Offering Legal & Fiduciary Services to Traders | Investors | Hedge Funds U.S. SEC Investment Adviser Registration & State Investment Adviser Registration
Investment Advisers, Investment Managers & Hedge Fund Managers In the United States, hedge fund managers are required to register as an investment adviser with either the U.S. Securities Exchange Commission (SEC) or its "home" state securities commission unless an exemption from investment adviser registration applies. If you are based outside the United States but have U.S. customers, you may be required to register with the SEC. Very narrow exemptions from SEC and state securities board investment adviser registration exist. In many cases, real estate fund managers may be required to register as investment advisers. The SEC and many states allow performance fees to be charged only to qualified clients. Need Help? Call +1 (307) 213-4732 or Email Hannah Terhune, Attorney
Capital Management Service Group, Inc. is dedicated to providing the highest quality of services on a personal level and in a timely manner. We offer flat-fee engagements, which include start-to-finish legal services and counsel with all aspects of launching a domestic or offshore hedge fund. No two funds are identical. We use a client-based approach to our fund structuring and analysis. Our clients routinely comment on the excellence of our personal service and the time we take to properly understand and implement the client’s unique circumstances and objectives. Call Us at +1(307) 213-4732, Email Usand Read What Our Client Say About Us on LinkedIn
Consider U.S. Investment Adviser Registration Many hedge fund sponsors based in other parts of the world choose to set up a U.S. investment manager to avoid home country licensing issues and to make the hedge fund more attractive to U.S. investors. Another reason for considering U.S. investment adviser registration is to satisfy a brokerage and/or bank’s requirement that a hedge fund’s manager be licensed somewhere before it is willing to supply bank and/or brokerages services to a new hedge fund. If your home country’s licensing requirements put investment manager registration out of reach, consider getting licensed in the United States. Fortunately, any foreign based investment manager is eligible to register with the U.S. Securities and Exchange Commission (SEC) without regard to the amount of assets under management. The SEC registration process is very simple and relatively streamlined. The SEC, it is a very light regulator of foreign-based hedge fund managers. Learn More About U.S. SEC Registration and Contact Us for Assistance
Use of Investment Adviser Sub-Contracts Many hedge fund sponsors opt to set up a hedge fund management company outside of their home country, whether for tax, commercial, or regulatory reasons. If you (as the hedge fund sponsor) set up the hedge fund management company outside of your home country, you should have a sub-agreement for "advisory" services between yourself and the offshore hedge fund management company. In the United States, an investment adviser is an investment manager. However, there is legal distinction between “investment manager” and “investment adviser” in most other countries. If you live in a country where a such a distinction exists, and if you set up the hedge fund's manager in such a country, you should position yourself through contracts as an investment adviser to the offshore investment manager. Such "advisory" services (i.e., an independent research analyst) is not a regulated business activity. To do this, you need an agreement between the offshore investment manager and a sub-agreement between the investment manager and the investment adviser. The goal of the agreements is to allow you to offer research services to the offshore investment manager for a fee. When the investment advisory agreement is drafted properly and timely executed, you will be able to control the timing, tax character and amount of taxable income reportable in your home country. In addition, if the investment management agreement between the fund and the investment manager are drafted correctly and timely executed, further income deferral is possible. A hedge fund manager seeking to defer substantial amounts of management and performance fees should use third-party (i.e., “outside”) directors to ensure that the deferral mechanisms are respected for home country tax purposes. Contact Us for Assistance
Exemptions for U.S. Based Investment Mangers If you opt to set up a U.S. based investment manager, you may not be eligible for SEC registration. U.S. based investment advisers must register with the SEC or their “home” state. Any U.S. based investment adviser with less than $150 million assets under management must register with its “home” state--you are no longer allowed to SEC register. The good news is that most U.S. states have generous exemptions from registration as an investment manager if you plan to manage a hedge fund and not have individual managed accounts. A hedge fund manager with less $150 million assets under management based in state that exempts it from state-level investment adviser registration, does not have to register at all with any regulatory authority provided that the hedge fund does not trade spot forex, futures and or commodities. Learn More About NFA Registration As a result, a U.S. investment manager can be formed and ready for operation relatively soon after initiating the process.
