Some Factors to be Considered when Establishing an Offshore Fund
.There are many different factors that have to be considered and many decisions that have to be made before an offshore fund can be established. We comment on and discuss some of these factors below, which should be considered in conjunction with the Questionnaire, and are therefore referenced by the relevant Question number.
Name of Parent Company/Fund (Reference Question 1)
In many cases the "Company" will also be the "Fund" and have the same name - however if it is intended to establish a multi-share, i.e. an umbrella type of fund, then the Company should perhaps have a more generic name (e.g. "Unique Managed Funds Ltd") and the Sub-Funds more specific names (e.g. "The Unique Bond Fund", "The Unique Futures Fund" etc).
Proposed Objective of the Fund (Reference Question 2)
"Capital Appreciation", in this context, means a roll-up or non-distributor fund - i.e., a fund in which all the trading and investment profits are added to the NAV, together with any net interest or net dividend income and investors benefit by an increase in the NAV and realise their profit when they redeem their shares. "Income", in this context, means a fund that distributes dividends, which may be all, or a portion of, the ordinary income (dividends and interest less operating costs) or may include some trading profits or capital gains as well.
Fund of Funds (Reference Question 3.2)
Boththe management and the administration of a Fund of Funds brings withit certain unique characteristics, particularly with regard to the timing of subscriptions by investors and redemptions and subscriptions by the Fund of Funds into underlying funds, as well as the basic problem of valuing the fund on a timely basis.
The main problem with valuing a Fund of Funds within a specific time period is the difficulty that can occur in obtaining final valuations of the funds that comprise the underlying assets of the Fund of Funds. Usually, it is possible to obtain good valuations within the first two weeks of the month following the Valuation Date, but some funds, for whatever reason, can be late in supplying their valuation.
All administrators are reluctant to use estimates, but sometimes it can facilitate efficiency and a prompt valuation of the Fund of Funds. For example, if a Fund of Funds is invested in, say, 20 underlying funds, 2 of which are consistently late in providing their final valuations, then those two funds will represent circa 10% of the assets. In these circumstances, the administrator may, subject to the agreement and approval of the manager and the auditor, utilise an estimated valuation for the 2 delinquent funds and issue a valuation of the Fund of Funds on the basis of those estimated valuations. The administrator would only be prepared to do this if, historically, the managers of the delinquent funds had provided estimates which were confirmed by the administrator of those funds, at a later date, without any material change (say, less than 10 basis points) and that this had been the case for a period of 6 months/12 months/2 years, or whatever is deemed acceptable.
It can be seen that, if there was a difference of 10 basis points or less on the two funds between the estimate and the final, that difference would only affect the overall Fund of Funds by 100th of percent (10 basis points on 10% of the assets), which is not material in terms of the valuation of the Fund of Funds as a whole, even in the context of any redemptions or subscriptions that may have been made.
Accordingly, as a matter of pragmatic convenience, some managers of Funds of Funds will permit estimated valutions to be used, subject to specific restrictions and to disclosure of the practice within both the Offering Memorandum and the Administrator's Agreement. Furthermore, there should be some reference to the potential risk that this practice could have, in the event of a major difference between the estimated and final prices of the underlying fund on the Fund of Funds' valuation.
A Fund of Funds may need borrowing facilities to provide:
Some Managers of Funds of Funds prefer to take full responsibility for handling the purchases (subscriptions into) and the sales (redemptionsout of) of shares, units or partnership interests to the underlying funds in the Fund of Fund's portfolio. Other Managers require the Administrator or the Custodian to handle all such transactions, for which the Administrator or Custodian will charge a fee. A normal procedure would be for the Manager to agree deadlines for giving trading instructions witheither the Administrator or the Custodian and for that Manager to then give written instructions to the Administrator or Custodian, as appropriate. The "deadlines" for giving such instructions to the Administrator or Custodian will have to take into account the notice periods for the underlying funds which the Administrator or Custodian, in turn, will have to comply with.
