyer for the business.

The meeting will be an interview style meeting. Some of the questions that will be asked by the broker are:

1- Can you go into detail about your background?

2- Have you ever purchased a business

3- Do you have easy access to the cash to buy a business?

4- Can you show proof of proceeds on a recent bank statement?

5- How soon are you willing to make a purchase?

In addition to the question and answer portion, you’ll also be given a personal financial statement to fill out and return. Be sure you return this information as soon as possible.

What usually takes place after this meeting is, the business broker will than present compatible business to the buyer. So come prepared with a recent bank statement showing the cash. Time is of great importance. Strike while the fire is hot and move with swiftness.

Expect for the broker to ask you to sign a non-disclosure agreement. The business seller wants to ensure that the word about the business being for sale is kept quite.

As the buyer, you’ll get to see very general financial information about the business of interest and others in the business broker has other businesses available. If you decide that you have serious interest in any of the businesses that are presented, the broker will provide you with more in-depth financial date and also arrange for you to see the business in person.

The broker will act of the best point of contact for the buyer. Any questions or concerns that the buyer may have, the broker can answer all questions concerning the business.

How the business broker helps the seller-

If you’re the owner of a business and you’ve decided to sell, one of the best services that you can retain are the services of a business broker. The broker will oversee the entire process while you continue to run your business.

The business broker will interview all of the buyers. This service by itself is worth the broker fee. Business brokers usually have access to a database of buyers that they’ve acquired over the years. These are buyers that have identified themselves are compatible and financially capable of buying a business. Having access to a list of buyers will speed up the process and help get the business sold while it’s still “hot.”

The business broker will especially prepare a marketing plan for the business in question. A sales prospectus will take time to prepare but your broker will provide you with this required document. In addition, the broker will structure the deal as well as assist the completion of the paper work.

Many owners don’t know how much their business is worth, therefore the broker can assist you with pricing your business. Te pricing of the business is just a starting point. The buyer will get an official appraisal. Between the 2 numbers, the negotiations will start there. Also, you want to ensure that your business is properly priced. You don’t want it to be overpriced not under priced A business that is priced right WILL SELL. The ultimate price of the business will be determined by what it sells for or as brokers like to say-the marketplace.

The business broker is one of the most important advisers that a seller can have on their transaction team. This broker will bring their years of experience to the table. This will help both buyer and seller and ensure both parties walk away happy.