As 2010 begins, Bingham would like to remind our hedge fund clients, clients that manage other private funds (including private equity and venture capital funds), and other interested parties, about certain “best practices” that they should consider, as well as certain regulatory requirements and developments of which they should be aware. The following summary is general in nature and does not constitute legal advice for any specific situation.
Compliance Policies and Procedures
There were a number of legislative proposals in 2009 that would require unregistered investment managers of private funds (that meet the minimum asset test) to register as investment advisers with the Securities and Exchange Commission. On December 11, 2009, the House of Representatives passed H.R. 4173, the Wall Street Reform and Consumer Protection Act of 2009, which would repeal the current “private adviser” exemption from registration as an investment adviser with the SEC and would require each investment manager to one or more private funds that are exempt from registration under Sections 3(c)(1) or 3(c)(7) of the Investment Company Act of 1940, as amended (the “1940 Act”), to register as an investment adviser with the SEC if the investment manager has assets under management in excess of $150 million. The House bill, similar to much of the other proposed legislation, would allow the SEC to adopt rules requiring registered investment advisers to comply with certain additional reporting and record-keeping requirements.1 In light of these legislative initiatives, investment managers that are not currently registered with the SEC are encouraged to adopt written compliance policies and procedures (or enhance existing policies and procedures) that reflect "best practices" in the industry2 and, in anticipation of registration, meet the requirements of Rule 206(4)-7 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”).
Investment managers that already maintain written compliance policies and procedures should review them to determine their adequacy and effectiveness. Each SEC-registered investment manager is required to review its compliance policies and procedures on an annual basis and encouraged to maintain written evidence of the review. The annual review should consider, among other things, any compliance matters that arose during the previous year, any changes in the business activities of the investment manager, and any changes in the Advisers Act or other regulations that might require changes to the policies and procedures.
In light of the Galleon case and the SEC’s focus on investment managers’ controls regarding material non-public information, we have found that it is useful to have outside counsel (together with in-house counsel, if applicable) provide training with respect to the prevention of insider trading to all of the investment manager’s personnel. SEC-registered investment managers, among other things, should also be sure that each of their access persons,3 and possibly certain other personnel, provides to the investment manager’s chief compliance officer a quarterly transactions report and annual holdings report listing such person’s personal security transactions or holdings, as applicable. SEC-registered investment managers should also consider their other obligations under the Advisers Act, including, but not limited to, considering the effectiveness of their codes of ethics and conducting any necessary training that may be associated therewith, as well as the effectiveness of any disaster recovery contingency plans and systems that they have in place.
Amendments to the Custody Rule
On December 30, 2009, the SEC published amendments to Rule 206-4(2) under the Advisers Act, commonly known as the “Custody Rule.” The Custody Rule currently requires SEC-registered investment managers that have custody of their clients’ funds or securities to maintain certain safeguards meant to protect such assets. Under the Custody Rule, “custody” includes holding, directly or indirectly, client funds or securities, or having the authority to obtain possession of them. The definition of “custody” has been interpreted broadly, such that an investment manager that has the power to instruct a custodian to pay the investment manager’s fees would be deemed to have custody of its clients’ assets. The amended Custody Rule (the “Amended Rule”) imposes additional safeguards relating to an SEC-registered investment manager that has custody of clients’ funds or securities, including new examination and disclosure requirements, as follows:
• In general, an SEC-registered investment manager that has custody of client assets and maintains those assets with an independent qualified custodian must undergo an annual surprise examination to verify client assets, performed by an independent public accountant that is registered with and subject to regular inspection by the Public Company Accounting Oversight Board (the “PCAOB”) as of the commencement of the engagement period and as of each calendar year (a “PCAOB Accountant”).
• An SEC-registered investment manager that has custody of client assets and maintains those assets itself or with a qualified custodian that is not “operationally independent” from the SEC-registered investment manager must undergo two annual examinations: a surprise examination to verify client assets and an examination of the SEC-registered investment manager’s internal custody controls. Each examination must be performed by a PCAOB Accountant.
• An SEC-registered investment manager that has custody of client assets and maintains such assets with an affiliated qualified custodian that is “operationally independent” from the SEC-registered investment manager must obtain (or receive from the affiliated qualified custodian) a written report attesting to the adequacy of the SEC-registered investment manager’s (or the affiliated qualified custodian’s) internal custody controls by a PCAOB Accountant, but is not required to have an annual surprise examination.