Use of Offshore Hedge Fund Manager to Avoid Home Country (or State) Hurdles A U.S. hedge fund’s investment manager can be set up in your home country, offshore, or in the United States. Unfortunately, many potential hedge fund managers live in countries where the capital formation, tax and regulatory hurdles to become a hedge fund manager are insurmountable. Many countries require a working background in finance, substantial education, and other credentials to be licensed as a hedge fund manager. Even if you have the necessary background and experience, you may not be able to obtain licensing in your home country simply because the regulators do not favor smaller one-man operations. If you are based in a country like that, consider setting yourself up as an investment manager, either in the United States or elsewhere.
Set Up a U.S. Hedge Fund Manager In the United States, companies can be formed in minutes and a U.S. visit is not required. Learn More About U.S. Company Formations Note that you can use the hedge fund management company not only to serve as the fund’s investment manager, but also to operate a managed account business (i.e., unlike a hedge fund, managed account customer money is not pooled). When setting up a hedge fund manager outside of your home country (or state), arrange for a “virtual office” so that you have both a working and physical address outside your home country (or state). These arrangements allow you have to a hedge fund manager based in another part of the world with few, if any, regulatory barriers to hedge fund management. We offer company formation services in the United States. Contact Us for Assistance
Need Help with SEC or State Investment Adviser Registration?As regulations change, registering as an investment adviser with the U.S. SEC or with a state regulator is more complex and time consuming. We can lead you through the registration process so that you can remain independent of your broker's "white label" control and free to focus on trading. Need help? Call +1 (307) 213-4732 or Contact us for assistance!
Form ADV Annual Update Service As a registered investment adviser, you are required to file an annual update of Part 1A of your registration form (Form ADV) through the Investment Advisers Registration Depository (IARD). You must file an annual updating amendment to your Form ADV within 90 days after the end of your fiscal year. In addition to making annual filings, you must promptly file an amendment to your Form ADV whenever certain information contained in your Form ADV becomes inaccurate. You should update information that has changed, recalculating assets under management as necessary. During the year, if there are material changes to the information on the Form ADV, you should do an "other-than-annual" amendment within 30 days. Regulators cannot answer questions about whether a change is deemed material. Need help? Contact Us for Assistance with your ADV Updates
Investment Adviser Registration The Investment Advisers Act of 1940 regulates the activities of investment advisers. Section 203A(a)(1) of the Advisers Act requires any investment adviser that is not "regulated or required to be regulated" as an investment adviser in the state in which it has its principal office and place of business (domicile state) to register with the SEC without regard to the amount of assets under management (i.e., as in Wyoming).
Dodd-Frank The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) increases states’ authority in the area of investment adviser regulation by raising the threshold from $25 million to $100 million assets under management. Generally speaking, this affects investment advisers registered with the Securities and Exchange Commission (“SEC”) with less than $100 million in assets under management . They must switch to state registration from SEC oversight.
Mid Size Investment AdvisersUnlike smaller advisers, a Mid-Sized Adviser (i.e., those with between $25 million and $100 million assets under management) must register with the SEC if (i) it is not required to be registered in its domicile state; or (ii) even if it were so registered, it would not be subject to examination by the securities commissioner (or similar authority) of the domicile state. A Mid-Sized Adviser that relies on an exemption under the laws of its domicile state to avoid registration in that state must instead register with the SEC (unless an exemption from federal registration is available).
Hedge Fund Managers Must Register if Not Exempt Congress intends that advisers to private funds (i.e., hedge funds, private equity funds, and other pooled investment vehicles that are exempted from the definition of “investment company” under Sections 3(c)(1) or 3(c)(7) of the Investment Company Act of 1940) register under the Advisers Act. Section 202(a)(29) of the Advisers Act defines the term "private fund" as "an issuer that would be an investment company...but for Section 3(c)(1) or 3(c)(7) of" the Investment Company Act.
Investment Advisers An "investment adviser" is defined as "any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities." There are three elements: for compensation; engaged in the business; and provide advice about securities. A person or firm must satisfy all three elements and not fall into a statutory exclusion to be regulated under the Advisers Act. There is also considerable law interpreting each of the elements of the above definition. Investment advisers can be registered or unregistered. Those in the industry have always looked for ways to fall outside the requirements of registration. For fund managers, the "compensation" is easily satisfied. The term “securities” is very broadly defined in Section 202(a)(18) of the Investment Advisers Act. Prior Law Exemption Dodd-Frank effectively eliminated the private adviser exemption-- the provision that most private fund managers historically relied on to remain exempt from registering with the SEC. Under that exemption, if a fund manager advised fewer than 15 clients (clients being funds not investors in funds) in the United States during the preceding 12-month period, the manager was not required to register under the Advisers Act. Dodd-Frank eliminated this exemption, replacing it with three other exemptions. We mention prior law here because we still are asked about it. Statutory Exemptions from Investment Adviser Registration Dodd-Frank created new exemptions from registration under the Advisers Act. These exemptions exist for (i) investment advisers solely to venture capital funds without regard to the number of such funds or the aggregate dollar amount of such funds; (ii) investment advisers solely to private funds with less than $150 million in assets under management in the United States without regard to the number or type of funds advised; and (iii) non-U.S. investment advisers with less than $25 million in aggregate assets under management from U.S. clients and private fund investors and fewer than 15 such clients and investors.
