Category Archives: Uncategorized

How to grow your hedge fund

There are several effective ways to grow your hedge fund. Many of those methods will be discussed and evaluated here. Obviously superior performance among investors with comparable risk is a great way to grow your fund. This section will delve into how investment teams can derive the superior performance that all funds strive for.

Character of the Management Team

There are certain key characteristics of successful investors that generally indicate whether the management team will be successful. A concentration on the business processes of the fund and consistent learning rather than daily results will generally lead to a knowledgeable management team. Most successful money managers understand that markets tend to be fickle and daily results are not always a good barometer of achievement. Hubris has the potential to plague intelligent investors; however, humility tends to lead to personal improvement and less risky investment strategies.

Investment managers should focus on their love for their work. Investors like to invest with people they can trust and those that exude a love for their work. A common trait amongst successful investors is a deep understanding of how investing induces the progress of our society. If investors have a sense that they are actually doing good for society, they tend to be more enthusiastic about their work which encourages investment. Investors should focus on the value that they provide to society. Many sophisticated investors want to believe in positive effects of their investments in addition to creation of wealth.

In addition, managers should focus on their skills rather than attempting to predict general macroeconomic trends. Successful managers know that there are always excellent opportunities in the markets to exploit. There are many trading strategies that successful investors can employ but the management team should focus on their abilities. Good management teams are patient. They fully understand their methodology. They rarely look for shortcuts or the easy way out.

Consistency

Investment professionals aspiring to become masters will strive for understanding and be consistent in their philosophy. Novices tend to look for an easy way to succeed. New investors will extrapolate previously successful investment models in books and project future gains. Inexperience leads investors to search for immediate profits rather than the consistent model of return that successful long term managers achieve. Thus, patience and consistency is a virtue.

Understanding and Application of Economics

A superior understanding of market forces can lead to growth of a fund. Investors that align their investment strategies with the overall economic and liquidity environment tend to be more successful and are able to maximize profit in nearly all environments. An intrinsic understanding of the drivers of market prices and examples of investment success guides successful funds. In addition, staying dynamic and perceptive of changing market trends is vital to maintaining the edge that superior economic knowledge grants.

Being able to time the liquidity cycle of the market should be a determinant in how a fund allocates capital. It has been found that 97% of equities fall in a period of tightening while 90% of equities rise in a steep yield curve environment. In addition, liquidity cycles can be utilized to determine the attractiveness of foreign markets that actively trade stocks and bonds. In an increasingly flat economic environment understanding global liquidity and economic indicators is essential to most funds.

Asset Allocation

Large cash positions provide low returns but good investors should be patient within their preferred asset class. Thus, investors looking to grow their funds should seek out other asset classes in which to allocate capital. While investors should find asset classes that best match their portfolio, it has been found that allocating 10 to 25 percent of assets to actively managed futures can increase long term returns and decrease long term risk. Many studies have found that adding actively managed futures to a portfolio of stocks/bonds can decrease volatility and increase gains.

In addition, investors should understand the almost universally recognized truth that joining several risky investments into one portfolio decreases risk and raises return. Mixing together uncorrelated assets should smooth out long term performance and increase fund size as the investments will react to different market forces.

Effective Marketing

In today’s increasingly competitive market for the capital of sophisticated investors, hedge fund managers need to market their fund properly in order to encourage large infusions of capital. A hedge fund manager may not solicit investment into the fund through any “general solicitation” or “general advertisement” per SEC regulations and thus funds rely upon advisory services to raise capital. Hedge funds used to rely on networks of advisors and their high net worth clientele; however, with the increasingly flat investment world, hedge fund consultants can be easily contact via the internet. Hedge fund advisors utilizing the internet are subject to the same SEC regulations as traditional advisors. Operational websites must adhere to the following regulations: the site is password protected, there are no references to a specific fund on the home page, the internal contents of the website are only available to qualified clients, and prospective investors are required to wait thirty days before investing.

