Office of the Indiana Secretary of Statewww.in.gov/sos Office of the Indiana Secretary of State Indiana Securities Division 2011 Investment Adviser Switch Conference March 31 st, 2011

Office of the Indiana Secretary of Statewww.in.gov/sos Charles P. White Indiana Secretary of State

Office of the Indiana Secretary of Statewww.in.gov/sos Chris Naylor Securities Commissioner

Office of the Indiana Secretary of Statewww.in.gov/sos The Indiana Securities Division Our primary goal is to protect investors  The Indiana Securities Division regulates:  Investment Advisers & Investment Adviser Representatives  Broker-Dealers  Security Agents / Registered Representatives  Mortgage brokers  Collection agencies  Franchisors  Continuing Care Retirement Centers  Other responsibilities of the Indiana Securities Division:  Securities-related Investigations  Examinations  Securities Product Registration  Investor Education

Office of the Indiana Secretary of Statewww.in.gov/sos Navigating the Dodd-Frank Act’s New Regulatory Requirements for Investment Advisers

Office of the Indiana Secretary of Statewww.in.gov/sos DISCLAIMER This conference and the accompanying materials are presented as an educational experience, covering some of the changes mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act. You will be subject to all relevant laws, regulations, rules and orders whether or not they are included in this presentation. The views expressed are those of the presenter, and the Indiana Securities Division reserves the right to change its position. Presenters believe all information is truthful and accurate; however, mistakes can occur.

Office of the Indiana Secretary of Statewww.in.gov/sos Conference Topics  Indiana Investment Adviser Registration  What Dodd-Frank Means for Investment Advisers  IA Regulation in Indiana  What to Expect from State IA Exams

Office of the Indiana Secretary of Statewww.in.gov/sos What Dodd-Frank Means For IAs Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, state securities regulators will have greater responsibility for the regulation of investment advisers.

Office of the Indiana Secretary of Statewww.in.gov/sos What Dodd-Frank Means For IAs  Dodd-Frank establishes a threshold of $100 million assets under management (AUM) for federally covered advisers.  Approximately 4,000 advisers nationwide will be affected, including about 70 advisers in Indiana.  Eliminates the private adviser exemption.  Law takes effect on July 21, 2011.

