Shareholder Planning Services for Privately-Held Companies

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A presentation to Moore Stephens International by Mike Costello and Tom Decosimo.

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Shareholder Planning Services for Privately-Held Companies

  1. 1. Shareholder Planning Services forPrivately-Held Companies2010 International Conference CHALLENGES TO OPPORTUNITIES. 1
  2. 2. Today’s Agenda• Business Valuation• Strategic Transition Planning• Sell-Side Advisory 2010 International Conference CHALLENGES TO OPPORTUNITIES. 2
  3. 3. Business Valuation2010 International Conference CHALLENGES TO OPPORTUNITIES. 3
  4. 4. Business Valuation• Many, if not all, Moore Stephens firms have at least one person performing business valuation• However, few have capitalized on shareholder planning services that are outgrowths of business valuation 2010 International Conference CHALLENGES TO OPPORTUNITIES. 4
  5. 5. Why Get a Business Valuation?•Of the many reasons to get a business valuation, many are related toshareholder planning:• Mergers and acquisitions (“About how much could I get if I sold my business?”)• Buy-sell agreements (“At what price should our ownership interests change hands?”)• Employee incentives including options, phantom stock, and ESOPs (“How can I incentivize employees and/or efficiently transfer ownership to them?”)• Estate, gift, and income tax purposes (“How can I minimize my tax liabilities while transferring ownership?”) 2010 International Conference CHALLENGES TO OPPORTUNITIES. 5
  6. 6. From BV to STP• BV professionals with expertise and experience in these areas naturally fit into an advisory role in those areas (M&A, buy-sell, etc.)• With combined experience of BV, estate, and tax expertise, Moore Stephens firms are ideal advisors for transferring ownership• We call this all-encompassing shareholder planning service “Strategic Transition Planning,” or “STP,” others may call it “Exit Planning,” “Succession Planning,” or “Ownership Planning” 2010 International Conference CHALLENGES TO OPPORTUNITIES. 6
  7. 7. Strategic Transition Planning2010 International Conference CHALLENGES TO OPPORTUNITIES. 7
  8. 8. Strategic Transition Planning 1. Identify Owner Objectives 2. Identify Business and Financial 1. Planning Resources 3. Develop STP Plan (Details Strategies to maximize and protect value of business and financial assets and execute transition) The Business Asset: 2. Preparing 1. Retain and Incentivize Key Employees 2. Entity Selection The Personal Assets: 1. Estate Planning (Designing an Estate to (Maximizing and 3. Business Continuity Minimize Tax Liabilities, Preserve Family 4. Successor Training Wealth, and Preserve Family Continuity) 5. Value Drivers 2. Wealth Planning (Performed by Outside Protecting Value) 6. Estate Planning (Transfer Tax Planning) 6. Other Management Consulting Items (Customer Concentration, etc.) Advisor) Execute Transition to Family, Co-Owner, 3. Executing Management, or Third Party Transfers Wealth from Business Asset to Personal Asset. Continue with Estate and Wealth Planning 2010 International Conference CHALLENGES TO OPPORTUNITIES. 8
  9. 9. Phase One 1. Identify Owner Objectives 2. Identify Business and Financial Resources1. Planning 3. Develop STP Plan (Details Strategies to maximize and protect value of business and financial assets and execute transition)2010 International Conference CHALLENGES TO OPPORTUNITIES. 9
  10. 10. Planning PhaseIdentify, clarify, and prioritize owner objectives:• When do you want to transfer?• To whom? (family, management, or third party)• How much money does the owner need?• Other objectives (charitable, rewarding ee‟s)Identify and value resources:• Personal assets (financial planner performs a financial needs analysis)• Business asset  perform a business valuation 2010 International Conference CHALLENGES TO OPPORTUNITIES. 10
  11. 11. Planning PhaseWhy a business valuation from the start:Are we there yet? ($ goal less $ personal assets = what owner needs in value from the business)• By comparing the valuation to the needed $ from transfer, we can determine strategy for growth/maintenance of business value (aggressive/ conservative)Food for thought to aid the “to whom” decision:• Different valuation methods can show relative value achieved by transferring to different groups (family, management, and 3rd party) and clarify these strategies vs. control interestsInput data for tax strategies: value of nonmarketable minority interestsIdentify value drivers of the business and what is hindering value 2010 International Conference CHALLENGES TO OPPORTUNITIES. 11
