Posts Tagged ‘Securities’

What Is 3C1 and How Is the Exemption Applied?

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3C1 refers to a portion of the Investment Company Act of 1940 that allows private investment companies to be considered exceptions to certain regulations and reporting requirements stipulated by the Securities and Exchange Commission (SEC). However, these firms must satisfy specific requirements to maintain their exception status.

Key Takeaways

  • 3C1 refers to a portion of the Investment Company Act of 1940 that exempts certain private investment companies from regulations.
  • A firm that’s defined as an investment company must meet specific regulatory and reporting requirements stipulated by the SEC.
  • 3C1 allows private funds with 100 or fewer investors and no plans for an initial public offering to sidestep certain SEC requirements.

Understanding 3C1

3C1 is shorthand for the 3(c)(1) exemption found in section 3 of the Act. To fully understand section 3C1, we must first review the Act’s definition of an investment company and how it relates to earlier sections of the Act: 3(b)(1) and 3(c). An investment company, as defined by the Investment Company Act, are companies that primarily engage in the business of investing, reinvesting, or trading securities. If companies are considered investment companies, they must adhere to certain regulations and reporting requirements.

3(b)(1)

3(b)(1) was established to exclude certain companies from being considered an investment company and having to adhere to the subsequent regulations. Companies are exempt as long as they are not primarily in the business of investing, reinvesting, holding, owning, or trading in securities themselves, or through subsidiaries, or controlled companies.

3(c)

3(c) takes it a step further and outlines specific exceptions to the classification of an investment company, which include broker-dealers, pension plans, church plans, and charitable organizations.

3(c)(1)

3(c)(1) adds to the exceptions list in 3(c) citing certain parameters or requirements that, if satisfied, would allow private investment companies to not be classified as investment companies under the Act.

3(c)(1) exempts the following from definition of investment company:

“Any issuer whose outstanding securities (other than short-term paper) are beneficially owned by not more than one hundred persons (or in the case of a qualifying venture capital fund, 250 persons) and that is not making and does not presently propose to make a public offering of such securities.”

In other words, 3C1 allows private funds with 100 or fewer investors (and venture capital funds with fewer than 250 investors) and no plans for an initial public offering to sidestep SEC registration and other requirements, including ongoing disclosure and restrictions on derivatives trading. 3C1 funds are also referred to as 3C1 companies or 3(c)(1) funds.

The result of 3C1 is that it allows hedge fund companies to avoid the SEC scrutiny that other investment funds, such as mutual funds, must adhere to under the Act. However, the investors in 3C1 funds must be accredited investors, meaning investors who have an annual income of over $200,000 or a net worth in excess of $1 million.

3C1 Funds vs. 3C7 Funds

Private equity funds are usually structured as 3C1 funds or 3C7 funds, the latter being a reference to the 3(c)(7) exemption. Both 3C1 and 3C7 funds are exempt from SEC registration requirements under the Investment Company Act of 1940, but the nature of the exemption is slightly different. Whereas the 3C1 exemption hinges on not exceeding 100 accredited investors, a 3C7 fund must maintain a total of 2,000 or fewer qualified purchasers. However, qualified purchasers must clear a higher bar and have over $5 million in assets, but a 3C7 fund is permitted to have more of these people or entities participating as investors.

3C1 Compliance Challenges

Although 100 accredited investors sound like an easy limit to monitor, it can be a challenging area for fund compliance. Private funds are generally protected in the case of involuntary share transfers. For example, the death of an investor results in shares being split up among family members would be considered an involuntary transfer.

However, these funds can run into issues with shares given as employment incentives. Knowledgeable employees, including executives, directors, and partners, do not count against the fund’s tally. However, employees who leave the firm carrying the shares with them will count against the 100 investor limit. The one hundred person limit is so critical to the investment company exemption and 3C1 status, that private funds put a great deal of effort into making certain they are in compliance.

