SpECial REpoRT How to start a hedge fund in the US Getting a head start Making the most of the opportunities presented by a still buoyant US market Bermuda Stock Exchange | Kaufman, Rossin & Co Tannenbaum Helpern Syracuse & Hirschtritt | Tennyson Fund Solutions Providing Solutions TM • • • • • • • • • • • • • Private Investment Funds Hedge Funds Private Equity Funds Corporate, Capital Formation & Securities Law Mergers and Acquisitions and Commercial Business Matters Financial Services Law and SEC Regulation Real Estate, Construction and Environmental Law Creditors’ Rights, Bankruptcy and Business Reorganizations Employment Law, ERISA and Executive Compensation Litigation and Dispute Resolution Distribution, Franchising and E-Commerce Tax Law Estate Planning New York 900 Third Avenue 212.508.6700 London 84 Brook Street +44.20.7665.1632 www.thshlaw.com how to start a hedge fund in the us Land of opportunity D espite difficulties in the global financial markets in the second half of last year, total assets under administration in the hedge fund industry continued to grow strongly, and such a robust and defiant display surely bodes well for the continued development of the sector during 2008. To this end, this HFM How to Start a Hedge Fund in the US 2008 Report draws upon the experience and expertise of senior industry professionals and key service providers to guide you towards achieving the ultimate goal of establishing a hedge fund which thrives in the US space. Michael G Tannenbaum of Tannenbaum Helpern Syracuse & Hirschtritt opens the report with a concise and detailed exploration of the legal terrain those aiming to establish a hedge fund to access US capital will inevitably need to negotiate. Having advised hundreds of private funds and advisers on matters of US law and regulation for more than 30 years, his contribution makes essential reading for anyone looking to set up a hedge fund in the US. A n administrator’s perspective is supplied by Tony Stocks of Tennyson Fund Solutions, interviewed on the eve of the launch of their US operation aimed at servicing funds managing between US$200m and US$500m. Renowned throughout the hedge fund world for his role in setting Citco on the road to becoming the world’s largest hedge fund administrator, Stocks brings the benefit of his considerable expertise and experience to the 2008 report. Robert Kaufman of Kaufman, Rossin & Co considers the new auditing standards recently issued by the American Institute of Certified Public Accountants (AICPA). He usefully outlines the positive aspects of these new measures for hedge fund managers, such as helping them to meet the demands of new investors performing due diligence and protecting their fund, and themselves, from risk. Finally, Greg Wojciechowski documents the continued success and development of the Bermuda Stock Exchange and outlines the ever-expanding opportunities it affords international investors and hedge funds. The strong growth and development of the hedge fund industry looks set to continue apace during 2008, and this report aims to show you how to establish a successful hedge fund in what remains one of its key loci of opportunity. S tephen Carter Report editor Michael g ttannenbaum discusses the wide range of issues involved in setting up a hedge fund and accessing us capital 12 A different approach t stocks of tennyson tony t fund solutions outlines their strategy for targeting a currently underserved sector of the us hedge fund market www.hfmweek.com New York: 1375 Broadway, 11th floor, new York, nY 10018 Report editor: stephen Carter Tel: +44 (0)20 7269 7598 [email protected] Staff writer: Aimee Donnellan Tel: 44 (0)20 7269 7590 [email protected] Production editor: Melanie rockett Tel: +44 (0)20 7269 7594 [email protected] Sub-editor: Claudia honerjager Tel: +44 (0)20 7269 7587 [email protected] Operations director: sebastian timpson Managing director: Charlie Kerr Associate publisher: Poppy edwards Tel: +44 (0)20 7269 7585 [email protected] Senior publishing executive: robert Bennett Tel: +44 (0)20 7269 7576 [email protected] Subscriptions and circulation: duncan Murray Tel: +44 (0)20 7269 7574 [email protected] in This issue… 04Through the looking glass London: dunstan house, 14a st. Cross street, London eC1n 8Xa Tel: +44 (0)20 7269 7575 Fax: +44 (0)20 7269 7570 14 Total control robert Kaufman of Kaufman, rossin & Co explores the positives of new auditing standards for hedge fund managers 17 Going forward greg wojciechowski explains the advantages afforded to international investors by the flourishing Bermuda stock exchange HedgeFuNdMANAgeR is published weekly by Pageant Media Ltd, a certified member of the PPa issn 1748-5894 Printed by wyndeham grange © 2008 all rights reserved. no part of this publication may be reproduced or used without the prior permission from the publisher HFMWEEK | 3 asia-pacific how to startspecial a hedge report fund in the us LEGAL Michael G Tannenbaum discusses the wide range of issues involved in setting up a hedge fund and accessing US capital Through the looking glass T his article addresses the legal and business issues that go into setting up a hedge fund, accessing investment capital from US sources and explores the numerous regulatory issues that need to be understood to be successful. Our law firm prefers to use the nature of the investor as the starting point. So let’s start this multifaceted process and just ‘dig in’. As will be seen, US investors prefer to invest in structures that are look-through vehicles for US tax purposes, so are taxed as partnerships. Non-US investors and tax-exempt investors tend to prefer non US corporate vehicles. Let’s drill down to determine why this is so, and look first at the underlying tax concepts and then the various structures used to accommodate. Tax aspects Michael G Tannenbaum heads Tannenbaum Helpern’s global Financial Services, Hedge Funds and Capital Markets Group. For more than 30 years, he has advised hundreds of private funds and advisers on matters of US law and regulation. 