There are numerous definitions of the term ‘professional’ or ‘accredited’ investor. Each regulatory body has their own definition. HULT Private Capital relies predominantly on the European Markets in Financial Instruments Directives and the US Securities and Exchange Commissioneach as amended from time to time. Therefore, the HULT Private Capital definition of the collective term “Professional Investor” is the collective combination of EU professional investor and US accredited investor definition to include the following: 

The prospective investor must have an annual income of more than $200,000 ($300,000 joint with his spouse) for the last 2 years and he is expecting at least the same level of income individually or jointly with his spouse and excluding their primary residence and any qualified insurance contracts or pension savings, he has either alone or together with his spouse in excess of $1,000,000 net worth. He would also be deemed a professional investor if he holds appropriate professional experience such as professional qualifications in the financial services industry (e.g., licensed financial advisor) and been authorized as such by at least one regulatory authority in financial services and he has previous experience of similar financial products or other alternative investments. If the investor is a non-natural person (namely a corporate entity) it must have at least $5 million in assets.

DEFINITION OF PROFESSIONAL INVESTOR (EU)

According to Markets in Financial Instruments Directive Annex II to Directive 2004/39/EC:  as amended by MIFID II Annex II Directive 2014/65/EU: “Professional Investor” is defined as follows:

PROFESSIONAL CLIENTS FOR THE PURPOSE OF THIS DIRECTIVE

Professional client is a client who possesses the experience, knowledge, and expertise to make its own investment decisions and properly assess the risks that it incurs. In order to be considered a professional client, the client must comply with the following criteria:

1. Categories of client who are considered to be professionals

The following should all be regarded as professionals in all investment services and activities and financial instruments for the purposes of the Directive.

• Entities which are required to be authorized or regulated to operate in the financial markets. The list below should be understood as including all authorized entities carrying out the characteristic activities of the entities mentioned: entities authorized by a Member State under a Directive, entities authorized or regulated by a Member State without reference to a Directive, and entities authorized or regulated by a non-Member State / third country:

• Credit institutions

• Investment firms

• Other authorized or regulated financial institutions

• Insurance companies

• Collective investment schemes and management companies of such schemes

• Pension funds and management companies of such funds

• Commodity and commodity derivatives dealers

• Locals

• Other institutional investors

• Large undertakings meeting two of the following size requirements on a company basis:

• Balance sheet total: EUR 20,000,000

• Net turnover:             EUR 40,000,000

• Own funds: EUR 2,000,000

• National and regional governments, including public bodies that manage public debt at national or regional level, Central Banks, international and supranational institutions such as the World Bank, the IMF, the ECB, the EIB, and other similar international organizations.

• Other institutional investors whose main activity is to invest in financial instruments, including entities dedicated to the securitization of assets or other financing transactions.

The entities mentioned above are considered to be professionals. They must however be allowed to request non-professional treatment and investment firms may agree to provide a higher level of protection. Where the client of an investment firm is an undertaking referred to above, the investment firm must inform it prior to any provision of services that, on the basis of the information available to the firm, the client is deemed to be a professional client, and will be treated as such unless the firm and the client agree otherwise. The firm must also inform the customer that he can request a variation of the terms of the agreement in order to secure a higher degree of protection.

It is the responsibility of the client, considered to be a professional client, to ask for a higher level of protection when it deems it is unable to properly assess or manage the risks involved.

This higher level of protection will be provided when a client who is considered to be a professional enters into a written agreement with the investment firm to the effect that it shall not be treated as a professional for the purposes of the applicable conduct of business regime. Such agreement should specify whether this applies to one or more particular services or transactions, or to one or more types of products or transaction.

1. Clients who may be treated as professionals on request

II.1. Identification criteria

Clients other than those mentioned in section I, including public sector bodies and private individual investors, may also be allowed to waive some of the protections afforded by the conduct of business rules.

Investment firms should therefore be allowed to treat any of the above clients as professionals provided the relevant criteria and procedure mentioned below are fulfilled. These clients should not, however, be presumed to possess market knowledge and experience comparable to that of the categories listed in section I.

