A question I receive all the time is how can I make money from connecting syndicators with high net worth individuals? Unfortunately, it is not as simple as going out into the market and just doing it. There are rules and regulations around the money-raising business, and the main issue is making sure you aren’t performing broker dealer activities. If you are doing so without the proper certification, you are breaking the law.
Amy Wan, a crowdfunding lawyer who was named one of 10 women to watch in the legal technology industry by the American Bar Association Journal, is an expert on the rules that regulate the money raising industry. In our recent conversation, she provided four ways you can legally raise money without being a broker or a dealer.
Disclaimer: The purpose of this blog is educational purposes only. This is not legal advice. Consult with an attorney before taking any action!
What is a Broker Dealer?
There are four things that regulators look at when determining whether someone is engaging in unlicensed broker activities. Amy said those four things are:
- “Are they taking transaction-based compensation? Transaction-based compensation is basically payments based on the transaction amount – how much money they’re bringing to the table. [For example], commissions, straight up commissions – that’s definitely transaction-based compensation.”
- “Are they soliciting or going out and trying to find potential investors?”
- “Is that person providing advice or engaging in negotiations? Are they helping to structure this deal in any way?”
- “Do they have previous securities deals experience or history of disciplinary action?”
If you are involved in the activities outlined above, you are engaging in broker dealer activities.
Assuming you want to raise money without getting your broker dealer’s license, here are four options to pursue.
#1 – Become the Issuer
As a broker dealer, by definition you are selling securities to other people. So one option is to sell securities to yourself by becoming a part of the issuer. Amy said, “If you become part of the issuer, and what that means is you’re not just raising money, you need to be doing other things that area a little bit more day-to-day. But if you are part of the management or the GP or whatever it is who’s the active sponsor, then suddenly you’re not selling securities for others, you’re selling securities for yourself.”
The key here, and to most of the other options I will outline below, is to perform additional duties on top of raising the money. Amy said, for example, “maybe the guy helps them set up their bank account. Maybe he advises them on what strategies they should use for student housing, or any other area that maybe he can contribute. Maybe he’s helping out with property management, or helping with monthly distributions. Something that’s not purely just the raising capital. If he is involved actively in some of the day-to-day AND he’s raising capital, suddenly we’re not raising money for other people. We’re raising for the money for ourselves and that’s okay.”
#2 – Give Class B Interest
Your second option is similar to the first, but instead of being a part of the issuer or management, you’re a part of a separate entity. The syndication can be structured with two classes of ownership interests. One is class A, which is for the investors, and another is class B, which goes to you.
When following this strategy, Amy said, “instead of them being a part of management, they’re not actually a part of the owner or the issuer anymore. They are a separate entity. You are giving them some of the class B shares, even though they’re not actually part of the management.”
However, just like option #1, you want to perform additional duties on top of raising money, and the compensation cannot be based on how much money was raised. “If you give a guy maybe 5% of whatever the class B interest is, if you make it not transactional-based compensation – maybe he gets 5% regardless of whether he brings in a million dollars or a hundred thousand – that starts looking a lot less like being a broker dealer,” Amy explained.
“And again, just as with the last example, even if they’re not a part of the management, it’d be nice if they could provide some sort of additional service. Maybe it’s them personally guaranteeing the loan. So even if they’re not bringing capital, they’re helping you get capital from the bank because they’ve signed the loan documents.”
#3 – Charge a Finder’s Fee
For a more creative option, you can charge a finder’s fee. However, just like the previous two options, you need to be careful to not tie the fee to the amount of money raised so it’s not transactional-based compensation. It should be a flat fee.
You also need to be careful when soliciting investors, which applies to all four options. Amy said, “when we’re soliciting investors, what we don’t want to do is to pre-screen or to recommend an investment or anything of the sort. But if it’s a mere e-mail introduction to someone who’s just interested in learning about multifamily apartments generally, and the person happens to know that this guy also happens to be interested in investing in real estate, that on its face is okay.”
When doing investor outreach, you don’t want to say something like, “Hey, Joe has this amazing 250-unit apartment complex that he’s raising five million dollars for. You should take a look at this.” You want to do soft introductions and nothing more.
#4 – Become a Consultant
The last option that Amy sees a lot is to negotiate with the issuer to become their consultant. And again (sounding like a broken record), the compensation structure cannot be based on the amount of money raised.
As a consultant, Amy said, “they’ll sign a consulting agreement. The consultant has to do a number of things. One of them could be going out and helping to raise capital or make those introductions. But it has to be that this consulting agreement is not merely raising. What we’re paying the consultant is not based on how much capital this person brings in, and as is the general theme here, they should have some sort of other job too.”
In order to make money by raising capital for apartment deals, you must avoid performing broker dealer duties. Your four options are
- Become part of the issuer
- Give class B interest
- Charge a finder’s fee
- Become a consultant
Finally, before doing anything, run your plan by an attorney. Amy offered to provide advice or connect you with an attorney. You can find her at www.bootstraplegal.com.
Related: 4 Skillsets Needed Prior to Raising Private Money for Apartment Deals
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Disclaimer: The views and opinions expressed in this blog post are provided for informational purposes only, and should not be construed as an offer to buy or sell any securities or to make or consider any investment or course of action.