  12. 12. Planning PhaseWork with current advisors (tax, legal) to develop appropriate strategies to accomplish goalsCome up with an implementation plan with specific time frames per task and assign the tasks to the right advisor 2010 International Conference CHALLENGES TO OPPORTUNITIES. 12
  13. 13. Phase Two The Business Asset: The Personal Assets: 1. Retain and Incentivize Key 1. Estate Planning (Designing Employees an Estate to Minimize Tax 1. Identify Owner Objectives Liabilities, Preserve Family 2. Entity Selection Wealth, and Preserve Family2. Preparing 3. Business Business and Financial 2. Identify Continuity Continuity) Resources(Maximizing and 4. Successor Training 2. Wealth Planning 3. Value Drivers Plan (Details (Performed by Outside Develop STP 5.Protecting Value) Strategies to maximize and protect 6. Estate Planning (Transfer Advisor) value of business and financial Tax Planning) assets ad execute transition) 6. Other Management Consulting Items (Customer Concentration, etc.) 2010 International Conference CHALLENGES TO OPPORTUNITIES. 13
  14. 14. PreparingImplement the strategies developed in planning phase designed to:• Minimize tax liabilities (S vs. C-Corp, etc.)• Increase cash flows and value (value drivers)• Protect business and personal assets• Motivating and retaining employees• Set up estate to handle the size of the business asset• Create an ability to sell the business (if necessary) 2010 International Conference CHALLENGES TO OPPORTUNITIES. 14
  15. 15. Phase Three Business Asset: Personal Assets: Execute Transition to Continue with Estate Family, Co-Owner, and Wealth Planning Management, or Third Party $$$$3. Executing Transfers Wealth from Business Asset to Personal Asset.2010 International Conference CHALLENGES TO OPPORTUNITIES. 15
  16. 16. Family Transition• Plan gifts or other appropriate methods of transition to minimize tax liabilities• Develop strategies to compensate current owner for interest in business• Prepare next generation for running the business• Utilize tax-exempt gifting, if necessary• Transfer control to the next generation 2010 International Conference CHALLENGES TO OPPORTUNITIES. 16
  17. 17. Management Transition• Fund management transfer (get money to management for purpose of buying out current owner)• Determine the best means of transition: private equity-backed management buyout, deferred compensation, or other• Consider tax deferral strategies• Prepare management for ownership and running the company• Execute the transition to management 2010 International Conference CHALLENGES TO OPPORTUNITIES. 17
  18. 18. 3rd Party Transition• Determine target pricing• Develop sales materials and research potential buyers• Approach and negotiate with buyers• Secure and evaluate offers• Due diligence• Closing 2010 International Conference CHALLENGES TO OPPORTUNITIES. 18
  19. 19. DCF‟s Three PhaseSell-Side Process2010 International Conference CHALLENGES TO OPPORTUNITIES. 19
  20. 20. DCF’s Three Phase Process• Phase One: Business Review• Phase Two: Research and Preparation of Marketing Materials• Phase Three: Marketing the Company 2010 International Conference CHALLENGES TO OPPORTUNITIES. 20
  21. 21. DCF’s Three Phase Sell-Side Process  Prepare Teaser (1 to 2 page summary,  Engage and qualify potential buyers, Discuss and identify objectives. doesn’t disclose company name). send Teasers and NDAs.  Review the Business’s performance.  Begin preparing the Data Room for due  Prepare a Confidential Information diligence. Memorandum (CIM, a detailed  Identify market position, competencies, description of company).  Send the CIM and Procedures Letter to and priorities. potential buyers that execute the NDA.  Prepare a Non-Disclosure Agreement  Field questions from interested buyers.  Identify the business’s qualities that (NDA) and Procedures Letter. make it an attractive investment.  Discuss and finalize Teaser, CIM, and  Receive, assess, and negotiate NDA. Indications of Interest (IOIs).  Review business’s performance and  Arrange management interviews, visits, broader economy.  Research universe of potential buyers. and presentations.  Determine target value for the  Receive, assess, and negotiate Letters of  Determine most probable potential transaction. Intent (LOIs). buyers.  Select finalist.  Prepare business and gather  Discuss potential buyers, determine information for the sale. which to approach.  Assist due diligence and buyer financing.  CLOSE. 2010 International Conference CHALLENGES TO OPPORTUNITIES. 21
