The Securities and Exchange Commission’s Division of Trading and Markets assured two entities that, if they sought accredited investors for start-up companies they would not risk enforcement action by failing to register as broker-dealers under the Securities Exchange Act of 1934 Section 15(a)(1). See FundersClub Inc. SEC No-Action Response, avail. 3/26/13.
In granting registration relief, the staff recognized the entities’ representations that:
- the entities are advisers to venture capital funds;
- The services include exercising any rights negotiated with the start-up company, providing the start-up with advice and networking assistance, voting investment fund shares, offering or selling its securities in the startup; deciding on any tender offers, and winding up the investment funds;
- the entities do not receive transaction-based compensation;
- the entities’ officers and employees do not receive transaction-based compensation;
- any compensation to be paid to the entities is disclosed to investors in the fund at the time the interests are offered.
- no administrative fees are paid to the entities, or their affiliates or principals;
- any portion of an administrative fee remaining in the custody account at the time a fund is wound up will be distributed to investors along with other fund’s and other assets; and
- neither of the entities may withdraw any deposited funds from the custody account for its own use.
In short, it is all about transaction based compensation if you want to avoid registration.