For more information on our Real Estate Services business please visit here. We invite celebrity guests who represent participating charities into our offices to conduct trades with licensed brokers and their clients. We have made a series of strategic acquisitions and investments in our proprietary technology platform, and our employee base and global footprint have dramatically increased.
For more information on our defining history please click here. Over the course of the year, BGC completed three other financial services acquisitions and five real estate services acquisitions. GFI Group is a leading intermediary and provider of trading technologies and support services to the global OTC and listed markets. This section covers the factors that determine whether a person is a broker or dealer.
It also describes the types of brokers and dealers that do not have to register with the SEC. Self-regulatory organizations are described in Part III, below. A note about banks: The Exchange Act also contains special provisions relating to brokerage and dealing activities of banks. Please see Sections 3 a 4 B and 3 a 5 C and related provisions, and consult with counsel.
Bank brokerage activity is addressed in Regulation R, which was adopted jointly by the Commission and the Board of Governors of the Federal Reserve System. See Exchange Act Release No. Who is a "Broker" Section 3 a 4 A of the Act generally defines a "broker" broadly as any person engaged in the business of effecting transactions in securities for the account of others.
Sometimes you can easily determine if someone is a broker. For instance, a person who executes transactions for others on a securities exchange clearly is a broker. However, other situations are less clear. For example, each of the following individuals and businesses may need to register as a broker, depending on a number of factors: "finders," "business brokers," and other individuals or entities that engage in the following activities: Finding investors or customers for, making referrals to, or splitting commissions with registered broker-dealers, investment companies or mutual funds, including hedge funds or other securities intermediaries; 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.
In order to determine whether any of these individuals or any other person or business is a broker, we look at the activities that the person or business actually performs. You can find analyses of various activities in the decisions of federal courts and our own no-action and interpretive letters.
Here are some of the questions that you should ask to determine whether you are acting as a broker: Do you participate in important parts of a securities transaction, including solicitation, negotiation, or execution of the transaction? 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 trailing commissions, such as 12b-1 fees? Do you receive any other transaction-related compensation? Are you otherwise engaged in the business of effecting or facilitating securities transactions?
Do you handle the securities or funds of others in connection with securities transactions? A "yes" answer to any of these questions indicates that you may need to register as a broker. Who is a "Dealer" Unlike a broker, who acts as agent, a dealer acts as principal. Section 3 a 5 A of the Act generally defines a "dealer" as: any person engaged in the business of buying and selling securities for his own account, through a broker or otherwise.
The definition of "dealer" does not include a "trader," that is, a person who buys and sells securities for his or her own account, either individually or in a fiduciary capacity, but not as part of a regular business. Individuals who buy and sell securities for themselves generally are considered traders and not dealers. Sometimes you can easily tell if someone is a dealer.
For example, a firm that advertises publicly that it makes a market in securities is obviously a dealer. Other situations can be less clear. For instance, each of the following individuals and businesses may need to register as a dealer, depending on a number of factors: a person who holds himself out as being willing to buy and sell a particular security on a continuous basis; a person who runs a matched book of repurchase agreements; or a person who issues or originates securities that he also buys and sells.
Here are some of the questions you should ask to determine whether you are acting as a dealer: Do you advertise or otherwise let others know that you are in the business of buying and selling securities? Do you do business with the public either retail or institutional? Do you make a market in, or quote prices for both purchases and sales of, one or more securities?
Do you participate in a "selling group" or otherwise underwrite securities? Do you provide services to investors, such as handling money and securities, extending credit, or giving investment advice? Do you write derivatives contracts that are securities? A "yes" answer to any of these questions indicates that you may need to register as a dealer. Information on the broker-dealer registration process is provided below. If you are not certain, you may want to review SEC interpretations, consult with private counsel, or ask for advice from the SEC's Division of Trading and Markets by calling or by sending an e-mail to tradingandmarkets sec.
Please be sure to include your telephone number. Note: If you will be acting as a "broker" or "dealer," you must not engage in securities business until you are properly registered. If you are already engaged in the business and are not yet registered, you should cease all activities until you are properly registered.