Office of the Indiana Secretary of Statewww.in.gov/sos  In Indiana, all advisers with $100 million or less under management will be required to register with the state unless:  They fall between $25 million and $100 million and are required to be registered in 15 or more states, or  The investment adviser qualifies for an exemption under Rule 203A-2 of the Investment Advisers Act of What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos  Firms required to register with the Indiana Securities Division  (through July 21, 2011) Firms with AUM of $25 million or less  Buffer between $25M & $30M – State or Federal  (after July 21, 2011) Firms with AUM of $100 million or less  No buffer at this time  Must be registered with the Indiana Securities Division no later than July 22,  Firms with AUM of $25 million to $100 million may register with the Indiana Securities Division prior to July 21, 2011, but must also remain registered with the SEC until July 21, What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos  Indiana authority over IAs with AUM of $25-$100 million  IA’s principal office and place of business is located in the State of Indiana.  If an IA has 5 or more clients located in the State of Indiana and is not required to be registered in 15 or more states.  Some IAs will register with the SEC regardless of AUM, such as IAs to registered investment companies and IAs to a business development company under the Investment Company Act.  If an IA is required to register in 15 or more states, the IA can remain with SEC What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos Transition Schedule Confirming SEC eligibility. Each IA registered with SEC on July 21, 2011 will file an amendment to ADV by August 20, 2011 to report AUM determined within thirty (30) days of amendment filing. Terminating SEC registration. IAs no longer eligible for SEC registration must file ADV-W by October 19, What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos  Private Fund Investment Advisers Registration Act of 2010 (Title 4 of Dodd-Frank) – Significant reforms to the regulation of advisers to hedge funds and other private funds, including:  Eliminates the private adviser exemption (203(b)(3))  Requires SEC registration for advisers to “private funds” with AUM of at least $150 million  Requires SEC reporting for advisers to “private funds” with AUM of less than $150 million and for advisers to “venture capital funds”  Defines “family office” to exclude it from IA  Defines “foreign private adviser” & exempts from SEC registration  Excludes advisers to private funds from the intrastate exemption from registration What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos PRIVATE FUND DEFINITION  Private fund – An issuer that would be an investment company under the Investment Company Act, but for the exceptions contained in 3(c)(1) or 3(c)(7) of that Act. What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos  3(c)(1)  Securities are not publicly offered and are owned by not more than 100 persons  Interests typically offered pursuant to Reg D, Rule 506.  Accredited Investors  3(c)(7)  Securities are not publicly offered and generally not owned by more than 499 persons  Investors must be qualified purchasers (individuals with investments of $5,000,000/institutions with $25,000,000 of investments) What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos Advisers to Private Funds: Registration and Reporting Requirements  Advisers solely to private funds with AUM of less than $150 million  Exempt from registration with the SEC  Reporting requirement with SEC  No state preemption, subject to national de minimis  Advisers solely to private funds with AUM of $150 million or more  Register with the SEC  States are preempted – Notice Filing Requirement What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos Advisers Solely to Venture Capital Funds: Registration and Reporting Requirements  Advisers solely to venture capital funds  Exempt from registration with the SEC  SEC reporting requirement  No state preemption, subject to national de minimis  No AUM provisions  SEC has proposed a definition of “venture capital fund” in Release No. IA-3111 What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos About State Regulation:  Indiana is preparing to handle the switch and is working to ensure a seamless, comprehensive and effective switching process.  Switching is not new. Regulatory switches regularly happen when the asset levels of IA firms rise above or fall below mandated thresholds.  State registration is a smooth process for most IAs, especially those that have made the switch before and those that operated prior to 1996 when most IAs were required to register both with the SEC and with each state in which they were doing business. What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos About State Regulation:  Indiana conducts a thorough review of adviser applications. State reviews will not change with the migration of IAs with up to $100 million in assets under management.  Firms switching to state regulation for the first time can expect thorough inspections generally on a more frequent basis than they may have experienced before.  Thorough inspections and strong internal compliance benefit customer and firm alike. What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos NASAA IA Switch Resource Center  The North American Securities Administrators Association (NASAA) is assisting states with the migration of investment advisers.  NASAA’s online IA Switch Resource Center includes an FAQ, calendar of events and additional guidance to help advisers make the switch to state regulation.  Advisers can use the resource center to submit questions about the switch. The resource center is available at What Dodd-Frank Means For IAs

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation Registration Doreen Fuery, Senior Accountant

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: The Registration Process  Who must register with the State of Indiana?  Your firm has $100M or Less in Assets Under Management (AUM) AND has more than five (5) clients in Indiana. OR  Your firm has $100M or Less in AUM AND your principal office and place of business is in Indiana.

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: The Registration Process  Dual Registration  Is dual registration with more than one firm allowed?  Can your firm be registered with both the SEC and the State of Indiana?

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: The Registration Process  When will new applications be accepted?  NOW! Remember, registration must be effective on July 22,  Indiana law allows up to thirty (30) days for the initial registration review.  Turnaround time depends on the Firm.

