Interest in pre-IPO investing has grown as many companies remain privately held longer and raise substantial amounts of capital before entering the public markets. For investment managers, this has created opportunities to establish private funds focused on acquiring interests in later-stage private companies.

However, forming and operating a pre-IPO fund involves considerably more than identifying attractive private companies. Fund structure, securities exemptions, investor eligibility, offering documents, regulatory filings, valuation, custody, conflicts of interest and the manner in which fund interests are marketed all require careful consideration.

What Is a Pre-IPO Fund?

A pre-IPO fund is generally a private investment vehicle that invests in privately held companies that may ultimately pursue an initial public offering, strategic sale or other liquidity event.

Depending on the investment strategy, a fund may acquire securities through direct company financings, secondary transactions with existing shareholders, special purpose vehicles (SPVs), or other privately negotiated transactions.

Unlike purchasing shares of a publicly traded company, private-company investments generally have limited liquidity and may be subject to transfer restrictions, rights of first refusal, company approval requirements and other contractual limitations.

Importantly, there is no guarantee that a portfolio company will complete an IPO. A company may remain private for many years, be acquired, restructure, decline in value or fail entirely.

Regulation D and Pre-IPO Fund Offerings

Most private investment funds do not conduct registered public offerings of their fund interests. Instead, they typically rely on exemptions from registration under the Securities Act of 1933.

Two commonly used exemptions are Rule 506(b) and Rule 506(c) of Regulation D.

A Rule 506(b) offering generally prohibits general solicitation and advertising. It may permit participation by accredited investors and a limited number of sophisticated non-accredited investors, subject to applicable requirements.

Rule 506(c), by comparison, permits general solicitation, but all purchasers must be accredited investors and the issuer must take reasonable steps to verify accredited investor status.

The appropriate exemption should be determined before marketing begins because the manner in which a fund and its offering are promoted can affect the availability of an exemption.

Private Fund Exemptions

The fund itself must also consider its status under the Investment Company Act of 1940.

Many private funds rely on exclusions provided by Sections 3(c)(1) or 3(c)(7) of the Investment Company Act.

A 3(c)(1) fund generally limits the number of beneficial owners, while a 3(c)(7) fund generally limits participation to investors meeting the more demanding qualified purchaser standard.

These requirements are separate from the accredited-investor requirements associated with Regulation D.

Offering and Organizational Documents

A properly structured pre-IPO fund will generally require several legal and operational documents.

These may include a private placement memorandum (PPM), limited liability company or limited partnership agreement, subscription agreement, investor questionnaire and other disclosure or organizational documents.

The offering materials should clearly describe the fund's investment strategy as well as the significant risks associated with private-company investing.

For a pre-IPO strategy, disclosures may need to address issues such as illiquidity, valuation uncertainty, concentration, lack of publicly available information, transfer restrictions, delayed or unsuccessful IPOs, secondary-market transactions, conflicts of interest and the possibility of losing some or all of an investment.

Form D and Blue Sky Filings

A fund relying on Regulation D may be required to file Form D with the SEC and make applicable state securities, or “Blue Sky,” notice filings.

State requirements and filing fees can vary depending upon where investors reside.

Fund sponsors should therefore consider federal and state filing requirements as part of the offering process rather than waiting until significant fundraising has already occurred.

Investment Adviser Considerations

The entity managing a pre-IPO fund must also determine whether it is required to register as an investment adviser or whether an exemption is available.

Depending upon assets under management, location, clients, fund structure and other circumstances, a manager may potentially operate as a registered investment adviser or qualify for an exemption, including in certain circumstances as an exempt reporting adviser (ERA).

Federal and state requirements can differ significantly, making the location and activities of the investment manager particularly important.

Broker-Dealer and Capital-Raising Issues

How a fund raises capital deserves particular attention.

Compensating individuals or firms based on securities transactions or capital raised can create broker-dealer registration issues. Fund sponsors should carefully evaluate arrangements involving placement agents, finders, consultants, affiliated broker-dealers and other persons participating in the sale of fund interests.

Where a FINRA-registered broker-dealer participates in a private placement, additional FINRA rules and filing requirements may also apply depending upon the circumstances.

These issues should be addressed before compensation arrangements and selling agreements are finalized.

Valuation and Liquidity

Valuation is particularly important for pre-IPO funds because portfolio securities generally do not trade on a liquid public exchange.

Recent financing rounds, secondary transactions, company financial information and independent valuation methodologies may provide useful information, but none necessarily establishes the price at which a security could actually be sold.

An IPO also does not necessarily create immediate liquidity. Securities may remain subject to contractual lockups, Rule 144 restrictions or other limitations following a public offering.

Fund managers should establish and consistently apply appropriate valuation policies and provide investors with clear disclosures regarding valuation methodology.

Conflicts of Interest

Pre-IPO investing can create significant conflicts of interest, particularly when a manager operates multiple funds or SPVs or has relationships with broker-dealers, placement agents or other affiliated entities.

Potential conflicts can include allocation of limited investment opportunities, allocation of expenses, affiliated transactions, compensation arrangements and determining which fund or account receives a particular investment.

Identifying and appropriately disclosing material conflicts is therefore an important component of establishing and operating a private fund.

Compliance Does Not End When the Fund Closes

Regulatory compliance is an ongoing responsibility.

After the initial offering, a private fund may have continuing obligations involving investor records, regulatory filings, financial reporting, AML considerations, valuation procedures, books and records, offering updates and investment-adviser compliance.

Changes to the fund's strategy, offering terms, service providers or fundraising practices can also require additional review.

Building a Stronger Pre-IPO Fund Infrastructure

Pre-IPO funds can provide investors with access to an area of the private markets that was historically dominated by venture capital, private equity firms and institutional investors. At the same time, these investments present significant risks and regulatory considerations.

A well-designed fund should combine an appropriate legal structure with accurate offering disclosures, regulatory compliance procedures, disciplined valuation practices and appropriate operational controls.

Intersource Consulting Group provides compliance and operational consulting to private investment funds, broker-dealers and registered investment advisers, including support involving private fund formation, Regulation D offerings, regulatory filings, FINOP services and ongoing compliance matters.

For more information about establishing or operating a pre-IPO investment fund, contact Intersource Consulting Group.

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