In addition, a hedge fund administrator may be helpful in marketing and managing the fund. A hedge fund administrator provides valuable third party resources that: reduce expenses of the fund, validate performance results to investors, increase the managers’ time available to focus on investing, and provide access to accounting and finance professionals.

Hedge funds can benefit from using banks as a prime broker as it provides many resources and most importantly a centralized clearing house for transactions. Prime brokerages also provide value-added services of: capital introduction, risk management advisory services, and consulting services. Outsourcing non-investment activities to another firm decreases distractions, allowing the managers to focus on investing.

Transparency and Simplicity

Hedge funds trying to grow should encourage capital infusion by being somewhat transparent and simple. Typically hedge funds want to be relatively opaque; however, increasing investors are requesting more information and a minimum level of transparency for effective due diligence in now usually required. A level of transparency can be accomplished with an operational website that complies with all regulations. Many investors may not seriously consider investment in a fund without a website. In addition, managers should list performance on hedge fund databases. Acknowledgment of outperforming associated risk benchmarks on a hedge fund database will typically induce some investors to choose your fund over another.

What is a hedge fund?

In short, hedge funds are pooled investment vehicles. That is, a hedge fund is a company which pools money from its investors (owners) and makes investments pursuant to the fund’s stated investment objective. There are many different types of hedge funds, which can invest in everything from stocks and bonds to more esoteric investments like derivatives, commodities and real estate. In addition to investments in a wide variety of financial or other instruments, hedge funds can “short” certain financial instruments and can also borrow to “leverage” their investments.

Unlike mutual funds, hedge funds are not registered with the U.S. Securities and Exchange Commission. While this means that hedge funds are not subject to the same level of government scrutiny as mutual funds, it does not mean that the SEC and the states cannot bring enforcement actions against hedge fund managers who break the law or make misrepresentations to investors.

While hedge funds are not subject to the more rigorous standards of mutual funds, they will need to comply with the U.S. securities laws regarding “private placements.” Hedge funds are generally sold to investors in “private placements” which means that hedge fund managers cannot advertise and that, generally, investors will need to be “accredited investors” that is they must have either (i) a one million dollar net worth or (ii). The investment managers will also need to adhere to certain filings within each state in which an investor resides. This will generally mean that they must file a “Form D” notice with each state within 15 days of the date in which each investor invests in the fund. The “Form D” must also be filed with the SEC within this time period.

NFA workshop in New York announced

National Futures Association
Promotional Material Workshop/Small Firms Workshop
Monday, October 20, 2008
The Westin Hotel
New York City

NFA announces two half-day workshops for NFA Members and futures compliance professionals on Monday, October 20, 2008 in New York. The workshops will be held in the Broadway Ballroom at The Westin New York, located at 270 W. 43rd Street. The morning workshop will cover all aspects of promotional material rules and regulations, while the afternoon workshop will address small firm regulatory issues and compliance practices. Participants may choose to attend either of the workshops or both.

For more information, click here.

Ron Insana’s failed hedge fund

Today in the New York Times Business section, there is an article about a hedge fund run by form CNBC news anchor Ron Insana (click here for article). The article details Mr. Insana’s quest to become a fund of funds manager and the pitfalls that befell the former market commentator.

The Times does a great job at identifying many of the issues which a start up hedge fund manager will need to be aware of, especially the costs.

In truth, there are thousands of Mr. Insanas desperately trying to raise money from nondescript little offices across the country. Some of them raised $10 million, some raised $100 million or more. And, as money has gotten tighter, and the bloom has come off the hedge fund rose, some have raised none at all.

Although the big boys get most of the ink, Mr. Insana’s is a far more common story — and far more representative of what is happening in the land of hedge funds today.

While the landscape for a start up hedge fund manager is a difficult one, it is also one in which a manager can succeed if the manager takes the time to plan accordingly. To quote Yogi Berra, “If you don’t know where you are going, you will wind up somewhere else.”