4 | HFMWEEK To understand the several hedge funds structures, certain US income tax issues need to be understood. As will be seen, one size does not fit all in the hedge fund world; different types of investors dictate different types of structures. Partnerships. It is critical that US partnerships are not subject to income tax at the entity level. Instead, items of gain, loss, credit flow through the partnership to its partners, pro rata to their percentage ownership. The character of those items is preserved – for example, long or short gain – as it flows through to the investors. This is true even in the case of non US entities, even if they are corporations under the laws of formation, provided the entity makes a timely ‘check the box’ election pursuant to the Internal Revenue Service (IRS) rules to be treated as a partnership for US tax purposes. It is not unusual for the US fund to actually be a non-US entity provided it has checked the box to be treated that way. PFICs. Passive Foreign Investment Companies (PFICs) are entities that derive a significant percentage of their income from passive sources such as interest, dividends, and capital gains. Non-US corporate hedge funds naturally fall within this definition and are PFICs. Under the Internal Revenue Code (Code), PFICs are taxed in a way generally unfavourable to US-taxable investors, so it is unlikely a US-taxable investor would wish to invest in a PFIC. Unlikely, not illegal – the IRS would be pleased to accommodate. In fact, there are even times when such an investment might make sense, but that is a different discussion. UBTI. US investors exempt from US taxation – ERISA plans, other pension schemes, IRAs, endowments, charitable trusts and the like – do in fact pay tax on income that is generated using leverage or derived from business operations. Why? Because the Code says so – there is an exception to the tax-exemption rule. This income is called Unrelated Business Taxable Income (UBTI) and, as with partnership accounting, it will flow through a partnership to its owners. It is irrelevant to taxable partners, but if the partner is a tax-exempt organisation, that organisation will be required to pay tax on its percentage share of such income. Central to UBTI planning is the fact that UBTI does not flow through a corporate vehicle to its shareholders, only through a partnership to its partners. For this reason, tax-exempt investors prefer to invest in non-US corporate entities where the hedge fund uses leverage as part of its investment programme. Again, not illegal – the IRS is happy to collect tax – just unlikely. It is in fact this tax attribute that is www.hfmweek.com LEGAL at least partially the driving force behind the enormous growth in the non-US hedge fund market. Bills have been introduced in Congress that would change UBTI taxation to the detriment of tax-exempt investors in non-US hedge funds, but as of this writing, such matters are pending and the outcome is uncertain. Fund structures With these concepts in mind, we turn to fund structures. US funds. US hedge funds are generally established as Delaware limited partnerships or Delaware limited liability corporations (virtually interchangeable entities). The partnership is the hedge fund, the limited partners are the investors and the entity is managed by the partnership’s general partner (GP) In this model, the GP would receive the incentive allocation. While it might also receive the management fee, the management function is often delegated to a further entity – the investment manager or investment adviser – which would receive the management fee. In some jurisdictions, such as New York City, this distinction is important, as it affects certain taxes payable on the management fee portion of the income, but not on the incentive allocation. These funds are suitable for US taxable investors. Setting up a Delaware limited partnership en- www.hfmweek.com how to start asia-pacific a hedge fund special in the report us tails establishing the GP first, then the partnership entity. The time to do this is measured in days. Non-US funds. These entities are formed in jurisdictions outside of the US, like the Cayman Islands, Bermuda, Guernsey, or the BVI. Jurisdictional or ‘domicile’ choice is often driven by such factors as banking stability and currency, local law and regulation, existence of a competent work force and the availability of multiple service providers, language, time zones, ease of access and similar practical matters. Different jurisdictions have different legal structures available, multi class ability, segregated cells, trusts, others do not. There are times when the special needs of the investors or of the investment activities of the fund will dictate the domicile because of a treaty or special rule of law. Legal counsel can help you choose. These funds are suitable for non-US investors and for US tax-exempt investors. Side-by-sides; master feeders. A hedge fund group consisting of a US-based fund and a nonUS-based fund are referred to as side-by-side funds for obvious reasons. There are times when it is advisable to link the two funds with a third called a master fund. The assets of each of the initial funds, now called feeders, pour into a central pot, called a master fund, to form a master feeder arrangement. This would be desirable when the size of one of the feeders has not attained a critical HFMWEEK | 5 how to startspecial a hedge fund in the us asia-pacific report mass needed for the investment strategy or similar practical considerations. Note that when a master feeder structure is chosen, the master fund checks the box for US tax purposes so as to be treated as a partnership. US-taxable investors invest in the US feeder, non-US investors and tax-exempt investors invest in the non-US feeder. The trading is done at the master fund level and the auditors divide the profit and loss between the two or more feeders. The master feeder arrangement tends to be a bit more expensive to operate than side-by-side funds (additional audit fees and added set-up cost being only two such costs), consequently the side-by-side arrangement is in vogue today. Regulation of the fund; raising capital Now that the investor base has been identified, the tax aspects understood and the hedge fund group has a structure, attention is given to the regulatory issues facing the fund and the investment adviser, all in the context of raising capital from US sources. A number of regulatory provisions come into play, and virtually every one has its own definitional pattern. In reading the several sections that follow concerning the 33 Act, the 40 Act and the Advisers Act, note that each has its own place in the patchwork quilt that makes up the regulatory scheme. 