Following the SEC’s lead, effective July 1, 2016, Florida has passed a statutory exemption from the broker-dealer registration requirements for entities effecting securities transactions in connection with the sale of equity control in private operating businesses (“M&A Broker”). As discussed further below, the new Florida statute, together with the SEC M&A Broker exemption, may have paved the way for Florida residents to act as an M&A broker in reverse or forward merger transactions involving OTCQX-traded public companies without broker-dealer registration.
Florida has historically had stringent broker-dealer registration requirements in connection with the offer and sale of securities. Moreover, Florida does not always mirror the federal registration requirements or exemptions. For example, see my blog HERE detailing some state blue sky concerns when dealing with Florida, including the lack of an issuer exemption from the broker-dealer registration requirements for public offerings.
However, in a move helpful to merger and acquisition (M&A) transactions in the state, Florida has now passed an M&A broker-dealer exemption and concurrent securities registration exemption for M&A transactions. The Florida exemption is similar but not identical to the federal exemption. For a review of the SEC exemption for M&A brokers, see my blog HERE and the summary at the end of this blog. The SEC exemption specifically limited itself to the federal broker-dealer registration requirements. In addition, to Florida, other states have passed similar M&A broker exemptions; however, as of the writing of this blog, I have not conducted a survey on same.
Florida M&A Broker Exemption
The sale of securities in Florida is regulated by the Florida Office of Financial Regulation, Division of Securities and is generally found in Chapter 517 Florida Statutes and corresponding rules adopted under the Florida Administrative Code (F.A.C.), Chapter 517, Florida Statutes – Securities and Investor Protection Act and Chapter 69W-100 through 69W-1000, Florida Administrative Code.
Any offer or sale of securities in Florida, which offer or sale is not pre-empted by federal law, must either be registered or exempted from registration in accordance with the state securities laws. The Florida registration exemptions can be found in Florida Statutes section 517.061. All sales of securities in Florida must be made by a properly registered dealer (Chapter 517.12(1), Florida Statutes) or by someone utilizing an exemption provided by Chapter 517.12, Florida Statutes.
The new M&A offer and sale exemption has been codified by adding a new securities registration exemption to Section 517.061 and a new broker-dealer registration exemption to Section 517.12.
New Section 517.061(22) provides an exemption from the securities registration requirements for:
(22) The offer or sale of securities, solely in connection with the transfer of ownership of an eligible privately held company, through a merger and acquisition broker in accordance with s. 517.12(22).
New section 517.12(22) in turn details the merger and acquisition broker registration exemption. Like the SEC no action letter, the Florida broker registration exemption pertains to persons and entities effecting securities transactions in connection with the sale of equity control of private operating businesses (“M&A Broker”). Florida statutes define an M&A broker as one that is:
“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 that 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.”
Subject to certain restrictions, the Florida rule exempts the registration of an M&A broker that conducts transactions under 517.061(22). That is, a person that falls within the definition of an M&A broker and who completes transactions involving “the offer or sale of securities, solely in connection with the transfer of ownership of an eligible privately held company” can collect fees, including success fees, and does not have to hold a securities broker-dealer license.
The Florida statute is more restrictive than the SEC in its definition of a privately held company and in particular, the statute defines an “eligible privately held company” as one that (i) does not have any class of securities registered, or required to be registered with the SEC under the Exchange Act, or which files, or is required to file, periodic information, documents, or reports under Section 15(d) of the Exchange Act; and (ii) in the fiscal year immediately preceding the fiscal year during which the M&A broker begins to provide services for the securities transaction, the company has EBITDA of less than $25 million or gross revenue of $250 million with a provision for future adjustments for inflation.