New hedge fund podcast

I have started my hedge fund podcasts once again. Each week I’ll review the most interesting or important stories that involve the hedge fund industry and analyze how the such stories affect hedge fund managers and investors.  This week I discuss two hedge fund news stories, two SEC actions, and the CFTC’s formation of a retail forex task force.  I also discuss how to register as a CPO or CTA.

I am trying to make these podcasts as informative and interesting as possible, so please feel free to send me your comments and suggestions. I hope you like the podcast.

http://www.hedgefundcast.com/

Hedge Fund IT Provider (press release)

Richard Fleischman and Associates (RFA) Names Julian Croxall to New Client Consultancy Post

NEW YORK, NY – August 11, 2008

NEW YORK, NY – August 11, 2008 – Richard Fleischman & Associates (RFA), a leading provider of technology and IT services and the trusted technology advisor to more than 400 hedge funds and private equity firms, today announced that Julian Croxall has joined the company as the Director of Client Consulting.

In this newly created role, Mr. Croxall will direct the operation of a virtual CTO client consultancy in addition to developing new products and service offerings for RFA’s technology and business development teams. He will also focus on business processes and strategic development for RFA.

Mr. Croxall is an 18-year IT veteran specializing in banking and trading environments and has a proven track record managing multi-million dollar global technology programs.

“Julian is a great addition to the RFA team. He brings excellent technical credentials and strong people skills to his new role as Director of Client Consulting,” says Richard Fleischman, President of RFA. “Julian’s’ many accomplishments in the banking and trading environments – combined with a deep knowledge of institutional banking – will be a tremendous asset to the continued development of RFA’s technology initiatives.”

Most recently, he held a senior technology management position at Merrill Lynch M&A Integration in New York where he directed technology for three multi-billion dollar hedge fund startups and a fund administrator, as well as Merrill Lynch’s proprietary acquisitions, mergers, investments and divestitures.

Earlier in his career, Mr. Croxall held several technology management positions across Europe and North America at Credit Suisse First Boston and Morgan Stanley and founded two successful small businesses that provided technology services and application development to other industry sectors including telecoms, manufacturing, media and advertising.

“Julian is an accomplished industry veteran from Merrill Lynch who played a key role in the development of successful multi-billion dollar hedge funds. His industry knowledge and vast business experience will provide strategic guidance to our growing client base and reinforce RFA’s position as the vendor of choice for firms in the alternative asset space,” says Don Previti, Director of Business Development at RFA.

The Series 65 Exam

If you are a hedge fund manager in certain states (California and Texas are two prominent examples) then your management firm will need to be registered as an investment adviser with your state’s Securities Commission. In all states, the prerequisite for such registration is that the firm have at least one investment adviser representative who has passed certain qualifying exams (the Series 65 exam or the Series 7 and Series 66) or have certain designations (CFA, CFP, etc).

This post intends to give you an overview of the Series 65 exam and some thoughts on taking and passing this exam.

The Series 65 basics

What: a three-hour (maximum) 140 question computer based exam which focuses on the following topic areas: economics and analysis; investment vehicles; investment recommendations and strategies; and legal and regulatory guidelines, including prohibition on unethical business practices. The exam features 10 ungraded questions (which can appear anywhere within the test) and an examinee needs to correctly answer 89 of 130 graded questions (70%).

Where: you will take the exam at either a Pearson-Vue or Prometric testing station.

When: you will sign up to take the exam at a time of your choosing on either the Pearson or Prometric website. It is recommended you schedule the exam at least a week prior to the date you plan to take it.

Why: it is required for a person to become registered as an investment adviser representative.

How to sign up

You will typically register for the Series 65 by submitting a Form U-4 through the IARD system or by submitting a Form U-10 online. Your law firm or your compliance consultant can help steer you through this process. Also feel free to contact us if you have any questions.

The cost to take the exam is $120. There may also be some state and IARD fees if you are signing up for the exam through the Form U-4 process.