Any such waiver of the protection afforded by the standard conduct of business regime shall be considered valid only if an adequate assessment of the expertise, experience, and knowledge of the client, undertaken by the investment firm, gives reasonable assurance, in light of the nature of the transactions or services envisaged, that the client is capable of making his own investment decisions and understanding the risks involved.

The fitness test applied to managers and directors of entities licensed under Directives in the financial field could be regarded as an example of the assessment of expertise and knowledge. In the case of small entities, the person subject to the above assessment should be the person authorized to carry out transactions on behalf of the entity.

In the course of the above assessment, as a minimum, two of the following criteria should be satisfied:

• the client has carried out transactions, in significant size, on the relevant market at an average frequency of 10 per quarter over the previous four quarters,

• the size of the client’s financial instrument portfolio, defined as including cash deposits and financial instruments exceeds EUR 500,000,

• the client works or has worked in the financial sector for at least one year in a professional position, which requires knowledge of the transactions or services envisaged.

II.2. Procedure

The clients defined above may waive the benefit of the detailed rules of conduct only where the following procedure is followed:

• they must state in writing to the investment firm that they wish to be treated as a professional client, either generally or in respect of a particular investment service or transaction, or type of transaction or product,

• the investment firm must give them a clear written warning of the protections and investor compensation rights they may lose,

• they must state in writing, in a separate document from the contract, that they are aware of the consequences of losing such protections.

Before deciding to accept any request for waiver, investment firms must be required to take all reasonable steps to ensure that the client requesting to be treated as a professional client meets the relevant requirements stated in Section II.1 above.

However, if clients have already been categorized as professionals under parameters and procedures similar to those above, it is not intended that their relationships with investment firms should be affected by any new rules adopted pursuant to this Annex.

Firms must implement appropriate written internal policies and procedures to categorize clients. Professional clients are responsible for keeping the firm informed about any change, which could affect their current categorization. Should the investment firm become aware however that the client no longer fulfils the initial conditions, which made him eligible for a professional treatment, the investment firm must take appropriate action.

Sources:

MIFID II Annex II Directive 2004/39/EC

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A02004L0039-20110104

MIFID II Annex II Directive 2014/65/EU

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32014L0065&from=EN#d1e3984-349-1

DEFINITION OF ACCREDITED INVESTOR (US)

Certain securities offerings that are exempt from registration may only be offered to, or purchased by, persons who are “accredited investors.” An “accredited investor” is:

• a bank, savings and loan association, insurance company, registered investment company, business development company, or small business investment company or rural business investment company

• an SEC-registered broker-dealer, SEC- or state-registered investment adviser, or exempt reporting adviser

• a 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 million

• an employee benefit plan (within the meaning of the Employee Retirement Income Security Act) if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million

• a tax-exempt charitable organization, corporation, limited liability corporation, or partnership with assets in excess of $5 million

• a director, executive officer, or general partner of the company selling the securities, or any director, executive officer, or general partner of a general partner of that company

• an enterprise in which all the equity owners are accredited investors

• an individual with a net worth or joint net worth with a spouse or spousal equivalent of at least $1 million, not including the value of his or her primary residence

• an individual with income exceeding $200,000 in each of the two most recent calendar years or joint income with a spouse or spousal equivalent exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year or

• a trust with assets exceeding $5 million, not formed only to acquire the securities offered, and whose purchases are directed by a person who meets the legal standard of having sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of the prospective investment

• an entity of a type not otherwise qualifying as accredited that own investments in excess of $5 million

• an individual holding in good standing any of the general securities representative license (Series 7), the investment adviser representative license (Series 65), or the private securities offerings representative license (Series 82)

• a knowledgeable employee, as defined in rule 3c-5(a)(4) under the Investment Company Act, of the issuer of securities where that issuer is a 3(c)(1) or 3(c)(7) private fund or

• a family office and its family clients if the family office has assets under management in excess of $5 million and whose prospective investments are directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment

Sources:

https://www.sec.gov/education/smallbusiness/exemptofferings/faq#faq2

https://www.ecfr.gov/current/title-17/chapter-II/part-230#230.501