Like the federal rule, the Florida M&A broker exemption sets forth certain limitations and restrictions related to the exemption. In particular:
(i) M&A brokers cannot have custody, control or possession of or otherwise handle funds or securities issued or exchanged in connection with an M&A transaction;
(ii) M&A brokers cannot engage in any public offering of securities which is registered or required to be registered under the federal or state securities laws or in a transaction that will result in the company being required to file reports under the Securities Exchange Act of 1934, as amended;
(iii) No party to the transaction can be a public shell company as defined by the Florida statute (note, as discussed below, this is a different definition than under federal law);
(iv) The M&A broker cannot be subject to certain bad actor disqualifications. In particular, they cannot be (a) barred from association with a broker-dealer by the SEC or any state or any self-regulatory organization or otherwise statutorily disqualified from such association or activities; (b) suspended from association with a broker-dealer; (c) subject to any federal order censuring or placing limitations on the person related to acting as or being associated with a broker or dealer; (d) subject to the disqualifications under either Rule 506 or Regulation A; or (e) be subject to any final order of a state securities commission or agency barring association or activity with any bank, savings or loan or credit union;
(v) Prior to completion of the transaction, the M&A broker must obtain written assurances from the control persons with the largest percentage ownership of both the buyer and seller that after the transaction is complete the buyer, acting alone or in concert, will be a control person of the acquired company or of the business conducted with the assets of the acquired company; and
(vi) Prior to completion of the transaction, the M&A broker must obtain written assurances from the control persons with the largest percentage ownership of both the buyer and seller that if the transaction involves the offer of securities in exchange for securities or assets, the person receiving securities will receive certain disclosures, including (x) the most recent year-end financial statements of the issuer of the securities, prepared by the issuer in the normal course of operations. Such statements need not be audited or reviewed, though if such audit or review is available, it must be provided; (y) a balance sheet dated not more than 120 days before the date of the offer of exchange of securities; and (z) information pertaining to the management, business, results of operation and material loss contingencies.
The Florida statute defines a control person as “an individual or entity that possesses the power, directly or indirectly, to direct the management or policies of a company through ownership of securities, by contract, or otherwise. A person is presumed to be a control person of a company if, with respect to a particular company, the person: (a) Is a director, a general partner, a member, or a manager of a limited liability company, or is an officer who exercises executive responsibility or has a similar status or function; (b) has the power to vote 20 percent or more of a class of voting securities or has the power to sell or direct the sale of 20 percent or more of a class of voting securities; or (c) In the case of a partnership or limited liability company, may receive upon dissolution, or has contributed, 20 percent or more of the capital.”
Unintended Consequence – or Not? Florida and Federal Law Allow M&A Brokers to Complete Reverse and Forward Mergers with Alternatively Reporting OTCQX Companies
A plain reading of the federal and Florida broker dealer exemptions for M&A Brokers would allow a non-registered broker to perform services and collect a fee for a reverse or forward merger transactions with a non-shell, alternatively reporting OTC Pink or OTCQX traded company.
The Florida statute does not refer to the federal definition of public shell company but rather provides its own definition. The Florida M&A broker exemption defines a “public shell company” as a company that, at the time of a transaction with an eligible privately held company: (a) has any class of securities which is registered, or which is required to be registered with the SEC under the Securities Exchange Act of 1934, or for which the company files, or is required to file, periodic reports under the Exchange Act; (b) has nominal or no operations; and (c) has nominal or no assets or assets consisting solely of cash and cash equivalents. Accordingly, the Florida definition of public shell company does not include public companies that do not file reports with the SEC, such as companies that trade on and alternatively report to the OTC Pink or OTCQX tiers of OTC Markets.
The federal definition of shell company, at least the definition in Rule 144 (which I note is different than the definition in Rule 405), does not limit the company to one that has a class of securities registered under the Exchange Act or that is required to or files reports with the SEC. The federal definition of a shell company in Rule 144 includes any issuer of securities.
In other words, the Florida M&A broker statute does not preclude a transaction with a non-reporting public shell company, including a company that files alternative reports with OTC Markets and trades on the OTC Pink tier. However, I note that the federal M&A broker exemption uses the broader federal definition of shell company and since both the federal and state broker registration exemption must be satisfied, completing a transaction with any shell company could be difficult.
However, completing a transaction with a non-reporting, non-shell company, and collecting a fee as an M&A broker, is not difficult and is clearly allowed.
The Florida M&A broker exemption, by its own terms, would allow a reverse merger or forward acquisition with a publicly trading OTCQX (or non-shell OTC Pink) company, as long as such company does not and is not required to file reports with the SEC but rather reports alternatively to OTC Markets. In particular, Florida precludes transactions that are registered or required to be registered with the SEC or that would result in the company being required to file reports under the Exchange Act. Accordingly, the statute, by its clear terms, does not preclude any transaction with a public company not required to file reports with the SEC. As I’ve written about many times, the OTCQX does not require that a company either file, or be required to file, reports under the Exchange Act. See HERE for a complete discussion of OTCQX eligibility.
The requirement that the transaction not be registered or required to be registered is easily met. The vast majority of reverse mergers and forward acquisitions are completed using an exemption from registration under both the federal and state securities laws. That is, the vast majority of reverse mergers and forward acquisitions rely on the registration exemption found in Rule 506 promulgated under the Securities Act. Rule 506 pre-empts state law and accordingly, no registration is required under either state or federal law. A review of the federal M&A broker exemption does not contradict or provide any barriers to this conclusion.
