UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
x | Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the fiscal year ended December 31, 2011. |
or
¨ | Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the transition period from to . |
Commission file number: 001-33975
United States Gasoline Fund, LP
(Exact name of registrant as specified in its charter)
Delaware | 20-8837263 | |||||
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
1320 Harbor Bay Parkway, Suite 145
Alameda, California 94502
(Address of principal executive offices) (Zip code)
(510) 522-9600
(Registrants telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Units of United States Gasoline Fund, LP | NYSE Arca, Inc. | |||
(Title of each class) | (Name of exchange on which registered) |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ¨ Yes x No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ¨ Yes x No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. x Yes ¨ No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). x Yes ¨ No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨ |
Accelerated filer x | |||||
Non-accelerated filer ¨ |
Smaller reporting company ¨ | |||||
(Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ¨ Yes x No
The aggregate market value of the registrants units held by non-affiliates of the registrant as of June 30, 2011 was: $134,568,000.
The registrant had 2,850,000 outstanding units as of March 5, 2012.
DOCUMENTS INCORPORATED BY REFERENCE:
None.
UNITED STATES GASOLINE FUND, LP
Table of Contents
Part I. |
Page | |||
1 | ||||
|
||||
25 | ||||
|
||||
39 | ||||
|
||||
39 | ||||
|
||||
39 | ||||
|
||||
39 | ||||
|
||||
Part II. |
||||
40 | ||||
|
||||
40 | ||||
|
||||
Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations. |
41 | |||
|
||||
Item 7A. Quantitative and Qualitative Disclosures About Market Risk. |
59 | |||
|
||||
61 | ||||
|
||||
Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure. |
80 | |||
|
||||
80 | ||||
|
||||
80 | ||||
|
||||
Part III. |
||||
Item 10. Directors, Executive Officers and Corporate Governance. |
81 | |||
|
||||
86 | ||||
|
||||
87 | ||||
|
||||
Item 13. Certain Relationships and Related Transactions, and Director Independence. |
87 | |||
|
||||
88 | ||||
|
||||
Part IV. |
||||
89 | ||||
|
||||
89 | ||||
|
||||
91 |
Part I
What is UGA?
The United States Gasoline Fund, LP (UGA) is a Delaware limited partnership organized on April 13, 2007. UGA maintains its main business office at 1320 Harbor Bay Parkway, Suite 145, Alameda, California 94502. UGA is a commodity pool that issues limited partnership interests (units) traded on the NYSE Arca, Inc. (the NYSE Arca). It operates pursuant to the terms of the Amended and Restated Agreement of Limited Partnership dated as of February 11, 2008 (as amended from time to time, the LP Agreement), which grants full management control to its general partner, United States Commodity Funds LLC (USCF).
The investment objective of UGA is for the daily changes in percentage terms of its units per unit net asset value (NAV) to reflect the daily changes in percentage terms of the spot price of gasoline (also known as reformulated gasoline blendstock for oxygen blending, or RBOB, for delivery to the New York harbor), as measured by the daily changes in the price of the futures contract for gasoline traded on the New York Mercantile Exchange (the NYMEX), that is the near month contract to expire, except when the near month contract is within two weeks of expiration, in which case the futures contract will be the next month contract to expire (the Benchmark Futures Contract), less UGAs expenses. USCF does not intend to operate UGA in a fashion such that its per unit NAV will equal, in dollar terms, the spot price of gasoline or any particular futures contract based on gasoline. It is not the intent of UGA to be operated in a fashion such that its per unit NAV will reflect the percentage change of the price of any particular futures contract as measured over a time period greater than one day. USCF believes that it is not practical to manage the portfolio to achieve such an investment goal when investing in Futures Contracts (as defined below) and Other Gasoline-Related Investments (as defined below). UGAs units began trading on February 26, 2008. USCF is the general partner of UGA and is responsible for the management of UGA.
Who is USCF?
USCF is a single member limited liability company that was formed in the state of Delaware on May 10, 2005. Prior to June 13, 2008, USCF was known as Victoria Bay Asset Management, LLC. It maintains its main business office at 1320 Harbor Bay Parkway, Suite 145, Alameda, California 94502. USCF is a wholly-owned subsidiary of Wainwright Holdings, Inc., a Delaware corporation (Wainwright). Mr. Nicholas Gerber (discussed below) controls Wainwright by virtue of his ownership of Wainwrights shares. Wainwright is a holding company that previously owned an insurance company organized under Bermuda law (which has been liquidated) and a registered investment adviser firm named Ameristock Corporation, which has been distributed to the Wainwright shareholders. USCF is a member of the National Futures Association (the NFA) and registered as a commodity pool operator (CPO) with the Commodity Futures Trading Commission (the CFTC) on December 1, 2005.
