Category Archives: Hedge Fund Questions and Answers

Hedge Fund Attorney

What does a hedge fund attorney do for a start-up hedge fund?

A hedge fund attorney is the first service provider a start-up hedge fund manager will likely contact. The hedge fund attorney will listen to the manager and discuss the investment program. From here the hedge fund attorney will begin drafting the hedge fund’s offering documents and may also suggest the other service providers the manager should talk to (including the administrator, auditor, and brokers or prime brokers). After the offering documents have been finalized, the hedge fund attorney will help the manager with many of the logistical items which need to be addressed before the fund begins doing business.

Once the fund has started trading, the hedge fund manager may need the hedge fund attorney to do the following items:

–    Blue sky filings
–    Provide updates on relevant hedge fund laws
–    Revise the offering documents if necessary
–    Draft side letter agreements for certain investors
–    Make 13F filings on behalf of the manager
–    Make Form SH filings on behalf of the manager
–    Consult with the manager if investors have certain needs
–    Consult with the manager to start a new fund
–    Review marketing and other promotional materials
–    Answer hedge fund related questions
–    Help prepare manager for investment advisor or commodity pool operator audits (if necessary)
–    Hedge fund due diligence, potentially

In addition to the above, the hedge fund attorney is going to be a resource for the manager and the fund on an ongoing basis. Hedge fund lawyers that have been around for a while and who have launched all sorts of funds will have generally experienced most issues that will arise in the hedge fund context.

What else does a hedge fund attorney do?

Besides drafting offering documents for the client, a hedge fund lawyer needs to understand what is going on in the industry. As such the hedge fund attorney will spend a good portion of his day researching issues for clients, talking with service providers to see what are the developing trends within the industry, talking with regulators to see what are some of the things they are focusing on, in addition to other items. Your hedge fund attorney should have an ear to the ground and understand the issues that affect you from both a business and regulatory perspective.

Hedge fund attorney – boutique or big firm?

Hedge fund attorneys usually work for either (i) boutique law firms that focus on securities law or the investment management industry or (ii) very large regional or national law firms. Generally both types of attorneys are competent, produce good documents, and have the requisite knowledge of the industry. In general, you will be looking at a cost issue. Hedge fund formation costs can be high and if you use a very large law firm the legal costs could be double or more.

If you are a very large fund which will have over a billion dollars in assets during the first year of operation, you are probably going to go with the very large law firms that have very good reputations for hedge fund work. Funds smaller than this may decide to go with the boutique firm for cost savings purposes, but they may also decide to go with the large law firms if they feel that there is need to show “name brand” service providers in their offering documents. This might be the case if these funds are going to be shopping around for very large institutional investors during the first six months of operations.

Another issue to consider is who will be your contact person at the law firm. Many start-up hedge funds choose to go with the boutique law firm because of the direct access to partners. At the large law firms, most client matters are handled at the associate level and the partner may only talk to the manager once or twice.

Above all, the most important item when choosing a hedge fund attorney is to make sure you are comfortable with the attorney and his knowledge of the industry. When starting out, the hedge fund start-up process can take up to two or more months depending on the complexity of the project, so you will want to make sure you have a good working relationship with your attorney.

Hedge Fund Formation Legal Fees

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Question: How much does it cost to establish a hedge fund?

Answer: The costs of starting a hedge fund can vary considerably depending on the manager and the manager’s circumstances. A start up hedge fund manager will need to consider the hedge fund start up costs which will include legal costs, administration costs and set up fees, bank fees, prime brokerage fees, rent, etc. This article will detail hedge fund legal fees.

Hedge Fund Formation Legal Fees

The central legal fees for a start up hedge fund manager are the costs associated with preparing the offering documents for the hedge fund. Most law firms who provide these services will charge on a flat fee basis, depending on the novelty and scope of the project. The cost breakdown is, generally, as follows:

Large brand name New York based law firm: $35,000 – $75,000

Midsize law firm with known hedge fund practice: $25,000-$45,000

Small or boutique hedge fund law firm: $15,000-$30,000

The above are very large fee ranges, but for managers with very basic hedge fund strategies (say a long-short large cap investment strategy) you are looking at the lower end of the fee range. If the strategy is more esoteric or if there are many structural issues (especially liquidity and valuation issues), then the costs will be more. Additionally, if the strategy has certain ERISA or tax issues then the cost is going to be more.