• An SEC-registered investment manager that has custody solely by having the ability to deduct its advisory fees (and not other amounts) from client accounts is not required to undergo any examination.
• An SEC-registered investment manager that advises pooled investment vehicles and maintains custody of the assets of such pools with an independent qualified custodian may comply with the Amended Rule by having the pool audited by a PCAOB Accountant and by distributing annual audited financial statements (prepared in accordance with GAAP) to investors in the pool within 120 days of the end of each fiscal year of the pool (or, in the case of “funds of funds,” within 180 days of the end of such fund’s fiscal year). If the SEC-registered investment manager meets these requirements, it is not required to undergo any examination.
• An SEC-registered investment manager is no longer able to comply with the Custody Rule by providing clients with internally generated quarterly account statements.
The Amended Rule’s application to SEC-registered investment managers that serve as advisers to pooled investment vehicles (e.g., hedge funds, private equity funds and venture capital funds) has changed in several respects from the proposed amendments. As stated above, under the Amended Rule, SEC-registered investment managers that serve as advisers to pooled investment vehicles are deemed to comply with the surprise examination requirement with respect to the assets of such pooled investment vehicles by having an audit of the pool conducted by a PCAOB Accountant (in accordance with GAAP) and by delivering the audited financial statements to pool investors within 120 days of the pool’s fiscal year-end (180 days for funds of funds).
The Amended Rule, however, does impose additional requirements on SEC-registered investment managers that serve as advisers to pooled investment vehicles. First, such managers must procure an audit upon liquidation of such pooled investment vehicles and distribute audited financial statements to investors in such vehicles promptly upon completion of the liquidation audit. Second, the liquidation audits of such pooled investment vehicles must be conducted by a PCAOB Accountant.
If the pooled investment vehicle does not timely distribute audited financial statements to its investors, the SEC-registered investment manager must undergo an annual surprise examination and must have a reasonable basis, after due inquiry, for believing that the qualified custodian sends an account statement of the pooled investment vehicle to its investors at least quarterly in order to comply with the Amended Rule. If the SEC-registered investment manager is subject to the annual surprise examination requirement, the Amended Rule requires such examination to verify privately offered securities held by the pool.
It is important to note that an SEC-registered investment manager that maintains custody of a pooled investment vehicle’s assets itself or with a related person of the manager must obtain (or receive from the related person, if such related person is operationally independent) an annual internal control report, regardless of whether the SEC-registered investment manager obtains a surprise examination or meets the audit requirements above.
More detail regarding the amendments to the Custody Rule can be found in this Alert.
Form ADV Part 1 and Form ADV Part II
Each SEC-registered investment manager must update Part 1 of its Form ADV and file it with the SEC on an annual basis within ninety (90) days after the end of its fiscal year (typically by March 31, 2010). In addition, certain Form ADV information must be amended promptly if it becomes inaccurate. Investment managers should refer to the Form ADV instructions (which can be found on the SEC’s website) or contact counsel to determine whether any of their Form ADV information must be updated promptly.
Part II of Form ADV must also be updated annually, and either Part II or an equivalent “brochure” containing the information required by Part II must be delivered, or offered in writing to be delivered upon request, to all of the investment manager’s “clients” (i.e., funds, managed accounts and other parties to which the investment manager charges a fee) some time during the upcoming fiscal year. If a client requests a copy of Part II or the brochure, it must be mailed or delivered to such client within seven (7) days of receipt of the request. Although fund investors are not currently clients under the Advisers Act, we suggest that Part II be offered to such investors.
The update of Form ADV Part 1 is done on the SEC’s electronic IARD system, while Part II is not filed with the SEC, but is required to be maintained in the investment manager’s files. SEC-registered investment managers should also be aware that the SEC has suggested that changes to the information required by Form ADV could be made in early 2010.
In addition, certain states also require that investment managers file their Form ADV with state regulatory authorities, and some states require a paper filing. In general, special attention should be paid to the requirements of any state in which the investment manager has a place of business or more than five non-exempt clients. State-registered investment managers should also consider any other requirements in the states in which they are registered. Generally, a state-registered investment manager will need to register in every state in which they do business with non-exempt clients.