Exempt Single Family Office Dodd-Frank Act carved out an exclusion from registration under the 1940 Act for single family offices and instructed the SEC to define which family offices providing investment advice qualified. Family offices are entities established by wealthy families to manage their wealth and provide other services to family members, such as tax and estate planning services. A family managing its own financial portfolio can apply the final rules to determine whether its family office is excluded from registration under the 1940 Act. Determining whether a family office that is considered an investment adviser will now be excluded from the registration requirement under the 1940 act is a three-prong test.
An excluded single family office is any company that does not hold itself out to the public as an investment adviser and: (1) provides investment advice only to "family clients"; (2) is wholly owned by family clients; and (3) is exclusively controlled by family members or family entities.
Family Clients include: lineal descendants (including by adoption, stepchildren, foster children, and, in some cases, by legal guardianship) of a common ancestor (who is no more than 10 generations removed from the youngest generation of family members), and such lineal descendants' spouses or spousal equivalents; Any non-profit or charitable organization funded exclusively by family clients; Any estate of a family member, former family member, key employee, or subject to certain conditions a former key employee; Certain family client trusts; Any company wholly-owned by and operated for the sole benefit of family clients. A family office may also advise "key employees" and still be exempt from registration.
A "key employee" is (i) an executive officer, director, trustee, general partner, or person serving in a similar capacity at the family office or its affiliated family office; or (ii) any other employee of the family office or its affiliated family office (other than an employee performing solely clerical, secretarial, or administrative functions) who, in connection with his or her regular functions or duties, participates in the investment activities of the family office or affiliated family office, provided that such employee has been performing such functions or duties for or on behalf of the family office or affiliated family office, or substantially similar functions or duties for or on behalf of another company, for at least 12 months.
A family office may also advise trusts established by key employees whose beneficiaries are the key employee's immediate family members, or lineal descendants. Former key employees would not be required to liquidate or transfer their family office investments, but may not make new investments after their departure. It should be noted that the SEC declined to permit a key employee's spouse, spousal equivalent, and immediate family members to be considered key employees. The SEC also provided transition guidance. Specifically, all current family offices who will have to register because they do not meet the new definition must register by March 30, 2012. Additionally, family offices that obtained exemptive orders from the SEC prior to July 21, 2011 will be permitted to operate without registration.
Venture Capital Adviser Exemption The SEC defined a venture capital fund in an attempt to distinguish such a fund from a private equity fund as follows. A venture capital fund is a private fund that (1) represents to investors and potential investors that it pursues a “venture capital strategy” (a term that the SEC has not defined and which is not always the easiest thing to determine), (2) does not borrow, issue debt obligations, provide guarantees or otherwise incur leverage in excess of 15 percent of capital commitments or for a period in excess of 120 days, (3) does not offer investors redemption or similar liquidity rights except in extraordinary circumstances and (4) holds no more than 20 percent of the fund’s capital commitments in “non-qualifying investments” (other than qualified short-term holdings) at the time of each non-qualifying investment.
A “non-qualifying investment” is an investment that does not fall into the SEC’s definition of a “qualifying investment.” A qualifying investment is generally an equity security issued by a “qualifying portfolio company” that has been acquired directly by the private fund from the qualifying portfolio company (i.e. not from existing shareholders), an equity security issued by a qualifying portfolio company in exchange for an equity security issued by the qualifying portfolio company (i.e., securities issued in connection with capital restructurings) or an equity security issued by a company of which a qualifying portfolio company is a majority-owned subsidiary, or a predecessor, and is acquired by the private fund in exchange for an equity security described above (i.e., securities acquired in an M&A transaction). A “qualifying portfolio company” is a company: (i) that, at the time of investment, is not a reporting (or foreign-traded) company and not affiliated with another reporting (or foreign-traded) company and therefore must be a private company, (ii) that does not incur leverage in connection with the investment by the private fund and distribute the proceeds of such borrowing to the private fund in exchange for the private fund’s investment and (iii) that is not itself a private fund (i.e., managers of venture capital fund-of-funds will not be able to rely on the venture capital adviser exemption).