How to study for the exam

I recommend to all of my clients that they put a pretty good effort into studying. I have seen a good portion of very smart hedge fund managers fail the exam on the first try. The central reason, in my opinion, is lack of a diligent study program. While the Series 65 is not a college chemistry exam, it still covers a lot of information which is probably new to the manager. Accordingly, I recommend that a manager set aside at least 40 hours to prepare for the exam. During the preparation phase, I recommend the following:

Get a study guide and read the guide from front to back. I read my study guide from front to back while I actively created notecards as I read each chapter. Doing so takes much longer, but afterward I was able to keep the notecards in my pocket and review them whenever I had free time, which kept the material fresh in my mind.

I used the Kaplan study guide. I am partial to the Kaplan study guides and have exclusively used these guide when studying for the various securities exams I have taken – I have passed the Series 3, Series 7, Series 24, Series 65 and Series 66 exams. The major frustration with the Kaplan guide is that it contained many errors. However, I think that Kaplan does the best job of preparing practice questions which will be very similar (if not exactly the same) to what you are likely to see on the exam. There are some other study guides out there like the “Pass the 65,” however, I have not found a guide which presents the information in a simple, matter-of-fact way like the Kaplan materials.

Other study options include various multi-media and internet applications. Kaplan also has a full-day class you can take from an instructor.

Take two to three practice exams. I took two Kaplan practice exams. After taking each exam, I examined the answer to every question, including the ones I correctly answered. This review process really helped me to solidify my understanding of the material. [Note: you may need to take more than two practice exams to feel comfortable with your knowledge base. If this is the case, I highly recommend taking more practice exams.]

Get a good night of rest the night before the exam. I always scheduled my exams in the morning. This way I can get the exam out of the way early and I do not need to be anxious during the day. I try to get a good night’s sleep the night before. At this point, it is not going to help your exam performance to stay up into the morning trying to cram.

Day of exam

Make sure you wake up early enough to be awake and alert. You should eat a proper breakfast. Allow extra time to get to the testing site. Pearson and Prometric have different rules about when you are supposed to show up at the testing site. A good rule of thumb is 45 minutes prior to your testing time. When you get to the testing site, you will sign in and the proctor will give you the rules of the testing site. Be ready to take everything out of your pockets and to take your jacket off (it is advisable to dress in layers as the testing rooms are often kept at very cool temperatures). You will likely be nervous before the test – I took the opportunity after signing in and before the test time to review a few of the more important note cards before I put them in my provided locker. This kept my mind busy, calmed my nerves, and gave me a little extra bit of confidence that I could answer the questions on the exam.

The exam

The exam is a computer-based exam so the first five minutes or so you’ll be given an on-line demonstration of the manner in which to answer questions and mark them for review. After this demonstration, the exam will start. The first ten to fifteen questions will generally be easier than the questions which come in the middle of the exam – don’t get too complacent. The middle of the exam will drag on and during this time there were many questions which I was not sure about and there were a lot of questions where I had to give a best guess. At about 2/3 of the way through the exam, I thought that I was going to fail for sure. Be aware of this, it happened to me in almost every single FINRA exam which I took.

Because the exam is so long – 180 minutes – you may need to use the restroom during the middle. If this is the case don’t hesitate to take some time for a break. During these breaks I would take some time to grab a drink of water and take a few deep breaths. When you get back, complete the last half or third of the exam in a methodical manner. If you encounter a question which you do not have a clue about how to answer, either guess and move on or guess and mark the question for review. Do not spend an inordinate amount of time trying to come to the correct answer – there are enough questions which you will know the answers to and it is most important that you get to those questions without being flustered. Remember also that the final 15 to 20 questions are generally going to be easier.

When you have answered all of the questions you will have the option to go back over your answers and to change any of your previous answers. It is recommended that you do not make any changes unless you are positive that your new answer is correct. Once you have certified that you are satisfied with your present answers the computer will ask you to confirm that you wish to proceed. When you confirm, the computer will begin to process your answers. During this minute or so your heart will race as adrenaline pumps through you. The screen will then tell you if you have passed or not.