USCF also serves as general partner or sponsor of the United States Oil Fund, LP (USOF), United States Natural Gas Fund, LP (USNG), United States 12 Month Oil Fund, LP (US12OF), United States Heating Oil Fund (USHO), United States Short Oil Fund (USSO), United States 12 Month Natural Gas Fund (US12NG), United States Brent Oil Fund (USBO), United States Commodity Index Fund (USCI), United States Copper Index Fund (CPER), United States Metals Index Fund (USMI) and United States Agriculture Index Fund (USAG). All funds listed previously are referred to collectively herein as the Related Public Funds. USOF, USNG, US12OF, USHO, USSO, US12NG, USBO, USCI and CPER are actively operating funds and all are listed on the NYSE Arca. The Related Public Funds are subject to reporting requirements under the Securities Exchange Act of 1934, as amended. For more information about each of the Related Public Funds, investors in UGA may call 1.800.920.0259 or visit www.unitedstatescommodityfunds.com or the SECs website at www.sec.gov.
USCF has also filed registration statements to register units of the United States Sugar Fund (USSF), the United States Natural Gas Double Inverse Fund (UNGD), the United States Gasoil Fund (USGO) and the United States Asian Commodities Basket Fund (USABF), each of which is a series of the United States Commodity Funds Trust I. USSF, UNGD, USGO, USABF are currently not available to the public as such funds are still in the process of review by various regulatory agencies which have regulatory authority over USCF and such funds.
1
USCF is required to evaluate the credit risk of UGA to the futures commission merchant, oversee the purchase and sale of UGAs units by certain authorized purchasers (Authorized Purchasers), review daily positions and margin requirements of UGA and manage UGAs investments. USCF also pays the fees of ALPS Distributors, Inc., which serves as the marketing agent for UGA (the Marketing Agent), and Brown Brothers Harriman & Co. (BBH&Co.), which serves as the administrator (the Administrator) and the custodian (the Custodian) for UGA.
Limited partners have no right to elect USCF as the general partner on an annual or any other continuing basis. If USCF voluntarily withdraws as general partner, however, the holders of a majority of UGAs outstanding units (excluding for purposes of such determination units owned, if any, by the withdrawing USCF and its affiliates) may elect its successor. USCF may not be removed as general partner except upon approval by the affirmative vote of the holders of at least 66 and 2/3 percent of UGAs outstanding units (excluding units owned, if any, by USCF and its affiliates), subject to the satisfaction of certain conditions set forth in the LP Agreement.
The business and affairs of USCF are managed by a board of directors (the Board), which is comprised of four management directors (the Management Directors), some of whom are also its executive officers, and three independent directors who meet the independent director requirements established by the NYSE Arca Equities Rules and the Sarbanes-Oxley Act of 2002. The Management Directors have the authority to manage USCF pursuant to its LLC Agreement, as amended from time to time. Through its Management Directors, USCF manages the day-to-day operations of UGA. The Board has an audit committee which is made up of the three independent directors (Peter M. Robinson, Gordon L. Ellis and Malcolm R. Fobes III). For additional information relating to the audit committee, please see Item 10. Directors, Executive Officers and Corporate Governance Audit Committee in this annual report on Form 10-K.
How Does UGA Operate?
An investment in the units provides a means for diversifying an investors portfolio or hedging exposure to changes in gasoline prices. An investment in the units allows both retail and institutional investors to easily gain this exposure to the gasoline market in a transparent, cost-effective manner.
The net assets of UGA consist primarily of investments in futures contracts for gasoline, other types of gasoline, crude oil, heating oil, natural gas and other petroleum-based fuels that are traded on the NYMEX, ICE Futures or other U.S. and foreign exchanges (collectively, Futures Contracts) and, to a lesser extent, in order to comply with regulatory requirements or in view of market conditions, other gasoline-related investments such as cash-settled options on Futures Contracts, forward contracts for gasoline, cleared swap contracts and non-exchange traded (over-the-counter) transactions that are based on the price of gasoline, crude oil and other petroleum-based fuels, Futures Contracts and indices based on the foregoing (collectively, Other Gasoline-Related Investments). Market conditions that USCF currently anticipates could cause UGA to invest in Other Gasoline-Related Investments include those allowing UGA to obtain greater liquidity or to execute transactions with more favorable pricing. For convenience and unless otherwise specified, Futures Contracts and Other Gasoline-Related Investments collectively are referred to as Gasoline Interests in this annual report on Form 10-K. UGA invests substantially the entire amount of its assets in Futures Contracts while supporting such investments by holding the amounts of its margin, collateral and other requirements relating to these obligations in short-term obligations of the United States of two years or less (Treasuries), cash and cash equivalents. The daily holdings of UGA are available on UGAs website at www.unitedstatesgasolinefund.com.
The investment objective of UGA is for the daily changes in percentage terms of its units per unit NAV to reflect the daily changes in percentage terms of the spot price of gasoline, as measured by the daily changes in the price of the futures contract on gasoline (also known as RBOB, for delivery to the New York harbor), traded on the NYMEX that is the near month contract to expire, except when the near month contract is within two weeks of expiration, in which case it will be measured by the futures contract that is the next month contract to expire (the Benchmark Futures Contract), less UGAs expenses. USCF does not intend to operate UGA in a fashion such that its per unit NAV will equal, in dollar terms, the spot price of gasoline or any particular futures contract based on gasoline. It is not the intent of UGA to be operated in a fashion such that its per unit NAV will reflect the percentage change of the price of any particular futures contract as measured over a time period greater than one day. UGA may invest in interests other than the Benchmark Futures Contract to comply with accountability levels and position limits. For a detailed discussion of accountability levels and position limits, see Item 1. Business What are Futures Contracts? below in this annual report on Form 10-K.