Office of the Indiana Secretary of Statewww.in.gov/sos  File ADV via the IARD, and pay registration fees to FINRA.  In Indiana, the fees are $100 for the Registered Investment Adviser and $25 for each Investment Adviser Representative.  Upon the firm’s filing of Form ADV (Part 1 or 2), the IARD electronically notifies the Indiana Securities Division of the ADV submission. IA Regulation: The Registration Process

Office of the Indiana Secretary of Statewww.in.gov/sos  To begin the registration process, check “Indiana” under Item 1 of Form ADV Part 1B; you may also file Form ADV Part 2 at the same time.  This will put you in a “no status” category.  You must then submit the documents required for registration.  HELP at IARD Call Center – Filing Forms and Paying Fees Phone: (240) and IA Regulation: The Registration Process

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: The Registration Process  Required Registration Documents  Balance Sheet (audited OR unaudited)  Sample Advisory Agreements  Fee information in advisory agreements must match fee information in the ADV Part 2.  Representatives must file or amend personal Form U-4  Exam requirements / Professional designations  Fingerprints / Criminal background check  Books and Records Location Form (if maintained at a location other than your principal place of business)  Overall disclosure record is reviewed

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: The Registration Process  The 2011 IARD Renewal Program Calendar is available online at:  There will be no changes in this process.  Proceed as you would in any other year.  After initial registration, NO paper or electronic documents are sent to the Securities Division.

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: Registration | Annual Renewal Process  Completed through Web IARD.  Registrants who fail to renew by end of calendar year are considered inactive on January 1 st, and the firm is no longer a “Registered” Investment Adviser. Any business is “unregistered” activity.

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: Registration | Withdrawal Process From SEC  Termination of Registrant is made by following the Form ADV-W instructions.  Termination of IA rep registration is made by following the Form U- 5 instructions.  Do not assume that by letting a registration lapse, the registrant has terminated.  “Failure to Renew” status  Make arrangements to maintain books and records for five years (noted in ADV-W).

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: Registration  Registration Contact Information  Doreen Fuery Phone: (317)

Office of the Indiana Secretary of Statewww.in.gov/sos Questions (10 Minutes)

Office of the Indiana Secretary of Statewww.in.gov/sos Form ADV Parts 1 and 2 Teresa Cronkhite, Investment Adviser Examiner IA Regulation

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: Form ADV Part 1  Form ADV Part 1 is:  Used to register and describe the details of the registrant with the Indiana Securities Division.  Filed and updated online via the Investment Adviser Registration Depository (IARD).  IARD is an electronic filing system that facilitates investment adviser registration, regulatory review and public disclosure information of investment adviser firms.  FINRA is the developer and operator of the IARD system, which is sponsored by the SEC the North American Securities Administrators Association (NASAA).

Office of the Indiana Secretary of Statewww.in.gov/sos  Material changes must be filed within thirty (30) days of change.  Called an “other than annual amendment”  Do not file hard copy changes with our office – Online ONLY  What is a material change that requires an other than annual amendment?  Change of name, address, contact information (including information), form of organization, custodial arrangements, disciplinary actions, etc.  Required to file annual amendment by 12/31 of each year.  Amend regardless if changes or not (also amend Item 5 Part F Assets Under Management). IA Regulation: Form ADV Part 1

Office of the Indiana Secretary of Statewww.in.gov/sos  Complete and file on the IARD system.  Material changes must be filed (online) within thirty (30) days of that material change.  Do not wait for an approval when submitting an update. IA Regulation: Form ADV Part 1

Office of the Indiana Secretary of Statewww.in.gov/sos  July 28, 2010: SEC adopted a new Form ADV Part 2 replacing the old Part II, effective October 12,  Jan. 1, 2011: All new and current SEC advisers began using new Form ADV Part 2.  Feb. 28, 2011: Indiana required all state registered IAs to file and begin using the new Form ADV Part 2.  March 31, 2011: SEC requires all SEC-registered IAs to file and begin using new form ADV Part 2. IA Regulation: Form ADV Part 2

Office of the Indiana Secretary of Statewww.in.gov/sos IA Regulation: Form ADV Part 2  The new Part 2 consists of three parts:  Part 2A, the Firm Brochure  Includes all firm details written in plain English to promote effective communication between you and your clients.  Part 2A Appendix 1, Wrap Fee Program Brochure  If you sponsor a wrap fee program.  Part 2B Brochure Supplement  For supervised persons who formulate investment advice for clients and have direct client contact.