Form D and Blue Sky Filings
Form D must be electronically filed with the SEC on its filer management system, EDGAR, within fifteen (15) days of the initial sale of securities in an offering. If Form D was filed as of September 15, 2008, or later, and it relates to an offering that is still ongoing, it must be amended annually, on or before the most recent previously filed notice. Form D must also be amended as soon as practicable, after a change in information on the previously filed notice, or to correct a material mistake of fact or error.
The blue sky laws of many states require that a hard copy of Form D be filed with the relevant state authority within fifteen (15) days following the initial sale of interests or shares in a state. In addition, the blue sky laws generally require that filings previously made be updated from time to time to reflect certain changes, and some states require filings on a periodic basis. In considering blue sky filings, investment managers should pay special attention to: (i) new states where they intend to sell (or recently sold) interests or shares; (ii) states where they have sold interests or shares but did not file a Form D; and (iii) states from which investors have made additional investments. The regulatory penalties for failing to make filings on time can be significant and may also result in a requirement to offer rescission to each investor in a state.
Other Regulatory Filings
There are several regulatory filings that investment managers (whether SEC-registered or not) may be required to make in light of certain activities, which may include:
• Form 13F. An investment manager is required to file a Form 13F with the SEC if it exercised investment discretion over $100 million in Section 13(f) securities on the last trading day of any month in the prior calendar year. Form 13F must be filed within forty-five (45) days after the last day of the calendar year (i.e., before February 14, 2010) and again within forty-five (45) days after the last day of each of the three (3) calendar quarters thereafter.
• Schedule 13D/13G. If an investment manager directly or indirectly "beneficially owns" (through fund(s), client account(s) or proprietary account(s)) more than 5% of a class of publicly traded securities, the investment manager (and possibly others) is required to file either a Schedule 13D or Schedule 13G with the SEC. "Beneficial ownership" generally means the direct or indirect power to vote and/or dispose of such securities. Unless qualified to file a Schedule 13G, an investment manager (and possibly others) must file a Schedule 13D within ten (10) days of the acquisition of more than 5% of such securities, which must be amended promptly to reflect material changes, including, but not limited to, an acquisition or disposition equal to 1% or more of such securities.
Schedule 13G may generally be filed by an investment manager that holds such securities in the ordinary course of business and not for the purpose of changing or controlling the management of the issuer of such securities. An SEC-registered investment manager must file a Schedule 13G within forty-five (45) days after the end of the calendar year in which more than 5% of such securities was obtained. A non-SEC registered investment manager must file Schedule 13G within ten (10) days of the acquisition of more than 5% of such securities, and Schedule 13G must be amended: (i) if beneficial ownership of such securities exceeds 10% of the class of securities, and thereafter where beneficial ownership has increased or decreased by more than 5% of the class of securities, in either case, within ten (10) days after the end of the first month in which such event occurs; and (ii) within forty-five (45) days after the calendar year ends. In addition, each registered and non-registered investment manager that has previously filed a Schedule 13G must file a Schedule 13D within ten (10) calendar days if its passive investment purpose changes and a non-SEC registered investment manager that has previously filed a Schedule 13G must file a Schedule 13D within ten (10) calendar days after acquiring more than 20% of the class of such securities. The statutes, rules, and SEC and court interpretations regarding Schedule 13D and Schedule 13G are very complicated, and we urge investment managers to seek guidance from counsel with respect to compliance with applicable statutes, rules and interpretations. Investment managers should also note that in some cases one may need to consider non-equity investments in evaluating your filing requirements.4
• Forms 3, 4 and 5. An investment manager (and possibly others) may be required to file certain forms if it directly or indirectly beneficially owns more than 10% of any publicly registered class of equity security of an issuer, or if it (or an employee) serves as an officer or director of the issuer. Form 3 must be filed within ten (10) days after exceeding the 10% threshold or becoming an officer or director of the issuer; Form 4 must be filed by the end of the second day after executing a non-exempt transaction in such securities; and Form 5 must be filed within forty-five (45) days after the end of the issuer’s fiscal year to report exempt and other transactions that were not previously reported. These rules apply to securities that are exchangeable or convertible into the publicly registered security, as well. Securities held by certain specified types of institutions in the ordinary course of business, and not for the purpose of changing or influencing control of an issuer, need not be counted in determining if an investment manager has reached the 10% threshold and, accordingly, certain investment managers may not be required to file these forms. Investment managers and others who are required to file these forms are subject to disgorgement of profits (or deemed “profits” calculated under certain rules), resulting from purchases and sales within any six-month period. We suggest that such persons to seek guidance from counsel prior to becoming subject to these reporting requirements.