The costs above generally do not include filing fees for entity incorporation, fees for investment advisor registration, or any blue sky filing fees.

Please note that you may find groups out there which provide hedge fund offering documents for lower prices. As when selecting any attorney, price should not be the only determining factor. There are also offering document software sources out there which purport to create offering documents for your fund for under $5,000 – do not use such services. The legal documents provided by hedge fund lawyers are designed to protect you as the manager and any off the shelf solution is not going to be able to provide the customized legal advice you will need to be properly protected. I have personally seen some of these documents and they are woefully inadequate.

Please contact us if you have any questions or would like to start a hedge fund. Other related hedge fund law articles include:

Hedge Fund 13F Filings

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Many people talk about watching hedge funds through their 13F filings. A 13F filing is a quarterly report filed with the SEC by “institutional investment managers.” The reports include the name and number of the securities owned by the hedge fund. The term “institutional investment manager” means those managers who exercise discretion over $100 million or more in Section 13(f) securities. Typically a hedge fund attorney will help the manager file Form 13F.

A summary of Form 13F requirements from the SEC is below and can be found on the SEC’s website here.

Form 13F—Reports Filed by Institutional Investment Managers

Institutional investment managers who exercise investment discretion over $100 million or more in Section 13(f) securities must report their holdings on Form 13F with the SEC.

In general, an institutional investment manager is: (1) an entity that invests in, or buys and sells, securities for its own account; or (2) a person or an entity that exercises investment discretion over the account of any other person or entity. Institutional investment managers can include investment advisers, banks, insurance companies, broker-dealers, pension funds, and corporations. Section 13(f) securities generally include equity securities that trade on an exchange or are quoted on the Nasdaq National Market, some equity options and warrants, shares of closed-end investment companies, and some convertible debt securities. The shares of open-end investment companies (i.e., mutual funds) are not Section 13(f) securities.

Form 13F requires disclosure of the names of institutional investment managers, the names of the securities they manage and the class of securities, the CUSIP number, the number of shares owned, and the total market value of each security.

You can search for and retrieve Form 13F filings using the SEC’s EDGAR database. To find the filings of a particular money manager, use the “Companies & Other Filers” search under “General Purpose Searches” and enter the money manager’s name. To see all recently filed 13Fs, use the “Latest Filings” search function and enter “13F” in the “Form Type” box.

The securities that institutional investment managers must report on Form 13F are found on what is known as the Official List of Section 13(f) Securities. The Official List is published quarterly and is available for free on the SEC’s website. It is not available in paper copy format or on computer disk.

You can learn more about Form 13F filings, as well as obtain a copy of the Form and instructions, and the applicable statutory and regulatory provisions, by reading Frequently Asked Questions About Form 13F prepared by the SEC’s Division of Investment Management.

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Please contact us if you have any questions or would like to start a hedge fund. Other related hedge fund law articles include:

What happens if a hedge fund doesn’t do proper diligence to ascertain that a client meets the qualified purchaser standards?

Hedge Fund Series 7 question

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As I’ve noted in many of my posts, I will try my best to answer your questions or point you to a post within the site which discusses the subject. Below is a common question for licensed brokers who are getting into the hedge fund industry.

Question: I currently hold a series 7 agent license as well as a series 65. I am employed with a broker dealer and soon will make a job change to a hedge fund as a marketer. Can the hedge fund maintain my licenses even though they are not a broker dealer and given the fact that I do not need to have a series 7 license to market the hedge fund? I do not want my license to lapse while in the employ of the hedge fund. I do know that FINRA will hold my license for 24 months before expiring. I would like to maintain my licenses and keep them current by fulfilling my continuing education responsibilities. Please advise.

Answer: No, unfortunately the hedge fund will not be able to “hold” your license if it (or a related entity) is not a broker-dealer. Only a FINRA licensed broker-dealer will be able to “hold” your license – and by “hold” we mean that you would be registered as a representative of the broker-dealer.