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Understanding American Depositary Receipts (ADRs): Types, Pricing, Fees, Taxes

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Understanding American Depositary Receipts (ADRs): Types, Pricing, Fees, Taxes

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What Is an American Depositary Receipt (ADR)?

The term American depositary receipt (ADR) refers to a negotiable certificate issued by a U.S. depositary bank representing a specified number of shares—usually one share—of a foreign company’s stock. The ADR trades on U.S. stock markets as any domestic shares would.

ADRs offer U.S. investors a way to purchase stock in overseas companies that would not otherwise be available. Foreign firms also benefit, as ADRs enable them to attract American investors and capital without the hassle and expense of listing on U.S. stock exchanges.

Key Takeaways

  • An American depositary receipt is a certificate issued by a U.S. bank that represents shares in foreign stock.
  • These certificates trade on American stock exchanges.
  • ADRs and their dividends are priced in U.S. dollars.
  • ADRs represent an easy, liquid way for U.S. investors to own foreign stocks.
  • These investments may open investors up to double taxation and there are a limited number of options available.

Introduction To American Depository Receipts ADRs

How American Depositary Receipts (ADRs) Work

American depositary receipts are denominated in U.S. dollars. The underlying security is held by a U.S. financial institution, often by an overseas branch. These securities are priced and traded in dollars and cleared through U.S. settlement systems.

In order to begin offering ADRs, a U.S. bank must purchase shares on a foreign exchange. The bank holds the stock as inventory and issues an ADR for domestic trading. ADRs list on either the New York Stock Exchange (NYSE) or the Nasdaq, but they are also sold over-the-counter (OTC).

U.S. banks require that foreign companies provide them with detailed financial information. This requirement makes it easier for American investors to assess a company’s financial health.

Types of American Depositary Receipts

American depositary receipts come in two basic categories:

Sponsored ADRs

A bank issues a sponsored ADR on behalf of the foreign company. The bank and the business enter into a legal arrangement. The foreign company usually pays the costs of issuing an ADR and retains control over it, while the bank handles the transactions with investors. Sponsored ADRs are categorized by what degree the foreign company complies with Securities and Exchange Commission (SEC) regulations and American accounting procedures.

Unsponsored ADRs

A bank also issues an unsponsored ADR. However, this certificate has no direct involvement, participation, or even permission from the foreign company. Theoretically, there could be several unsponsored ADRs for the same foreign company, issued by different U.S. banks. These different offerings may also offer varying dividends. With sponsored programs, there is only one ADR, issued by the bank working with the foreign company.

One primary difference between the two types of ADRs is where they trade. All except the lowest level of sponsored ADRs register with the SEC and trade on major U.S. stock exchanges. Unsponsored ADRs will trade only over the counter. Unsponsored ADRs never include voting rights.

2,000+

The number of ADRs available, which represent companies from more than 70 different countries.

ADR Levels

ADRs are additionally categorized into three levels, depending on the extent to which the foreign company has accessed the U.S. markets.

Level I

This is the most basic type of ADR where foreign companies either don’t qualify or don’t want to have their ADR listed on an exchange. This type of ADR can be used to establish a trading presence but not to raise capital.

Level I ADRs found only on the over-the-counter market have the loosest requirements from the Securities and Exchange Commission (SEC) and they are typically highly speculative. While they are riskier for investors than other types of ADRs, they are an easy and inexpensive way for a foreign company to gauge the level of U.S. investor interest in its securities.

Level II

As with Level I ADRs, Level II ADRs can be used to establish a trading presence on a stock exchange, and they can’t be used to raise capital. Level II ADRs have slightly more requirements from the SEC than do Level I ADRs, but they get higher visibility and trading volume. 

Level III

Level III ADRs are the most prestigious. With these, an issuer floats a public offering of ADRs on a U.S. exchange. They can be used to establish a substantial trading presence in the U.S. financial markets and raise capital for the foreign issuer. Issuers are subject to full reporting with the SEC.

