Co-authored by Avi Badash.
The Securities and Exchange Commission’s Division of Trading and Markets has issued Frequently Asked Questions (FAQs) that provide guidance on the exemption from broker-dealer registration in Section 201(c) of the Jumpstart Our Business Startups Act. Section 201(c) of the JOBS Act adds Section 4(b) to the Securities Act of 1933 (Securities Act) to provide that persons participating in an offering under Rule 506 of the Securities Act are not subject to broker-dealer registration solely because (i) that person maintains a platform or mechanism that permits the offer, sale, purchase, negotiation, general solicitation or advertisements or similar or related activities by issuers of such securities; (ii) that person or any person associated with that person co-invests in such securities; or (iii) that person or any person associated with that person provides ancillary services with respect to such securities. In addition, that person and each person associated with that person may not (i) receive compensation in connection with the purchase or sale of such security, (ii) have possession of customer funds or securities in connection with the purchase or sale of such security, and (iii) be subject to a statutory disqualification as defined under Section 3(a)(39) of the Securities Act.
In the FAQs, the SEC clarified that the exemption from broker-dealer registration in Section 4(b) of the Securities Act (Section 4(b) Exemption) is fully operational and does not require the SEC to issue or adopt any rules. The Section 4(b) Exemption is only available to those persons who do not receive any compensation in connection with the purchase or sale of securities. This restriction is not limited to transaction-based compensation. The SEC advised that it interprets the term “compensation” broadly to include any direct or indirect economic benefit to such persons. However, the SEC provided that profits with respect to co-investment in the securities offered on the platform or mechanism would not be considered impermissible compensation for purposes of the Section 4(b) Exemption. The SEC also advised that, assuming all conditions are met, the Section 4(b) Exemption does not limit the types of persons who are permitted to maintain a platform or mechanism for an issuer’s securities. Accordingly, associated persons of issuers that otherwise qualify for the Section 4(b) Exemption may rely on it to be exempt from broker-dealer registration; however, the employees of an internal marketing department or the investor relations department of an affiliated adviser of a complex of privately offered funds may not rely on the Section 4(b) Exemption if such employees are paid salaries to promote, offer and sell shares of the privately offered funds.
Click here to read the SEC’s Division of Trading and Markets Frequently Asked Questions.