Exempt Foreign Private Adviser A foreign private adviser may also be exempt from SEC registration. An exempt foreign private adviser is any investment adviser that: (1) has no place of business in the United States; (2) in total, has fewer than 15 clients in the United States (including investors in the United States in private funds advised by the investment adviser); (3) has aggregate assets under management attributable to clients in the United States (and investors in the United States in private funds advised by the investment adviser) of less than $25 million; and (4) does not hold itself out generally to the public in the United States as an investment adviser. The SEC has the power to raise the threshold amount and has said that it will evaluate whether doing so may be appropriate in the future.
Requirements for Investment Advisers that Advertise To protect investors, the SEC prohibits certain types of advertising practices by advisers. An "advertisement" includes any communication addressed to more than one person that offers any investment advisory service with regard to securities. An advertisement could include both a written publication (such as a website, newsletter or marketing brochure) as well as oral communications (such as an announcement made on radio or television).
Advertising must not be false or misleading and must not contain any untrue statement of a material fact. Advertising, like all statements made to advisory clients and prospective clients, is subject to the general prohibition on fraud. Specifically prohibited are: testimonials; the use of past specific recommendations that were profitable, unless the adviser includes a list of all recommendations made during the past year; a representation that any graph, chart, or formula can in and of itself be used to determine which securities to buy or sell; and advertisements stating that any report, analysis, or service is free, unless it actually is free. You may not imply that the SEC has sponsored, recommended or approved you, based upon your registration. You cannot use the term "registered investment adviser" unless you are registered, and you should not use this term to imply that as a registered adviser, you have a level of professional competence, education or special training.
For example, you cannot use the term "RIA" after your name because using initials after a name usually indicates a degree or a licensed professional position for which there are certain qualifications; however, there are no federal qualifications for becoming an SEC-registered adviser.
I deduct fees; do I have custody? Yes, if you are authorized to deduct your advisory fees or other expenses directly from clients' accounts, you have custody. If you have custody you must maintain these client funds and securities at a qualified custodian. Generally, qualified custodians include most banks and insured savings associations, SEC-registered broker-dealers, Commodity Exchange Act-registered futures commission merchants, and certain foreign financial institutions.
Registered investment advisers that have "custody" or "possession" of client assets must take specific measures to protect client assets from loss or theft. "Custody" is defined as "holding, directly or indirectly, client funds or securities, or having any authority to obtain possession of them." This includes situations in which you enter into arrangements (including a general power of attorney) authorizing you to withdraw funds or securities from the client's account.
With respect to pooled investment vehicles over which you have custody, the qualified custodian must send account statements for the pooled vehicle directly to each investor. If you, rather than a qualified custodian, send account statements directly to your clients, you must have a surprise verification by an independent public accountant. The independent public accountant must verify the funds and securities in your custody or possession at least once each calendar year, and must then promptly file a certificate of examination with Form ADV-E with the SEC.
State Registered Investment Advisers In the United States, each state is responsible for licensing, monitoring and overseeing all hedge funds and other alternative investment management firms with assets under $100 million. While Dodd-Frank lays out a more defined set of registration requirements driven primarily by AUM (assets under management), it does not create rules on the qualifications of individuals to be a private fund manager and does not alter state law requirements for investment advisers. This represents a significant increase in the responsibility and jurisdiction of state securities departments and law enforcement officials. Contact us before assuming that the investment adviser registration laws don't apply to you!
SEC De-Registration Certain smaller investment advisers previously eligible to register with the SEC must transition down to state registration. This group of investment advisers are termed "state registered investment advisers." The state-level investment adviser registration process is becoming more complex and slow. State investment advisers are subject to more scrutiny as well. Contact Us for Help to De-Register from SEC Registration
Exempt Reporting Advisers Under the authority of Dodd-Frank, the SEC has designated private fund advisers that are exempt because they manage assets under $150 million and private fund advisers that are exempt because they solely advise venture capital funds as "exempt reporting advisers." Exempt Reporting Advisers must file a Form ADV for informational purposes to provide the SEC with information it deems necessary to track industry developments in the private fund arena. Both SEC-registered and Exempt Reporting Advisers are required to report extensive information about each private fund they manage, including: gross asset value of the private fund, the name of the general partner/managing member, detailed ownership breakdown (including percentage of the fund owned by affiliates of the adviser, number of beneficial owners and certain types of investors), detailed information on the annual audit process and identity and detailed information about the fund’s placement agents, custodians, prime brokers and administrators.
