Marketing Private Funds to U.S. Investors — A Practical Guide for Asia-Based Managers

As the private equity (“PE”) and venture capital (“VC”) funds industry grows and matures in Asia, managers are increasingly looking to market interests in their funds to U.S.-based investors. However, many Asia-based managers we speak with are wary of marketing to U.S. investors because they are concerned about the compliance costs and complexities raised by the U.S. securities and tax rules. In practice, compliance with such regimes can be straightforward and easily managed with efficient and practical legal and tax advice. 

This article summarizes the key U.S. regulatory and U.S. tax matters to consider when marketing fund interests to U.S. investors, including the Investment Advisers Act, the Securities Act, the Investment Company Act, ERISA, CFIUS, the Volcker Rule, and other regulations that may arise depending on the fund’s investment program.

Investment Advisers Act

The U.S. securities law that tends to drive the most significant legal compliance costs for managers raising capital from U.S. investors is the Investment Advisers Act of 1940 (the “Advisers Act”). Under the Advisers Act, a fund manager that engages in investment advisory activities in the U.S. generally will be required to register as an “investment adviser” with the U.S. Securities and Exchange Commission (the “SEC”) unless an exemption applies. Several potential exemptions may be available to a non-U.S. manager, including the Foreign Private Adviser Exemption, the Private Fund Adviser Exemption, and the Venture Capital Exemption.

Foreign Private Adviser Exemption

The best-case scenario for a non-U.S. manager would be to rely on the “Foreign Private Adviser Exemption” to registration because a manager relying on this exemption does not need to make any filings or take any other affirmative actions in dealing with the SEC. The Foreign Private Adviser Exemption is available to a manager that (a) has no place of business in the United States; (b) has, in total, fewer than 15 clients in the United States and investors in the United States in private funds advised by the manager; (c) has less than $25 million of aggregate assets under management (“AUM”) (including uncalled capital commitments) attributable to U.S. investors and U.S. clients; and (d) does not hold itself out generally to the public in the United States as an investment adviser. Because the exemption counts both “clients” and “investors” in the United States, in certain cases (e.g., U.S. investors investing through a non-U.S. special purpose vehicle), the rules would require the manager to “look through” an investor that is a non-U.S. entity and count its underlying U.S. investors for these tests.

Managers often will outgrow the Foreign Private Adviser Exemption as they begin to accept more U.S. capital. In this case, a manager typically will rely on either the “Private Fund Adviser Exemption” or the “Venture Capital Exemption” (each summarized below). Managers relying on either of these two exemptions are referred to as “Exempt Reporting Advisers” (“ERAs”) because such managers are (a) exempt from registration under the Advisers Act, but (b) still need to make “Form ADV” filings with the SEC within 60 days of first relying on the exemption and annually thereafter (and upon certain other material events). The filings and other compliance costs for ERAs are lighter than for managers that are registered with the SEC, but the compliance costs are higher than those for managers relying on the Foreign Private Adviser Exemption (discussed above), which are not required to make any filings at all. Since an ERA is typically required to make its first Form ADV filing within 60 days after it begins to rely on the relevant ERA exemption, these filings and the related analysis can often be finalized after the fund’s initial closing.

Private Fund Adviser Exemption

The Private Fund Adviser Exemption requires that a manager (a) manage only private funds and (b) have less than $150 million of aggregate AUM attributable to U.S. investors. However, a non-U.S. manager with no principal place of business in the United States generally is not required to count any commitments made by U.S. investors to a non-U.S. (e.g., Cayman Islands or Singapore) fund toward this dollar threshold. Accordingly, it is quite common for a non‑U.S. manager to continue to be eligible for the Private Fund Adviser Exemption even if it has billions of dollars under management (indirectly through non-U.S. funds).

Venture Capital Exemption

The Venture Capital Exemption exempts managers that only manage “venture capital funds.” In order to qualify as a venture capital fund, a fund is generally required (a) to represent to its actual and potential investors that it pursues a venture capital strategy; (b) to invest primarily in qualifying venture capital investments, except that the fund may invest up to 20% of the fund’s capital commitments in non-qualifying investments; (c) not to incur leverage in excess of 15% of its capital contributions and uncalled capital commitments; and (d) to provide no liquidity rights to its investors except in extraordinary circumstances (i.e., it must be a closed-end fund with no redemptions), among other technical requirements.