If you don’t pass

Some people will not pass this exam – I have spent plenty of time on the phone talking to managers who almost passed. If you don’t pass it is not the end of the world. The major drawback of not passing the exam is that you will have to wait 30 days to take the exam again. If time is of the essence, this drawback could be the difference between an on-time hedge fund launch and the dreaded delay. As such, I always stress to the client that it is much better to be overprepared than underprepared. You will thank yourself for those extra few hours when you have passed the exam. If you do not pass the exam on the second try, you will need to wait 60 days to take the exam again.

***UPDATE FOR MAY 2010***

As many of you know, the Series 65 exam changed in 2010 and it is now much more difficult to pass.  I have heard more stories from people this year about not passing than I did last year.  Also a concern is that the study guides are not spending enough time on the new emphasis in the exam.  For instance, one person I just spoke with mentioned that there were many more questions on trusts and pensions than were covered in the study guides.  As always I recommend you get an up to date study guide and take at least two practice exams before taking the actual exam.

Start-up hedge fund timeline | How to Start a Hedge Fund

Starting a Hedge Fund Timeline

Many prospective hedge fund managers know that they would like to start a hedge fund but have not gone through the process necessary to understand what the process is like or how long it will take. For some managers the process is painless, for others the process is more time consuming and frustrating than they would like. Unfortunately, the timing of an actual fund launch cannot usually be determined with absolute certainty and will depend upon, in large part, your program and your service providers.

A good rule of thumb (for managers who do not need to register as investment advisers with their states) is that the fund formation process should take about 2 months. Often a fund can be up in running in a month or less, but to be on the safe side, I recommend 2 months.* If you need to register with a state, you are going to want to add anywhere from 3 – 6 weeks to the process.**

* It is not unheard of to have funds up and running in a couple of weeks. I’ve had a fund up and running in 4 days. If I need to work with a manager on an extremely tight deadline, this can probably be done in 2 to 3 days, depending on the availability of outside service providers.

** States like California will be closer to 3 weeks (UPDATE: CA is now taking two months to register investment advisers 08-18-09); states like Texas are going to be closer to 6 weeks.

In general the timeline might look like this:

Day 1 – Discussion with legal counsel regarding the structure of your fund (fees, contribution provisions, withdrawal provisions, other items to be included in the legal documents). During this time you will also discuss your investment program and your background.

Day 7-10 – Delivery of offering documents. During this time your legal team should respond to you with your legal documents. Your hedge fund’s legal documents will include the following:

  • Private placement memorandum
  • Limited partnership agreement (or limited liability company operating agreement)
  • Subscription documents

Don’t be scared when you first review these offering documents – they will usually be around 100 pages. Some very large fund offering documents might be up to 200 page or more in length.

Day 10-14 – Review of your offering documents. During this time you should be reviewing the offering documents and familiarizing yourself with their provisions. You will need to understand what all of the legal provisions in your documents mean. If you don’t understand a concept or phrase – mark it down and be sure to ask your attorney. Remember, these are your legal documents and you paid very good money for them – you should know what they say.

Day 17 – Discussion with legal counsel regarding offering documents. You should take about an hour (sometimes it is more or less) to discuss the key points of your offering documents with your legal counsel. You should bring up items which you have questions on and your lawyer should run down the key points of the offering documents with you.

Day 24 – Delivery of revised offering documents. Your legal team should be able to deliver you revised offering documents within about a week. At this time the offering documents are very close to being complete. You should review the documents to make sure that all your questions have been addressed and your changes incorporated. If the revised wording does not make sense, let your attorney know as soon as possible.

At this point these offering documents are in good enough shape to send to your administrator and your auditor (if you decide to name an auditor in the offering documents). In addition, you should begin the account application process with your broker or prime broker.