For further information, please see Part II. D and Part III, below. Brokers and Dealers Generally Must Register with the SEC Section 15 a 1 of the Act generally makes it unlawful for any broker or dealer to use the mails or any other means of interstate commerce, such as the telephone, facsimiles, or the Internet to "effect any transactions in, or to induce or attempt to induce the purchase or sale of, any security" unless that broker or dealer is registered with the Commission in accordance with Section 15 b of the Act.
There are a few exceptions to this general rule that we discuss below. In addition, we discuss the special registration requirements that apply to broker-dealers of government and municipal securities, including repurchase agreements, below.
These individuals may also be called "stock brokers" or "registered representatives. They may also have to register with the self-regulatory organizations of which their employer is a member — for example, the Financial Industry Regulatory Authority, Inc. To the extent that associated persons engage in securities activities outside of the supervision of their broker-dealer, they would have to register separately as broker-dealers.
Part III, below, provides a discussion of how to register as a broker-dealer. We do not differentiate between employees and other associated persons for securities law purposes. Broker-dealers must supervise the securities activities of their personnel regardless of whether they are considered "employees" or "independent contractors" as defined under state law.
See, for example, In the matter of William V. The law also does not permit unregistered entities to receive commission income on behalf of a registered representative. For example, associated persons cannot set up a separate entity to receive commission checks. An unregistered entity that receives commission income in this situation must register as a broker-dealer.
Under certain circumstances, unregistered entities may engage in payroll administration services involving broker-dealers. December 4, In those circumstances, the broker-dealer employer generally hires and supervises all aspects of the employees' work and uses the payroll and benefits administrator merely as a means to centralize personnel services. Intrastate Broker-Dealers A broker-dealer that conducts all of its business in one state does not have to register with the SEC.
State registration is another matter. See Part III , below. The exception provided for intrastate broker-dealer activity is very narrow. To qualify, all aspects of all transactions must be done within the borders of one state. This means that, without SEC registration, a broker-dealer cannot participate in any transaction executed on a national securities exchange.
A broker-dealer that otherwise meets the requirements of the intrastate broker-dealer exemption would not cease to qualify for the intrastate broker-dealer exemption solely because it has a website that may be viewed by out-of-state persons, so long as the broker-dealer takes measures reasonably designed to ensure that its business remains exclusively intrastate. These measures could include the use of disclaimers clearly indicating that the broker-dealer's business is exclusively intrastate and that the broker-dealer can only act for or with, and provide broker-dealer services to, a person in its state, as long as the broker-dealer does not provide broker-dealer services to persons that indicate they are, or that the broker-dealer has reason to believe are, not within the broker-dealer's state of residence.
These measures are not intended to be exclusive. A broker-dealer could adopt other measures reasonably designed to ensure that it does not provide broker-dealer services to persons that are not within the same state as the broker-dealer. However, an intermediary's business would not be "exclusively intrastate" if it sold securities or provided any other broker-dealer services to a person that indicates that it is, or that the broker-dealer has reason to believe is, not within the broker-dealer's state of residence.
A word about municipal and government securities. There is no intrastate exception from registration for municipal securities dealers or government securities brokers and dealers. Broker-Dealers that Limit their Business to Excluded and Exempted Securities A broker-dealer that transacts business only in commercial paper, bankers' acceptances, and commercial bills does not need to register with the SEC under Section 15 b or any other section of the Act.
On the other hand, persons transacting business only in certain "exempted securities," as defined in Section 3 a 12 of the Act, do not have to register under Section 15 b , but may have to register under other provisions of the Act. For example, some broker-dealers of government securities, which are "exempted securities," must register as government securities brokers or dealers under Section 15C of the Act, as described in Part II.
E, below. For example, a person who sells securities that are exempt from registration under Regulation D of the Act must nevertheless register as a broker-dealer. In other words, "placement agents" are not exempt from broker-dealer registration. Issuer's "Exemption" and Associated Persons of Issuers Rule 3a Issuers generally are not "brokers" because they sell securities for their own accounts and not for the accounts of others.