33 Act Private Placements. The 33 Act applies 6 | HFMWEEK LEGAL to funds, venture capital, businesses in general – virtually any activity seeking capital from investors, not only hedge funds. Unless an exemption applies, a security (here the interests in the fund) sold in the US must first be registered with the Securities and Exchange Commission (SEC) as an initial public offering (IPO) under the Securities Act of 1933 Act (33 Act) or the Investment Company Act of 1940 (40 Act), or both. These are rarely if ever desirable for a typical hedge fund. Full-blown 33 Act or 40 Act registrations are reserved for mutual funds and for certain funds of funds that seek to appeal to a wider audience than is possible with non registered products. Fortunately, the 33 Act provides a private placement exemption called Regulation D (Reg D) to enable a hedge fund to proceed without SEC registration. To meet Reg D, the hedge fund (the issuer) must make a full and fair disclosure of all material elements of the deal – risk factors, fees arrangements, subscription and withdrawal features, lockups gates, biographical data of the decision makers, and a description of the strategy and investment programme descriptions and the like. The private placement memorandum and subscription documents are designed to make such a disclosure. In addition, the fund may only be sold to offerees with whom the offeror has a pre-existing relationship, arising out of other than this transaction, and the investors who are accredited investors. Up to 35 of the investors may be non-accredited, but require a heightened level of financial disclosure by the fund and present certain complications, especially with regard to state ‘blue sky’ filings. Consequently, the fund often limits the investor base to accredited investors only. Accredited investors are those with either a net worth of US$1m or with income during the past two years of US$200,000, or US$300,000 with spouse, expecting the same for the current year. The SEC has stated publicly it is considering increasing these limits, and the author would expect that to happen, probably raising the net worth test to US$1.5m. Expect the SEC to introduce new categories of investors, the accredited natural persons and the large accredited investor, the latter two reserved for investment into certain types of hedge funds, the clear intention to raise the bar to investment. The law firm’s website should be consulted for the latest information (www.thshlaw.com). The 40 Act. The 40 Act and the 33 Act are closely intertwined. While the 33 Act regulates the method by which a security can be sold in the US, the 40 Act looks at and deals with the nature of the investment activity within the fund itself, the key investigation being whether or not the fund is www.hfmweek.com how to start a hedge fund in the us an ‘investment company’, another word for a mutual fund. If it is, it needs to register as such with the SEC and adhere to the full panoply of complex rules and administrative burdens that face mutual funds. To avoid such registration, a fund must avoid the definition of being an ‘investment company’. Virtually all hedge funds fall within the definition of investment company which, under the 40 Act is, in general terms, is a company whose primary activity is buying and selling securities. Therefore, it is essential for the fund to meet one of two established exceptions: Sec. 3c1 or Sec. 3c7. In the case of either exception, it must be the case that the fund is not making or proposing to make a public offering of its shares (in order to meet the Reg D private placement exemption). Note that without the Reg D exemption applying, it would not be possible to meet either Sec. 3c1 or Sec. 3c7. Sec. 3c1. The Sec.3c1 exception saves (from registration) funds that limit the number of its beneficial owners to 100 or less. There are critical ‘lookthrough’ rules in counting to 100: First, if our fund is a US-based fund, the investor test is worldwide; for a non-US-based fund, the test is for US investors only. Secondly, with regard to entities that invest in our fund, if the entity investor was formed primarily to make the investment into our fund, then each of the entity’s beneficial owners is to be considered in making our 100 count. (If the investing entity has invested 40% or more of its assets in our fund, then there is a presumption that it was formed for the purpose of making the investment). Lastly, if an investing entity is one that itself relies on either 8 | HFMWEEK LEGAL Sec. 3c1 or Sec. 3c7 (for example another fund, or a fund of funds) and if that investor fund owns 10% or more of a fund, then its beneficial owners are added to those of a fund in making the 100 count. Sec. 3c7. The second exception is the Sec. 3c7 exception. The focus is on the financial quality of the investor. Sec. 3c7 permits the fund to have up to 499 investors (better than 100, of course) but each and every investor needs to be a qualified purchaser (QP). The statute does not reference the number 499. It is read into Sec. 3c7 by section 12(g) of the Securities Exchange Act of 1934, which requires an issuer of securities with more than US$1m in assets and 500 or more investors to register the securities (file a registration statement with the SEC). By this definition, the offering can no longer be ‘private’. The QP definition differs for individuals and for entities. In general terms, for individual investors, a QP is one with at least US$5m of investible assets – ‘investments’. The term ‘investments’ is a defined term, including marketable securities or real estate, provided neither the owner nor a dependent resides in it, or closely held stock, provided the investor is not working for the company issuing the stock. The full definition is complex and should be consulted before relying on this exception. It is posted on the law firm’s website. For entities, the test is US$25m or more investments, unless each equity owner of the entity is himself a QP. And lastly, there is a category of QP that is unrelated to the asset test, namely the knowledgeable employee. Knowledgeable employees include officers, directors or partners of the www.hfmweek.com LEGAL hedge fund or its adviser, and certain professional investment personnel. Non-US funds selling into the US. Such funds face essentially the same issues as US-based funds. Most non-US funds will already have an information memorandum to sell interests outside of the US. To sell to US investors, the document needs to be reviewed by US legal counsel and supplemented to supply missing disclosures that need to be provided to US investors, such as US tax issues and the like. So assuming the placement meets the Reg D private placement rules and limits the investor base in a way that meets either Sec. 3c1 or Sec. 3c7, the fund will be able to avoid registration under the 33 Act and the 40 Act. If the adviser is SEC registered, the qualified clients rule applies (see Regulation of the adviser, below) and lastly, the Reg D private placement rules will need to be met in all cases. Regulation of the adviser In accordance with the Investment Advisers Act of 1940 (Advisers Act), a person that gives investment advice for compensation to US clients must register as an investment adviser (RIA) with the SEC if it has 15 or more clients and has US$30m or more of assets under management. It sounds simple, but many of the phrases just set out interpretations, and the one to be highlighted in this overview is the meaning of ‘client’. As of this writing, a hedge fund counts as a single client in