This should not be confused with “parking” a license with a broker-dealer which is illegal under FINRA rules. Parking a license basically means that you are registered with a broker-dealer for no business reason other than to keep your licenses current. In the situation above, as you noted, the series 7 designation will expire two years after a U-5 has been submitted by your employing broker-dealer.

One potential way to keep the license is to stay on with your broker dealer and conduct your hedge fund selling activities through the broker-dealer. This may not be possible for a number of business reasons and the broker-dealer may not have the proper compliance procedures in place to market and sell hedge fund interests to its customers. For this reason staying with a broker often is not a viable option and unfortunately I have not come across a good solution to this very common problem.

Hedge funds and ERISA

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Hedge fund managers have to be especially aware of the ERISA rules with regard to their hedge fund and the investors in the fund. ERISA stands for the Employee Retirement Income Security Act of 1974 and it governs, among other things, pension investments into hedge funds. The Department of Labor is the governmental agency which is in charge of promulgating regulations regarding ERISA.

There are many items to be aware of with regard to ERISA. The most important item for a hedge fund manager is the 25% ERISA threshold limitation for “benefit plans.” If investments into a hedge fund by “benefit plans” exceed the 25% threshold then the manager will become subject to certain ERISA rules. For these purposes the term “benefit plan” means both traditional pension plans and also Individual Retirement Accounts (IRAs).

Requirements for hedge fund managers subject to ERISA

The hedge fund manager who is subject to the ERISA rules will, most importantly, need to (i) be registered as an investment adviser with either the SEC or the state securities commission and (ii) maintain a fidelity bond (which usually costs a few thousand dollars a year).

Additionally, there are many other issues the hedge fund manager will need to be aware of and which he should discuss with his attorney including:

Performance Fees
Soft dollars and brokerage
Dealing with “Parties in interest”
Use of Affiliated Brokers
Cross Trades
Principal Transactions
Expenses
Information reporting and side-letters
Record retention

The 25% threshold

There are many intricacies to the 25% threshold and if you have any questions you should speak further with an attorney regarding the specific facts of you situation. A couple of items to note about the 25% rule:

1. Investments by the manager and affiliates do not count toward determining the 25% threshold.

For example, if a hedge fund has shares outstanding with a total net asset value of $100M and the fund manager and its affiliates (e.g., portfolio managers, employees, etc.) hold a $20M investment in the fund, the 25% threshold would be 25% of $80M (i.e., $20M), rather than 25% of $100M (i.e., $25M).

2. You will need to test on a class basis.

For example if a hedge fund has two classes of interests, you will need to determine the 25% threshold for each class of interests. If Class A has $90M in assets and no “benefit plan” investments and Class B has $10M in assets and has a $5M investment by benefit plans, then the whole fund, not just the Class B, will be subject to ERISA because of the Class B investment.

Additionally, with the advent of new structures such as the Delaware Series LLC and the offshore Segregated Portfolio Company, the application of the test is likely to be at the series of segregated portfolio level, and not simply at the fund level. The last time we researched this question the issue was not definitively decided, but there may have been some definitive guidance since that time. If you are contemplating one of these structures you should discuss this issue with legal counsel. Also, the calculations may get a little get a little difficult with an offshore master-feeder structure.

3. Continuously monitor the 25% threshold.

Because hedge funds typically will allow additional capital contributions as well as withdrawals at regular intervals, the percentage of fund’s investments by benefit plans will change. If, because of a redemption of another investor, the 25% threshold is reached, the hedge fund manager will be subject to ERISA.

Only IRA investments – still subject to ERISA?

One items that always comes up is what happens if the fund exceeds the 25% threshold but only has IRA investments. Although a fund which exceeds the 25% threshold will generally be subject to the ERISA rules, those rules only will apply to the pension plans and not the IRAs (although the manager will need to make sure to conform all actions to certain IRS requirements). In this way a hedge fund manager which exceeds the 25% threshold and only has IRA money will not be subject to the registration and bonding requirements. Many of our clients fall within this category.

Conclusion

ERISA is one of the more specialized parts of hedge fund law. If a manager is thinking of potentially being subject to ERISA the manager should thouroughly discuss the possibility with his hedge fund counsel. The manager should always make sure that the law firm he works with has an attorney which specializes in ERISA or works with an outside ERISA counsel on all ERISA issues.

