BUSINESS OF TRADING

Forex hedge
fund management
Thenumberof hedgefundsandhedgefundinvestorshassoared.Forextraderslookingto starta
fundneedto understand
therulesandregulations
beforetheyquittheirdayjobs.

BY HANNAHTERHUNEANDROGERLORENCE

t's understandable why hedge fund with minimal regulatory over- forward contracts, and over-the-count-

I funds have become so popular

in recent years - from a trad-
er's perspective. A talented
hedge-fund manager can accrue sub-
sight.

Forex fund basics

Regulation D, Rule 506, of the
Securities Act of 1933 defines a forex
er options in currencies for which there
is also trading in regulatedfutures, all
qualify as "Section 1256 contracts."
Gains in these instruments are taxed at
stantial income, and while starting a a maximum federal rate of 23 percent
hedge-fund obviously isn't for the fund as an unregistered security (60 percent of the gains and losses are
novice forex trader, it's not as compli- offered as a private placement. long-term and 40 percent is short-
cated as it seems. Regulation D provides "safe harbor" term). In addition, the fund usually
Let's assume a trader has a modest provisions which, if complied with, qualifies as a "trader in commodities,"
$3 million under management and his exempt the private offering from com- so the investors are able to deduct the
forex hedge fund has a I-percent man- pliance with the registration and fund's expenses more favorably than
agement fee and a 20-percent perform- prospectus delivery requirements of expenses in an investment partner-
ance allocation fee (Le., a share of the federal securities laws. However, ship.
profits). Assume the fund was started Regulation D does not exempt the Performance-based compensation
on the first day of the year and offering from compliance with the for fund advisers is usually structured
returned 15 percent. fraud provisions of the federal and as an allocation of profits, but it is
In this case, the trader would have various state securities laws. sometimes structured as fees -in
gross income of $120,000,consisting of
a $30,000managementfee($3million*
1% = $30,000)and a $90,000perform- Mostforeigncurrencytradingiseligiblefor
ance allocation ($3 million * 15%
return = $450,000 * 20% = $90,000). favorablefederalincometaxtreatment.
Using all the same assumptions, a
hedge-fund manager with $10 million
under management would make Forex funds must supply all either event typically between 10 and
$400,000. investors with comprehensive infor- 20 percent of trading profits. In some
Also, because prospective investors mation about the offering in "disclo- instances, the compensation agree-
like to see fund managers' risk their sure documents." The purpose of these ment specifies that funds be only paid
personal capital, assume the fund documents is to limit the hedge fund's when the profits of the fund exceed a
manager has a significant portion of potential risk by providing full disclo- minimum rate, or "hurdle rate."
his own money invested in the fund. sure to investors.
Because there are no fees assessed (it A typical set of disclosure docu- Exempt lorex funds
would just increase taxes), the trader ments includes a private placement To be exempt from registration under
earns an additional 30 percent on his memorandum, an investor question- the Securities Act of 1933,a fund must
own investment in the fund. naire and subscription agreement, and have no more than 100beneficial own-
However, before a trader can poten- an operating agreement for the fund. ers (also known as the "100 investor
tially enjoy these rewards, he or she Most foreign currency trading is eli- test") and must not publicly offer its
must structure a proper business. The gible for favorable federal income tax interests.
good news is forex traders are now treatment. Regulated futures contracts, Under the Section 3(c)(7)exemption,
positioned to quickly launch a forex regulated commodity option contracts, a fund must offer its securities to