making the 15 count. Even if the fund is a full-blown Sec. 3c1 fund, with 99 investors in it, the fund itself is a single client. The underlying investors are not counted. The SEC attempted to change the client definition by adopting the private fund rule (which was to be effective February 1 2006), that among other things required the adviser to look through the fund to the number of investors in making the 15 count. A US federal court set aside the proposed rule, stating that the SEC overstepped its bounds in redefining the word client. As a result, the narrower definition of the ‘client’, (the hedge fund being one client) prevails and a manager setting up a US fund, a non-US counterpart and perhaps a master fund linking the two (feeders), would have only three clients at most, well short of the 15 that triggers the registration. The amount of assets under management is irrelevant if the client count is less than 15. From a business standpoint, it should be stated that there are times when registration is desirable. A manager may register once it has at least US$25m under management. It may wish to do so because of marketing issues. Many institutional investors, pensions, large family offices and the like draw comfort from the fact that the manager is regu- www.hfmweek.com how to start a hedge fund in the us lated by the SEC. And furthermore, managers with offices in more than one state can avoid regulation at the various state levels by registering federally because the SEC registration pre-empts the states. To register with the SEC, form ADV part 1 is submitted to the SEC via its website (www.sec.gov) and various policies and procedures are needed. The adviser becomes subject to periodic SEC inspections. As of now, there is no minimum capital requirement nor is there an exam requirement. The adviser needs to prepare and distribute a brochure (ADV Part 2) to its prospective clients setting forth the fee arrangement, conflicts of interest and other usual regulatory data. Ample information is available on the subject. Typically, investment advisers charge performance incentive arrangements. RIAs are prohibited from charging performance based fees or having incentive arrangements with regard to investors who is a qualified client (QC), namely an investor with a net worth of US$1.5m or one who has invested at least US$750,000 into the deal. Investments Hedge fund managers and funds are known for being opportunistic and engage in a variety of transactions in a search for returns that are noncorrelated to the stock market. Apart from the usual stock and securities transactions, several are of note when planning to establish a hedge fund. Commodities and futures. When using futures transactions, whether for outright speculation or for hedging, the manager may need to register under the Commodity Futures Trading Commission (CFTC) and National Futures Association (NFA) rules. There are several important exemptions, one of which may be available. Trade or business. While a manager searches for returns, it is not unusual for opportunities to present themselves that are outside of those traded on stock exchanges. These may be distressed credit matters, investments in loans and private equity transactions. If the manager migrates from being a passive participant in the activity (for example, it causes the fund to buy a loan portfolio) to being an active participant in the business terms of the transaction (for example, it causes the fund to negotiate the terms of the loan, the interest rate, placement fees, default provisions, collateral requirements and the like) the activity may move from being an investment to being a trade or business activity. The determination depends on the facts and circumstances of each transaction. To a US-taxable investor, the matter is of no concern. Whichever way the IRS characterises it, if the activity makes a profit, the US-taxable inves- HFMWEEK | 9 how to start a hedge fund in the us tor incurs a tax liability. To a non-US participant, the matter is of great concern, especially where the investor is from a jurisdiction without a tax treaty with the US. Since funds domiciled in tax haven jurisdictions like Bermuda or the Cayman Islands do not, by definition, have such treaties, when they engage in transactions that can be re-characterised by the IRS as trade or business transactions, the income derived is subject to withholding tax provisions that are quite onerous. It is essential that these issues be understood, where the lines are drawn, and how to plan accordingly. Other regulatory aspects ERISA. The Employee Retirement Income Security Act of 1974 (ERISA) governs, among other things, the investment by pension plans in hedge funds. The Department of Labor (DOL) adopted the so-called ‘plan asset’ rule to deal with such matters. In short, if a hedge fund or any class of the fund is composed of 25% or more investments from benefit plan investors (BPIs), a number of important DOL rules are triggered (prohibited transaction rules, limits on lock-ups and indemnification, valuation procedures, and more). While a fund would not want to inadvertently stray into this area, if the rules are understood in advance, planning is quite feasible and beneficial. BPI investors include ERISA investors and IRAs but exclude government plans and non-US employee benefit arrangements. Blue Sky. State laws govern the sale of securities transaction within the states. New York requires a filing before the first solicitation is made. Most states require filings within 10 or 15 days after the sale is made in the state. Some states require a number of sales before a filing is made, others 10 | HFMWEEK LEGAL after the first sale. In any event, there are a variety of models. These are called ‘blue sky’ laws, and the bottom line is that care needs to be taken to assure that the proper filings are made. New developments Many hedge funds are reserving the right to investment in illiquid transactions, such as private equity transactions, and are using mechanisms called side pockets to account for these investments. Hedge funds are doing this more and more. At the same time, private equity funds are seeking returns in strategies that have been traditionally reserved for hedge funds. This migration of one towards the other is now referred to as convergence. The US Congress has a bill before it entitled the Hedge Fund Study Act which, as the name implies, will be a study of the industry. At time of writing, it is unclear as to the direction Congress will take, as to whether or not the recent SEC’s initiatives which would have led to a virtually universal registration requirement of most hedge fund managers will be reinstated or whether or not other regulatory action will be taken. Conclusion The process of setting up a hedge