While many managers will make sure that their fund is never subject to ERISA, I have seen many managers who have become subject to ERISA because of a significant investment by certain pension plans. Indeed in many situations it will make a lot of sense to become subject to ERISA and start up hedge fund managers should not automatically reject potential investments because they may become subject to ERISA. Our firm has worked with many managers who becomes subject to ERISA and it has worked out well – one suggestion I would make is to start the process early because investment advisor registration will be necessary.

What is a private equity fund?

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Question: What is a private equity fund? What is the difference between a private equity fund and a hedge fund?

Answer: For many people who are not familiar with the alternative investment industry, hedge funds and private equity funds look like the same thing. The distinction is not necessarily in the legal structure (which is similar), but in the investment style. The GAO’s hedge fund and pension report, which I discussed recently, provided a great definition for private equity funds:

Like hedge funds, there is no legal or commonly accepted definition of private equity funds, but the term generally includes privately managed pools of capital that invest in companies, many of which are not listed on a stock exchange. Although there are some similarities in the structure of hedge funds and private equity funds, the investment strategies employed are different. Unlike many hedge funds, private equity funds typically make longer-term investments in private companies and seek to obtain financial returns not through particular trading strategies and techniques, but through long-term appreciation based on corporate stewardship, improved operating processes and financial restructuring of those companies, which may involve a merger or acquisition of companies. Private equity is generally considered to involve a substantially higher degree of risk than traditional investments, such as stocks and bonds, for a higher return.

While strategies of private equity funds vary, most funds target either venture capital or buy-out opportunities. Venture capital funds invest in young companies often developing a new product or technology. Private equity fund managers may provide expertise to a fledgling company to help it advance toward a position suitable for an initial public offering. Buyout funds generally invest in larger established companies in order to add value, in part, by increasing efficiencies and, in some cases, consolidating resources by merging complementary businesses or technologies. For both venture capital and buy-out strategies, investors hope to profit when the company is eventually sold, either when offered to the public or when sold to another investor or company. Each private equity fund generally focuses on only one type of investment opportunity, usually specializing in either venture capital or buyout and often
specializing further in terms of industry or geographical area. (Other less common types of private equity include mezzanine financing, in which investors provide a final round of financing to help carry the company through its initial public offering, and distressed debt investments, in which firms buy companies that have filed for bankruptcy or may do so and then typically liquidate the company.)

Investment in private equity has grown considerably over recent decades. According to a venture capital industry organization, the amount of capital raised by private equity funds grew from just over $2 billion in 1980 to about $207 billion in 2007; while the number of private equity funds grew from 56 to 432 funds over the same time period.

As with hedge funds, private equity funds operate as privately managed investment pools and have generally not been subject to Securities and Exchange Commission (SEC) examinations. Pension plans typically invest in private equity through limited partnerships in which the general partner develops an investment strategy and limited partners provide the large majority of the capital. After creating a new fund and raising capital from the limited partners, the general partner begins to invest in companies that will make up the fund portfolio. Limited partners have both limited control over the underlying investments and also limited liability for potential debts incurred by the general partners through the fund.

What is a qualified purchaser?

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We have previously discussed the difference between a 3(c)(1) hedge fund and a 3(c)(7) hedge fund. Unlike a 3(c)(1) hedge fund where investors only generally need to be accredited investors and potentially qualified clients, all investors in a 3(c)(7) hedge fund must be “qualified purchasers.” A qualified purchaser is a greater requirement than an accredited investor and a qualified client. Generally only super high net worth individuals and institutional investors will fit within the definition of qualified purchaser. Because of this fact, there are fewer 3(c)(7) hedge funds than 3(c)(1) hedge funds. Also, most 3(c)(7) funds are going to be funds with greater intial investment requirements and will be marketed towards the institutional market. Because of this, 3(c)(7) hedge funds will tend to have greater assets than many 3(c)(1) hedge funds.