Securities Act and Investment Company Act

PE and VC managers typically need to structure their U.S. offerings as “private placements” (i.e., non-public offerings to specifically identified investors) in order to avoid the requirement to register their fund interests under the U.S. Securities Act of 1933 (the “Securities Act”) and register the fund itself as an investment company under the U.S. Investment Company Act of 1940 (the “Investment Company Act”). For non-U.S. managers, the key action items are (a) ensuring that there is no “general solicitation” (i.e., broad marketing of fund interests, including via social media or publicly available webpages) in the United States; and (b) confirming that each U.S. investor (i.e., an investor resident/domiciled in the United States) is both (1) an “accredited investor” under the Securities Act, and (2) a “qualified purchaser” under the Investment Company Act. However, if the fund will admit fewer than 100 beneficial owners (in some cases, this will include indirect investors), then it is not necessary that investors be qualified purchasers. Notably, there is no “reverse solicitation” exemption under the U.S. securities laws.

A fund’s GP typically will file a “Form D” with the SEC in order to affirm the availability of a private placement “safe harbor” provided in Regulation D under the Securities Act. Form D should be filed within 15 days following the earlier of the date that the first U.S. investor is admitted to the fund and the date the GP receives an irrevocable subscription agreement from a U.S. investor. However, for tactical reasons, a GP will often “pre-file” Form D prior to the fund’s closing (which allows the GP to avoid disclosing the size of the closing). Some GPs in the market may determine not to file a Form D or rely on Regulation D, and, instead, rely on the general private placement exemption available under Section 4(a)(2) of the Securities Act. Such a strategy can save costs but carries additional regulatory risk.

The SEC implemented new rules in 2013 (“Rule 506(c)”) permitting managers to offer interests in a fund by “general solicitation”—a departure from the traditional restrictions mentioned above‍—‍if the manager follows additional procedural and investor diligence requirements. However, the SEC has been strict in scrutinizing offerings under these more permissive rules. Accordingly, before relying on Rule 506(c), managers should balance the benefits of engaging in general solicitation with the added costs of the procedural and investor diligence requirements.

ERISA

As AUM increases (e.g., $200 million-plus), many managers will begin to target U.S. pension plan investors, which represent a significant source of capital for PE and VC funds globally. Unless an exemption is available, the U.S. Employee Retirement Income Security Act of 1974 (“ERISA”) imposes onerous fiduciary and prohibited transaction requirements on a fund with investors that are subject to ERISA (generally U.S. private pension plans).

Most managers avoid the application of ERISA by complying with the “25% Exemption,” which is available if aggregate participation of ERISA investors is less than 25% of each class of interests in the fund. Helpfully, the ERISA investors, in this instance, does not include U.S. state and local government pension plans.

Managers of funds that may not be able to comply with the 25% Exemption may instead seek to comply with an “Operating Company” exemption, pursuant to which the fund would qualify as either a “Venture Capital Operating Company” or a “Real Estate Operating Company,” depending on its investment strategy. Under an Operating Company Exemption, a fund will not be subject to ERISA if, upon the fund’s initial investment and thereafter, at least 50% of its assets are invested in investments that meet certain requirements, including that the fund itself must hold and actually exercise significant rights in respect of the management/operations of the underlying portfolio company.

Even if the fund’s investment strategy is conducive to the Operating Company exemption under ERISA, the 25% Exemption is typically preferred (unless the manager’s investor base is difficult to monitor or will have a substantial focus on ERISA investors) because it avoids the requirement for careful deal structuring and substantial legal compliance costs.

U.S. Tax Considerations

From a U.S. tax perspective, there are two main types of U.S. investors—U.S. taxable investors and U.S. tax-exempts.  U.S. taxable investors generally include individuals who are U.S. tax residents or who hold a Green Card, and U.S. corporations.  U.S. tax-exempts, on the other hand, include pension plans, retirement funds, private foundations and charities. Similar tax considerations also apply to U.S. investors who are investing through a fund-of-funds, though an investor that is a fund‑of-funds might not raise any U.S. tax‑related requests unless it has meaningful U.S. ownership.

