II 117th CONGRESS 1st Session S. 3391 IN THE SENATE OF THE UNITED STATES December 14, 2021 Mr. Kennedy introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs A BILL To amend the Securities Exchange Act of 1934 to establish a registration exemption for merger and acquisition brokers, and for other purposes.

1. Short title This Act may be cited as the Small Business Mergers, Acquisitions, Sales, and Brokerage Simplification Act of 2021 . 2. Registration exemption for merger and acquisition brokers (a) In general Section 15(b) of the Securities Exchange Act of 1934 ( 15 U.S.C. 78o(b) ) is amended by adding at the end the following: (13) Registration exemption for merger and acquisition brokers (A) Definitions In this paragraph: (i) Business combination related shell company The term business combination related shell company means a shell company that is formed by an entity that is not a shell company solely for the purpose of— (I) changing the corporate domicile of that entity solely within the United States; or (II) completing a business combination transaction (as defined in section 230.165(f) of title 17, Code of Federal Regulations, or any successor regulation) among not less than 1 entity other than the company itself, none of which is a shell company. (ii) Control (I) In general The term control means the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract, or otherwise. (II) Presumption For the purposes of subclause (I), there shall be a presumption of control if, upon completion of a transaction, a buyer or group of buyers— (aa) has the right to vote 25 percent or more of a class of voting securities or the power to sell or direct the sale of 25 percent or more of a class of voting securities; or (bb) in the case of a partnership or limited liability company, has the right to receive upon dissolution, or has contributed, 25 percent or more of the capital. (iii) Eligible privately held company The term eligible privately held company means a privately held company that meets both of the following conditions: (I) The company does not have any class of securities— (aa) registered, or required to be registered, with the Commission under section 12; or (bb) with respect to which the company files, or is required to file, periodic information, documents, and reports under subsection (d). (II) (aa) In the fiscal year ending immediately before the fiscal year in which the services of an M&A broker are initially engaged with respect to a securities transaction, the company meets either of the following conditions (determined in accordance with the historical financial accounting records of the company): (AA) The earnings of the company before interest, taxes, depreciation, and amortization are less than $25,000,000. (BB) The gross revenues of the company are less than $250,000,000. (bb) For purposes of this subclause, the Commission may, by rule, modify the dollar figures in subitem (AA) or (BB) of item (aa) if the Commission determines that such a modification is necessary or appropriate in the public interest or for the protection of investors. (iv) M&A broker The term M&A broker means a broker, and any person associated with a broker, 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 the 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, if the broker reasonably believes that— (I) upon consummation of the transaction, any person acquiring securities or assets of the eligible privately held company, acting alone or in concert— (aa) will control the eligible privately held company or the business conducted with the assets of the eligible privately held company; and (bb) directly or indirectly, will be active in the management of the eligible privately held company or the business conducted with the assets of the eligible privately held company, including without limitation, by— (AA) electing executive officers; (BB) approving the annual budget; (CC) serving as an executive or other executive manager; or (DD) carrying out such other activities as the Commission may, by rule, determine to be in the public interest; and (II) if any person is offered securities in exchange for securities or assets of the eligible privately held company, that person will, before becoming legally bound to consummate the transaction, receive or have reasonable access to— (aa) the most recent fiscal year-end financial statements of the issuer of the securities, as customarily prepared by the management of the issuer in the normal course of operations; and (bb) if the financial statements of the issuer are audited, reviewed, or compiled— (AA) any related statement by the independent accountant; (BB) a balance sheet dated not more than 120 days before the date of the offer; and (CC) information pertaining to the management, business, results of operations for the period covered by the foregoing financial statements and material loss contingencies of the issuer. (v) Shell company The term shell company means a company that, as of the date of a transaction with an eligible privately held company— (I) has no or nominal operations; and (II) has— (aa) no or nominal assets; (bb) assets consisting solely of cash and cash equivalents; or (cc) assets consisting of any amount of cash and cash equivalents and nominal other assets. (B) Exemption Except as provided in subparagraph (C), an M&A broker shall be exempt from registration under this section. (C) Excluded activities An M&A broker is not exempt from registration under this paragraph if the M&A broker does any of the following: (i) Directly or indirectly, in connection with the transfer of ownership of an eligible privately held company, receives, holds, transmits, or has custody of the funds or securities to be exchanged by the parties to the transaction. (ii) Engages on behalf of an issuer in a public offering of any class of securities— (I) that is registered, or is required to be registered, with the Commission under section 12; or (II) with respect to which the issuer files, or is required to file, period information, documents, and reports under subsection (d). (iii) Engages on behalf of any party in a transaction involving a shell company, other than a business combination related shell company. (iv) Directly, or indirectly through any of its affiliates, provides financing relating to the transfer of ownership of an eligible privately held company. (v) Assists any party to obtain financing from an unaffiliated third party without— (I) complying with all other applicable laws in connection with such assistance, including, if applicable, part 220 of title 12, Code of Federal Regulations, or any successor regulations; and (II) disclosing any compensation in writing to the party. (vi) Represents both the buyer and the seller in the same transaction without— (I) providing clear written disclosure with respect to the parties the broker represents; and (II) obtaining written consent from both parties to the joint representation. (vii) Facilitates a transaction with a group of buyers formed with the assistance of the M&A broker to acquire the eligible privately held company. (viii) Engages in a transaction involving the transfer of ownership of an eligible privately held company to a passive buyer or group of passive buyers. (ix) Binds a party to a transfer of ownership of an eligible privately held company. (D) Disqualification An M&A broker is not exempt from registration under this paragraph if the M&A broker (and, as applicable, any officer, director, member, manager, partner, or employee of the M&A broker)— (i) has been barred from association with a broker or dealer by the Commission, any State, or any self-regulatory organization; or (ii) is suspended from association with a broker or dealer. (E) Rule of construction Nothing in this paragraph may be construed to limit any other authority of the Commission to exempt any person, or any class of persons, from any provision of this title, or from any provision of any rule or regulation thereunder. (F) Inflation adjustment (i) In general On the date that is 5 years after the date of enactment of this paragraph, and every 5 years thereafter, each dollar amount in subparagraph (A)(iii)(II)(aa) shall be adjusted by— (I) dividing the annual value of the Employment Cost Index For Wages and Salaries, Private Industry Workers (or any successor index), as published by the Bureau of Labor Statistics, for the calendar year preceding the calendar year in which the adjustment is being made by the annual value of such index (or successor) for the calendar year ending December 31, 2020; and (II) multiplying such dollar amount by the quotient obtained under subclause (I). (ii) Rounding Each dollar amount determined under clause (i) shall be rounded to the nearest multiple of $100,000. . (b) Effective date The amendments made by subsection (a) shall take effect on the date that is 90 days after the date of enactment of this Act.