  22. 22.  Discuss and identify objectives.  Review the Business’s performance  Research universe of potential buyers.  Qualify potential buyers.  Send out Executive Summaries.  Prepare data room.  Identify market position, competencies,  Discuss potential buyers, determine and priorities. which to approach.  Send CIM to buyers who sign non- disclosure agreement.  Assess Letters of Interest.  Identify the business’s qualities that  Negotiate with and select buyers. make it an attractive investment  Prepare Executive Summary (1 to 2 page summary, doesn’t disclose company Phase One – Business Valuation name).  Reviews business’s performance and  Assess Letters of Intent . broader economy  Select finalist.  Prepare a Confidential Information Memorandum (CIM, a detailed   Assist due diligence and buyer financing. Determines target value for the description of company). transaction.  CLOSE.  Prepares business and gathers information for the sale.Perform a valuation, with particular focus on:• Assessing core competencies of the company• Identify the qualities that make the company an attractive acquisition target• Determine a target value for the company 2010 International Conference CHALLENGES TO OPPORTUNITIES. 22
  23. 23.  Discuss and identify objectives.  Review the Business’s performance  Research universe of potential buyers.  Qualify potential buyers.  Send out Executive Summaries.  Prepare data room.  Identify market position, competencies,  Discuss potential buyers, determine and priorities. which to approach.  Send CIM to buyers who sign non- disclosure agreement.  Assess Letters of Interest.  Identify the business’s qualities that  Negotiate with and select buyers. make it an attractive investment  Prepare Executive Summary (1 to 2 page summary, doesn’t disclose company Phase One – Business Valuation name).  Reviews business’s performance and  Assess Letters of Intent . broader economy  Select finalist.  Prepare a Confidential Information Memorandum (CIM, a detailed   Assist due diligence and buyer financing. Determines target value for the description of company). transaction.  CLOSE.  Prepares business and gathers information for the sale.Why perform a business valuation?• Presents all the issues concerning the sale up-front• Identifies concerns that may arise during Due Diligence• Identifies business‟ key selling points• Determines expectations for pricing of the transaction (saves the advisor time and money) 2010 International Conference CHALLENGES TO OPPORTUNITIES. 23
  24. 24.  Research universe of potential buyers.  Qualify potential buyers.  Discuss and identify objectives.  Send out Executive Summaries.  Review the Business’s performance  Discuss potential buyers, determine which to approach.  Prepare data room.  Send CIM to buyers who sign non-  Identify market position, competencies, disclosure agreement. and priorities.  Assess Letters of Interest.  Identify the business’s qualities that  Negotiate with and select buyers. make it an attractive investment  Prepare Executive Summary (1 to 2 page  Reviews business’s performance and summary, doesn’t disclose company broader economy name).  Assess Letters of Intent .  Determines target value for the transaction.  Select finalist. Phase Two  Assist due diligence and buyer financing.  Prepares business and gathers information for the sale.  CLOSE.  Prepare a Confidential Information Memorandum (CIM, a detailed description of company).Involves three steps:• Research and determine potential buyers• Prepare sales documents (valuation feeds into these): – Prepare a Confidential Information Memorandum (CIM) – Prepare a Teaser 2010 International Conference CHALLENGES TO OPPORTUNITIES. 24
  25. 25.  Qualify potential buyers.  Send out Executive Summaries.  Research universe of potential buyers.  Discuss and identify objectives.  Prepare data room.  Review the Business’s performance  Send CIM to buyers who sign non-  Discuss potential buyers, determine disclosure agreement. which to approach.  Identify market position, competencies, and priorities.  Assess Letters of Interest.  Identify the business’s qualities that make it an attractive investment  Prepare Executive Summary (1 to 2 page  Negotiate with and select buyers. summary, doesn’t disclose company  Phase Three – Marketing the Company Reviews business’s performance and name). broader economy  Management interviews.  Determines target value for the transaction.  Prepare a Confidential Information  Assess Letters of Intent . Memorandum (CIM, a detailed  Prepares business and gathers description of company). information for the sale.  Select finalist.  Assist due diligence and buyer financing.  CLOSE.Sell-side stage:• Qualifying buyers • Selecting finalists• Sending out Teasers • Management interviews• Preparing a Data Room • Assessing and negotiating• Sending the CIM Letters of Intent• Assessing Indications of Interest • Selecting the winner• Negotiating with potential • Due diligence buyers • Closing 2010 International Conference CHALLENGES TO OPPORTUNITIES. 25