Day 24-30 – Begin finalizing service provider contracts and make sure all service providers are on the same page. The brokerage account application can potentially be a stumbling block in the process. Certain brokers have certain due diligence requirements which must be met before the account will be ready for live trading. You might not know of these requirements beforehand or the broker’s compliance department may come back with extra requirements – you never know what might be required. For example: one fund was not allowed to have the word “Fund” in their name if they started with less than $2 million in AUM. Another fund was not allowed to clear through a certain prime broker because the managing member of the management company did not have enough experience in the eyes of the clearing broker. While stories like this are the exception rather than the rule, the brokerage account opening process is the most uncertain in terms of time.

Day 30-45 – Last minute prep work with lawyers and service providers. The auditors or administrators may have some minor comments for the lawyers on the offering documents. Some of these service providers may require certain disclaiming language regarding the services which will be provided. It is not uncommon for these requested modifications to be passed on directly to the attorney, sometimes these requests will go through you.  Your lawyer will send you finalized offering documents during this time.

Day 46-60 – Begin getting ready for trading. You should make sure that everything is in place for a smooth first day – make sure you know when and how you will be doing your trading. Make sure you will have assets in the brokerage account on Day 1. Make sure your computers will be working.

Keys to remember during the process

  1. Start early. Give yourself too much time.
  2. Be responsive to all emails and phone calls.
  3. Keep the lines of communication open with your service providers. This is your fund and you are paying your service providers good money. They should be responsive to you and should answer all of your questions. If you do not get the response you would like it is your responsibility to discuss this with your service providers.
  4. Be patient.

****

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

Bart Mallon, Esq. has written most all of the articles which appear on the Hedge Fund Law Blog.  Mr. Mallon’s legal practice, Cole-Frieman & Mallon LLP, is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund.  If you are a hedge fund manager who is looking to start a hedge fund, or if you have questions about investment adviser registration with the SEC or state securities commission, please call Mr. Mallon directly at 415-296-8510.

Discussion: Options on futures

What Are Options?

There are two basic types of options on futures contracts: “calls” and “puts.” A call option on futures contracts conveys the right (but not the obligation) to the buyer to purchase a specific futures contract (for example, a corn contract for a December 1997 delivery month) at a particular price during a specified period of time. A put option conveys the right (but not the obligation) to the buyer to sell a specific futures contract at a given price during a specified period of time. The price for which the futures contract can be bought (in the case of a call option) or sold (in the case of a put option) under the terms of the option contract is referred to as the option’s strike price or exercise price. The date on which an option expires–the date after which it can no longer be exercised–is the option’s expiration date. The price of a specific option, that is, the amount of money paid by the buyer of an option and received by the seller of any option, is the option premium.

Where Are Options Traded?

Options are traded on the same exchanges as those of the underlying futures contracts. There are 11 different commodity exchanges in the U.S. as well as abroad. The major domestic agricultural crops are traded on the Chicago Board of Trade, the Kansas City Board of Trade, the Minneapolis Grain Exchange, the New York Cotton Exchange, and the Coffee, Sugar and Cocoa Exchange.

How Are Options Traded?

Options contracts are traded in much the same manner as their underlying futures contracts. There are several important factors to remember when trading options. The most important one is that trading a call option is completely separate and distinct from trading a put option. If producers buy or sell a call option, it does not in any way involve a put option. Trading a put does not involve a call option. Calls and puts are separate contracts, not opposite sides of the same transaction.

At any given time, there is simultaneous trading in a number of different call and put options–different in terms of delivery months and strike prices. Option delivery months are typically the same as those of the underlying futures contract.

Strike prices are listed in predetermined multiples for each commodity. The listed strike prices will include an at- or near-the-money option, at least five strikes below, and at least nine strikes above the at-the-money option. At-the-money is defined as an option whose strike price is equal–or approximately equal–to the current market price of the underlying futures contract. The five lower strikes would follow normal intervals. The nine higher strikes would include five normal intervals above the at-the-money option(s), plus an additional four strikes listed in even strikes that are double the normal interval. As prices increase or decrease, additional strike prices are listed as needed so that there are always five strike prices listed in normal intervals and four strike prices in double intervals above the current futures price, and at lease five strike prices below the current futures prices.

