Designing and Launching 1940 Act Regulated Funds: A ...

[Pages:27]Designing and Launching 1940 Act Regulated Funds: A Practical Guide

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Special Counsel New York Office +1 212.756.2149 pamela.polandchen@

Practices

Investment Management Hedge Funds Regulated Funds

Pamela Poland Chen

Pamela focuses on the representation of investment companies, business development companies, investment advisers and investment banking institutions in connection with the structuring, formation, funding and operation of investment products and services, including mutual funds, closed-end investment companies and registered hedge funds. She also advises clients on a broad range of regulatory and compliance matters associated with investment companies, investment advisory, brokerage, securities custody and transfer agent services.

A member of the Women's Investment Management Forum, Pamela is a contributor to Hedge Funds: Formation, Operation and Regulation (ALM Law Journal Press) and co-author of "SEC Proposes Rule Governing the Use of Derivatives and Short Sales by Registered Investment Companies and Business Development Companies," published by Westlaw Journal -- Derivatives. She recently addressed what alternative investment managers need to know about managing 1940 Act funds and the new 1940 Act Rule 22e-4 at SRZ webinars.

Pamela earned her J.D. from Georgetown University Law Center and her B.A., magna cum laude, from Case Western Reserve University.

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Partner New York Office +1 212.756.2533 kenneth.gerstein@

Practices

Investment Management Hedge Funds Regulated Funds Regulatory & Compliance

Kenneth S. Gerstein

Ken represents investment advisers, broker-dealers and banks in connection with the organization and operation of investment funds, including mutual funds, hedge funds, closed-end investment companies, business development companies and bank collective investment funds, and in connection with the development of other types of investment-related products and services. He has worked with clients in developing novel hybrid fund products, including registered hedge funds, registered funds of hedge funds and liquid alternatives products. Ken also advises clients on a broad range of securities regulatory and compliance matters, and represents mutual fund independent directors.

Prior to entering private practice, Ken served as special counsel in the SEC's Division of Investment Management in Washington, D.C. He is a member of the American Bar Association's Committee on the Federal Regulation of Securities and its Subcommittee on Investment Companies and Investment Advisers, and has been a member of the New York City Bar Association's Committee on Investment Management Regulation. A frequent speaker and author on issues related to investment funds and investment advisers, Ken is a co-author of Hedge Funds: Formation, Operation and Regulation (ALM Law Journal Press), and he has addressed issues for hedge fund managers acting as advisers and sub-advisers to registered funds and has spoken at industry conferences on various matters, including registered alternative investment funds.

After receiving his B.S. from the Wharton School of the University of Pennsylvania, Ken went on to obtain a J.D. from the James E. Beasley School of Law at Temple University, where he was a member of the Law Quarterly, and an LL.M. from Georgetown University Law Center.

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Partner Washington, DC Office +1 202.729.7477 john.mahon@

Practices

Investment Management Hedge Funds Regulated Funds Regulatory & Compliance

John J. Mahon

John represents private equity firms and other financial sector participants in a wide range of capital markets and securities law matters. He regularly assists clients in connection with the establishment and operation of business development companies, registered closed-end funds and other similar public and private vehicles that comply with complex regulatory structures, including the Investment Company Act of 1940, the Investment Advisers Act of 1940 and the Dodd-Frank Act. With more than a decade of experience, John has been involved with more than 100 debt and equity offerings, including over 20 IPOs, reflecting an aggregate of over $10 billion in total proceeds. His work in securities law and mergers and acquisitions includes providing guidance to many New York Stock Exchange and Nasdaq-listed companies in connection with ongoing corporate governance and U.S. Securities and Exchange Commission reporting and compliance matters. John also routinely handles issues involving tender offers, proxy solicitations, going-private transactions and beneficial ownership reporting obligations.