fund can be accomplished with the proper legal advisors and related consultants. This need not be a mysterious process. To be sure, there are rules, but every jurisdiction has rules, certainly the US and the UK, but they can be well understood and explained by professional advisors and thereby managed in a way that facilitates the business process. Tannenbaum Helpern, with offices in New York and in London, is well suited to render this advice. www.hfmweek.com 1 TERRITORY 3 LETTERS 30 ISLANDS 1,000,000 BUSINESS OPPORTUNITIES The real beauty of the British Virgin Islands is its proven leadership in meeting the needs of international business. A strong partnership between the public and private sectors has been a core factor in the sustained growth of its captive insurance business. The jurisdiction now has the fourth highest number of captive registrations in the world, supported by a growing pool of licensed end experienced professionals Captive insurers in the BVI benefit from: - Business-enabling regulatory standards which accommodate sophisticated structures and Segregated Portfolio Companies - A sound business operating infrastructure - Enduring political and economic stability For more information, contact: Sherri Ortiz, Chief Operations Officer BVI International Finance Centre, Road Town,Tortola, British Virgin Islands. Telephone: (+1-284) 494-1509 Facsimile: (+1-284) 494-1260 E-mail: [email protected] www.bviifc.vg asia-pacific HOW TO STARTspecial A HEDGE report FUND IN THE US administration Speaking on the eve of Tennyson Fund Solutions’ US launch, Tony Stocks outlines their strategy for targeting a currently under-served sector of the market A different approach T Tony Stocks is the CEO of Tennyson Fund Solutions. Previously global head of Citco Fund Services, Tony’s hedge fund career began in 1985. He is adviser and consultant to several hedge funds and sits on a selection of hedge fund boards. 12 | HFMWEEK ony Stocks, the CEO and principal of independent global fund administrator Tennyson Fund Solutions, certainly knows more than most about the fund administration business. As the former global head of Citco Fund Services, Stocks played a pivotal role in building Citco’s fund administration business into the world’s largest, overseeing the growth of assets under administration (AUA) from US$1bn to $US110bn during his tenure. HFMWeek spoke to Stocks on the eve of the opening of Tennyson’s New York office, and asked him first about what inspired his recent move back into the fund administration business. “After I left Citco in 2001, I stayed on as a director of various funds which I’d been administering, and I became a consultant for other funds who wanted to bring new products to the market or to restructure the hedge funds themselves. “A few of them were asking me to find hedge fund administrators for them, and it was actually proving very hard for funds with US$350m, US$400m AUA to find an administrator who was willing to look at them seriously. I know the industry has grown tremendously, but there should be administrators who can service funds of that size, not just the billion-dollar funds. Eventually, several of them said, ‘If you went back into the administration business, we’d use you.’ With my children having grown up, I thought the time was right to go back in there and service the gap in the market for funds with up to US$500m AUA.” With Tennyson about to launch in New York, the global hub of hedge fund managers, a clearly targeted strategy will be crucial to succeeding in an established and highly competitive fund administration sector, as Stocks explains. “We’ll be looking to target funds with up to US$500m AUA. I grew up working with global macro funds. I’d also like to target anybody who’s dealing in quoted securities and derivatives with or without over-the-counter options (OTCs). That would cover everyone from long-short equity, to futures, options, derivatives, FX and bonds. I would have to say our ideal client would be a multi-strategy or event driven, or global macro or futures fund, as well as single strategy equity or futures funds that invest in derivatives and other products to enhance or protect returns.” A fully integrated service So what exactly will set Tennyson’s offering apart from those of the other administrators targeting this particular client base? “Primarily, our systems. Linedata’s Beauchamp Hedge Fund Solutions are providing our front and middle office systems and Paxus our back-end systems. We will also, of course, offer traditional fund administration to start-ups and existing funds, and integrate with whatever systems the manager uses, rather than always insist on our own platform, but still with that daily mentality. “For the small funds, it’s easy to get a fund administrator who will do the old-fashioned monthly service of reconciling the manager trades, the prime broker statements and produce a monthly NAV. However, very few administrators can provide a fully integrated service offering, front to back, for clients running up to US$500m. Tennyson are able to set up the infrastructure of their full range of products for clients, based on an ASP offering, for perhaps half the price they’d normally get it for.” Remaining current and responsive to the particular needs of the funds they will be servicing will also be essential to Tennyson’s ongoing success in the US market, as Stocks explains. “I think www.hfmweek.com ADMINISTRATION that comes from client demand. For example, yesterday I was having a conversation with a start-up fund. They were asking if they could have their NAV on their Blackberries, because Bloomberg POMS supplied that. I thought, ‘We could do that’, because there’s a Beauchamp product called Position Manager, which gives you all of your trades and all of your positions on a real-time basis. Position Manager can be accessed from Blackberries, so we came back in the office today and set to work and those clients now have Beauchamp Position Manager available on Blackberry.” Stocks’ plan is to develop Tennyson’s fund administration business incrementally over the next 12 months by taking on a couple of clients in each centre per month, thus ensuring that all clients coming on board will receive a consistent, high-quality service tailored to their individual needs. “We’re looking to take on around 20 funds in the UK and around 10 in the US during 2008, and we’re also looking to launch operations in Perth and Bermuda. We hope that fund managers who are experiencing a limited service from the larger administrators will see the front-to-back tailored service we are providing and move across to us.” According to Stocks, the recent trend towards consolidation in the industry has further impaired the quality of service available to entrepreneurial hedge