American Depositary Receipt Pricing and Costs

An ADR may represent the underlying shares on a one-for-one basis, a fraction of a share, or multiple shares of the underlying company. The depositary bank will set the ratio of U.S. ADRs per home-country share at a value that they feel will appeal to investors. If an ADR’s value is too high, it may deter some investors. Conversely, if it is too low, investors may think the underlying securities resemble riskier penny stocks.

Because of arbitrage, an ADR’s price closely tracks that of the company’s stock on its home exchange. Remember that arbitrage is buying and selling the same asset at the same time in different markets. This allows traders to profit from any differences in the asset’s listed price. 

ADR Fees

Investing in an ADR may incur additional fees that are not charged for domestic stocks. The depositary bank that holds the underlying stock may charge a fee, known as a custody fee, to cover the cost of creating and issuing an ADR.

This fee will be outlined in the ADR prospectus, and typically ranges from one to three cents per share. The fee will be either deducted from dividends, or passed on to the investor’s brokerage firm.

ADRs and Taxes

Holders of ADRs realize any dividends and capital gains in U.S. dollars. However, dividend payments are net of currency conversion expenses and foreign taxes. Usually, the bank automatically withholds the necessary amount to cover expenses and foreign taxes.

Since this is the practice, American investors would need to seek a credit from the IRS or a refund from the foreign government’s taxing authority to avoid double taxation on any capital gains realized.

Those interested in learning more about ADRs and other financial topics may want to consider enrolling in one of the best investing courses currently available.

Advantages and Disadvantages of American Depositary Receipts

As with any investment, there are distinct advantages and disadvantages of investing in ADRs. We’ve listed some of the main ones below.

Advantages

As noted above, ADRs are just like stocks. This means they trade on a stock exchange or over the counter, making them fairly easy to access and trade. Investors can also easily track their performance by reviewing market data.

Purchasing ADRs is easy because they’re available directly through American brokers. This eliminates the need to go through foreign channels to buy stock in a company in which you may be interested. Since they’re available domestically, shares are denominated in U.S. dollars. But that doesn’t mean you avoid any direct risks associated with fluctuations in currency rates.

ADRs and Exchange Rate Risk

It is a common misconception that since the ADR is traded in U.S. dollars in the United States, there is no exchange rate risk. ADRs have currency risk because of the way they are structured. The global bank that creates the ADRs establishes a conversion rate, meaning that an ADR share is worth a certain number of local shares. In order to preserve this conversion rate over time, movements in the exchange rate of the home country vs. the U.S. dollar must be also reflected in the price of the ADR in U.S. dollars.

One of the most obvious benefits of investing in ADRs is that they provide investors with a way to diversify their portfolios. Investing in international securities allows you to open your investment portfolio up to greater rewards (along with the risks).

Disadvantages

The main problems associated with ADRs are that they may involve double taxation—locally and abroad—and how many companies are listed. Unlike domestic companies, there are a limited number of foreign entities whose ADRs are listed for the public to trade.

As noted above, some ADRs may not comply with SEC regulations. These are called unsponsored ADRs, which have no direct involvement by the company. In fact, some companies may not even provide permission to list their shares this way.

Although investors can avoid any of the direct risks that come with currency exchange, they may incur currency conversion fees when they invest in ADRs. These fees are established in order to directly link the foreign security and the one traded on the domestic market.

Cons

  • Could face double taxation

  • Limited selection of companies

  • Unsponsored ADRs may not be SEC-compliant

  • Investor’s may incur currency conversion fees

History of American Depositary Receipts

Before American depositary receipts were introduced in the 1920s, American investors who wanted shares of a non-U.S. listed company could only do so on international exchanges—an unrealistic option for the average person back then.

While easier in the contemporary digital age, there are still drawbacks to purchasing shares on international exchanges. One particularly daunting roadblock is currency exchange issues. Another important drawback is the regulatory differences between U.S. and foreign exchanges.

Before investing in an internationally traded company, U.S. investors have to familiarize themselves with the different financial authority’s regulations, or they could risk misunderstanding important information, such as the company’s financials. They might also need to set up a foreign account, as not all domestic brokers can trade internationally.