John is a recipient of the SEC Capital Markets Award, and he was named a Washington, DC Super Lawyers "Rising Star." He serves as an adjunct professor at The George Washington University Law School and is the former chair of the Corporate Finance Committee of the Corporation, Finance and Securities Law Section of the District of Columbia Bar. He has spoken and written on topics ranging from SEC regulations and disclosure obligations to public and private capital raising structures, 1940 Act regulated funds and M&A issues. Recently, John addressed what alternative investment managers need to know about managing 1940 Act regulated funds at an SRZ webinar.

John holds a J.D. from Georgetown University Law Center and a B.S.B.A., cum laude, from the University of Richmond, where he was a member of Beta Gamma Sigma.

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Designing and Launching 1940 Act Regulated Funds: A Practical Guide

I. Benefits of 1940 Act Registration

A. Broader Flexibility in Offerings

1. Private investment funds relying on Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act of 1940 (the "1940 Act") for an exclusion from the 1940 Act definition of the term "investment company" are not required to register under the 1940 Act.

(a) Section 3(c)(1) requires that a fund be sold in a private offering and limits the number of beneficial owners of interests in the fund to not more than 100 persons.

(b) Section 3(c)(7) requires that a fund be sold in a private offering and that investors be limited to persons who are "qualified purchasers" as defined by Section 2(a)(51) of the 1940 Act (generally, individuals who own "investments" of $5 million or more and entities that own "investments" of $25 million or more).

(c) The private offering requirements of Section 3(c)(1) and Section 3(c)(7) essentially require that offerings be made only to "accredited investors," as defined by Rule 501 of Regulation D under the Securities Act of 1933 (the "1933 Act") (generally, individuals having a net worth of more than $1 million or annual income in excess of $200,000).

2. Registration of a fund under the 1940 Act allows a fund to have more than 100 investors, without the need to sell interests in the fund only to qualified purchasers. This makes registered funds better suited to broad offerings by brokerage firms and financial advisory firms that have large numbers of clients, many of whom are not qualified purchasers. Also, the elimination of the 100-investor limit enables product sponsors to set lower minimum initial investment requirements without adversely affecting the amount of assets that can be raised.

3. Unlike a private investment fund, a registered fund can make a public offering by registering its shares under the 1933 Act. A publicly offered fund need not limit its investors to persons who are "accredited investors" and may use advertising and offer its securities to persons with whom it does not have a pre-existing substantive relationship.

4. Like registered funds, business development companies ("BDCs") are not subject to the various constraints applicable to private investment funds:

(a) A BDC may sell its shares in a public offering.

(b) There are no limitations that restrict the persons to whom shares of a BDC may be sold.

(c) BDCs do not register under the 1940 Act. However, they are regulated in substantially the same way as registered funds, with certain exceptions.

5. Registered funds and BDCs (collectively, "regulated funds") may seek to qualify as regulated investment companies ("RICs") under Subchapter M of the Internal Revenue Code of 1986 (the "Code"). This enables them generally to avoid entity-level taxation and to provide simplified tax reporting to investors on Form 1099.

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6. Attachment A (Comparison of U.S. Alternative Fund Structures) compares the structure and features of private investment funds to those of registered funds and BDCs.

B. Other Benefits of 1940 Act Registration

1. Generally, a private fund's assets will be deemed "plan assets" for purposes of the Employee Retirement Income Security Act of 1974 ("ERISA") if 25 percent or more of the value of interests in the fund are owned by ERISA plans. Section 401(b)(1) of ERISA, however, explicitly provides that the assets of a fund registered under the 1940 Act are not plan assets. Thus, regardless of the extent of ownership of a registered fund by employee benefit plans, the fund's assets will not be plan assets and ERISA constraints will not apply to the management and investment of those assets.