The definition of “qualified purchaser” is found in the Investment Company Act of 1940. The definition includes:

i. any natural person (including any person who holds a joint, community property, or other similar shared ownership interest in an issuer that is excepted under section 3(c)(7) with that person’s qualified purchaser spouse) who owns not less than $ 5,000,000 in investments, as defined below;

ii. any company that owns not less than $ 5,000,000 in investments and that is owned directly or indirectly by or for 2 or more natural persons who are related as siblings or spouse (including former spouses), or direct lineal descendants by birth or adoption, spouses of such persons, the estates of such persons, or foundations, charitable organizations, or trusts established by or for the benefit of such persons;

iii. any trust that is not covered by clause (ii) and that was not formed for the specific purpose of acquiring the securities offered, as to which the trustee or other person authorized to make decisions with respect to the trust, and each settlor or other person who has contributed assets to the trust, is a person described in clause (i), (ii), or (iv); or

iv. any person, acting for its own account or the accounts of other qualified purchasers, who in the aggregate owns and invests on a discretionary basis, not less than $ 25,000,000 in investments.

v. any qualified institutional buyer as defined in Rule 144A under the Securities Act, acting for its own account, the account of another qualified institutional buyer, or the account of a qualified purchaser, provided that (i) a dealer described in paragraph (a)(1)(ii) of Rule 144A shall own and invest on a discretionary basis at least $25,000,000 in securities of issuers that are not affiliated persons of the dealer; and (ii) a plan referred to in paragraph (a)(1)(D) or (a)(1)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(F) of Rule 144A that holds the assets of such a plan, will not be deemed to be acting for its own account if investment decisions with respect to the plan are made by the beneficiaries of the plan, except with respect to investment decisions made solely by the fiduciary, trustee or sponsor of such plan;

vi. any company that, but for the exceptions provided for in Sections 3(c)(1) or 3(c)(7) under the ICA, would be an investment company (hereafter in this paragraph referred to as an “excepted investment company”), provided that all beneficial owners of its outstanding securities (other than short-term paper), determined in accordance with Section 3(c)(1)(A) thereunder, that acquired such securities on or before April 30, 1996 (hereafter in this paragraph referred to as “pre-amendment beneficial owners”), and all pre-amendment beneficial owners of the outstanding securities (other than short-term paper) or any excepted investment company that, directly or indirectly, owns any outstanding securities of such excepted investment company, have consented to its treatment as a qualified purchaser.

vii. any natural person who is deemed to be a “knowledgeable employee” of the [fund], as such term is defined in Rule 3c-5(4) of the ICA; or

viii. any person (“Transferee”) who acquires Interests from a person (“Transferor”) that is (or was) a qualified purchaser other than the [fund], provided that the Transferee is: (i) the estate of the Transferor; (ii) a person who acquires the Interests as a gift or bequest pursuant to an agreement relating to a legal separation or divorce; or (iii) a company established by the Transferor exclusively for the benefit of (or owned exclusively by) the Transferor and the persons specified in this paragraph.

ix. any company, if each beneficial owner of the company’s securities is a qualified purchaser.
For the purpsoes of above, the term Investments means:

(1) securities (as defined by section 2(a)(1)of the Securities Act of 1933), other than securities of an issuer that controls, is controlled by, or is under common control with, the prospective qualified purchaser that owns such securities, unless the issuer of such securities is: (i) an investment vehicle; (ii) a public company; or (iii) a company with shareholders’ equity of not less than $50 million (determined in accordance with generally accepted accounting principles) as reflected on the company’s most recent financial statements, provided that such financial statements present the information as of a date within 16 months preceding the date on which the prospective qualified purchaser acquires the securities of a Section 3(c)(7) Company;

(2) real estate held for investment purposes;

(3) commodity interests held for investment purposes;

(4) physical commodities held for investment purposes;

(5) to the extent not securities, financial contracts (as such term is defined in section 3(c)(2)(B)(ii) of the ICA entered into for investment purposes;

(6) in the case of a prospective qualified purchaser that is a Section 3(c)(7) Company, a company that would be an investment company but for the exclusion provided by section 3(c)(1) of the ICA, or a commodity pool, any amounts payable to such prospective qualified purchaser pursuant to a firm agreement or similar binding commitment pursuant to which a person has agreed to acquire an interest in, or make capital contributions to, the prospective qualified purchaser upon the demand of the prospective qualified purchaser; and

(7) cash and cash equivalents (including foreign currencies) held for investment purposes. For purposes of this section, cash and cash equivalents include: (i) bank deposits, certificates of deposit, bankers acceptances and similar bank instruments held for investment purposes; and (ii) the net cash surrender value of an insurance policy.