Office of the Indiana Secretary of Statewww.in.gov/sos Key Points  An adviser is a fiduciary whose duty is to serve the best interests of its clients.  An adviser must deal fairly with clients and prospective clients, seek to avoid conflicts with its clients and, at a minimum, make full disclosure of any material conflict or potential conflict.  Disclosures that clients and prospective clients receive is critical to their ability to make an informed decision about whether to engage an adviser.  To evaluate the risks associated with a particular IA, its business practices and investment strategies, it is essential that clients and prospective clients have clear disclosure that they are likely to read and understand. IA Regulation: Form ADV Part 2

Office of the Indiana Secretary of Statewww.in.gov/sos Key Points  Provides new and prospective clients with a brochure and brochure supplements written in plain English. No more “check the box.”  Describes business practices, conflicts of interest, and the background of the investment adviser and its advisory personnel.  Discloses meaningful information in a clearer format.  Electronic filing in IARD is required.  Part 2 brochures will be available for viewing through IARD. IA Regulation: Form ADV Part 2 Insert Agency Name Here

Office of the Indiana Secretary of Statewww.in.gov/sos  What is required?  Part 2A: Firm Brochure  Part 2A Appendix 1: Wrap Fee Program Brochure, if appropriate  Part 2B: Brochure Supplement  File all parts of ADV Part 2 on the IARD system.  You must file your brochure(s) (and amendments) through the IARD system using the text-searchable Adobe Portable Document Format (PDF). IA Regulation: Form ADV Part 2

Office of the Indiana Secretary of Statewww.in.gov/sos Annual Offer Requirements  Item 2 of the Instructions for the new Part 2A of Form ADV “Preparing Your Firm Brochure” provides that each year a registered investment adviser must:  Offer to each client a summary of material changes which includes an offer to provide a full copy of the updated brochure and information on how a client may obtain the brochure.  You may send this offer via electronic mail.  Retain a record that the firm Brochure was offered, to whom it was offered, and to whom you sent the firm brochure. IA Regulation: Form ADV Part 2

Office of the Indiana Secretary of Statewww.in.gov/sos  After initial registration, no further documents are filed with the Securities Division.  Form ADV Part 1 amendment.  Material changes to ADV Part 2.  RIA and IAR’s are under a continuing obligation to update investment adviser representative information required by the U4 as changes occur. IA Regulation: Forms Filed Annually with FINRA (via IARD)

Office of the Indiana Secretary of Statewww.in.gov/sos Form ADV Part 2 Resources  The new Part 2 of Form ADV is posted on the websites of the SEC and the North American Securities Administrators Association (NASAA).  NASAA has posted guidance for investment advisers filing the new Form ADV Part 2 in IARD.  Visit the NASAA website, look in “Industry & Regulatory Resources” IA Regulation: Form ADV Part 2

Office of the Indiana Secretary of Statewww.in.gov/sos Questions (10 Minutes)

Office of the Indiana Secretary of Statewww.in.gov/sos Indiana IA Examinations What to Expect Bill Marburger Esq., Investment Adviser Examiner

Office of the Indiana Secretary of Statewww.in.gov/sos Indiana IA Exams: What to Expect  Our goal in examining state-registered Investment Advisers is to protect investors and legitimate business in Indiana.  Two Types of Examinations  Routine > generally a standard comprehensive exam  For Cause > there for a reason, sometimes a focused exam  The Examination will be conducted at the location of your books and records.