52 March 2005 . CURRENCY TRADER

"qualified purchasers." There are no Steps to launch a lorex hedge fund
limitations on the number of qualified
purchasers under the Investment 1. If you need to register as a Commodity Pool Operator (CPO), start the
Company Act of 1940. process, which you will continue while executing the rest of these steps. See
However, when there are more than www.iard.com to get started.
500 investors in the limited partner-
ship, the entity my be subject to classi- 2. Determine what will make your hedge fund unique. Finalize the fund's
fication as a "publicly traded entity." investment objective and investment strategies, prepare biographical data on
If that occurs, the entity could lose its yourself for the offering documents, and make decisions that will affect how
flow-through tax treatment (i.e., a often you accept investors, how you will be compensated, what expenses
partnership) which is one of the pri- your fund (as opposed to the management company) will bear, how you will
mary benefits of the hedge fund's be set up regarding trader tax status, etc. I
structure.
3. If you are forming a commodity hedge fund, start the process of becoming
Accredited vs. non-accredited a member of the NFA. See this page: http://www.nfa.futures.orgJregistra-
investors tion/nfa_membership.asp. You will need to register as a Commodity Pool
Generally, "accredited" investors Operator with the NFA. See http://www.nfa.futures.org/registration/cpo.asp.
includes persons whose net worth (or
joint net worth with spouse) exceeds 4. Obtain a first draft of your offering documents (Private Placement
$1,000,000,or whose income was in I Memorandum, LLC Agreement, and Subscription Materials) from your
excess of $200,000in both the two pre- provider(the firm advisingyou on setting up your hedgefund). Form your I
ceding years (or, with a spouse, in business entities, get tax ID numbers, make the appropriate IRS elections,
excess of $300,000in both the two pre- and prepare resolutions so you can open bank and brokerage accounts.
ceding years), and who reasonably
expect to reach the same level of 5. Your provider's attorney should be actively involved in the review of your
income in the current year. documents. This is an important part of the preparation of your fund.
If you plan to have "non-accredited
investors" in your fund, you will not 6. If you are registered as an Investment Adviser or registered with the NFA
only need a detailed set of disclosure as a Commodity Pool Operator, make sure the regulators have approved any
documents, but also audited documen- such applications.
tation of the source of initial capital
invested in the fund. This initial audit 7. Your provider should give you the SEC Form D and the blue sky filings for
is referred to as a "launch audit" or as
I the initial states where you expect to distribute your offering documents.
a "seed-capital audit." Regulation D Make sure your provider gives you instructions on how and where to file the
limits the number of non-accredited
I various documents,and general instructionsregardingthe distributionof I
investors to 35. your offering documents. You should now have a final set of offering docu-
Taking on non-accredited investors ments.
is risky because if there are ever any
problems with the fund's performance 8. Have your offering documents printed and bound. Consider the image you I

and investors seek relief in the courts, I wish your fund to project when choosing the printing materials and binding
a judge would probably take the side method. Remember that you can have no marketing materials other than I
of the non-accredited investor. I your offering documents.

Howdol~dinvestors? 9. Mail your SEC Form D. You can check here to see that it was processed
Rule 502(C) of Regulation D prohibits by the SEC: http://www.sec.gov/edgar/searchedgar/companysearch.html.
I
any form of a general solicitation or File your blue sky filings within the appropriate time - either before distribu-
general advertising. Generally, inter- I tion or within 15 days of the first sale in that state,dependingon the state's
ests in your hedge fund may be sold rules.
by registered broker dealers, regis-
tered investment advisors or officers 10. Start distributing your offering documents and attracting investors. Keep
of the fund's management to those . a log of all individualsto whomyou distributeyour documents.Deposityour
persons with whom they have exist- seed capital and start the initial trading of the fund.
ing relationships.
Your marketing efforts must be per-
continuedon p. 54 - - - -

