With the impending removal of the 15 Client Rule exemption from registration with the SEC, I was scratching my head trying to figure how to make the SEC’s new custody rule work for private equity.
The SEC recently updated its guidance on custody rule compliance truing to add clarity for advisers to pooled investment vehicles.
Here is one:
Q: If an adviser manages client assets that are not funds or securities, does the amended custody rule require the adviser to maintain these assets with a qualified custodian?
A: No. Rule 206(4)-2 applies only to clients’ funds and securities. (Posted 2003.)
Actually that does not help. A private equity fund will hold interests in private companies. Those interests may be stock, LLC interests or partnership interests. Just because the company is private, those interests may still be securities.
For real estate private equity, the deeds to the underlying property would fall outside the custody rule. The intermediate entities, REITs and joint ventures may not fall outside the custody rule.
§ 275.206(4)-2(b)(2) has an exemption for certain privately offered securities, if the securities are:
(A) Acquired from the issuer in a transaction or chain of transactions not involving any public offering;
(B) Uncertificated, and ownership thereof is recorded only on the books of the issuer or its transfer agent in the name of the client;
(C) Transferable only with prior consent of the issuer or holders of the outstanding securities of the issuer.
This exemption is available only if the fund is audited, and the audited financial statements are distributed, as described in paragraph (b)(4) of this section.
The “uncertificated” requirement can be a problem. It is common practice for lenders relying on private company interests to require they be certificated to get better priority under the UCC.
The limits on transfer are a problem because as the holder of the interests, you want the flexibility to transfer interests.
The financial statements requirement is another extra burden, although may not be a problem for many funds. This requires:
- annual audit
- in accordance with GAAP
- within 120 days of the end of the fiscal year
- independent accountant registered and subject to inspection by PCAOB
(I’m not sure how quickly the SEC can change this rule if the Supreme Court rules PCAOB unconstitutional.)
In looking towards Capitol Hill, the Senate’s Restoring American Financial Stability Act would exempt private equity firms from having to comply with the custody rule since they would not have to register. The House’s Wall Street Reform and Consumer Protection Act would not exempt private equity firms from registration and they would be subject to the custody rule.
One interesting aspect of the bills is that fund advisers that are currently registered because they have more than 15 clients/funds may no longer have to be registered if they fall under the venture capital fund advisers exemption or private equity fund advisers exemption. (Assuming those exemptions survive in the final bill.)
- SEC Release No. IA-2968: Custody of Funds or Securities of Clients by Investment Advisers
- SEC Staff Responses to Questions About the Custody Rule
- SEC Staff issues additional guidance on amended Custody Rule compliance for advisers to pooled investment vehicle by Compliance Avenue
- Custody of Funds or Securities of Clients by Investment Advisers – prior post
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