Investment Restrictions (Reference Question 4)
The regulatory authorities in certain jurisdictions will impose specific investment restrictions. For example, The Irish Stock Exchange will impose specific investment restrictions for Funds applying to obtain a listing on the Exchange. However, for funds targeted at professional investors, compliance with such restrictions as may be imposed is not particularly onerous.
Nevertheless, even for unlisted funds, Custom House would recommend that a clear policy, including restrictive limits, relating to matters such as extent of leverage, diversification, credit status of counterparties etc., should be imposed by management as a matter of prudence and common sense.
"New Issues" (formerly "Hot Issues") (Reference Question 5)
If the Fund is to invest in "New Issues" (previously designated "Hot Issues"), it will be necessary to verify whether each of the investors in the Fund are deemed "restricted" or "unrestricted" investors. In very simple terms, a "Restricted" investor is an investor who may or could have "inside" knowledge because of the investor's occupation. "Restricted" investors may not participate in the profits (or losses) relating to a New Issue investment, subject to certain exemptions (such as restricted investors comprising less than 10% of the total fund), as a result of legislation passed late 2003/early 2004. Full disclosure of this should be made in the offering documents and, as this is essentially an SEC compliance matter, Custom House would recommend that the Fund's compliance, in this regard be guided by the Fund's US attorney.
Soft Dollars (Reference Question 6)
If the fund, or its management, benefit in anyway from Soft Dollar arrangements, this must also be fully disclosed in the offering documents.
Structure of Funds (Reference Question 7.1)
Custom House would recommend that the fund be established with the ability to be a multi-share fund because it will cost no more at the outset and will provide the facility to issue different classes of shares in the future.
The standard offshore fund that Custom House recommends is a multi-share company with the Class A Shares issued as Voting Shares and all subsequent classes of Shares issued as Non-Voting Shares.
Class A Shares
The holders of the Class A Shares have all the votes and their shares are usually held on behalf of the management or promoters of the company for administrative convenience, but will have no participation in the assets of the fund(s), except to the extent of the initial capital subscribed for the shares.
Class B and other Classes of Shares
The Class B Shares, which will be issued to investors in the Fund, will have no voting rights. However they will participate equally in the Net Assets of the Fund and Company relating to the Class B Shares on liquidation and in dividends and other distributions as declared.
This structure is purely for administrative convenience and saves having to organise expensive shareholders meetings for all investors, or having to obtain proxies from a widely dispersed shareholder network.
Additional Classes of Shares can be issued, if required, to create additional Sub-Funds to provide for, inter alia:
Protected/Segregated Cell Companies
Several jurisdictions permit companies to be established with separate Segregated Protected Cell structures ("Protected Cell Structure"). These were originally created for insurance companies, but have now become available for umbrella type fund companies. The rules relating to such companies provide protection by segregating one fund (or cell) from any cross-collateral risk of losses generated in another fund (or cell), should that fund (or cell) suffer losses in excess of its assets.
On the face of it, the Protected Cell Structure is a very good and efficient way of achieving cross-collateral protection, however, it must be stressed that, whilst the law permits the structure and, therefore, endorses the protection offered in the jurisdictions in which such legislation exists, there have been, as far as we know, no test cases in those jurisdictions. More importantly, there have been, as far as we know, no test cases in the EU, the UK or the USA involving such companies, where the Protected Cell Structure is not a recognised structure under European, UK or US company law. There is, therefore, the possibility that, if a case arose and jurisdiction was claimed or, indeed, taken by the courts outside the domicile of the fund, that those courts could disallow the cell structure protection.
Accordingly, we would suggest that, even if you use the Protected Cell Structure, you should also insert a Subsidiary Trading Company (see Question 8) under each cell.
It has to be stated that the only sure way to eliminate the cross-collateral risk between two Sub-Funds, is to establish separate stand-alone fund companies.
Choice of Entity
Ultimately the choice of legal entity will depend upon a number of factors, including, inter alia, the type and residence of the investors and personal preferences of the clients.