ADRs were developed because of the complexities involved in buying shares in foreign countries and the difficulties associated with trading at different prices and currency values. J.P. Morgan’s (JPM) predecessor firm Guaranty Trust pioneered the ADR concept. In 1927, it created and launched the first ADR, enabling U.S. investors to buy shares of famous British retailer Selfridges and helping the luxury depart store tap into global markets. The ADR was listed on the New York Curb Exchange.

A few years later, in 1931, the bank introduced the first sponsored ADR for British music company Electrical & Musical Industries (also known as EMI), the eventual home of the Beatles. Today, J.P. Morgan and BNY Mellon, another U.S. bank, continue to be actively involved in the ADR markets.

Real-World Example of ADRs

Between 1988 and 2018, German car manufacturer Volkswagen AG traded OTC in the U.S. as a sponsored ADR under the ticker VLKAY. In August 2018, Volkswagen terminated its ADR program. The next day, J.P. Morgan established an unsponsored ADR for Volkswagen, now trading under the ticker VWAGY.

Investors who held the old VLKAY ADRs had the option of cashing out, exchanging the ADRs for actual shares of Volkswagen stock—trading on German exchanges—or exchanging them for the new VWAGY ADRs.

If I Own an ADR, Is It the Same As Owning Shares in the Company?

Not exactly. ADRs are U.S. dollar-denominated certificates that trade on American stock exchanges and track the price of a foreign company’s domestic shares. ADRs represent the prices of those shares, but do not actually grant you ownership rights as common stock typically does. Some ADRs pay dividends and may be issued at various ratios. The most common ratio is 1:1 where each ADR represents one common share of the company.

If an ADR is listed on an exchange, you can buy and sell it through your broker like any other share. Because of this, and since they are priced in U.S. dollars, ADRs allow American investors a way to diversify their portfolios geographically without having to open overseas accounts or dealing with foreign currency exchange and taxes.

Why Do Foreign Companies List ADRs?

Foreign companies often seek to have their shares traded on U.S. exchanges through ADRs in order to obtain greater visibility in the international market, access to a larger pool of investors, and coverage by more equity analysts. Companies that issue ADRs may also find it easier to raise money in international markets when their ADRs are listed in U.S. markets.

What Is a Sponsored vs. an Unsponsored ADR?

All ADRs are required to have a U.S. investment bank act as their depositary bank. The depositary bank is the institution that issues ADRs, maintains a record of the holders of ADRs, registers the trades carried out, and distributes the dividends or interest on shareholders’ equity payments in dollars to ADR holders.

In a sponsored ADR, the depositary bank works with the foreign company and their custodian bank in their home country to register and issue the ADRs. An unsponsored ADR is instead issued by a depositary bank without the involvement, participation, or even the consent of the foreign company it represents ownership in. Unsponsored ADRs are normally issued by broker-dealers that own common stock in a foreign company and trade over-the-counter. Sponsored ADRs are more commonly found on exchanges.

What Is the Difference Between an ADR and a GDR?

ADRs provide a listing to foreign shares in one market. U.S. Global Depositary Receipts (GDRs), on the other hand, give access to two or more markets (most frequently the U.S. and Euro markets) with one fungible security. GDRs are most commonly used when the issuer raises capital in the local market as well as in the international and U.S. markets. This can be done either through private placement or public offerings.

Is an ADR the Same As an American Depositary Share (ADS)?

American depositary shares (ADSs) are the actual underlying shares that the ADR represents. In other words, the ADS is the actual share available for trading, while the ADR represents the entire bundle of ADSs issued.

Do ADRs Eliminate Exchange Rate Risk?

No, and this is a common misconception. American Depository Receipts have currency risk or exchange rate risk despite trading in the U.S. and in U.S. dollars. This is due to the way they are structured. ADRs are created by a global bank that possesses a large number of an international firm’s local shares. The bank sets a particular ADR conversion rate, meaning that an ADR share is worth a certain number of local shares. To preserve this conversion rate over time, movements in the exchange rate of the home country vs. the U.S. dollar must be also reflected in the price of the U.S.-traded ADR in U.S. dollars. If this did not occur, it would be impossible to preserve the conversion rate established by the bank.