From a structuring perspective, U.S. taxable investors often request that the fund entities be structured as “passthrough entities” for U.S. tax purposes. Typically, managers can accommodate this request by making certain U.S. tax elections (called “check-the-box elections”) with respect to the fund entities without needing to actually reorganize the fund entities or create alternative investment vehicles.

However, some U.S. tax-exempts might insist on investing through a “blocker” that is treated as a corporation for U.S. tax purposes, so as to avoid certain U.S. tax issues that could apply to them if they were to invest directly into the fund. This requirement would often necessitate establishing a “feeder fund” above the fund or a “parallel fund” alongside the fund for purposes of these U.S. tax-exempts.

In most cases, U.S. investors will expressly require the fund to provide certain U.S. informational returns (called “Schedule K-1s”) annually that the U.S. investors would use to prepare their own U.S. tax returns. These Schedule K-1s generally can be prepared by U.S. accounting firms based on the fund’s financial statements.  U.S. investors might also request that the fund’s governing documents incorporate certain provisions specifically addressing U.S. partnership tax rules, such as the allocation of income for U.S. tax purposes and the handling of U.S. tax audits.

Tax structuring (including the need for blockers and/or parallel vehicles) can add substantial costs to a fund offering, particularly when new investors with different needs join the fund over time. However, these costs can be substantially lower if the fund is set up from the beginning with a structure and governing agreements that allow flexibility to accommodate any future investor issues that may arise.

Additional U.S. Regulatory Issues

The summary above addresses the key U.S. regulatory and tax rules that most commonly arise for an offering of fund interests by a non-U.S. fund manager to U.S. investors. Other U.S.-specific issues that may arise include the following:

1. CFIUS—The U.S. Committee on Foreign Investment in the United States (“CFIUS”) has authority to review transactions for risks to U.S. national security. The Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”) expanded the scope of transactions subject to review by CFIUS, and the U.S. Department of Treasury (the “Treasury”) published new regulations to implement FIRRMA with effect from February 13, 2020. The new regulations expand CFIUS review to certain non-passive investments in U.S. businesses with critical technology, critical infrastructure, and sensitive personal data, and also certain real estate transactions that are in proximity to sensitive U.S. governmental facilities. In addition, the regulations incorporate FIRRMA provisions requiring a mandatory CFIUS filing for any investment involving critical technology or a foreign government owned investor. As a general matter, an investment in a U.S. business by a fund the GP of which is not (and is not controlled by) a foreign person and the non-U.S. LPs of which do not have any control rights over the GP would not be within CFIUS’s jurisdiction, even if the fund itself is domiciled outside the US.

2. Sanctions (OFAC)—The U.S. Treasury’s Office of Foreign Assets Control (“OFAC”) administers and enforces most economic and trade sanctions in the United States. Generally, all U.S. persons are required to comply with OFAC sanctions, including the prohibition on engaging in or facilitating any transaction with a designated party on OFAC’s List of Specially Designated Nationals and Blocked Persons (“SDNs”) or any entity in which one or more SDNs have a 50% or greater interest. Non-U.S. persons are subject to U.S. sanctions if the transaction involves a U.S. nexus (e.g., the transaction involves a U.S. person or U.S. goods or services, including the use of the U.S. financial system). Certain OFAC programs, such as those in effect against Iran, North Korea, Russia, and cyber and proliferation activities, also include “secondary sanctions” whereby OFAC can sanction non-U.S. persons even where there is no U.S. nexus to the transaction. Fund managers should be aware of their OFAC-related compliance obligations as their funds make investments outside the United States that may be subject to the increasingly complex U.S. sanctions regime.

3. Volcker Rule—Non-U.S. managers that are affiliated with U.S. banks (or non-U.S. banks that have U.S. banking operations) should be aware of the implications of section 13 of the Bank Holding Company Act of 1956 (the “BHCA”) (also known as the “Volcker Rule”). The Volcker Rule generally prohibits a banking entity (which is defined to include, among other things, entities affiliated with U.S. banks and non-U.S. banks with U.S. banking operations) from investing in and sponsoring any covered fund. This is relevant if the manager is affiliated with a U.S. bank or a non-U.S. bank with a U.S. branch. However, over the course of last year, U.S. federal regulators relaxed certain restrictions in the implementing regulations of the Volcker Rule, making it easier for banks (especially non-U.S. banks) to make large investments in PE and VC funds.