Office of the Indiana Secretary of Statewww.in.gov/sos  State IA examinations generally include the following areas:  Books and records  Financials  Registration – Form ADV Part I and II  Investment Activities  Complaints  Advertising and Marketing  Conflicts of interest  Custody  Supervisory/Compliance Procedures  Business Practices  Advisory Contracts Indiana IA Exams: Examination Focus

Office of the Indiana Secretary of Statewww.in.gov/sos  Routine exams are typically a four-part process.  Pre-Exam  On-Site  Post-Exam  Resolution  Onsite portion of exam may last from one day to a week depending on several factors.  Usually one or two examiners. Indiana IA Exams: What to Expect

Office of the Indiana Secretary of Statewww.in.gov/sos Pre-Exam  Notification of upcoming exam typically done by fax or with a list of documents to have ready.  May request documents prior to on-site visit.  Some exams may be unannounced. Indiana IA Exams: What to Expect | Pre-Exam

Office of the Indiana Secretary of Statewww.in.gov/sos ONSITE  Introduction and description of the purpose of the visit.  Identify contact/point person for the examiner.  Initial interview conducted by examiner.  Tour of the office  Where are your records?  Where is the copier?  Where can I work?  Interview: Questions about your practice Indiana IA Exams: What to Expect | Onsite

Office of the Indiana Secretary of Statewww.in.gov/sos ONSITE  Be prepared with requested documents readily available.  Try to have key personnel available.  Exit interview (optional).  The examiner explains what comes next. May be done onsite or may come after the actual visit, but not required. Indiana IA Exams: What to Expect | Onsite

Office of the Indiana Secretary of Statewww.in.gov/sos Post-Exam  Once examiner has left your office, the exam is not over.  Most of exam is done at the regulator’s office and frequently additional documents or information is requested.  Exam report prepared.  May take one to several weeks depending on several factors. Indiana IA Exams: What to Expect | Post-Exam

Office of the Indiana Secretary of Statewww.in.gov/sos Resolution  Once post-exam work is complete, an exam report or deficiency/cautionary letter may be sent.  Registrant must respond to the deficiency/cautionary letter in writing, usually within a set amount of time.  Once all deficiencies have been satisfactorily addressed, exam is closed.  Certain issues may be referred to enforcement. Indiana IA Exams: What to Expect | Resolution

Office of the Indiana Secretary of Statewww.in.gov/sos  Failing to file Form ADV Part 1 on 12/31 of each year.  Inaccurate or incomplete Forms ADV Part 1 & 2  Incomplete, inadequate, or no contract with clients  Failing to maintain current suitability information regarding clients Indiana IA Exams: Common Exam Deficiencies

Office of the Indiana Secretary of Statewww.in.gov/sos  Non-compliance with privacy requirements  Incomplete or no written supervisory/compliance procedures  Non-compliance with advertising rules  Failing to maintain applicable books and records  Not sending invoice of fees if auto-deducting fee Indiana IA Exams: Common Exam Deficiencies

Office of the Indiana Secretary of Statewww.in.gov/sos  710 IAC Books and records; maintenance   Every investment adviser subject to IC shall make and keep true, accurate, and current books and records relating to its investment advisory business.  Books and records required shall be maintained and preserved in an easily accessible place for at least five (5) years from the end of the fiscal year during which the investment adviser last published or otherwise disseminated, directly or indirectly, the: (i) notice; (ii) circular; (iii) advertisement; (iv) newspaper article; (v) investment letter; (vi) bulletin; or (vii) other communication; with books and records for the first two (2) years stored in an appropriate office of the investment adviser. Indiana IA Exams: Books & Records

Office of the Indiana Secretary of Statewww.in.gov/sos Investment Adviser books and records required by the State of Indiana can be found in the Indiana Administrative Code at 710 IAC Failure to keep accurate books and records can be an indication of unethical business practices. Indiana IA Exams: Books & Records

Office of the Indiana Secretary of Statewww.in.gov/sos  Examples  Journal – including cash receipts and disbursement records, and any other records of original entry.  Ledgers – general and auxiliary ledgers reflecting asset, liability, reserve, capital, income and expense accounts.  All checkbooks – check book, bank statements, cancelled checks and cash reconciliation.  All bills – all bills or statements paid or unpaid. Indiana IA Exams: Books & Records