CURRENCY TRADER. March 2005 53

sonally directed toward investors who arbitration, capital requirement rules, ate of the CPO.
are known to you. The SECviews non- and customer account regulations. The disclosure document must be
personal communications as "general No sponsor is needed to take the Series filed with the NFA at least 21 days
solicitations," even when the targeted 3 exam, also known as the National prior to the delivery of the documents
recipients of the communications Commodity Futures Examination.which to a prospective participant, and
could reasonably be expected to be is administeredunder the auspicesof the updated periodically. The CPO must
qualified investors. NASD's testing program. You can find receive a written confirmation from
However, it is possible to comply the nearest testing location at each participant in the pool that they
with the prohibitions against general www.nasd.com/NASDW 010803. received the Disclosure Document
solicitation or advertising by using a The CFfC has allowed the NFA to prior to accepting the participant's
secure Web page for which access is become the primary regulator of funds.
limited to accredited investors. futures and commodity products (as a
self-regulatory organization, similar to CPO registration exemptions
Blue sky the NASD's status with the SEC). The CFTCprovides for several exemp-
Within 15 days of the first sale of your The item that will typically take the tions from CPO regulations. A person
offering, you will have to me your most time for processing of a CPO is not required to register as a CPO if
Form D (Notice of Sale) with the SEC application is the fingerprint card, the person did not receive any com-
as well as comply with filing require- which is supplied by the NFA. A CPO pensation or payment directly or indi-
ments of the states in which each of will take it to their local police station rectly, operated only one commodity
your investors are located. Then you and have their fingerprints taken. The pool at a time, or was not otherwise
need to be sure that your securities are card is then mailed to the NFA, which required to register with the CFfC.
sold with out violating the prohibition sends it to the FBI for processing. This This is referred to as the "closely held
on general advertising. takes six to eight weeks, and there is pool exemption."
no rush service available, so take care Registration as a CPO is also not
NFA registration of this very early in the application necessary from registration when total
If your forex fund invests in currency process. gross capital contributions for partici-
futures contracts, currency futures The NFA must approve all disclo- pation units in all pools that are oper-
options, or forward contracts, it must sure documents before they can be ated (or intended to be operated) do
be approved as a commodity pool by used to solicit clients. If the NFA has not in the aggregate exceed $400,000
the Commodity Futures Trading comments, it will usually give them to and there are less than 15 participants
Commission (CFfC). In addition, you the CPO candidate verbally, and in in the pool.
must register with the National Futures writing if the CPO candidate requests. Also exempt from registration as a
Association (NFA) and become a The guide for CPOs and CfAs (see CPO with respect to the pool, where
Commodity Pool Operator (CPO). "Web resources") is an invaluable tool the interests have been sold exclusive-
This raises the differences between for creating disclosure documents. The ly to participants that the CPO reason-
registration as a CPO and a commodi- NFA essentially uses that document as ably believes at the time of their invest-
ty-trading advisor (CfA). A CfA man- a checklist, and every item must be ments were QEPs, and the pool trades
ages individual accounts, while a CPO addressed to their satisfaction before commodities in de minimis amounts.
manages only the hedge fund, or pool. they will approve disclosure docu- The de minimis limitations are: 1) the
Many people lose interest in the CfA ments. pool limits its commodity interests
option when they realize the adminis- The disclosure document must positions such that the aggregate
trative hassles associated with manag- include information about the CPO notional value of such positions does
ing separate accounts. and its principals (including perform- not exceed the liquidation value of the
Spot forex trading is not regulated ance record), commodity trading advi- pools portfolio, or 2) the total amount
by the CFTCand does not require CPO sors, futures commission merchants, the pool commits as initial margin and
registration if the fund trades spot cur- brokers, details of the commodity premiums to establish commodity
rencies exclusively. Legally, "spot cur- interests, expenses associated with the positions does not exceed 5 percent of
rency" refers to contracts that settle by pool, conflicts of interest, minimum the liquidation value of the pool's
the second business day after the date investment amounts, transferability portfolio. Another requirement is the
the trade is entered. issues, and any litigation (material, interests in the relevant pool are not
While CFTC registration is not administrative, civil, or criminal) marketed as participants in a vehicle
required for spot forex traders, it is against anyone involved in the man- for trading in commodity interests.
important for fund managers to trade agement of the fund. Additionally, any CFTC Rule 4.13(a)(4) establishes a
with firms that are NFA registered, as person who is involved in the com- CPO registration exemption for a CPO
NFA registered members are subject to modity pool must register as an associ- with respect to a pool where interests