4. BHC Investors—Bank holding companies (“BHCs”) and their affiliates are subject to restrictions under the BHCA (in addition to the restrictions under the Volcker Rule discussed above). A BHC that has not elected to be treated as a financial holding company is generally prohibited from acquiring or controlling “voting securities” or assets of a non-banking company, subject to certain exemptions. A fund that may admit BHC investors should therefore ensure that the fund’s governing documents have in place provisions that provide that BHC investors will hold non-voting equity interests in the fund to the extent necessary to avoid application of the BHCA.

5. Broker-Dealer Rules (Placement Agents)—Under the Securities Exchange Act of 1934 (the “Exchange Act”), placement agents, finders, and similar service providers that are compensated for raising capital generally are required to be registered as “broker‑dealers” with the SEC. The broker-dealer requirements apply both to the individuals who engage in capital raising as well as the firms that employ them. However, PE and VC fund GPs and sponsors (and, subject to additional rules and increasing SEC scrutiny, certain of their employees) generally do not need to register as broker-dealers, relying on the SEC’s interpretation that issuers of securities are not acting as broker‑dealers when selling their own securities.

6. New Issues under FINRA—The Financial Industry Regulatory Authority (“FINRA”) has issued Rule 5130 and Rule 5131 to safeguard the integrity of the IPO process. Under these rules, broker-dealers who are FINRA members and their affiliates are generally prohibited from selling or allocating shares in all IPOs of equity securities (“New Issues”) to funds in which certain restricted persons (e.g., broker-dealers, portfolio managers, banks and similar persons, as well as executive officers and directors of the relevant portfolio company, and their related persons) have a significant interest. Helpfully, FINRA amended Rules 5130 and 5131 with effect from January 2020 to provide that the allocation restrictions do not apply to a non-U.S. broker-dealer who allocates New Issues to non-U.S. persons, provided that the allocation decisions are not made at the direction or request of a U.S. broker-dealer. Generally, a fund that is domiciled, and managed by a non‑U.S. manager, outside the United States is treated as a non-U.S. person and, on that basis, may participate in New Issues through a non-U.S. broker-dealer without concern for the requirements of Rules 5130 and 5131 irrespective of the nationality of the fund’s underlying investors.

7. FOIA—Under the Freedom of Information Act of 1966 (“FOIA”) and similar U.S. state and local government rules, certain government investors may be required to disclose confidential information about the fund publicly. Some non-U.S. governmental entities are subject to similar rules (which are collectively referred to as “FOIA laws” in the funds industry). A fund manager typically will obtain representations from each investor to determine if any FOIA laws apply and, if so, many agree to withhold certain information from investors who are subject to FOIA laws or provide such information only in a format that would not be subject to retention and public disclosure.

8. CFTC—A private fund that engages in commodity interest transactions generally will be subject to regulation by the Commodity Futures Trading Commission (“CFTC”) through the Commodities Exchange Act (“CEA”) unless the fund is structured or operated in a manner that does not trigger CFTC regulation. Typically, CFTC issues are more relevant for hedge funds than PE or VC funds given that hedge funds are more likely to trade in commodity interests. PE and VC funds that have some exposure to commodity interest (e.g., through certain hedging transactions) typically are able to rely on the “de minimis” exemption from registration with CFTC as a commodity pool operator if certain limits on the fund’s commodity interest positions are met.

Conclusion

When offering PE or VC fund interests to U.S. investors, it is important to consider the foregoing issues and structure the fund in a manner that will be attractive to U.S. investors from a regulatory and tax perspective. These rules can be complex and nuanced but can often be addressed in a simple, straightforward, and cost-effective manner with the support of experienced and solutions‑focused professional advisors. For non-U.S. managers seeking substantial AUM growth, the extraordinary capital raising potential often justifies an increasing willingness to navigate these issues and begin fundraising in the United States.