Is it a violation of SEC Regulations for a consultant to collect a commission on VC or PE Fund investment in client's company?

Asked about 1 year ago - Atlanta, GA

SEC regulates that only licensed brokers can receive a commission capital raised through Private Placement Memorandum under REG D offerings with accredited investors. What about money raised from venture capital and private equity funds negotiated through a term sheet and not a PPM? The person is representing the company as their financial representative to help find the investors and help negotiate the terms. Can this only be done for an hourly rate, services fee, or can a commission on the investment amount be charged?
Disregarding whether or not PE Funds or VC funds like to pay commissions, is it legal for the entrepreneur to pay the commission?

Attorney answers (3)

  1. Frank Anthony Natoli

    Pro

    Contributor Level 19

    5

    Lawyers agree

    Answered . This is a hot button topic to be sure.

    The short answer is that so long as there is a commission paid that is tied to the amount raised it will require a registered broker/dealer this includes the attorneys. While in theory the SEC articulated some exceptions there really are none.

    That said, and I know what you are thinking, everyone still does this right? Yep, but you know speeding is also illegal and everyone does it, but you can't say to the cop that stops you "but everyone else was going faster..."

    Here’s a link to the SEC’s Guide to Broker-Dealer Registration: http://www.sec.gov/divisions/marketreg/bdguide.htm

    See the discussion under the section entitled, “Who is required to register”.

    You are in very complicated territory. I am a member of the ABA's Venture Capital and Private Equity Committee and bear witness to a great many listserve discussions where these issues are discussed and debated all the time. Even very experienced attorneys often get this very wrong. So you are strongly urged to consult your own securities counsel to ensure you do everything within full compliance.

    Most of us here, including myself, offer a free phone consult.

    Best regards,
    Frank
    Natoli-Lapin, LLC
    (see Disclaimer)

    The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the... more
  2. Michael S Hill

    Contributor Level 7

    2

    Lawyers agree

    Answered . I recently had a prospective client ask me a similar question. He wanted to structure a situation whereby he could earn a percentage of the monies raised in a private offering. Like the first answer said, you cannot unless you are registered as a broker or a dealer pursuant to the Securities and Exchange Act of 1934. And yes, others are doing it, as the prospect said, but he was attempting to get a legal opinion from me, which I would not do with that scenario. There may be a way to be compensated for raising money if you were employed by the offerer and your compensation was not tied to the amount of money raised, in other words, you are paid a fixed salary. Attempting the latter scneario should involve the review of a securities attorney and after a review of any recent SEC No-Action letters, as the regulatory landscape does change and evolve. By in no way is it recommended that you embark in any such activity without the advice and consult of an attorney experienced in SEC regulation.

  3. Robert V Cornish Jr.

    Contributor Level 16

    Answered . A useful resource for you to further ascertain the nature of fund marketing by others is the library on the website of the Third Party Marketers Association, www.3pm.org.

    The foregoing is not legal advice nor is it in any manner whatsoever meant to create or impute an attorney/client... more

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