Moreover, issuers generally are not "dealers" because they do not buy and sell their securities for their own accounts as part of a regular business. Issuers whose activities go beyond selling their own securities, however, need to consider whether they would need to register as broker-dealers. This includes issuers that purchase their securities from investors, as well as issuers that effectively operate markets in their own securities or in securities whose features or terms can change or be altered.
The so-called issuer's exemption does not apply to the personnel of a company who routinely engage in the business of effecting securities transactions for the company or related companies such as general partners seeking investors in limited partnerships. The employees and other related persons of an issuer who assist in selling its securities may be "brokers," especially if they are paid for selling these securities and have few other duties.
Exchange Act Rule 3a provides that an associated person or employee of an issuer who participates in the sale of the issuer's securities would not have to register as a broker-dealer if that person, at the time of participation: 1 is not subject to a "statutory disqualification," as defined in Section 3 a 39 of the Act; 2 is not compensated by payment of commissions or other remuneration based directly or indirectly on securities transactions; 3 is not an associated person of a broker or dealer; and 4 limits its sales activities as set forth in the rule.
Some issuers offer dividend reinvestment and stock purchase programs. Under certain conditions, an issuer may purchase and sell its own securities through a dividend reinvestment or stock purchase program without registering as a broker-dealer. These conditions, regarding solicitation, fees and expenses, and handling of participants' funds and securities, are explained in Securities Exchange Act Release No. Although Regulation M 2 replaced Rule 10b-6 and superseded the STA Letter, the staff positions taken in this letter regarding the application of Section 15 a of the Exchange Act remain in effect.
See 17 CFR Foreign Broker-Dealer Exemption Rule 15a-6 The SEC generally uses a territorial approach in applying registration requirements to the international operations of broker-dealers. Under this approach, all broker-dealers physically operating within the United States that induce or attempt to induce securities transactions must register with the SEC, even if their activities are directed only to foreign investors outside of the United States.
In addition, foreign broker-dealers that, from outside of the United States, induce or attempt to induce securities transactions by any person in the United States, or that use the means or instrumentalities of interstate commerce of the United States for this purpose, also must register. This includes the use of the internet to offer securities, solicit securities transactions, or advertise investment services to U.
Foreign broker-dealers that limit their activities to those permitted under Rule 15a-6 of the Act, however, may be exempt from U. Foreign broker-dealers that wish to rely on this exemption should review Securities Exchange Act Release No. See also letters re: Securities Activities of U. In addition, in April , the Division of Market Regulation staff issued responses to frequently asked questions concerning Rule 15a-6 in relation to Regulation AC.
Regulation AC is discussed in Part V. B, below. Requirements Regarding Brokers and Dealers of Government and Municipal Securities, including Repurchase Agreements Broker-dealers that limit their activity to government or municipal securities require specialized registration. Those that limit their activity to government securities do not have to register as "general-purpose" broker-dealers under Section 15 b of the Act.
General-purpose broker-dealers that conduct a government securities business, however, must note this activity on their Form BD. Form BD is discussed below. All firms that are brokers or dealers in government securities must comply with rules adopted by the Secretary of the Treasury, as well as SEC rules.
Firms that limit their securities business to buying and selling municipal securities for their own account municipal securities dealers must register as general-purpose broker-dealers. If, however, these entities are banks or meet the requirements of the intrastate exemption discussed in Part II.
Municipal securities brokers other than banks must register as general-purpose broker-dealers unless they qualify for the intrastate exception. See Part II. Firms that run a matched book of repurchase agreements or other stock loans are considered dealers.
Because a "book running dealer" holds itself out as willing to buy and sell securities, and is thus engaged in the business of buying and selling securities, it must register as a broker-dealer. Special Rules That Apply to Banks and Similar Financial Institutions Note: Banks, thrifts, and other financial institutions should be aware that the Commission has adopted rules that may affect them.