Closed End Funds (Reference Question 7.2)
Often Closed End Funds are created because the assets which the Fund will invest in are illiquid, such as real estate, private equity, distressed securities and venture capital. This can lead to valuation problems. It is, therefore, essential that a clear valuation policy is established, and described in the offering documentation. It is also preferable that an independent valuer is retained and that the valuation policy and procedures are pre-approved by the Fund?s selected auditor.
Master-Feeder Fund (Reference Question 7.3)
If it is intended to permit US tax payers as investors in the fund, it is probable that you will need to segregate the US tax payers from the non-US and US tax exempt investors, by establishing a US Domestic Limited Partnership (or an Offshore Limited Partnership) to accommodate the US tax payers. You will then probably want to use a Master/Feeder Fund structure.
A Master Feeder structure can consist of two entities - the Master Fund, which will be one US Domestic Partnership (for US taxpayers) - into which the Offshore Fund will invest. However, many investors would prefer the "triangular" Master Feeder fund structure.
This is an arrangement whereby a subsidiary trading company would be established as the "Master Fund", into which both the Offshore Fund (for non-US and US tax exempt investors) and the Domestic or Offshore Limited Partnership (for the US tax paying investors) will invest. This "Master Fund" would be a subsidiary trading company with only these two shareholders.
If you do not want to accept US tax payers immediately, but intend to do so at some time in the future, it makes sense to establish a subsidiary trading company, which will become the Master Fund, at the outset, in order to avoid the hassle and expense of having to open up new brokerage accounts in the name of the Master Fund and transfer all of the open positions from the Offshore Fund account to the Master Fund account, at a later date.
Equalisation (Allocation of Incentive Fee) (Reference Question 7.4)
Historically, incentive fees have been paid to Investment Managers on the basis of new net profits of the Fund. These are usually paid either annually or quarterly and continue to be paid so long as profits exceed the previous "high water mark", which is either the initial or launch price, or the NAV per share at which the last incentive fee was paid. However, if the NAV declines from that previous high water mark, the Fund must recoup that loss before any new incentive fees are paid. This has been standard practice for many years - however it is not equitable, either for the Investment Manager, or for investors, depending on the circumstances and to ensure the equitable allocation of the incentive fee between shareholders, some form of "Equalisation" must be used.
A number of methods of accounting for incentive fees have been developed, which achieve an equitable allocation, of those fees, but unfortunately create substantial confusion in shareholders' minds. Probably the simplest procedure would be to structure the Fund as a partnership and allocate profits, losses and fees on a partnership basis, using capital accounting methods. However, although this is acceptable to US investors, who prefer partnerships primarily for tax related reasons, most non-US investors generally dislike the partnership structure - also for tax reasons.
Other than using partnerships, the two most common ways of achieving equality are using one of the "Equalisation" methods, which all utilise very complex accounting formulae or the "Series of Shares and Consolidation" method, which is more cumbersome, but also easier to understand.
(For a full explanation of Equalisation, see the Custom House Website - "Equalisation - What it is, Why it is Necessary, How it Works").
Subsidiary Trading Companies (Reference Question 8)
Subsidiary trading companies may be used for asset protection or tax planning purposes:
a) The Memorandum & Articles of Association of the Company and the Offering Memorandum will provide for the segregation of the assets of each Sub-Fund and the protection of the individual shareholder's interest in the assets of their specific sub-fund. In order to add a further layer of protection, albeit at extra cost, a separate limited liability trading company can be incorporated for each Class of Share. The assets subscribed to each Class of Share or Sub-Fund will be invested into its designated trading company. This is strongly recommended if the Sub-Fund in question is trading on margin or otherwise on a leverage basis, and is thus vulnerable to losses in excess of assets.