What is a qualified client? Qualified client definition

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UPDATE: the below article is based on the old “qualified client” definition. The new “qualified client” definition can be found in full here, and the SEC order increase the asset thresholds can be found here. As a gross summary, the new definition of a qualified client is:

entity or natural person with at least $1,000,000 under management of the advisor, OR
entity or natural person who has a net worth of more than $2,100,000

For the second test above, natural persons exclude the value of (and debt with respect to) their primary residence (assuming the primary residence is not under water).

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Certain hedge fund managers need to be registered as investment advisors with the SEC or with the state securities commission of the state which they reside in. For SEC-registered investment advisors, and most state registered advisors, the investors in their hedge fund will need to be “qualified clients” in addition to the requirement that such investors are also accredited investors. While many accredited investors will also be qualified clients, this might not always be the case because the qualified client defintion requires a higher net worth than the accredited investor definition. Hedge fund managers who are required to have investors who are both accredited investors and qualified clients cannot charge performance fees to those investors who do not meet the qualified client definition. Individual investors will generally need to have a $1.5 million net worth in order to be considered a “qualified client.”

The definition of “qualified client” comes from rules promulgated by the SEC under the Investment Advisors Act of 1940, specifically Rule 205-3. That rule provides:

The term qualified client means:

1. A natural person who or a company that immediately after entering into the contract has at least $750,000 under the management of the investment adviser;

2. A natural person who or a company that the investment adviser entering into the contract (and any person acting on his behalf) reasonably believes, immediately prior to entering into the contract, either:

a. Has a net worth (together, in the case of a natural person, with assets held jointly with a spouse) of more than $1,500,000 at the time the contract is entered into; or

b. Is a qualified purchaser as defined in section 2(a)(51)(A) of the Investment Company Act of 1940 at the time the contract is entered into; or

3. A natural person who immediately prior to entering into the contract is:

a. An executive officer, director, trustee, general partner, or person serving in a similar capacity, of the investment adviser; or

b. An employee of the investment adviser (other than an employee performing solely clerical, secretarial or administrative functions with regard to the investment adviser) who, in connection with his or her regular functions or duties, participates in the investment activities of such investment adviser, provided that such employee has been performing such functions and duties for or on behalf of the investment adviser, or substantially similar functions or duties for or on behalf of another company for at least 12 months.

What is an accredited investor? Accredited investor definition

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[2017 EDITORS NOTE: this article will be updated shortly. Please note that the definition has changed and that the net worth requirement now carves out any equity or debt of a personal residence.]

Hedge fund managers can only admit certain investors into their hedge funds. Most hedge funds are structured as private placements relying on the Regulation D 506 offering rules. Under the Reg D rules, investors must generally be “accredited investors.” Many hedge funds have additional requirements.

With regard to individual investors, the most common of the below requirements is the $1 million net worth (which does include assets such as a personal residence). With regard to institutional investors, the most commonly used category is probably #3 below, an entity with at least $5 million in assets. Please note that there may be additional requirements for your individual hedge fund so you should discuss any questions you have with your attorney.

The accredited investor definition can be found in the Securities Act of 1933. The definition is:

Accredited investor shall mean any person who comes within any of the following categories, or who the issuer [the hedge fund] reasonably believes comes within any of the following categories, at the time of the sale of the securities [the interests in the hedge fund] to that person:

1. Any bank as defined in section 3(a)(2) of the [Securities] Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934; any insurance company as defined in section 2(a)(13) of the Act; any investment company registered under the Investment Company Act of 1940 or a business development company as defined in section 2(a)(48) of that Act; any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;

2. Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940;

3. Any organization described in section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;

4. Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;

5. Any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000;

6. Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;

7. Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) and

8. Any entity in which all of the equity owners are accredited investors.

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