The Bottom Line

American Depositary Receipts, or ADRs, allow Americans to invest in foreign companies. Although these companies do not ordinarily trade on the U.S. stock market, an ADR allows an investor to buy these stocks as easily as they would invest in any domestic stock. The arrangement also benefits foreign firms, allowing them to raise capital from the U.S. market.

Correction—Jan. 24, 2023: A previous version of this article wrongly stated that foreign currency exchange rate fluctuations do not affect the price of ADR and therefore ADR holders avoid any direct risks associated with fluctuations in currency rates. Actually, ADR have exchange rate risk and the price of an ADR is affected by the movements of both the company’s local share price and the national currency rate of exchange against the U.S. dollar.

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3(c)(7) Exemption: Definition, Requirements for Funds, and Uses

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What Is the 3(c)(7) Exemption?

The 3(c)(7) exemption refers to a portion of the Investment Company Act of 1940 that allows private investment companies an exemption from some Securities and Exchange Commission (SEC) regulation, providing that they meet certain criteria. 3C7 is shorthand for the 3(c)(7) exemption.

Key Takeaways

  • The 3(c)(7) exemption refers to the Investment Company Act of 1940’s section permitting qualifying private funds an exemption from certain SEC regulations.
  • Private funds must not plan to issue an IPO and their investors must be qualified purchases to qualify for the 3C7 exemption.
  • There is no maximum limit for the number of purchasers of 3C7 funds.
  • In contrast to 3C7, 3C1 funds deal with no more than 100 accredited investors.

Understanding the 3(c)(7) Exemption

The exemption, found in section three of the act, reads in part: 

Section 3
(3)(c) Notwithstanding subsection (a), none of the following persons is an investment company within the meaning of this title:
(7)(A) Any issuer, the outstanding securities of which are owned exclusively by persons who, at the time of acquisition of such securities, are qualified purchasers, and which is not making and does not at that time propose to make a public offering of such securities.

To qualify for the 3C7 exemption, the private investment company must show that they have no plans of making an initial public offering (IPO) and that their investors are qualified purchasers. A qualified purchaser is a higher standard than an accredited investor; it requires that the investor owns not less than $5 million in investments. The term “qualified purchaser” is defined in Section 2(a)(51) of the Investment Company Act.

3C7 funds are not required to go through Securities and Exchange Commission registration or provide ongoing disclosure. They are also exempt from issuing a prospectus that would outline investment positions publicly. 3C7 funds are also referred to as 3C7 companies or 3(c)(7) funds.  

The Investment Company Act of 1940 defines an “investment company” as an issuer that “holds itself out as being engaged primarily or proposes to engage primarily, in the business of investing, reinvesting or trading in securities.” 3C7 is one of two exemptions in the Investment Company Act of 1940 that hedge funds, venture capital funds, and other private equity funds use to avoid SEC restrictions.

This frees up these funds to use tools like leverage and derivatives to an extent that most publicly traded funds cannot. The vast majority of new hedge funds, private equity funds, venture capital funds, and other private investment vehicles are organized so as to fall outside the purview of the Investment Company Act of 1940.

That said, 3C7 funds must maintain their compliance to continue utilizing this exemption from the 1940 Act. If a fund were to fall out of compliance by taking in investments from non-qualified purchasers, for example, it would open itself to SEC enforcement actions as well as litigation from its investors and any other parties it has contracts with. 

3C7 Funds vs. 3C1 Funds

Both 3C7 and 3C1 funds are exempted from the requirements imposed on “investment companies” under the Investment Company Act of 1940 (the “Act”). However, there are important differences between them. 3C7 funds, as noted, take investments from qualified purchasers, whereas 3C1 funds work with accredited investors.