What are Investment Adviser Representatives? A firm is a registered investment adviser--a person is not a registered investment adviser. Under state law, "investment adviser representatives" are persons who are employed by investment adviser firms and engage in such activities as rendering investment advice, making recommendations concerning securities, soliciting new customers or are active in managing accounts or portfolios for clients, among other duties. Investment adviser representatives must pass a qualifying examination and are required to be registered. Other frequently used terms to describe persons rendering these types of services include: financial planner, money manager, financial consultant, asset allocation analyst, or fee-only planner.
Counting Investors An investment adviser may treat as a single client a natural person and: (i) that person's minor children (whether or not they share the natural person's principal residence); (ii) any relative, spouse, spousal equivalent or relative of the spouse or of the spousal equivalent of the natural person who has the same principal residence; (iii) all accounts of which the natural person and/or the person's minor child or relative, spouse, spousal equivalent or relative of the spouse or of the spousal equivalent who has the same principal residence are the only primary beneficiaries; and (iv) all trusts of which the natural person and/or the person's minor child or relative, spouse, spousal equivalent or relative of the spouse or of the spousal equivalent who has the same principal residence are the only primary beneficiaries.
No Look-Through Rule The rules allow an investment adviser to treat as a single client: (i) a corporation, general partnership, limited partnership, limited liability company, trust, or other legal organization to which the adviser provides investment advice based on the organization's investment objectives, and (ii) two or more legal organizations that have identical shareholders, partners, limited partners, members or beneficiaries.
What Should Fund Managers And Non-U.S. Advisers Do? Non-U.S. advisers should assess the number of U.S. investors and level of assets attributable to them and determine whether they will fall within an exemption. If assets under management are over $150 million, federal registration is required unless the adviser meets an exception, and the adviser should conduct an assessment of risks and policies and determine whether additional policies are required.
Exempt Reporting Advisers Under the authority of Dodd-Frank, the SEC designated Private Fund Advisers as exempt because they manage assets under $150 million and Private Fund Advisers that are exempt because they solely advise venture capital funds as "exempt reporting advisers." Exempt Reporting Advisers must file a Form ADV for informational purposes to provide the SEC with information it deems necessary to track industry developments in the private fund arena. Both SEC-registered and Exempt Reporting Advisers are required to report extensive information about each private fund they manage, including: gross asset value of the private fund, the name of the general partner/managing member, detailed ownership breakdown (including percentage of the fund owned by affiliates of the adviser, number of beneficial owners and certain types of investors), detailed information on the annual audit process and identity and detailed information about the fund’s placement agents, custodians, prime brokers and administrators.
Expanded Disclosure Requirements SEC-registered advisers with at least $150 million in AUM attributable to private funds are subject to additional private fund reporting requirements on at least an annual basis pursuant to the newly created Form PF. Information reported on Form PF includes, but is not limited to, a private fund’s gross and net AUM, gross and net performance and use of leverage. These reporting obligations do not apply to unregistered advisers (including Exempt Reporting Advisers). Information reported on Form PF (unlike information reported on Form ADV) is kept confidential and not made publicly available.
What is Holding Out? None of the exemptions (except the Venture Capital Fund Advisers) apply if you "hold out" to the public. A person is deemed to "hold himself out generally to the public" as an investment adviser if he lets it be known by word of mouth through existing clients or otherwise, that he is willing to take on new clients. You are holding yourself out as an investment adviser if you: use the term investment adviser or similar term on a business card or stationary; are listed as an investment adviser in a telephone, business or building directory; or let it be known generally by word of mouth or otherwise that you are available to provide investment advice or you will accept new clients.
Few states have a private adviser exemption that is practical. If you identify yourself as an investment advisor to anyone or use business cards, letterhead, a web site, a mass mailing, a trade show display, etc., you can't rely on the private adviser exemption to avoid registration. If you tell others by word of mouth or otherwise that you are available to provide investment advice, advisory services, or that you will accept new clients, you cannot rely on the private advisor exemption.