Furthermore, it appears that Florida is contemplating reverse merger and forward acquisition transactions with public companies. Here again, the vast majority of reverse merger and forward acquisition transactions are completed via an exchange of securities. That is, the shareholders of the private held company exchange their shares for new shares of the public company, resulting in the shareholders of the once private company owning the majority of shares in the public company and the private company becoming a wholly owned subsidiary of the public company. See my summary of reverse merger transactions HERE. Likewise, forward acquisitions are often completed as exchange offers; for a refresher, see my blog HERE. By specifically addressing exchange offers and requiring financial information, financial statements and certain disclosure documents in an exchange offer, the Florida legislature has cleared the path for unlicensed individuals to legally act in reverse merger and forward acquisition transactions.
Also, both the Florida and federal exemptions only require that the seller be a private company, not the buyer. The SEC specifically states: “in connection with the transfer of ownership and control of a privately-held company.” Likewise, the Florida statute states: “in connection with the transfer of ownership of an eligible privately held company.” Neither the federal nor Florida exemption places such a limitation on the buyer of the privately held company.
Refresher on Federal M&A Broker Exemption
On January 31, 2014, the SEC Division of Trading and Markets issued a no-action letter in favor of entities effecting securities transactions in connection with the sale of equity control of private operating businesses (“M&A broker”). The SEC stated that it would not require broker-dealer registration for M&A brokers arranging for the sale of privately held businesses, in accordance with the facts and circumstances set forth in the no-action letter. The no-action letter does not cover the facilitation of sales, mergers or acquisitions of publicly held operating or shell companies, which activities still require broker-dealer registration.
The SEC defined “M&A broker” as “a person engaged in the business of effecting securities transactions 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 a business combination involving, securities or assets of the company, to a buyer that will actively operate the company or the business conducted with the assets of the company.” The buyer would not have to be involved in daily operations but could “actively operate the company through the power to elect executive officers and approve the annual budget or by service as an executive…”
The SEC defined “privately held company” as “a company that does not have any class of securities registered, or required to be registered with the Commission under Section 12 of the Exchange Act, or with respect to which the company files, or is required to file, periodic information, documents, or reports under Section 15(d) of the Exchange Act.” The SEC specifically states that the no-action letter does not cover “shell” companies.
The SEC no-action letter provides an exemption for M&A brokers that facilitate mergers, acquisitions, business sales, and business combinations between sellers and buyers of privately held companies. M&A brokers may advertise the sale of businesses including descriptions of the business, location and price range.
However, the SEC set forth certain limitations and restrictions on the M&A broker exemption. In particular:
(i) M&A brokers cannot bind parties to a transaction;
(ii) M&A brokers cannot directly or indirectly provide financing for M&A transactions;
(iii) M&A brokers cannot have custody, control or possession of or otherwise handle funds or securities issued or exchanged in connection with an M&A transaction;
(iv) No M&A transaction can involve a public offering. Any offering or sale of securities must be conducted in compliance with an applicable exemption from registration. No party to any M&A transaction may be a shell company.
(v) To the extent that M&A brokers represent both buyers and sellers, they must provide clear written representations as to whom they are representing and must obtain written consent from both parties for joint representation.
(vi) If the M&A transaction involves a buyer group, the M&A broker may not be involved in forming the group;
(vii) The buyer or group of buyers will control and actively operate the company or business. The buyer will be considered to have control if it has the power, directly or indirectly, to direct management or policies of the company, whether through ownership of securities, by contract or otherwise. The necessary control will be presumed if, upon completion of the transaction, the buyer or group of buyers has the right to vote 25% or more of the securities, has the power to sell or direct the sale of 25% or more of the securities, or in the case of a limited partnership or LLC, has the right to receive upon dissolution or has contributed 25% of more of the capital.
(viii) No M&A transaction can result in the transfer of interests to a passive buyer or group of buyers;
(ix) Any securities received by the buyer or M&A broker in the transaction will be restricted within the meaning of Rule 144;
(x) The M&A broker, and if an entity, each officer director or employee of the M&A broker: (a) has not been barred from association with a broker-dealer by the SEC or any state or any self-regulatory organization; (b) is not suspended from association with a broker-dealer.
Finally, the SEC specifically limits the scope of the no-action letter to the federal broker-dealer registration requirements. M&A brokers will still need to comply with state law requirements and both federal and state anti-fraud laws.
Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host of LawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
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