  26. 26. WARNING• Can you provide sell-side advisory without risking regulatory action?• Many believe that must be licensed through a broker/dealer to perform sell-side• Take a brief look at relevant regulations 2010 International Conference CHALLENGES TO OPPORTUNITIES. 26
  27. 27. Do You Need a License? What is the Series 79? • The relevant information for CPAs and business valuation professionals Who needs to register with the SEC (and FINRA)? • The relevant facts that can help you determine whether you should register How do you register? • The options for registering and process involved for each2010 International Conference CHALLENGES TO OPPORTUNITIES. 27
  28. 28. How Can You Register?2010 International Conference CHALLENGES TO OPPORTUNITIES. 28
  29. 29. Registering with the SEC and FINRATwo Options:• Form your own broker/dealer firm• Affiliate with a firm that already is a registered broker/dealerAffiliating with a current broker/dealer requires that you:• Find a willing firm to sponsor and employ you (probably only for the purposes of your M&A-related advisory work)• Pass the Series 79 and Series 63 (state licensing exam)• Pay for licensing fees• Disadvantages include lack of control over your business, sharing of your fees, and lack of communication with your regulators 2010 International Conference CHALLENGES TO OPPORTUNITIES. 29
  30. 30. Registering with the SEC and FINRA Registering your own broker/dealer is a much more complex process that, in short, involves: • Setting up a separate entity • Putting up necessary initial funds with the SEC and FINRA (>$5,000) • Submitting numerous forms (Form BD, Form U4 for each employee) • Having at least two registered principals (these persons must pass the Series 7, 24 (General Securities Principal), 63, and 79; one of these persons must pass the 28 (Financial and Operations Principal)) • Completing the New Membership Application (NMA) – 8 long sections • Develop policies and procedures (for many items that are unrelated to the proposed business such as Anti-Money Laundering Procedures) • Complete the Membership Interview at a FINRA office • Apply for registration with the appropriate state regulators • Have all of these materials approved by FINRA This process typically takes six to twelve months – many choose to employ a consultant (often a former FINRA or SEC employee)2010 International Conference CHALLENGES TO OPPORTUNITIES. 30
  31. 31. A Warning from FINRAFINRA‟s website says: Submitting a FINRA membership application is a serious undertaking and should be considered carefully. You may wish to consider alternatives to applying for membership depending on your desired goals. For instance, working for an existing member firm or managing the branch office of a member firm might achieve your objectives without going through [the New Member] Application process.” 2010 International Conference CHALLENGES TO OPPORTUNITIES. 31
  32. 32. How We Structured our B/DAccounting firm with nearly 150 CPAsHeadquartered in Chattanooga, TNOffices in Cincinnati, OH; Atlanta and Dalton, GA; Grand Cayman, USVI; Memphis, Nashville, and Knoxville, TNPerform tax, audit, and/or business advisory for many restaurantsExpertise in multiple industries 2010 International Conference CHALLENGES TO OPPORTUNITIES. 32
  33. 33. How We Structured our B/DAudit, tax, & more:• Strategic Transition Planning, business succession planning, insurance and estate planning, retirement plan consulting• Forensic accounting, fraud risk assessment, and fraud prevention• R&D tax credits, transfer pricing, U.S. Customs compliance and reporting, tax services for global businesses and individuals, captive insurance companies• Network vulnerability testing and IT security consulting• Healthcare consulting, due diligence, and M&A advisory, physician practice management• Recruiting and placement• Real estate development consulting, hedge and real estate fund consulting• Audit defense and representation, due diligence 2010 International Conference CHALLENGES TO OPPORTUNITIES. 33