• Other Forms. Investment managers should consider whether other regulatory filings are required based on their operations and investments, including, but not limited to, annual filings that may be required under federal, state or foreign law, as applicable. For example, an investment manager may be required to file a large position report with the Department of Treasury if it holds or controls a significant amount of certain U.S. Treasury securities. An investment manager that is considering acquiring a large amount of voting securities of an issuer should consider Hart-Scott-Rodino requirements that may apply, depending on the value of the acquisition and/or the size of the parties involved. Also, investment managers that invest in securities in foreign jurisdictions should consider the filing requirements in each jurisdiction in which they invest.
In order to engage in the solicitation or accepting of funds for the purpose of trading commodity futures contracts or advising others with respect to trading commodity futures contracts, an investment manager must generally be registered with the CFTC as a commodity pool operator or a commodity trading adviser. However, CFTC rules provide exemptions from these registrations in various circumstances. Investment managers that are contemplating engaging in commodity futures trading or management activities should contact counsel to determine whether they qualify for the exemptions from registration or if they should register with the CFTC.
Investment managers that are registered with the CFTC and/or are members of the National Futures Association (“NFA”) must comply with a number of annual compliance requirements, including completing an annual compliance self-assessment and updating their registration information via the NFA’s online system. Failure to complete the online update within thirty (30) days of the registration renewal date will be deemed as a request to withdraw the investment manager’s registration. An investment manager that holds or controls a futures position exceeding a certain threshold may be required to file a Form 40 with the CFTC. Effective December 9, 2009, the CFTC has amended the rules governing the information that must be included in periodic account statements and annual reports that certain commodity pool operators must provide to their pool participants. The compliance requirements referenced above are only examples and due to the complicated nature of the CFTC and NFA compliance requirements, investment managers are urged to consult counsel for further details.
Certain Tax Considerations
• FBAR Reporting Requirements. In June of 2009, the IRS for the first time expressed the view that the owner of an equity interest in an offshore commingled fund could be required to file a Report of Foreign Bank Account (“FBAR”) on Form TD F 90-22.1, with the Department of the Treasury. Such forms are required to be filed on or before June 30 of each year with respect to any such interest owned during the previous year. In response to numerous questions regarding the scope of this requirement, the IRS issued certain guidance extending the due date to file FBAR reports for the 2008 and prior taxable years to June 30, 2010. This extension applies to (i) persons with signature authority over, but no financial interest in, a foreign financial account, and (ii) persons with a financial interest in, or signature authority over, a foreign commingled fund. Investment managers having signatory authority (which is broadly defined) over an offshore fund should consider filing FBAR forms for 2008 and prior years by the extended deadline, and may wish to advise U.S. investors in such funds of their obligation to file an FBAR form in respect of their interest in such funds. The IRS has requested comments regarding the scope of these filing requirements, and may issue additional guidance on such requirements prior to the June 30, 2010, deadline.
• Carried Interest Proposals. In early December, the U.S. House of Representatives passed the Tax Extenders Act of 2009 (the “Bill”). If enacted, the Bill would tax “carried interests” granted for investment services at ordinary income tax rates instead of the lower capital gains rates that apply under current law. The carried interest provision previously passed the House twice, but in both instances failed in the Senate. If the carried interest legislation is adopted in its current form, it would go into effect at the beginning of 2010. The proposed legislation, if adopted in its current form, would apply to any income allocations in respect of a carried interest, as well as to gains realized upon the disposition of such interest. While the Bill primarily addresses carried interests in the context of partnership interests, it also addresses other forms of carried interests, such as stock or options in tax haven jurisdiction corporations. In addition, under the bill, a general partner that is a “publicly traded partnership” for federal income tax purposes and holds carried interests could be classified as a corporation for such purposes, because the income from carried interests no longer would constitute “qualifying income.” While there can be no assurance that the Bill will pass, or will pass in its current form, investment managers may wish to assess their compensation structures in light of the proposal.