fund managers. “Instead of being treated as a special client and serviced as if by private bankers, they’re being treated as a mutual fund. This really isn’t to their detriment as much as to the detriment of the investors, who are being treated as mutual fund investors rather than what they are, which is family offices, high-net-worth individuals. We’re going to give them the full systems, which will allow people to invest in them since they’ve got decent operations.” Untapped potential Indeed, Stocks sees making these hitech risk/compliance systems available to small and medium-sized managers as crucial in helping to loosen the current grip of the larger firms on the institutional investment increasingly seen as www.hfmweek.com HOW TO START asia-pacific A HEDGE special FUND IN report THE US the lifeblood of the hedge fund manager. As without these on board, small and medium-sized firms are seen as unable to tap into the institutional investment now accounting for an ever-growing proportion of the money pouring into hedge funds. Stocks also believes it will become easier for the small and medium-sized managers Tennyson is looking to service to bridge the gap to the larger firms by growing their business incrementally through consistent alpha generation over several years. This certainly runs counter to the current wisdom that only the big can get bigger and that consolidation is inevitable for small and medium-sized firms looking to bridge the gap. “If you look at the profile of the size of hedge funds, it’s what they call a bookend graph, with lots of small funds, lots of big funds, and comparatively few firms in between. However, I think we’re going through a state of flux at the moment. As the institutions suddenly realise they have too much money to go into the big, institutional hedge funds, they’re going to have to look for the alpha generators and the people who made this industry in the first place. I think it will then trickle down and then the graph will develop a more normal distribution. The institutions will look for smaller and smaller funds and the big hedge funds will close or be consolidated into investment banks.” Finally, Stocks remains highly optimistic regarding the prospects for the hedge fund industry in 2008, despite the recent uncertainty in the markets. “I agree that the subprime meltdown probably hasn’t finished yet, but the banks still regard the hedge funds as good risk. From the perspective of Tennyson, entering into the US market at this time, it could be to our disadvantage that we’re a small, new counterparty at a time when people may be looking for more established counterparties, but I think my history in the fund administration business negates that. People will be looking for expertise and we certainly have plenty of that.” HFMWEEK | 13 asia-pacific HOW TO STARTspecial A HEDGE report FUND IN THE US audit New auditing standards are not all bad news for hedge fund managers. Robert Kaufman of Kaufman, Rossin & Co explores the positives Total control I nternal controls? Sure, every business needs them, to make sure that oh-so-dependable employees aren’t taking advantage of some just-too-tempting opportunity to add to their Hugo Boss collections. But in the hedge fund business the stakes are higher. There is a lot more at risk, and many more people may share that risk. When considering an investment, potential investors want to look behind the scenes. They want to see how you’re protecting them against a whole range of risks, including the possibility that you, the fund manager, might be plotting to defraud them. They are starting to look more closely at the procedures you are using for just about everything – accepting their money, investing their money, executing trades, valuing their holdings, recording transactions, reporting on activities, and that is just the beginning. And now it is not just investors who want to inspect your controls. Now your auditors are in the game, too. New auditing standards issued by the American Institute of Certified Public Accountants (AICPA) require auditors to focus on companies’ internal controls over financial reporting. Protecting your fund Robert A Kaufman is the principal technician of Kaufman, Rossin & Co’s financial services practice, including US regulatory reporting and compliance. He leads the firm’s hedge fund audit practice. 14 | HFMWEEK So where is the good news? It is simple: if you are starting a new fund, you can establish and document operating procedures to comply with the new audit requirements. In the process, you will be documenting procedures that will meet the demands of new investors performing due diligence. And you may even protect your fund – and yourself – from risk. Statements on Auditing Standards 104-111 (commonly referred to as the ‘risk assessment standards’) and 114 are effective generally for audits of financial statements for the year ending 31 December 2007. The standards affect all private companies, including hedge funds. Under these new standards, auditors need to develop a more thorough understanding of internal controls, including the control environment, key controls over significant transactions and upper management oversight of the financial reporting process. The standards also require auditors to assess whether those controls have been implemented and are operating effectively. As you set up your new fund, the following checklist can help you document your operational processes and procedures for each aspect of your business, and your corresponding internal controls over those processes. If you outsource any of these processes to a third party administrator or prime broker, documentation should focus on your management and supervision of their processes. You can outsource the process, but you are still responsible for putting controls in place to ensure the accuracy and completeness of their functions and work products. For investor transactions, document procedures and controls for: Investor subscription process, (including maintenance of proper documentation), with respect to compliance, AML procedures and determination of eligibility to participate in new issue income and incentive fees. l Regulatory issues concerning ERISA compliance and number of investor limitations. l Side-letter arrangements or investor-level modifications to fees as outlined in the fund’s governing documents. l Investor transaction (subscriptions, redemptions and pro-rata distributions) approvals and processing, including charging redemption fees (if applicable), in the aggregate and on an individual investor basis. l For trading and operations, document procedures and controls for: I nvestment transactions being properly authorised and approved with respect to security type, specific position, price and counterparty. l