An important difference between futures and options is that trading in futures contracts is based on prices, while trading in options is based on premiums. The premium depends on market conditions such as volatility, time until expiration, and other economic variables affecting the value of the underlying futures contract. How various factors influence premiums and how and to what extent market price declines are offset by option profits are among the topics to discuss in detail with a broker.

The premium is the only part of the option contract negotiated in the trading pit; all other contract terms are predetermined. For an option buyer, the premium represents the maximum amount that he or she can lose, since the buyer is limited only to his initial investment. For an option seller, however, the premium represents the maximum amount he or she can gain, since the option seller faces the possibility of the option being exercised against him or her. When an option is exercised, the futures position assigned to an option seller will almost always be a losing one, since only an in-the-money option will normally be exercised by the option buyer.

Why Should Producers Consider Options?

Amid the perceived complexity of options, there is one feature that is especially important to hedgers: options offer price protection without limiting profit potential. This follows from the fact that the buyer of an option has the opportunity, but not the obligation, to buy or sell a particular commodity at a certain price for a limited period of time. The buyer’s risks are known up front and are limited. For producers, that means obtaining protection against declining crop prices without giving up the opportunity to profit if crop prices increase.

SEC releases Q&A on naked shorting rule

The SEC has released guidance on the new naked shorting rules.

Division of Trading and Markets:

Guidance Regarding the Commission’s Emergency Order Concerning Short Selling

I. Introduction

Pursuant to Section 12(k)(2) of the Securities Exchange Act of 1934, on July 15, 2008, the Securities and Exchange Commission (“Commission”) issued an Emergency Order (the “Order”) related to short selling securities of the companies identified in Appendix A of the Order. Also pursuant to Section 12(k)(2), on July 18, 2008, the Commission issued an amendment to the Order. The following questions and answers regarding the Order as amended have been prepared by and represent the views of the Staff of the Division of Trading and Markets (“Staff”) to assist in the understanding and application of the Order. They are not rules, regulations, or statements of the Commission. Further, the Commission has neither approved nor disapproved these interpretive answers and is not bound by them.

II. Responses to Questions Regarding the Order

Question 1: What securities are covered by the Order?

Answer: The Order applies to the publicly traded securities traded under the ticker symbols listed in Appendix A to the Order.

Question 2: Is an “arrangement to borrow” the equivalent of having reasonable grounds to believe that the security can be borrowed so that it can be delivered on the date delivery is due as required in Rule 203(b)(1) of Regulation SHO?

Answer: No. An arrangement to borrow requires more than a reasonable grounds to believe that the security can be borrowed. An arrangement to borrow means a bona fide agreement to borrow the security such that the security being borrowed is set aside at the time of the arrangement solely for the person requesting the security.

Question 3: May a person effecting a short sale on behalf of a customer rely on a customer’s representation that the customer has arranged to borrow the security from another source?

Answer: Yes. As permitted under Regulation SHO, a person effecting a short sale may obtain an assurance from a customer that such party has borrowed or arranged to borrow the security being sold short from another identified source provided the person effecting the short sale documents that it is relying on a customer’s assurance and that the person effecting the short sale has reasonable grounds to believe that the customer has borrowed or arranged to borrow the security. Customers are reminded, however, that they are also subject to the requirements of the Order.

Question 4: How does the requirement to borrow or arrange to borrow securities apply to options exercises and assignments?

Answer: Footnote 3 of the Order states that “[s]hort sales to be effected as a result of a put options exercise are subject to the Order.” Accordingly, any person that sells a security short pursuant to the exercise of a put option (including automatic exercises), where the exercise is not in connection with hedging activities by an options market maker, must comply with all the requirements of the Order. The exercise of a put option in a market maker account is exempt from the borrow or arrangement-to-borrow requirement but not from the delivery requirement.

