On October 7, 2020, the Securities and Exchange Commission (SEC) voted to provide much needed clarity to the regulatory status of so-called “finders” who assist small businesses in raising capital. In a 3-to-2 vote, the SEC proposed a Finder exemption to the broker-dealer registration requirements of Section 15(a) of the Securities Exchange Act of 1934 to allow unregistered natural persons, referred to as finders, to engage in certain limited activities to assist issuers in raising capital from accredited investors.
CONDITIONS FOR EXEMPTION
The specifics of the proposed exemption to the broker-dealer registration requirements include the establishment of two tiers of finders, labeled “Tier I” and “Tier II” finders. Each tier would be subject to conditions specific to the scope of the finders’ activities, while there would also be general conditions applicable to both tiers.
Both Tier I and Tier II finders may only employ the proposed exemption in limited circumstances where:
- the issuer is not required to file reports under Section 13(a) or Section 15(d) of the Exchange Act;
- the issuer is seeking to conduct an offering in reliance upon an exemption from registration under the Securities Act of 1933;
- the finder does not engage in general solicitation;
- the potential investor is, or the finder reasonably believes that the potential investor is, an “accredited investor,” as such term is defined in Rule 501 of Regulation D;
- the finder enters into a written agreement with the issuer that includes a description of the services provided and associated compensation;
- the finder is not an associated person of a broker-dealer; and
- at the time of the finder’s participation, the finder is not subject to “statutory disqualification” under Section 3(a)(39) of the Exchange Act.
Tier I Finders
The proposed exemption further provides that a Tier I finder is one who meets the above conditions and whose activity is limited to providing issuers with the contact information of potential investors in connection with “a single capital raising transaction by a single issuer in a 12 month period” and the Tier I finder does not contact a potential investor about the issuer.
Tier II Finders
Alternatively, Tier II finders would be allowed to solicit investors on behalf of an issuer where they satisfy the general conditions above as well as the following additional conditions:
- identifying, screening, and contacting potential investors;
- distributing offering materials to potential investors;
- discussing issuer information included in offering materials, which discussion shall not include advice as to the valuation or advisability of the investment; and
- arranging or participation in meetings with the issuer and investor.
A Tier II finder would be required to sufficiently disclose to potential investors its finder’s role and compensation. Certain activities, including assisting or providing financing for investment purchases, providing advice as to the valuation or financial advisability of investment, among others activities, would remain strictly within the purview of registered brokers.
Following publication in the Federal Register, there will be a 30-day comment period for the proposed exemption.
Please find the full text of the article here.
Joseph Dever leads Cozen O’Connor’s Securities Litigation & SEC Enforcement Practice.
Seth Popick is a member at Cozen O’Connor and focuses his practice on corporate finance and governance matters for emerging and mature companies.
Lindsey Stillwell is an associate at Cozen O’Connor and focuses her practice on corporate law and securities.