Investment transactions executed do not viol www.hfmweek.com audit late the trading parameters outlined in the fund’s governing documents or regulatory constraints. l Investment transactions and holdings are completely accounted for, including all custodial and/or cash accounts as well as securities for which there is no custodian (such as other fund investments) or for securities for which you maintain physical custody. l Cash payments or security distributions get to the intended party and for the correct amount, with respect to payment of expenses and/or capital withdrawals. l Computer systems utilised for trading, banking, accounting and investor servicing can only be accessed and/or modified by authorised personnel. l For fund-of-fund or private equity investments only: the due diligence process prior to making investment and on an ongoing basis that ensures the appropriateness of such investment with respect to risk thresholds to your fund, as well as the investment’s ability to provide adequate and timely financial information so that you can comply with your own reporting needs. For accounting, financial statement preparation and disclosure, and investor reporting, document procedures and controls for: Valuations of investments owned or sold short are properly valued at fair value at each interim periodend, as well as year-end (be specific for each category of investments). l Trading and investment activity (including investment holdings and related cash effects) are tracked and processed in accordance with generally accepted accounting principles (GAAP) with respect to trade-date accounting. l Corporate actions (mostly related to interest and dividend accruals) are monitored and captured with respect to investments owned or sold short during and at each period-end. l www.hfmweek.com HOW TO START asia-pacific A HEDGE special FUND IN report THE US Cash, margin, investment holdings and other bank balances are complete and properly recorded. l Related-party transactions (including management’s compensation in the form of management and/or performance fees or reallocations) are properly identified calculated and recorded. l Realised and unrealised gains and losses are properly calculated and recorded. l Allocation of profit/loss to investors is properly recorded with respect to period earned and correct sharing ratios. l For funds trading in fixed income securities: discount/premium amortisation is properly calculated and recorded (for both long and short positions). l Soft-dollar transactions and arrangements affecting the fund are properly recorded and disclosed. l Financial statements, including footnote disclosures, the condensed schedule of investments, and fil nancial highlights, are prepared in accordance with GAAP. l Fund level and specific investor returns as well as investor capital balances are properly calculated and reported to investors (also describe the frequency of such reporting). l Regulatory body (SEC, IRS, NFA, CIMA) filing deadlines and other rules are monitored and complied with. l Start-up and organisational costs have been properly accounted for and recorded in accordance with GAAP. Documenting procedures and the controls over those procedures may seem like a daunting task, and one you would like to put off as long as possible. But with proper controls in place at the start, your new fund gains an advantage in satisfying potential investors and fulfilling auditors’ requirements. You may even protect yourself (and your investors) from a trusted employee’s Rolex addiction. HFMWEEK | 15 GET MORE OUT OF YOUR HEDGE FUND THE LEADING BUSINESS MAGAZINE FOR HEDGE FUND MANAGERS SUBSCRIBE NOW AND SAVE! With the best read in the hedge fund industry EVERY WEEK your receive the latest: n Exclusive industry news n Exclusive data on performance, launches and searches n Investment strategy analysis n Topical comment from leading industry figures n Exclusive research surveys n Regulatory developments n People on the move n reviews of books, papers, presentations you should know about As a subscriber, you will also receive full registration to www.hfmweek.com where you can access: n Daily updated performance data n Industry jobs n Weekly and industry scoop news wires n Industry events information n Service directory listings and much more... Subscribe before March 31st 2008 and you can save £100 on an annual subscription to HFM Week. Pay just £895. Simply fill in the form below and fax to +44 (0)20 7269 7570 or call +44 (0)20 7269 7583. o Please debit my credit card o Please invoice me Valid from: Name Job Title Expires on: Company Name Address Postal/Zip Code Country Tel Email Fax Type of organisation CALL +44 (0) 20 7269 7583 OR FAX BACK TO +44 (0) 20 7269 7570 stock exchange how to start a hedge fund in the us Greg Wojciechowski explains the advantages afforded to international investors by the flourishing Bermuda Stock Exchange Going forward B ermuda is home to a thriving and dynamic offshore financial services industry. For many years, Bermuda has been the leader in creating and implementing the business and regulatory models that have become the standard for other jurisdictions to follow. Bermuda is located within two hours flying time from most US East Coast hubs and a short flight to Canada. Daily air services to the UK and Europe make Bermuda the gateway between Europe and North America. Proximity to the world’s largest capital markets and global business centres has been a key ingredient in Bermuda’s success. Bermuda has carved out a niche in the global financial services industry which is well known and highly regarded. Bermuda’s pragmatic commercial approach has created an operational, technical and regulatory infrastructure focused on clients’ needs which is the result of a collaborative effort between the private and public sectors of the jurisdiction. This model ensures jurisdictional policies remain in line with or ahead of market developments and keeps Bermuda’s regulatory oversight at prudent levels, whilst also maintaining support and appreciation for the entrepreneurial spirit that drives innovation. This approach has driven the development and success of Bermuda’s insurance and global financial services industries. Transformation Bermuda has been transformed from a tourist destination in the 1950s to the enviable position as being one of the most significant insurance and reinsurance centres in the world. At the end of 2006, the Bermuda Monetary Authority reported over 1,400 insurance and reinsurance companies on its register, with over US$100bn in assets and capital and surplus of over US$110bn (for the year ending 2005). www.hfmweek.com Historically, Bermuda was seen as a captive insurance jurisdiction. However, over the last 15 years. Bermuda has evolved to become a multiline