  34. 34. How We Structured our B/DA practice of Decosimo firmProvides business valuation, litigation support, and transaction advisory servicesMore than 35 years of transaction experienceProfessionals hold ASA, CBA, and/or ABV credentialsSignificant valuation, litigation support, and transaction advisory experience with restaurants 2010 International Conference CHALLENGES TO OPPORTUNITIES. 34
  35. 35. How We Structured our B/D “Maximizing Value for the Middle Market”: • Sell-side and buy-side advisory, • Debt and equity capital sourcing, • Fairness opinions, • Valuations, • Due diligence, and other transaction advisory services. Formalization of investment banking services provided by Decosimo CPA firm for more than 35 years: involved in the mergers and acquisitions of five major league baseball teams, more than 100 Coca-Cola bottlers Member FINRA/SIPC2010 International Conference CHALLENGES TO OPPORTUNITIES. 35
  36. 36. Decosimo Corporate Finance More than $17 billion in transactions 2010 International Conference CHALLENGES TO OPPORTUNITIES. 36
  37. 37. What is the Series 79?2010 International Conference CHALLENGES TO OPPORTUNITIES. 37
  38. 38. A Brief Background on SecuritiesRegulation • FINRA (the Financial Industry Regulation Authority, formerly the National Association of Securities Dealers, or NASD) is the main SRO that regulates broker/dealers (investment banks) • FINRA can regulate its members, but cannot regulate (and has no power against) non-members (persons and firms must “volunteer” to be regulated by FINRA) • However, the SEC determines who must register with FINRA, and can take legal and criminal action against unregistered persons • So, the requirement for registration is ultimately a question for the SEC2010 International Conference CHALLENGES TO OPPORTUNITIES. 38
  39. 39. What is the Series 79?• In July 2009, the SEC approved a change to NASD Rule 1032 (Categories of Representative Registration), which became effective November 2, 2009 – This rule change added a new licensing category for associated persons of FINRA member firms: the Series 79 – Investment Banking Limited Representative – The rule change requires that associated persons of member firms hold the 79 license if they are going to engage in “investment banking” activities• The topics covered on the exam are much more related to the private company M&A-advisory work that many business valuation professionals perform• This is somewhat of a relief for those already registered or who are considering registering with FINRA since the only relevant exam previously was the Series 7 – General Securities Representative exam, which has very little relevant information out of a large amount of information required to pass 2010 International Conference CHALLENGES TO OPPORTUNITIES. 39
  40. 40. Series 79: Investment BankingNASD Rule 1032(i) now defines “investment banking” as: “Advising on or facilitating debt or equity securities offerings…through a private placement…including but not limited to…marketing, structuring,…and pricing of such securities and managing the allocation…activities of such offerings OR Advising on or facilitating mergers and acquisitions…financial restructurings, asset sales, divestitures or other corporate reorganizations or business combination transactions, including but not limited to rendering a fairness, solvency, or similar opinion.” 2010 International Conference CHALLENGES TO OPPORTUNITIES. 40
  41. 41. Series 79: New Opportunity?• The 79 creates a new license to perform certain specific services that many CPAs provide• As a “credential” it presents a possible marketing edge – especially considering that it is issued from one of the U.S. Government‟s main SROs• The 79 exam is much more related to activities that business valuation professionals may perform, as opposed to the Series 7• However, the category could be a “Trojan horse” for private M&A advisors: – The license highlights and outlines activities that the SEC potentially considers as requiring registration as a broker/dealer – Registration as a broker/dealer can be a cumbersome and expensive process 2010 International Conference CHALLENGES TO OPPORTUNITIES. 41
  42. 42. Do You Need To Register?2010 International Conference CHALLENGES TO OPPORTUNITIES. 42