Offering Document Updates
An investment manager should review the offering documents (e.g., private placement memoranda, subscription documents, marketing materials, etc.) of the funds it manages to determine whether the investment manager’s and/or a funds’ business has undergone any material changes (including, but not limited to, changes to investment objectives/strategies, risk factors, conflicts of interest and/or service provider relationships), or if there have been any regulatory changes (including tax and ERISA), since the documents were last updated. If so, the investment manager should consider updating the offering documents to reflect any such changes or developments. Given the events in the markets during the past two years, investment managers should pay particular attention to whether or not their stated investment strategies and related risk factors are still accurate. Further, given the recent events involving several large financial institutions, investment managers should carefully review their statements on counterparty risk to ensure that they adequately reflect the new market environment.
ERISA Considerations and Fee Deferral Arrangements
Ongoing ERISA Compliance
Each investment manager that manages funds that accept investments from employee benefit plans, IRAs and other benefit plan investors, but that does not want the funds it manages to become subject to ERISA, should take the opportunity to confirm that the funds satisfy the requirements of ERISA’s “significant participation” exemption. Under the exemption, a fund is only subject to ERISA and to certain prohibited transaction provisions of the Internal Revenue Code if 25% or more of any class of a fund’s equity interests is held by “benefit plan investors” (“BPIs”). Only benefit plans subject to ERISA (primarily private domestic employer and union plans) or to the prohibited transaction provisions of the Internal Revenue Code (such as IRAs and Keogh plans) will count as BPIs for purposes of the 25% test. Governmental and foreign benefit plans are not counted. The 25% test should be conducted each time there is a new investment or any transfer or redemption of interests in the fund. A pro-rata rule will apply where a fund (such as a fund of hedge funds or “FOF”) that fails its own 25% test and therefore becomes a BPI, invests in a lower-tier fund. The lower-tier fund in which the FOF invests will consider the FOF to be a BPI only to the extent that the FOF’s equity interests are held by BPIs. Each year, a fund should reconfirm the BPI status of its investors, and with respect its investors that are FOFs, the percentage of equity interests held by BPIs in such FOFs. However, if, as is anticipated, legislation does pass requiring most unregistered investment managers to register with the SEC, currently unregistered investment managers may wish to reconsider their policy of maintaining benefit plan investment below the 25% threshold. Once registered under the Advisers Act, a well-capitalized investment manager with more than $85 million of assets under management may qualify as a “qualified professional asset manager” or “QPAM,” which will greatly enhance its ability to operate a fund that contains “plan assets” in accordance with the prohibited transaction provisions of ERISA and the Internal Revenue Code.
Deferred Compensation Considerations
• Section 457A. Internal Revenue Code Section 457A effectively prevents investment managers from deferring the receipt — and the taxation — of fee income earned from funds established in tax havens by requiring the investment managers to include in gross income all compensation owing by a “nonqualified entity”5 under a nonqualified deferred compensation arrangement as soon as the right to the compensation “vests.” Although the law primarily affects compensation that is earned after 2008, compensation deferred in 2008 and earlier years must be taken into income by the investment manager by the end of the 2017 tax year. Significantly, compensation that is based on the appreciation in the value of a specific number of equity units in an offshore hedge fund or other nonqualified entity will generally be considered “nonqualified deferred compensation.” Section 475A does not, however, prevent an offshore hedge fund from issuing options or stock-settled (but not cash-settled) stock appreciation rights to a manager if the exercise price equals or exceeds the fair market value of the fund’s shares on the date of grant. However, managers interested in such an incentive compensation approach should consider the various tax issues, including those relating to passive foreign investment companies or “PFICs,” carefully with counsel. Section 457A does permit very limited short-term deferrals of up to a year. The statute may also impact incentive fees (but not incentive allocations from partnerships) on side-pocketed investment assets, payment of which is usually postponed until the asset is realized, becomes liquid or acquires a readily available market value. Under the statute, such an incentive fee may be considered “deferred,” in which case the manager may be subject to an additional 20% penalty tax plus interest when the amount of the incentive fee is finally determinable in the year in which the side pocket is realized or deemed realized. In response to Section 457A, investment managers should consider taking the following steps:
o Pre-2009 deferral arrangements must be amended by the end of 2011 to pay out all amounts by the last day of the last tax year of the fund starting before 2018 (or the date of vesting, if later).