If the trading is done in the name of the Company and not through a subsidiary, the creditors, who would normally be the Fund's Prime Broker or other trading counter-party, could claim against the assets of the other Sub-Funds of the Company. This risk is avoided if the trading is carried out through a limited liability subsidiary trading company. Thus, in the event that the trading for one Sub-Fund, through its own subsidiary company, resulted in substantial losses, these losses would be contained within that subsidiary company and, because of its limited liability, could not pass through to other Sub-Funds of the Company and penalise the shareholders in those other Sub-Funds.
(It should be noted that the protection provided by utilising subsidiary trading companies will not eliminate the possibility of a disgruntled shareholder suing the Company for bad performance and, thereby, putting shareholders of other Sub-Funds of the same Company at risk. The only way to ensure absolute separation from such a liability is by establishing each of the Sub-Funds as an entirely separate legal entity, so that each sub-fund is a stand-alone fund in its own right. This obviously adds to the cost.)
b) The withholding tax consequences of investment in some jurisdictions can be alleviated by investing through a company incorporated in another jurisdiction with a favourable double taxation treaty. In these circumstances it is often more efficient to establish a subsidiary trading or investment company in the favourable jurisdiction, whilst incorporating the Fund in another jurisdiction more suitable for an offshore fund (for example a Mauritian subsidiary for a BVI, Cayman or Bahamian domiciled fund, investing in India).
c) It should be noted that such subsidiary trading companies will incur registered agency, government, administration and directors fees, as applicable, depending on the jurisdiction of the company.
Jurisdiction & Domicile of the Fund (Reference Question 9)
a) There is a wide choice of jurisdictions to choose from, including: Ireland and Luxembourg and after May 1st, 2004, Malta, within the European Union; the traditional UK offshore centres of the Channel Islands (Jersey and Guernsey) and the Isle of Man; and other locations, including, inter alia, Anguilla, the Bahamas, Bermuda, the British Virgin Islands, the Cayman Islands and the Turks & Caicos Islands.
Some of these jurisdictions require resident management companies to be established and all impose different levels of regulatory control. Fees and costs can vary widely in different jurisdictions. Some jurisdictions will be precluded because of marketing considerations.
Depending on the type of fund and the targeted investor, for most alternative investment and hedge funds, Custom House will in all probability recommend either the British Virgin Islands or the Cayman Islands as an appropriate jurisdiction of domicile, or, if a European Fund is required, Jersey or Malta - although Custom House are quite capable, if required, of establishing and administering funds incorporated in most of the other jurisdictions.
Anguilla, which is a lightly regulated jurisdiction, is a suitable low-cost alternative for single investor or family office funds, which are established for risk management or other fiscal reasons and are not intended to be offered to third party investors.
b) BAHAMIAN, BRITISH VIRGIN ISLANDS ("BVI"), AND CAYMAN ISLANDS ("Cayman")
International preference for the Bahamian, BVI and Cayman funds reflects the relative speed, efficiency and cost effectiveness of both establishing and operating a fund in these jurisdictions. Perhaps the most efficient of this group is the Cayman Islands whereas the Bahamas can take the longest time. Custom House has developed close relationships with its attorneys in these jurisdictions, as a result of which the operation of funds, established in these jurisdictions and administered by Custom House, is run at a high level of efficiency, that is perhaps rare in the Caribbean.
The regulatory restrictions imposed in these jurisdictions provide considerable flexibility. It is Custom House's belief that investor protection can be fully provided for by:
NB: Please note that regulation in the Caribbean is constantly changing and continually subject to review. Accordingly, the information given herein below must not be relied upon until verified.
Authorised and Regulated funds in the Bahamas
The Investment Funds Act, 2003 ("the Act") of the Bahamas, characterises Bahamian Mutual Funds as being one of "SMART", "Professional" or "Standard" or "Recognised" funds.
A "SMART" Fund.
The "SMART" Fund, which has effectively replaced the Exempt Fund under Bahamian Mutual Fund regulations, is designed to be a very flexible fund but still must comply with any written rule of the Commission establishing the parameters or requirements in respect of the category, class or type of investment fund. The Commission may establish those parameters and requirements with regard to a SMART Fund as it deems fit and shall make rules establishing parameters and requirements in respect of each category, class or type of investment fund that it may approve as a "SMART" Fund.