  43. 43. Do You Need to Register? Why is the Series 79 important for CPAs and business valuation professionals? • How does the SEC treat FINRA‟s licensing categories? What are some other relevant items to consider when determining whether to register as a broker/dealer? • The role you take in M&A: – The actions laid out in the 79‟s definition of “investment banking” and curriculum – The „34 Act‟s definition of “broker” – The SEC‟s Guide to Broker/Dealer Registration – The SEC‟s recent intent to increase the breadth of its regulation • The fees you receive: – Contingent and/or success fees • The exceptions you qualify for – the Country Business, Inc. No-Action Letter2010 International Conference CHALLENGES TO OPPORTUNITIES. 43
  44. 44. Series 79 Activities: Why Are They Relevant?Since the SEC has the power to act against unregistered firms/individuals, let‟s explore how the SEC treated FINRA‟s newest registration category (prior to the 79)• The Series 82 (Limited Representative – Private Securities Offerings) was approved on May 2001• This category‟s definition in NASD Rule 1032 does not mention advisory related to Private Investments in Public Equities (PIPEs)• However, the Series 82‟s curriculum includes a section on PIPEsRecently, the SEC (and other government bodies) have brought action against those who have engaged in PIPE advisory unregistered 2010 International Conference CHALLENGES TO OPPORTUNITIES. 44
  45. 45. Series 82 Cases Case Ram Capital Duncan Capital When SEC 2009 2007 Brought Action For Advising on 2001 to 2005 2003 to 2005 PIPES Between Settlement Ram and its employees Duncan and its employees “willfully violated” the „34 “willfully violated” the ‟34 Act. Act. Refunded fees and Refunded fees and paid paid penalties. The penalties. The company and company and its employees its employees were fined, were suspended or barred, and/or censured censured Total Fees/Fines > $1 million $9.6 million2010 International Conference CHALLENGES TO OPPORTUNITIES. 45
  46. 46. The Securities Act of 1934 • What is a broker? – As defined in the Act, a broker is, “Any person [or entity] engaged in the business of effecting transactions in securities for the account of others” • While this may sound unrelated to services that business valuation professionals might provide, the question is how broadly the SEC interprets what activities qualify as “effecting transactions in securities” • If we assume history will repeat itself (and the SEC will respond to the 79 as it did with the 82), then we can use the 79 as a guide of what the SEC considers “effecting transactions” – after all, the SEC did approve the category • As previously discussed, Rule 1032(i)‟s definition of investment banking includes many activities that business valuation professionals often perform, including fairness opinions and advising on asset sales2010 International Conference CHALLENGES TO OPPORTUNITIES. 46
  47. 47. The SEC’s Suggested Questions The SEC‟s Guide to Broker/Dealer Registration provides informal guidance on what firms/people and types of activities require registration: • “Finders, “business brokers,” and other individuals that engage in the following activities: – Finding investment banking clients for registered broker/dealers – Finding investors for “issuers” (entities issuing securities), even in a “consultant capacity” – Engaging in, or finding investors for, venture capital or “angel” financings, including private placements – Finding buyers and sellers of businesses (i.e., activities relating to mergers and acquisitions where securities are involved) • Investment advisers and financial consultants • Persons that provide support services to registered broker/dealers This Guide also suggests that “some of the questions you should ask to determine whether you are acting as a broker” are: • Does your compensation for participation in the transaction depend upon, or is it related to, the outcome or size of the transaction or deal? • Do you receive any other transaction-related compensation? • Are you otherwise engaged in the business of effecting or facilitating securities transactions?2010 International Conference CHALLENGES TO OPPORTUNITIES. 47
  48. 48. How Broadly Will the SEC Interpret“Effecting Transactions?” In recent testimony given before a Senate subcommittee by Andrew Donohue, Director of the Division of Investment Management at the SEC • Donohue expressed the SEC‟s desire that lawmakers broaden the definition of investment advisors that require registration to include private equity and venture capital groups • Stated that the current situation presented a “significant regulatory gap in need of closing” • Part of his reasoning was that, without regulation of such entities, the SEC is unable to gather important information on the private M&A marketplace At the SEC Government-Business Forum on Small Business Capital Formation in November 2008, Kristina Fausti of the SEC Division of Trading and Markets stated: “Even if you‟re getting a flat fee…some people have thought in the past there might be one bite at the apple or maybe you‟re only talking about a one-time introduction. The [SEC] staff takes, I don‟t want to say a grim view, but we really don‟t believe that. We believe that a lot of people are out there to make money and to be “in the business” [of effecting transactions]. More recently, criticisms of SEC/FINRA regulation, due to the financial collapse and discovery of, among others, Bernie Madoff‟s ponzi scheme, have pressured the SEC and FINRA to increase regulation2010 International Conference CHALLENGES TO OPPORTUNITIES. 48