o Until further notice, Section 457A will not apply to carried interests in a partnership. Therefore, investment managers of funds (particularly those with funds that generate long-term capital gains) may wish to change the form of their incentive for services performed from a fee to a partnership allocation. Those funds currently structured as stand-alone offshore corporations should consider moving to a partnership “mini-master” fund structure in which an incentive allocation would be made at the new partnership level. In addition, those funds that currently operate through a “master-feeder” structure should consider taking an incentive allocation from the master fund on the offshore fund's assets.
• Section 409A. Despite the virtual elimination of fee deferrals starting in 2009, Internal Revenue Code Section 409A compliance is still important for hedge funds. Investment managers who retain a fee structure with their offshore fund(s) and wish to defer fees for up to one year, as permitted by Section 457A, must continue to comply with the Section 409A deferral election rules going forward. December 31, 2008, was the deadline for all written deferred compensation arrangements — including any pre-2009 deferred fee arrangements between fund managers and the offshore funds they advise, as well as all deferred bonus, phantom carry and profit-pool arrangements for investment manager employees — to be amended to comply in form with Section 409A. The Internal Revenue Service is in the process of finalizing a program which would allow correction of defects in documentation of Section 409A arrangements. Investment managers and funds must also administer all deferred compensation arrangements, including deferred bonus or phantom carry plans for their employees and any pre-2009 deferred fee arrangements with their offshore funds, in accordance with the final Section 409A regulations starting January 1, 2009, although earlier this year the Internal Revenue Service issued guidance on correcting certain operational failures.
In light of the increasing number of investor lawsuits in recent years, as well as the increasing review and scrutiny by regulatory and governmental authorities of the hedge fund industry generally, investment managers may want to consider whether management liability insurance should be obtained, depending on their current business’s exposure. Management liability insurance generally includes coverage for directors’ and officers’ liability, fiduciary liability, errors and omissions liability, and employment practices liability.
In order to encourage a culture of compliance in the work environment, an investment manager should consider instituting training and/or programs to promote better understanding of the investment manager’s compliance policies and procedures and employee handbook. An investment manager’s fiduciary duties and obligations, avoiding potential conflicts of interest, and the prevention of insider trading and employee harassment are just a few topics for training that investment managers should consider.
Other Annual Requirements
SEC-registered and unregistered investment managers are subject to several other annual requirements and obligations, including those set forth below. Although these obligations need not be completed immediately, investment managers should confirm that these activities are on their annual compliance calendar.
• New Issues. If funds managed by an investment manager invest in “new issues”6 (whether directly or through an investment in another fund), the investment manager must obtain an annual representation from all investors in the funds it manages as to their eligibility to participate in profits and losses from new issues. This can be accomplished by requesting that each investor inform the investment manager of any changes in the investor’s status from its representation in its subscription agreement with the fund. The investment manager must keep a record of all information relating to whether an investor is eligible to purchase new issues for at least three years.
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This summary is not intended to provide a complete list of an investment manager’s obligations relating to its compliance with applicable rules and regulations or serve as legal advice and, accordingly, has not been tailored to the specific needs of a particular investment manager’s business. Please also note that this summary does not address any non-U.S. or state law requirements. We encourage you to contact us if you would like to discuss whether there are additional items that you should consider or if you have any questions about any of the items covered herein. This summary does not purport to be comprehensive and should be used for information purposes only.
For assistance, please contact the following lawyers:
Anthony J. Carbone, Partner, Tax and Employee Benefits
Steven M. Giordano, Partner, Investment Management
Richard A. Goldman, Partner, Investment Management
Thomas John Holton, Partner, Investment Management
Gerald J. Kehoe, Partner, Investment Management
Robert G. Leonard, Partner, Investment Management
Michael F. Mavrides, Partner, Investment Management
Roger P. Joseph, Practice Group Leader, Investment Management; Co-chair, Financial Services Area
Edwin E. Smith, Partner, Financial Restructuring; Co-chair, Financial Services Area
Stephen C. Tirrell, Partner, Investment Management