The GLBA amended the Exchange Act, and banks now have certain targeted exceptions and exemptions from broker-dealer registration. Currently, as a result of Commission rulemaking, banks are undergoing a phase-in period for compliance with the new law. Since October 1, , banks that buy and sell securities must consider whether they are "dealers" under the federal securities laws. The bank exceptions and exemptions only apply to banks, and not to related entities.
It is important to note that exceptions applicable to banks under the Exchange Act, as amended by the GLBA, are not applicable to other entities, including bank subsidiaries and affiliates, that are not themselves banks. As such, subsidiaries and affiliates of banks that engage in broker-dealer activities are required to register as broker-dealers under the Act.
Also, banks that act as municipal securities dealers or as government securities brokers or dealers continue to be required to register under the Act. By statute, thrifts savings associations have the same status as banks, and may avail themselves of the same targeted exceptions and exemptions from broker-dealer registration as banks. As with banks, it is important to note that exceptions and exemptions applicable to thrifts are not applicable to other entities, including subsidiaries and affiliates that are not thrifts.
As such, subsidiaries and affiliates of thrifts that engage in broker-dealer activities are required to register as broker-dealers under the Act. The exceptions and exemptions applicable to banks under the Exchange Act do not apply to other kinds of financial institutions, such as credit unions. The SEC staff, however, has permitted certain financial institutions, such as credit unions, to make securities available to their customers without registering as broker-dealers.
This is done through "networking" arrangements, where an affiliated or third-party broker-dealer provides brokerage services for the financial institution's customers, according to conditions stated in no-action letters and NASD Rule Under a networking arrangement, financial institutions can share in the commissions generated by their referred customers, under certain conditions.
The financial institution engaging in such networking must be in strict compliance with applicable law and Commission staff guidance. See, for example, letter re: Chubb Securities Corporation November 24, and NASD Rule applicable to broker-dealers that enter into networking arrangements with banks, thrifts, and credit unions.
Insurance Agency Networking The SEC staff has permitted insurance agencies to make insurance products that are also securities such as variable annuities available to their customers without registering as broker-dealers under certain conditions. This again is done through "networking" arrangements, where an affiliated or third-party broker-dealer provides brokerage services for the insurance agency's customers, according to conditions stated in no-action letters.
These arrangements are designed to address the difficulties of dual state and federal laws applicable to the sale of these products. Through networking arrangements, insurance agencies can share in the commissions generated by their referred customers under certain conditions.
Insurance agencies engaging in such networking must be in strict compliance with applicable law and Commission staff guidance. September 28, Those interested in structuring such an arrangement should contact private counsel or the SEC staff for further information. Notably, insurance networking arrangements are limited to insurance products that are also securities. They do not encompass sales of mutual funds and other securities that do not present the same regulatory difficulties.
See letter re: Lincoln Financial Advisors Corp. February 20, When the real estate is offered in conjunction with certain services, however, it may constitute an investment contract, and thus, a security. See generally, Securities Act Release No. There is no general exception from the broker-dealer registration requirements for licensed real estate brokers or agents who engage in the business of effecting transactions in real estate securities.
In the past, the Division staff has granted no-action relief from the registration requirements to licensed real estate personnel that engage in limited activities with respect to the sale of condominium units coupled with an offer or agreement to perform or arrange certain rental or other services for the purchaser. The relief provided in these letters is limited solely to their facts and should not be relied upon for activities relating to sales of other types of real estate securities, including tenants-in-common interests in real property.
Broker-Dealer Relationships with Affinity Groups Broker-dealers may enter into arrangements to offer services to members of certain non-profit groups, including civic organizations, charities, and educational institutions that rely upon private donations. These arrangements are subject to certain conditions to ensure that the organizations, or "affinity groups," do not develop a salesman's stake with respect to the sale of securities.
Form BD If a broker-dealer does not qualify for any of the exceptions or exemptions outlined in the sections above, it must register with the Commission under Section 15 b of the Act. You also use Form BD to: apply for membership in an SRO, such as FINRA or a registered national securities exchange; give notice that you conduct government securities activities; or apply for broker-dealer registration with each state in which you plan to do business.