global leader and is now supplying 40% of the US and European market property catastrophe reinsurance coverage. Bermuda reinsurers rank 13 out of the top 40 in the Standard and Poor’s reinsurer rankings and 15 out of the top 35 AM Best reinsurer rankings. Bermuda’s foundation for success in a global marketplace has been its support of the capital markets, a centre of excellence with a diverse and talented underwriting pool and an effective and appropriate regulatory regime. Household names, such as Citigroup, The Bank of New York Mellon, Nomura Securities, HSBC, Ace and XL Capital have established a prominent presence in Bermuda. The mainstays of Bermuda’s strength as a leader in the offshore financial services industry can easily be traced to the jurisdiction’s longevity in the business. As one of the early pioneers in the offshore financial services business, Bermuda has developed a commercially sensible level of regulation based upon years of experience, and has created products that meet the needs of its sophisticated client base. Bermuda’s experience has produced a deep and knowledgeable infrastructure of service providers. Bermuda’s infrastructure extends to services provided by global fund administrators, attorneys, banks, auditors and the Bermuda Stock Exchange. Bermuda has evolved to offer a sophisticated product to a sophisticated and selective client base. A recent example of this innovative approach is the ‘Launch ‘n’ List’ product made available to the global hedge fund industry. Launch ‘n’ List is the result of collaboration between the Bermuda International Business Association (BIBA), the Bermuda Monetary Authority (BMA) and the Bermuda Stock Exchange (BSX). Launch ‘n’ List was developed as a result of industry feedback Greg Wojciechowski is chief executive of the Bermuda Stock Exchange. He was previously its chief operating officer, responsible for the development of regulatory and operational infrastructure as well as the day-today running of the exchange. HFMWEEK | 17 how to start a hedge fund in the us stock exchange which indicated a growing frustration among practitioners with the length of time they experienced when creating, domiciling and listing a structure. Launch ‘n’ List is a direct response to this frustration, as the procedure seeks to reduce and eliminate duplicate effort, which in turn reduces the amount of time to market. A complete solution The Bermuda Stock Exchange (BSX) has been in existence since 1971 and has carved a niche in the global stock exchange industry, with nearly 550 listed issuers with a combined market capitalisation of around US$330bn. Offering a complete stock exchange solution in one of the world’s most respected and sophisticated offshore financial centres, the BSX trades and settles stock and cash transactions daily through its electronic trading, settlement and depository systems. The development and success of the BSX has helped the growth of Bermuda’s capital market and has provided opportunities for international clients. The BSX’s commercially sensible regulatory approach dovetails with that of the jurisdiction, and is based upon currently accepted international regulatory and operational standards. It seeks to achieve an appropriate balance between providing issuers with access to the market at the earliest opportunity, and investors with certain safeguards and timely information for the purpose of enabling them to make informed decisions on the value, risk and merit of listed securities. The BSX’s regulatory approach has been embraced by the global fund industry. Of the nearly 550 BSX listed vehicles, over 100 are hedge funds or have hedge fund attributes. Recently, the BSX has seen interest growing in the listing of fixed income products and derivative warrants, with over 100 derivative warrant structures listing in 2007. The BSX’s international regulatory recognitions and longevity in the stock exchange business has resulted in the BSX becoming the location of choice in the offshore world for those entities wishing a superior level of support and distinction from their listing. In fact, over half of the funds listed on the BSX originate from other jurisdictions. Going forward, Bermuda will continue to drive innovation in its core financial services industries. The stakeholders in Bermuda have always embraced change in anticipation of the potential opportunities that may follow. From the BSX’s perspective, we see huge opportunity in the global stock exchange industry for the Bermuda Stock Exchange. Our unique approach, in respect of our regulatory infrastructure coupled with our strategic geographical location and internationally recognised electronic stock exchange platform, places the BSX in a very exciting position to take advantage of rapidly changing and expanding global capital market opportunities. Bermuda Stock Exchange (BSX) l Established in 1971, the Bermuda Stock Exchange (BSX) is now the world’s leading fully electronic offshore securities market, with a current market capitalisation (excluding mutual funds) in excess of US$330bn. l There are nearly 550 securities listed on the BSX, of which nearly 300 are offshore funds and alternative investment structures. l The success of the BSX lies in its innovative approach to new products and markets and its ability to offer a ‘commercially sensible’ regulatory environment. The Exchange specialises in listing and trading of capital market instruments such as equities, debt issues (including specialised debt structures), 18 | HFMWEEK funds (including hedge fund structures) and derivative warrants programmes. l The BSX is a full member of the World Federation of Exchanges (WFE) and is located in an OECD member nation. In addition, the BSX is a Recognised Investment Exchange, as set out by the Bermuda Monetary Authority. l The BSX has been granted Approved Stock Exchange status under Australia’s Foreign Investment Fund (FIF) taxation rules and Designated Investment Exchange status by the UK’s Financial Services Authority. l In recent developments, the BSX was designated a Recognised Stock Exchange by the UK’s HM Revenue and Customs. www.hfmweek.com A NEW DAWN FOR FUND ADMINISTRATION AT TENNYSON, WE DO ThINGS A lITTlE DIFFERENTlY Our big idea for fund administration is really quite a simple one. Good old-fashioned service. You get reporting that’s never late, incomplete or inaccurate. No systems hassle, with total integration of front, middle and back office. Knowledgeable, friendly staff who respect your time and give you the answers you need – fast. Like we said, it’s simple. So why isn’t everyone doing it? OpENING IN NEW YORK SOON Call Tony Stocks on: +44 (0) 20 7518 8200 for more information or email: [email protected] tennysonfunds.com
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