  49. 49. SEC Interpretation of “Effecting Transactions?” • Recently passed Frank-Dodd Act requires private equity firms to register with the SEC • Fulfills Donohue‟s request • Reaction to financial collapse is increased regulation – possibly means a broader interpretation of “effecting transactions” 2010 International Conference CHALLENGES TO OPPORTUNITIES. 49
  50. 50. Transaction-Based Fees Transaction-based compensation is another key factor: • The SEC cited transaction-based compensation as one reason that Ram Capital and Duncan Capital had willfully violated the „34 Act • In Torsiello v. Sunshine, Torsiello Capital Partners sued Sunshine State Holding Corporation for breach of contract because Sunshine had not paid Torsiello its success fee upon sale of the company • Sunshine‟s counter was that Torsiello could not legally perform the M&A advisory duties stated in the contract because it wasn‟t a registered broker/dealer • The court found in favor of Sunshine – and forced Torsiello to refund its $50,000 retainer • The court cited the „34 Act, “[every] contract made in violation of the [Act] or the performance of which involves such violation „shall be void.‟” • The court also stated that “One of the hallmarks of a broker is the receipt of transaction-based compensation.” Fausti stated in the previously mentioned speech, “If you‟re getting a transaction- based fee, we consider you engaged in the business.” She also said that even a flat fee is questionable if your involvement includes connecting the parties involved.2010 International Conference CHALLENGES TO OPPORTUNITIES. 50
  51. 51. The Exception In its Country Business, Inc. No-Action Letter, the SEC points out what it considers the “small business broker,” which it would not require to register: • Client must meet the small business standards of the Small Business Administration • Role in negotiations limited to:transmitting documents between parties, valuing the assets of the business as a going concern, providing the seller with administrative support, assisting the seller with preparation of financial statements, and cannot offer advice to the purchaser or seller about the value of the securities, or have the power to bind • Business must be a going concern (no financial distress mergers or acquisitions) • Compensation must be determined before sale • Only assets will be advertised or offered for sale • Must be 100% of the company‟s equity if equity is sold • Cannot advise on whether to issue securities, effect the transaction by means of securities, or assess the value of the securities sold • Any contingent fees must be received in the same form as the seller receives them • Cannot assist purchasers with financing, other than uncompensated introductions or help with paperwork2010 International Conference CHALLENGES TO OPPORTUNITIES. 51
  52. 52. The Exception We believe the “small business broker” is very limiting on the advisor (i.e., all clients must meet SBA‟s small business standards) and severely hinders the advisor‟s ability to add-value for the client (i.e., can‟t negotiate for the client) However, using the CBI letter as a framework, we can infer what activities the SEC considers to count toward requiring registration: • Advising businesses larger than SBA standards, • Being involved in negotiations in any way, • Valuing equity or debt for transactional purposes, • Being involved in and compensated from a transaction of less than all of a company‟s equity, • Raising capital, • Advising on a transaction‟s structure, • Marketing the equity of a company for sale, • Assisting purchasers with financing or structuring a transaction, and • Advising on transactions of distressed companies.2010 International Conference CHALLENGES TO OPPORTUNITIES. 52
  53. 53. Questions?2010 International Conference CHALLENGES TO OPPORTUNITIES. 53

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