Form BD asks questions about the background of the broker-dealer and its principals, controlling persons, and employees. The broker-dealer must meet the statutory requirements to engage in a business that involves high professional standards, and quite often includes the more rigorous responsibilities of a fiduciary. The only exception is for banks registering as municipal securities dealers, which file Form MSD directly with the SEC and with their appropriate banking regulator.
Form BD contains additional filing instructions. Applicants that reside outside the U. Incomplete applications are not considered "filed" and will be returned to the applicant for completion and re-submission. Within 45 days of filing a completed application, the SEC will either grant registration or begin proceedings to determine whether it should deny registration.
The SROs have independent membership application procedures and are not required to act within 45 days of the filing of a completed application. In addition, state registrations may be required. A broker-dealer must comply with relevant state law as well as federal law and applicable SRO rules. Timeframes for registration with individual states may differ from the federal and SRO timeframes. As such, when deciding to register as a broker-dealer, it is important to plan for the time required for processing Federal, state, and SRO registration or membership applications.
Duty to update Form BD. A registered broker-dealer must keep its Form BD current. Thus, it must promptly update its Form BD by filing amendments whenever the information on file becomes inaccurate or incomplete for any reason. Prohibited Broker-Dealer Names. Title 18, Section of the United States Code makes it a criminal offense to use the words "National," "Federal," "United States," "Reserve," or "Deposit Insurance" in the name of a person or organization in the brokerage business, unless otherwise allowed by federal law.
Further, a broker-dealer name that is otherwise materially misleading would become subject to scrutiny under Exchange Act Section 10 b , and Rule 10b-5 thereunder, the general antifraud rules, and any other applicable provisions. If a broker-dealer restricts its transactions to the national securities exchanges of which it is a member and meets certain other conditions, it may be required only to be a member of those exchanges.
If a broker-dealer effects securities transactions other than on a national securities exchange of which it is a member, however, including any over-the-counter business, it must become a member of FINRA, unless it qualifies for the exemption in Rule 15b FINRA's webpage at www. You may also wish to consult the web pages of the individual exchanges for additional information. You may wish to consult the MSRB's website at www. SIPC Membership Every registered broker-dealer must be a member of the Securities Investor Protection Corporation, or SIPC, unless its principal business is conducted outside of the United States or consists exclusively of the sale or distribution of investment company shares, variable annuities, or insurance.
Telephone: , fax: , or visit SIPC's website at www. State Requirements Every state has its own requirements for a person conducting business as a broker-dealer within that state. Each state's securities regulator can provide you with information about that state's requirements. You can obtain contact information for these regulators from the North American Securities Administrators Association, Inc.
Associated Persons Section 3 a 18 ; Rule 15b The Act defines an "associated person" of a broker-dealer as any partner, officer, director, branch manager, or employee of the broker-dealer, any person performing similar functions, or any person controlling, controlled by, or under common control with, the broker-dealer. A broker-dealer must file a Form U-4 with the applicable SRO for each associated person who will effect transactions in securities when that person is hired or otherwise becomes associated.
Form U-4 is used to register individuals and to record these individuals' prior employment and disciplinary history. An associated person who effects or is involved in effecting securities transactions also must meet qualification requirements. These include passing an SRO securities qualification examination. Many individuals take the comprehensive "Series 7" exam. If individuals engage only in activities involving sales of particular types of securities, such as municipal securities, direct participation programs limited partnerships or mutual funds, they may wish to take a specialized examination focused on that type of security, instead of the general securities examination.
There is also a special exam for assistant representatives, whose activities are limited to accepting unsolicited customer orders for execution by the firm. Supervisory personnel, and those who engage in specialized activities such as options trading, must take additional exams that cover those areas. These examinations require the Series 7 exam as a prerequisite.
You can obtain copies of Form U-4, as well as information on securities qualification examinations, from an SRO. FINRA's website at www. Also note that individual states have their own licensing and registration requirements, so you should consult with the applicable state securities regulators for further information.
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