OFFSHORE FOREX FUNDS
Forex, Hedge Funds. Registering With the Commodity Futures Trading Commission
ForEx, hedge funds. Registering with the Commodity Futures Trading Commission
Generally, the Commodity Futures Trading Commission has jurisdiction over transactions in ForEx futures and options contracts offered to retail customers, and the only counterparties that can lawfully enter into these contracts with retail customers on an off-exchange basis are persons that are: (i) registered with the Commission as a futures commission merchant (FCM); (ii) certain affiliates of a registered FCM;, or (iii) otherwise regulated, e.g., as a securities broker-dealer, a bank, a financial institution or an insurance company.
On May 22, 2008, the Congress passed the Farm Bill which, in Title XIII, contains several amendments to the Commodity Exchange Act involving the retail trading of foreign exchange.
Under the CFTC Reauthorization Act, a person operating pool solely trading spot ForEx is not required to register as a CPO at this time (but may be so required in the future upon promulgation of regulations by the CFTC).
As a Fund of Funds you must be aware of each particular states Investment Advisor rules. Many states have exemptions from registration. Also if you intend to invest in futures or commodity funds, you should register with the National Futures Association (NFA) and the Commodity Futures Trading Commission (CFTC) as a Commodity Pool Operator (CPO). This CPO’s associated person must successfully complete the NASD Series 3 examination.
Must a finder be registered as a broker-dealer?
Generally, No. Generally a finder does not have to be registered as a broker-dealer if its finder’s activities are limited. A “broker” under the Securities Exchange Act of 1934 is “any person engaged in the business of effecting transactions in securities for the account of others.” The SEC staff has found activities such as (a) participating in presentations or negotiations, (b) making any recommendations concerning securities, (c) receiving transaction-based compensation, (d) structuring a transaction or making recommendations regarding the nature of the securities, whether to issue securities or to assess the value of securities sold, and (e) continuing involvement in sales of securities to trigger broker-dealer registration obligations. However, a number of states, Texas and California for example, take the position that only a registered representative (broker) may receive kind of compensation.
Are there any other types of finders available to issuers in a private placement?
Yes. Rule 3a4-1 provides a non-exclusive safe harbor from the definition of a broker for persons associated with an issuer who are engaged in securities-related activities incident to their duties on behalf of the issuer. See Securities Exchange Act Rel. No. 22172 (June 27, 1985). Employees and possibly individual affiliates of an issuer who are not registered representatives of broker-dealers may be considered “associated persons” for purposes of Rule 3a4-1, in which case they may be exempt from registration and will be permitted to engage in limited sales activities pursuant to the Rule’s safe harbor.
About the Author
Michael Lapat is the President, General Counsel and a founder of TURN KEY HEDGE FUNDS, INC (www.turnkeyhedgefunds.com). He currently serves on the Board of Directors of the Hedge Fund Association, a non profit association representing the Hedge Fund Industry. In 1998, Mr. Lapat was a co-founder of a successful hedge fund which from August 1998 through September 2000 grew its assets from $500,000 to $60,000,000; and during which time had an average annual return of 78.53%. At that fund, he was responsible for document preparation, investor relations, fund administration, and legal and compliance matters, as well as other back office matters. Mr. Lapat was responsible for the initial launch of the domestic hedge fund as well as its transition to a master feeder fund structure with onshore and offshore feeder fund components.
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