Investors in 3C7 funds are held to a higher wealth measure than those in 3C1 funds, which can limit the investor pool that a fund is hoping to raise money from. That said, 3C1 funds are capped at 100 investors total, limiting the number of investors the fund can take in from the wider pool they are allowed to pull from.

3C7 funds don’t have a set cap. However, 3C7 funds will fall under the regulation that is stipulated in the Securities Exchange Act of 1934 when they reach 2,000 investors. At this point, private funds are subject to increased SEC scrutiny and have more in common with public companies.

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Angel Investor Definition and How It Works

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Allowance for Bad Debt: Definition and Recording Methods

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What Is an Angel Investor?

An angel investor (also known as a private investor, seed investor or angel funder) is a high-net-worth individual who provides financial backing for small startups or entrepreneurs, typically in exchange for ownership equity in the company. Often, angel investors are found among an entrepreneur’s family and friends. The funds that angel investors provide may be a one-time investment to help the business get off the ground or an ongoing injection to support and carry the company through its difficult early stages.

Key Takeaways

  • An angel investor is usually a high-net-worth individual who funds startups at the early stages, often with their own money.
  • Angel investing is often the primary source of funding for many startups who find it more appealing than other, more predatory, forms of funding.
  • The support that angel investors provide startups fosters innovation which translates into economic growth.
  • These types of investments are risky and usually do not represent more than 10% of the angel investor’s portfolio.

Understanding Angel Investors

Angel investors are individuals who seek to invest at the early stages of startups. These types of investments are risky and usually do not represent more than 10% of the angel investor’s portfolio. Most angel investors have excess funds available and are looking for a higher rate of return than those provided by traditional investment opportunities.

Angel investors provide more favorable terms compared to other lenders, since they usually invest in the entrepreneur starting the business rather than the viability of the business. Angel investors are focused on helping startups take their first steps, rather than the possible profit they may get from the business. Essentially, angel investors are the opposite of venture capitalists.

Angel investors are also called informal investors, angel funders, private investors, seed investors or business angels. These are individuals, normally affluent, who inject capital for startups in exchange for ownership equity or convertible debt. Some angel investors invest through crowdfunding platforms online or build angel investor networks to pool capital together.

Origins of Angel Investors

The term “angel” came from the Broadway theater, when wealthy individuals gave money to propel theatrical productions. The term “angel investor” was first used by the University of New Hampshire’s William Wetzel, founder of the Center for Venture Research. Wetzel completed a study on how entrepreneurs gathered capital.

Who Can Be an Angel Investor?

Angel investors are normally individuals who have gained “accredited investor” status but this isn’t a prerequisite. The Securities and Exchange Commission (SEC) defines an “accredited investor” as one with a net worth of $1M in assets or more (excluding personal residences), or having earned $200k in income for the previous two years, or having a combined income of $300k for married couples. Conversely, being an accredited investor is not synonymous with being an angel investor.

Essentially these individuals both have the finances and desire to provide funding for startups. This is welcomed by cash-hungry startups who find angel investors to be far more appealing than other, more predatory, forms of funding.

Sources of Funding

Angel investors typically use their own money, unlike venture capitalists who take care of pooled money from many other investors and place them in a strategically managed fund.

Though angel investors usually represent individuals, the entity that actually provides the funds may be a limited liability company (LLC), a business, a trust or an investment fund, among many other kinds of vehicles.

Investment Profile

Angel investors who seed startups that fail during their early stages lose their investments completely. This is why professional angel investors look for opportunities for a defined exit strategy, acquisitions or initial public offerings (IPOs).

The effective internal rate of return for a successful portfolio for angel investors is approximately 22%. Though this may look good for investors and seem too expensive for entrepreneurs with early-stage businesses, cheaper sources of financing such as banks are not usually available for such business ventures. This makes angel investments perfect for entrepreneurs who are still financially struggling during the startup phase of their business.

Angel investing has grown over the past few decades as the lure of profitability has allowed it to become a primary source of funding for many startups. This, in turn, has fostered innovation which translates into economic growth.

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