Types of Investments for Business Startup
Business startups are gaining increased attention from possible investors and many opportunities are becoming available for startups with low funds looking to jump into the market. There are many different types of investments funds, before jumping the gun ask yourself which type of investment fund is the best fit for your business startup?
What is Considered an Investment Company?
There are different types of investment funds and vary based on the level of regulation, objectives, and type of authorized investments. The Investment Company Act (ICA) regulates investment companies. ICA defines an investment company as issuer of securities that is engaged, holds itself out as being engaged, or proposes to engage primarily in the business of investing, reinvesting or trading securities. Generally, investment companies under ICA are heavily regulated and must register with the Securities and Exchange Commission (SEC).
Under the ICA, the main type of investment companies are so called mutual funds, which must register with SEC and comply with other requirements of ICA. In general, any legal entity that sells securities to raise capital, and then invests that capital in other company in which it is not a majority owner, is almost certainly an “investment company” under ICA. However, there are certain exceptions under ICA, in which case, under the ICA, the entity is not considered an investment company and is less heavily regulated.
What Are Hedge Funds?
A hedge fund is an investment vehicle that pools capital from a number of investors and invests in securities and other instruments. Generally, hedge funds share most, if not all, of the following characteristics:
- Private Nature – In almost all cases, a hedge fund is a private investment vehicle, meaning that it is typically not registered under federal or state securities laws.
- Smaller Size – Hedge funds generally are smaller in size than mutual funds, partly due to the limited universe of eligible investors.
- Greater Investment Flexibility – Hedge funds have greater flexibility in the investments they can make and generally are not constrained or restricted in their investment activities (other than by their own investment guidelines) by the diversification requirements applicable to mutual funds.
Registering a Hedge Fund:
In order to register a hedge fund under ICA it must fall under an exception of the act. ICA Section 3(c)(1) provides an exclusion from the 1940 Act for any fund that satisfies two requirements: (1) it must not be making or proposing to make a public offering of its securities; and (2) its outstanding securities must be beneficially owned by not more than 100 persons. Founders of hedge funds generally rely on this exception.
Hedge Fund Structure:
Hedge funds can be organized in a number of different structures and jurisdictions. Generally hedge funds are organized as limited partnerships or limited liability companies, which is preferable for tax purposes. Many parties are involved in the day-to-day operations of hedge funds, among which the most important is the Investment Adviser/General Partner. Overall management of a hedge fund, including decisions about portfolio investments, is typically the responsibility of either a general partner or a separate fund manager. Many hedge fund managers are registered as investment advisers under the U.S. Investment Advisers Act of 1940 (Advisers Act), although some exemptions from registration are available. For those interested in learning more can visit The California Hedge Fund Association which was founded to foster the growth and development of the hedge fund community in California.
Advisers Act is the federal statute that regulates most investment advisers doing business in the United States. Generally, investment advisers must register under Advisers Act, unless an exception applies. Where a hedge fund manager is unable, or chooses not, to rely on a registration exemption, it must register as an investment adviser, either with the SEC or a state. Advisers whose activities are deemed to be more national in scope, that is, those with $100 million or more in assets under management, as well as those in states that do not regulate advisers, must register with, and will only be subject to the regulations of, the SEC.
In general, investment advisers are responsible for recommending or selecting, based on discretionary authority, portfolio investments in accordance with their client’s objectives and policies. Frequently, investment advisers place portfolio orders with broker-dealers and are responsible for ensuring best execution of client transactions. Even if investment advisers are not registered under Advisers Act, they are subject to a number of Advisers Act provisions, most notably the antifraud provisions and certain additional reporting requirements.
Reporting obligations and related requirements:
Although hedge funds do not need to register with SEC, hedge fund managers need to comply with a host of special reporting, disclosure, privacy and information-protection requirements. Many of these requirements are in addition to those imposed on registered fund managers by Advisers Act, and include regulatory reporting requirements, providing information to investors, privacy and information-protection requirements. Depending on investment activities, fund managers may be subject to record-keeping or reporting requirements of SEC and other regulatory authorities, such as the U.S. Department of the Treasury, the Commodity Futures Trading Commission, the Federal Trade Commission and others. Fund managers investing in non U.S. securities also must be cognizant of any similar requirements under foreign laws and regulations that may apply.
Do Private Funds Invest in Non-Public Companies?
Private funds do not need to register with SEC if they fall under an exception of ICA. By structure and registration rules other private funds are similar to hedge funds. A common type of private funds are private equity funds. A private equity fund generally invests in non-public companies. Many variations of private equity funds exist, including venture capital, leveraged buy-out and mezzanine financing funds.
Private equity fund, the fund manager typically seeks capital from a number of sophisticated or institutional investors in the form of “capital commitments,” which are generally fairly substantial in size, such as $5 million or more from each investor. Unlike the typical hedge fund, which accepts additional investments from investors throughout the fund’s life, a private equity fund is generally a closed-end vehicle, meaning that after one or more fundraising stages, or “closings”, new investors are not accepted.
Unlike hedge funds or registered funds, which usually invest mainly in liquid, publicly traded securities, a private equity fund typically acquires large blocks of privately placed, generally illiquid securities from issuing companies. A private equity fund’s success depends upon its portfolio companies increasing in value, often substantially, after several years and the fund being able to dispose of its holdings.
Small Business Investment Companies:
Small business investment companies (SBIC) are federally licensed entities employing, in part, federal funds and are subject to broad regulatory control by the U.S. Small Business Administration (SBA). A licensed SBIC is an incorporated entity, organized and chartered under state law solely for the purpose of supplying equity capital on long-term loans to small business concerns, providing consulting and advisory services, and investing funds not reasonably needed for current operations in various limited kinds of obligations. SBICs must only invest in small businesses.
What are the requirements to become a Small Business Investment Company?
In order to become a SBIC the entity must be licensed by the SBA. Prior to filing a license application, SBIC applicants must raise the greatest of the following three minimum capital requirements:
- The statutory minimum of $5 million.
- Any minimum amount stipulated in the applicant’s own SBIC license application as required for an initial closing of the fund.
- Any minimum amount SBA determines is needed to ensure the applicant’s viability.
Hedge funds are probably the least regulated investment funds. Hedge funds do not have to register with SEC, although investment advisers, who are generally the managers of the fund, might have to register with SEC. On the other side, hedge funds allow greater flexibility in investments which makes this investment vehicle even more attractive.
Yes, you can call our business lawyers from Kaass Law at 310.943.1171 if you have any further questions or to comment on how great this blog was. This content is intended for educational purposes only.