Office of the Indiana Secretary of Statewww.in.gov/sos  Trial Balances – balance sheet, income statement, cash flow statement, net worth computation.  Written Communication – copies of received and sent communication relating to investment advice, recommendations, order execution, etc.  List of Discretionary Accounts – all accounts that adviser has discretionary authority with respect to the funds, securities or transactions of any client.  Power of Attorney – All powers of attorney and other evidence granting any discretionary authority by and client to the adviser.  Written Agreements – All written agreements entered into by adviser with any client. Indiana IA Exams: Books & Records

Office of the Indiana Secretary of Statewww.in.gov/sos  Records/Beneficial Ownership – a record of every transaction in a security in which the adviser or any representative has acquired any direct or indirect beneficial ownership.  Copy of Brochure – a copy of each written statement and each amendment or revision of your brochure. Including delivery dates and any material changes to Part 2 of your Form ADV.  Written Acknowledgment of Solicitor – if applicable maintain a record for each client that was obtained by adviser by means of a solicitor to whom a cash fee was paid the adviser. Indiana IA Exams: Books & Records

Office of the Indiana Secretary of Statewww.in.gov/sos  Documents for Performance Figures – if applicable, keep a written record of all accounts, books, internal work papers, and any other records or documents necessary to form the basis for or demonstrate the calculation of the performance rate of return of all managed accounts or securities.  Written Litigation & Complaints – adviser must keep a file containing a copy of all written communication received or sent regarding any litigation involving the adviser.  Suitability Information – written information about each investment advisory client that is the basis for making any recommendation or providing any investment advice to such client. Indiana IA Exams: Books & Records

Office of the Indiana Secretary of Statewww.in.gov/sos  Copies of U-4 – Copies, with original signatures of the investment advisers and the investment adviser representatives of each initial Form U-4 and each amendment to the disclosure reporting pages (DRPs U-4).  Business Form Documents – Partnership articles, articles of incorporation, charters, minute books, stock certificates, etc., if applicable.  Government Documents- a file must be kept containing each document that was filed with or received from any state or federal agency that pertains to the investment adviser or its representatives. Indiana IA Exams: Books & Records

Office of the Indiana Secretary of Statewww.in.gov/sos Indiana IA Exams: Best Practices  the Securities Division recommends the following best practices, which are designed to assist you in meeting compliance challenges while providing better services to your clients:  Review and revise the Form ADV 1 & 2 and disclosure brochure annually to reflect current and accurate information.  Review and update all contracts.  Prepare and maintain all required records including financial records. Back-up electronic data and protect records.  Prepare and maintain client profiles.  Prepare a written compliance and supervisory procedures manual relevant to the type of business.

Office of the Indiana Secretary of Statewww.in.gov/sos Indiana IA Exams: Best Practices  Prepare and distribute a privacy policy initially and annually.  Keep accurate financials. File timely with the jurisdiction. Maintain surety bond if required.  Calculate and document fees correctly in accordance with contracts and ADV.  Review and revise all advertisements, including website and performance advertising, for accuracy.  Implement appropriate custody safeguards, if applicable.  Review solicitor agreements, disclosure and delivery procedures.

Office of the Indiana Secretary of Statewww.in.gov/sos  Indiana Securities Division   Laws, Regulations, Policies  North American Securities Administrators Association   Investment Adviser Resources  Uniform Forms  IA Switch Resource Center Resources

Office of the Indiana Secretary of Statewww.in.gov/sos Contact Information Indiana Securities Division 302 West Washington Street Room E-111 Indianapolis, IN Phone: Fax: Investment Adviser Examiners Bill Marburger: / Teresa Cronkhite: / Senior Accountant / Registrations Doreen Fuery: / Chief Deputy Commissioner Jeff Bush: /

Office of the Indiana Secretary of Statewww.in.gov/sos Question & Answer Session