A person will not have violated the Order if it sells short pursuant to the assignment of a call option and does not borrow or arrange to borrow the security prior to effecting such short sale. Such person, however, must deliver the security by settlement date.

Question 5: May a person effecting a short sale re-apply a borrow or arrangement to borrow for intra-day buy-to-cover trades?

Answer: Yes. A person effecting a short sale in a security of a company listed in Appendix A to the Order that has borrowed or arranged to borrow the security prior to effecting the short sale in compliance with the Order may re-apply the borrow or arrangement to borrow for an intra-day buy-to-cover trade as illustrated in the following scenario:

Prior to a customer’s short sale of 100 shares of XYZ stock, at 10 a.m., the broker-dealer effecting the short sale arranges to borrow the shares. The short sale is then executed. Later that same day, at 11 a.m., the broker-dealer purchases 100 shares of XYZ stock for the same customer. As a result, the customer’s net trading position becomes flat.

If the same customer wants to then sell short another 100 shares of XYZ stock that day, at 3 p.m., the broker-dealer effecting the short sale may apply the original arrangement to borrow shares to that later sale, provided that such subsequent short sale is for an amount of securities that is no greater than the amount of securities obtained in the original arrangement to borrow shares (thus, in the above example, the second short sale at 3 p.m. cannot exceed 100 shares unless the broker-dealer makes another arrangement to borrow additional shares prior to effecting the short sale).

Question 6: How does the Order apply to overseas transactions?

Answer: The Order provides that no person may effect a short sale in the securities of companies identified in Appendix A to the Order using the means or instrumentalities of interstate commerce unless the person or its agent has borrowed or arranged to borrow the security or otherwise has the security available to borrow in its inventory prior to effecting such short sale and delivers the security on settlement date. Accordingly, the Order applies to any short sale transaction in the publicly traded securities traded under the ticker symbols listed in Appendix A to the Order if the trade is agreed to in the United States, even if the trade is booked overseas. In addition, the Order applies to any short sale transaction involving a customer located in the United States and to any broker-dealer (regardless of whether the broker-dealer is registered with the Commission or relying on an exemption from registration) using the means or instrumentalities of interstate commerce in the United States to effect short sales in the publicly traded securities traded under the ticker symbols listed in Appendix A to the Order.

Question 7: How does the Order apply if a broker-dealer that has a delivery obligation with respect to a short sale of a security subject to this Order has a deficit in its possession-and-control obligation for that security under Exchange Act Rule 15c3-3(b)?

Answer: The broker-dealer must comply with the applicable provisions of Rule 15c3-3(b). Generally, a delivery of securities that are in a possession-and-control deficit is prohibited if it would create or increase a deficiency in the quantity of securities by class and issuer required to be in possession and control. The Commission staff has issued no-action relief from certain possession and control provisions of Rule 15c3-3 to broker-dealers that conduct a securities-borrowed-and-loan-“conduit” business. That relief also applies to the publicly traded securities traded under the ticker symbols listed in Appendix A to the Order.

Question 8: How can I comment on the Commission’s emergency orders, or any potential rulemaking the Commission may undertake to expand the duration of the naked short sale protections or the number of companies covered?

Answer: The Commission welcomes such comments, which will be considered in any action the Commission may take with respect to naked short sales.

People wishing to submit such comments can use any of the following methods:

Electronic Comments:

Use the Commission’s Internet comment form (http://www.sec.gov/cgi-bin/ruling-comments?ruling=s72008&rule_path=/comments/s7-20-08&file_num=S7-20-08&action=Show_Form&title=Emergency%20Order%20Short%20Sales); or

Send an e-mail to [email protected]. Please include File Number S7-20-08 on the subject line; or

Paper Comments:

Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090. All submissions should refer to File Number S7-20-08. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (http://www.sec.gov/). Comments are also available for public inspection and copying in the Commission’s Public Reference Room, 100 F Street, NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.

http://www.sec.gov/divisions/marketreg/emordershortsalesfaq.htm