A Professional Mutual Fund must comply with the following:
A Recognized Foreign Fund includes Funds that are Bahamas-based but have a nexus (which is provided for in the act) to a prescribed jurisdiction. This type of fund is required to be registered with the Securities Commission.
A Standard Mutual Fund is a fund that does not meet the definitions of a SMART, Professional or Recognized Mutual Fund and is, therefore, required to obtain a license as a "Standard Mutual Fund". The application and procedures for obtaining a license as Standard Mutual Fund are more onerous than those for a Professional fund, as would be expected for a fund that is capable of being marketed on a retail basis.
Custom House has been licensed as a Restricted Mutual Fund Administrator by the Securities Commission, and, accordingly, the Securities Commission would be the Licensor for any Fund established in the Bahamas, for clients of Custom House.
Public, Private and Professional Funds in the BVI
The Mutual Funds Act 1996 (as amended) of the British Virgin Islands was introduced in January 1998. Under the Act, funds are categorized into three different types - Public Funds, which must be 'registered', Private, and Professional Funds, both of which must be 'recognized'.
In simple terms a Public Fund is, as the name implies, a fund that is sold to the public - effectively a retail fund. It goes without saying that the requirements and restrictions for registering such funds are more onerous than the requirements for recognizing a Private or Professional Fund. However, they are not as difficult to comply with, as would be the case in Ireland or Luxembourg.
A Private Fund is one, which is restricted to no more than fifty investors, or one, which specifies that it is to be offered to investors on a "private basis" - a Private Placement. It must be noted that a clear definition of a "Private Placement" has not been made under the Act, however guidelines published by the regulatory authorities in the BVI shortly after the Act came into force indicates that an offering to as many as three hundred persons could still be regarded as being on a "private basis" and, furthermore, such an offering should be to prospective investors who have been identified before the fund is launched.
Therefore, although there are some grey areas within the definition of a Private Fund, the one certain way of ensuring that the fund is deemed a Private Fund is to comply with the limitation to fifty shareholders.
A Professional Fund is one that is only offered to "Professional Investors" and where the majority of investors subscribe not less than US$100,000 (or currency equivalent).
A "Professional Investor" is one whose ordinary business involves the acquisition or disposal of property of the same kind as the property (or a substantial part of the property) of the fund. 'A Professional Investor' can also be a person who has signed a declaration that he (or she), either individually, or jointly with his or her spouse, has a net worth in excess of US$1,000,000 (or currency equivalent) and that he or she consents to being treated as a professional investor.
Closed Ended Funds are not regulated in the BVI, but may not use the word "Fund" in their name.
Single Investor Funds are exempted from regulations.
It should be noted that if a management or investment management company is established in the BVI, then that company will also have to be licensed under the Act. If the company has been established purely to act as manager or investment manager of certain identifiable private or professional BVI funds, then compliance with the regulations is simpler than would be the case if the entity were acting for a Public Fund or wished to act for an unrestricted number of funds.
For further details of the Mutual Funds Act, 1996 (as amended) of the British Virgin Islands, please see the separate section on the Custom House Website.
Licensed, Administered, Registered and Exempted funds in the Caymans
The Mutual Funds Law of the Cayman Islands, which was introduced in 1993 and revised in 1996 and 1999, characterises Mutual Funds as either "Licensed", "Administered", "Registered" or "Exempted" Funds.
A Licensed Fund is a fund that has a Mutual Fund Licence and also, either has a registered office in the Cayman Islands, or, in the case of unit trust, has as its trustee a trust company licensed under the Cayman Islands Banks and Trust Companies Law. The Cayman Islands Monetary Authority, which is the issuer of such licences, is responsible for the supervision and regulation of Mutual Funds and Mutual Fund Administrators. Before issuing a licence, the Cayman Islands Mutual Fund Authority (CIMA), will carry out appropriate due diligence and satisfy itself that all parties involved with the fund are fit and proper persons, of sound reputation and also have sufficient experience and expertise to carry on the business of the fund.