2. The adviser of a fund (whether a private fund or registered fund) that makes use of commodity futures and other commodity interests may be eligible for an exemption from registration as a commodity pool operator ("CPO") and registration as a commodity trading advisor if the fund trades a de minimis level of commodity interests. However, advisers of registered funds have a somewhat greater ability than private fund managers to avail themselves of exemptions from registration and avoid various regulatory requirements imposed by the Commodity Futures Trading Commission.

(a) Rule 4.13(a)(3) under the Commodity Exchange Act of 1974 (the "CEA") provides an exemption from registration as a CPO to the manager of a private investment fund if the fund's use of commodity interests is limited so as to meet one of two de minimis tests, and the fund is not marketed as a commodity pool or as a vehicle for trading in commodities.

(b) The adviser of a registered fund may also avail itself of an exemption from CPO registration (pursuant to Rule 4.5 under the CEA) if similar requirements are met. However, in determining whether a registered fund's use of commodity interests satisfies the de minimis tests, commodity interests used for "bona fide hedging" purposes need not be considered.

3. Financial Industry Regulatory Authority ("FINRA") Rule 5130 ("Restrictions on the Purchase and Sale of Initial Equity Public Offerings") prohibits broker-dealers from allocating to specified "restricted persons" shares being sold in public offerings of "new issues" of equity securities that trade at a premium in the secondary market. As a practical matter, the rule requires that private funds create a "carve out" so that profits from new issues are allocated only to persons who are not restricted. The prohibitions of Rule 5130 do not apply to sales of new issues to registered funds.

II. Types of 1940 Act Registered Alternative Funds

A. Types of Funds

1. Registered funds are being used to deliver various types of alternative investment programs. Types of registered alternative funds include, among others: single manager/strategy funds (e.g., long/short, market-neutral, hedged-equity); multi-manager alternative funds; private equity funds; funds of hedge funds and funds of private equity funds; and real asset/commodities funds.

2. Generally, registered alternative funds are organized either as closed-end funds or open-end funds, including open-end funds that operate as exchange-traded funds ("ETFs"). The choice between these two structures is typically driven by the nature of a fund's investment program, the nature of its portfolio and consideration of other factors, including the fund characteristics/features desired by the fund's adviser and prospective distribution partners.

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(a) Open-end funds, by definition, are registered management investment companies that issue redeemable securities (i.e., shares that are redeemable at the option of the investor).

(b) A closed-end fund is a registered management investment company that does not issue redeemable securities.

(c) The provisions of Rule 22c-1 under the 1940 Act require that shares of open-end funds be redeemable on a daily basis. A closed-end fund is not subject to this requirement and thus has greater control over the timing of cash flows to/from the fund. A closed-end structure is required for funds that make significant investments in illiquid securities, but may also be desirable for alternative investment strategies where dealing with daily cash flows might adversely affect investment performance or where the fund's adviser wants to provide limited liquidity similar to the liquidity that is made available to investors in its private funds.

(d) Because shares of open-end funds are redeemable and such funds are generally required by Section 22(e) of the 1940 Act to pay redemption proceeds within seven days, the Securities and Exchange Commission (the "SEC") has taken the position that an open-end fund may not purchase an illiquid security if, as a result of such purchase, more than 15 percent of the fund's net assets would be invested in illiquid securities. This position, with some modification, has now been codified by Rule 22e-4, which was recently adopted by the SEC. See IV.H. below. Thus, registered alternative funds that invest a significant portion of their assets in securities that are illiquid (e.g., registered funds of hedge funds, registered private equity funds and certain distressed funds) may need to be structured as closed-end funds.

(e) The requirements of Rule 22e-4 may further limit the types of investment programs available to open-end funds.

(f) Although closed-end funds issue interests that are not redeemable, investors in a closed-end fund can be provided with liquidity similar to the liquidity of an investment in a hedge fund by means of repurchase offers made by the fund, or can be provided with liquidity similar to the liquidity of an investment in a private equity fund (by making distributions to investors only as the fund's investments are sold or become liquid).