54 March 2005 . CURRENCY TRADER

 Web resources
http://www.nfa.futures.orgl
are offered and sold without marketing
The home page for the National Futures Association (NFA).
to the public in the United States, and
are sold exclusively to participants that
http://www.nfa.futures.orglcomplianceflSSues_cpo_cta.asp and
the CPO reasonably believes are QEPs.
http://www.nfa.futures.orglcompliancelpublicationsldd2001/DD2004.pdf
The web pages are related to the NFA's Guidance to Commodity Pool
Are you going to trade
Operators (CPOs) and Commodity Trading Advisers (CTAs). The second
stocks, too?
link is particularly valuable. It essentially defines the sections that need to
If you plan to execute more than an be included with a CPO document that is submitted to the NFA. It also dis-
occasional stock trade, you might also
cusses some of the various exemptions from registration that are available.
have to register as an investment
Some of these exemptions (particularly the Qualified Eligible Person [QEP]
adviser. Beginning in February 2006,
hedge fund mangers will be required
- only pools) are very powerful and should be strongly considered. The
QEP exemption allows you to not have to take the Series 3, not have to
to register with the SEC as investment become a member of the NFA, and not have the NFA or the CFTC as a
advisers when a fund has assets of $25
million or more and has 15 or more regulator. Other exemptions, such as those related to small pools, may be
of more benefit to certain clients.
investors in the hedge fund.
Until then, the hedge fund itself is
http://www.nfa.futures.orglregistration/cpo.asp.
considered the "client" of the adviser,
The NFA'sguidance related to who has to register as a CPO, and how it is
which affords the adviser an exemp-
accomplished. It includes a link to a page for an REasyReference GuideRto
tion from registration if there are less
than 15 clients and the adviser does exemptions from registrationhere: http://www.nfa.tutures.orglregistration/
easyReferenceGuidePart4.pdf.
not hold itself out to the public as an
investment adviser.
Funds with less than $25 million http://www.nfa.futures.orglregistrationlcta.asp
The equivalentto #3, above, exceptthat it is for CTAs.
will not be permitted to register and
will be subject to applicable state law.
http://www.nfa.futures.orglregistrationlnfa_membership.asp
State investment adviser Data related to becoming a member of the NFA. All CPOs and CTAs must be
members of the NFA, unless they achieve an exemption. Note the reduced
registration
fee schedule that became effective on July 1, 2004.
Each state has its own registration
requirements which are also interpret-
http://www.nfa.futures.orglbasicnetl
ed in conjunction with the National
This is the equivalent of the NASDR's website, except that it is for the NFA.
Securities Market Improvement Act of
1996. Through this page, you can access a summary of the status of all NFA mem-
In some instances, where the invest- bers, including regulatory status and sanctions.
ment adviser has a particular kind of
http://www.cftc.gov/cftclcftclawreg.htm#cea
client, has fewer than a certain number
of clients within a 12-month consecu- This is an invaluable site to review the underlying federal law related to CFTC
issues. Note the various links in the body of the page as well as on the left
tive period, and does not hold itself
navigation buttons.
out to the public as an "investment
adviser," it may be exempt from that Securities Law: http://www.law.uc.eduiCCUsldtoc.html
states' registration requirement. In State Securities Administrators: http://nasaa.org/members_only/CFTC Law
each instance, it is important that the
and Regulation links: http://www.cftc.gov/cftclcftclawreg.htm#cea
law of the state in question be Investment Adviser application (for most states): www.iard.com
reviewed for compliance.
Our website (tons of additional data):
More rules and regs
http://www.greencompany.comlHedgeFundslindex.shtml
In addition to the registration and
solicitation guidelines summarized
above, there are also federal and state reporting requirements, and record deal of trouble later by learning now
laws governing the operation of the keeping. about the forex hedge fund registra-
fund. These laws govern marketing Although the process is involved, tion process and regulations they will
and advertising, the compensation of experienced forex traders who wish to have to abide by in the future. 0
fund advisers, fund management, per- expand into professional money man-
sonal trading, the use of soft dollars, agement can save themselves a great Fur infonnation on the author seep. 8.

CURRENCYTRADER' March 2005 55