Exam Requirements and Waivers There is no exam requirement by the SEC at the federal level. Most states require the Series 65 Exam - Uniform Registered Investment Adviser Examination. The Series 65 exam is waived by some states if the applicant has the CFP (Certified Financial Planner), the ChFC (Chartered Financial Consultant), APFS (Accredited Personal Financial Specialist), CFA (Chartered Financial Analyst), the CIC (Chartered Investment Counselor), or other designations or items as ruled by the (state) administrator.
What is the Series 65 Exam? The Series 65 exam is designed to qualify candidates as investment adviser representatives. The exam covers topics you need to understand in order to provide investment advice to clients. The Uniform Investment Adviser Law Examination consists of 130 questions plus 10 pretest questions covering the materials outlined in the following study outline. Applicants are allowed 3 hours to complete the examination. At least 89 (68.5%) of the questions must be answered correctly for an individual to pass the Series 65 exam. Some states require the principal of the RIA to pass the exam with a score greater than 70%. The examination is conducted as a closed book test. Upon completion of the examination, the score for each section and the overall test score will immediately be made available to the candidate. The examination is administered by the FINRA. To schedule a candidate for the examination, an individual's firm should file an electronic Form U-4 or the individual should file a paper Form U-10 and pay the $135.00 examination fee to the FINRA at the following address: Send checks and U-10's to: FINRA - Field Support P.O. Box 5054 Philadelphia, PA 19175-5054. Once registered, FINRA will open a 120-day window within which you may schedule the exam.
What about the Series 66 and Series 7 Exams? An alternative to the Series 65 is the combination of the Series 7 and Series 66 exams. The Series 66 is only good in conjunction with the Series 7; most states will not sponsor a candidate for the Series 7. The Series 7/Series 66 combination is generally used by an employee of a brokerage firm who is also registering as an investment adviser. Essentially, the Series 66 equals the combination of the Series 65 and Series 63 exams. A sponsor is not required to take either the 65 or 66 exams. The Series 66 is not valid until you pass the Series 7 exam.
I passed the Series 65; now what? Just passing the exam is only the first step. You must complete the registration process before you can solicit accounts. Successful completion of the Uniform Investment Adviser Law Examination does not excuse you of the personal responsibility to know and to abide by the specific requirements of the securities laws and regulations of the states in which you conduct business. Furthermore, although successful completion of the examination may satisfy a portion of the requirements of a particular state, it does not convey the right to transact business prior to obtaining a license from the state to conduct an advisory business.
Use of Investment Adviser Website The SEC stated that an investment adviser that posted only information about private funds on a password protected web site is not holding itself out generally to the public. This ruling was based on the use of procedures designed to limit access to the web site information to a select group of accredited investors and the requirement that managers of the private funds agree to post only information related to these funds on the website and not to offer other services or products on the site.
Investment Newsletters Section 202(a)(11) of the Investment Advisers Act of 1940 defines "investment adviser" in part as "any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities." Expressly excluded from the definition is "the publisher of bona fide newspaper, news magazine or business or financial publication of general and regular circulation." Section 401(f) of the Uniform Securities Act, upon which the majority of state securities laws are based, similarly excludes from the definition of investment adviser a publisher of any bona fid newspaper, news column, newsletter, news magazine, or business or financial publication or service, whether communicated in hard copy form, or by electronic means, or otherwise, that does not consist of the rendering of advice on the basis of the specific investment situation of each client. Since a bona fide newsletter publisher is not an investment adviser, registration as such is not required. Federal law is more lenient than state law.
Requirements for Investment Advisers that Pay Others to Solicit New Clients Registered investment advisers may pay cash compensation to others to seek out new clients on their behalf ("solicitors" or "finders") if they meet certain conditions. The fee must be paid pursuant to a written agreement to which you are a party and (with limited exceptions) the agreement must: describe the solicitor's activities and compensation arrangement; require that the solicitor perform the duties you assign and in compliance with the Advisers Act; require the solicitor to provide clients with a current copy of your disclosure document; and, if seeking clients for personalized advisory services, require the solicitor to provide clients with a separate written disclosure document containing specific information. You must receive from the solicited client, prior to or at the time you enter into an agreement, a signed and dated notice confirming that it was provided with your disclosure document and, if required, the solicitor's disclosure document. You must have a reasonable basis for believing that the solicitor has complied with the terms of your agreement.
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