(g) Alternatively, shares of a registered closed-end fund can be listed for trading on a securities exchange, which provides daily liquidity to investors without impacting fund cash flows.

B. Non-publicly Traded Closed-end Funds

1. A registered closed-end fund that is not traded on an exchange can be structured to have features similar to a private investment fund. Such a fund can be privately offered, impose a performance fee or incentive allocation, be taxed as a partnership and provide periodic liquidity to investors through repurchase offers. A privately offered fund needs to comply with Regulation D under the 1933 Act and to limit its investors to "accredited investors." In order to pay performance-based compensation, the fund would need to limit its investors to "qualified clients." See II.F below.

2. Non-publicly traded closed-end funds may provide liquidity to investors by making offers to repurchase interests. Repurchase offers may be made in reliance on Rule 13e-4 (the issuer repurchase rule) under the Securities Exchange Act of 1934 Act (the "1934 Act") or in reliance on Rule 23c-3 under the 1940 Act (the "interval fund" rule). In both cases, interests in a fund generally are repurchased based on the net asset value of the interests, determined as of a specified valuation date.

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(a) Funds that do not rely on Rule 23c-3 cannot commit to make repurchase offers in specified amounts or at specified periodic intervals. However, such a fund may establish a program under which it makes repurchase offers on a periodic basis (e.g., quarterly), subject to the approval of each such offer by the fund's board.

(b) A fund that relies on Rule 23c-3 is required to make offers to repurchase at a specified interval (either quarterly, semiannually or annually) and in each offer must offer to purchase a specified amount of interests equal to at least 5 percent, but not more than 25 percent, of outstanding interests. Various other conditions are imposed by Rule 23c-3.

(c) The conditions of Rule 23c-3 governing the timing and pricing of repurchase offers make it difficult for registered funds of hedge funds to rely on the rule. Such funds typically make repurchase offers in reliance on Rule 13e-4 under the 1934 Act.

(d) A registered fund that elects to be taxed as a partnership must limit the frequency of its repurchase offers (and restrict transfers of interests) to avoid becoming a publicly traded partnership taxable as a corporation. Interests in such a fund must not be redeemable or readily tradable. Semiannual offers, and quarterly offers with a notice requirement of 65 days, are typically viewed as acceptable in this regard.

3. The nature of prospective investors and the intended distribution channel generally play an important role in product design. For example, a large brokerage firm with retail distribution will generally prefer a more "investor friendly" product design, such as a publicly offered fund (which avoids the need to comply with rules applicable to private placements) that relies on Rule 23c-3 to make quarterly repurchase offers, does not pay performance-based compensation and is taxed as a "regulated investment company" under Subchapter M of the Code.

4. Public offerings by nontraded closed-end funds (as well as public offerings by other types of closed-end funds and open-end funds) are subject only to notice filings under state "blue sky" laws.

C. Publicly Traded Closed-end Funds

1. From an adviser's perspective, a publicly traded closed-end fund is a "permanent capital" vehicle (i.e., assets of the fund are not subject to decrease as a result of redemptions of shares or withdrawals of capital).

2. Publicly traded closed-end funds are often used by asset managers in lieu of a BDC structure (which is further described in III.E. below) because such funds can invest in non-U.S. companies and make other investments that would be considered "bad" assets for a BDC.

3. As a practical matter, the adviser of a publicly traded registered fund cannot receive performancebased compensation. See II.F. below. However, unlike 1940 Act registered funds, BDCs (including publicly traded BDCs) may pay performance-based fees, without having to restrict their investors to qualified clients. See II.E.1.(c) below. In addition, both registered funds and BDCs may pay fees computed as a percentage of their income.

D. Open-end Funds

1. In recent years, there has been a growing number of registered open-end investment companies (mutual funds) that pursue alternative investment strategies, including multi-manager alternative funds that are sub-advised by private fund advisers who are each responsible for managing a "sleeve" of a single fund investment portfolio.

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