An Administered Fund is a fund, which has appointed a Licensed Mutual Fund Administrator, to provide its principal office in the Cayman Islands. The Licensed Administrator takes upon itself the responsibility to confirm and satisfy itself that all of the persons involved in the promotion, management and administration of the fund are suitable, fit and proper, have sound reputation and sufficient experience and expertise. Where a Licensed Administrator takes on this responsibility it is not necessary for the fund to be separately licensed by the CIMA.
A Registered Fund is a fund that obtains a Certificate of Registration from CIMA and can avoid applying for a mutual fund licence or appointing a resident Licensed Administrator, providing that, either the minimum investment is US$50,000, or its currency equivalent, or that its shares, units or partnership interests are listed on a recognized stock exchange, which includes the Irish Stock Exchange - but, again, the Irish Stock Exchange will require a minimum investment of US$100,000, or currency equivalent.
An Exempted Fund, under Cayman Islands Law, is one that:
a) does not have to be registered or file any information whatsoever with CIMA.
b) does not have to be licensed under the Mutual Funds Law; and
c) is not required to appoint a Licensed Mutual Fund Administrator.
In order to achieve exempt status the fund must have no more than 15 shareholders, unitholders or partners and those shareholders, unitholders or partners must have the power, by majority in number, to appoint and remove the Directors, Trustees or General Partners, as this case may be.
In this context it is worth noting that an "investor" means the legal entity which is the registered shareholder, unitholder or partner. Cayman Law does not consider the number of beneficial owners of that entity, when calculating the total the number of shareholders. Thus an Exempted Fund could have one of ten shareholders, which is, itself, a fund of funds, and even though that one shareholder might have 100 shareholders, it would still be considered a single shareholder for the purposes of the Mutual Funds Law.
In early 2004, the Jersey Financial Services Commission (the "Commission") introduced the Expert Fund as a new classification for Collective Investment Funds.
The Expert Fund framework was designed to provide a flexible "fast track" procedure for the establishment of funds in Jersey targeted at sophisticated, institutional and high net worth investors. The new framework benefits from a lighter regulatory approach and can be established in a short timeframe as a result of a new streamlined authorisation process in Jersey. Accordingly, the Expert Fund is an ideal vehicle for Hedge Funds.
The Expert Fund is intended to cater for the demand by "Expert Investors" (as defined below) for a more flexible and less restricted fund, on the basis that the Expert Investor is both willing and able to assess the risk for himself and bear the economic consequences of such an investment. The important feature of the framework is that the Commission relies on self-certification of compliance by the local Jersey functionary of the Expert Fund within the Commission's lines, rather than close examination of the structure and documentation relating to the fund when established. Investor protection is provided by a duty of full disclosure of the material facts, and a requirement that each Expert Investor must sign an acknowledgement of receipt of the prescribed form of investment warning.
An Expert Investor is defined in the classification guide as:
a) as a person, partnership or other unincorporated association or body corporate, whose ordinary business or professional activity includes, or it is reasonable to expect that it includes, acquiring, underwriting, managing, holding, or disposing of investments, whether as a principal or agent, or for giving of advice on investments; or
b) an individual who has a net worth, or joint net worth with that person's spouse, greater than US$1,000,000 excluding that person's principal place of residence; or
c) a company, partnership, trust or other association of persons which has (or which is a wholly owned subsidiary of a body corporate which has) assets available for investment of not less than US$1,000,000, or every member, partner or beneficiary of which falls within the definition of an Expert Investor; or
d) a functionary to the Expert Fund or an associate of a functionary to the Expert Fund; or
e) a person who is an employee, director, consultant or shareholder of or to a functionary of the Expert Fund or an associate of a functionary to the Expert Fund, who is acquiring an investment in the Expert Fund as part of his remuneration or an incentive arrangement or by way of co-investment; or
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