2
USCF employs a neutral investment strategy in order to track changes in the price of the Benchmark Futures Contract regardless of whether the price goes up or goes down. UGAs neutral investment strategy is designed to permit investors generally to purchase and sell UGAs units for the purpose of investing indirectly in gasoline in a cost-effective manner, and/or to permit participants in the gasoline or other industries to hedge the risk of losses in their gasoline-related transactions. Accordingly, depending on the investment objective of an individual investor, the risks generally associated with investing in gasoline and/or the risks involved in hedging may exist. In addition, an investment in UGA involves the risk that the changes in the price of UGAs units will not accurately track the changes in the Benchmark Futures Contract, and that changes in the Benchmark Futures Contract will not closely correlate with changes in the spot prices of gasoline.
The Benchmark Futures Contract is changed from the near month contract to expire to the next month contract to expire during one day each month. On that day, USCF closes or sells UGAs Gasoline Interests and also reinvests or rolls in new Gasoline Interests.
The anticipated dates on which the Benchmark Futures Contracts will be changed and UGAs Gasoline Interests will be rolled are posted on UGAs website at www.unitedstatesgasolinefund.com, and are subject to change without notice.
UGAs total portfolio composition is disclosed on its website each business day that the NYSE Arca is open for trading. The website disclosure of portfolio holdings is made daily and includes, as applicable, the name and value of each Gasoline Interest, the specific types of Other Gasoline-Related Investments and characteristics of such Other Gasoline-Related Investments, the name and value of each Treasury and cash equivalent, and the amount of cash held in UGAs portfolio. UGAs website is publicly accessible at no charge. UGAs assets used for margin and collateral are held in segregated accounts pursuant to the Commodity Exchange Act (the CEA) and CFTC regulations.
Effective February 29, 2012, the units issued by UGA may only be purchased by Authorized Purchasers and only in blocks of 50,000 units called Creation Baskets. The amount of the purchase payment for a Creation Basket is equal to the aggregate NAV of the units in the Creation Basket. Similarly, only Authorized Purchasers may redeem units and only in blocks of 50,000 units called Redemption Baskets. Prior to February 29, 2012, Authorized Purchasers could only purchase or redeem units or blocks of 100,000 units. The amount of the redemption proceeds for a Redemption Basket is equal to the aggregate NAV of units in the Redemption Basket. The purchase price for Creation Baskets, and the redemption price for Redemption Baskets, are the actual NAV calculated at the end of the business day when a request for a purchase or redemption is received by UGA. The NYSE Arca publishes an approximate per unit NAV intra-day based on the prior days per unit NAV and the current price of the Benchmark Futures Contract, but the price of Creation Baskets and Redemption Baskets is determined based on the actual per unit NAV calculated at the end of the day.
While UGA issues units only in Creation Baskets, units are listed on the NYSE Arca and investors may purchase and sell units at market prices like any listed security.
What is UGAs Investment Strategy?
In managing UGAs assets, USCF does not use a technical trading system that issues buy and sell orders. USCF instead employs a quantitative methodology whereby each time a Creation Basket is sold, USCF purchases Gasoline Interests, such as the Benchmark Futures Contract, that have an aggregate market value that approximates the amount of Treasuries and/or cash received upon the issuance of the Creation Basket.
By remaining invested as fully as possible in Futures Contracts or Other Gasoline-Related Investments, USCF believes that the daily changes in percentage terms in UGAs per unit NAV will continue to closely track the daily changes in percentage terms in the price of the Benchmark Futures Contract. USCF believes that certain arbitrage opportunities result in the price of the units traded on the NYSE Arca closely tracking the per unit NAV of UGA. Additionally, Futures Contracts traded on the NYMEX have closely tracked the spot price of the underlying gasoline for delivery to the New York harbor. Based on these expected interrelationships, USCF believes that the daily changes in the price of UGAs units traded on the NYSE Arca have closely tracked and will continue to closely track the daily changes in the spot price of gasoline. For performance data relating to UGAs ability to track its benchmark, see Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations Tracking UGAs Benchmark in this annual report on Form 10-K.
3
USCF endeavors to place UGAs trades in Futures Contracts and Other Gasoline-Related Investments and otherwise manage UGAs investments so that A will be within plus/minus 10 percent of B, where:
| A is the average daily change in UGAs per unit NAV for any period of 30 successive valuation days; i.e., any NYSE Arca trading day as of which UGA calculates its per unit NAV; and |
| B is the average daily percentage change in the price of the Benchmark Futures Contract over the same period. |
USCF believes that market arbitrage opportunities will cause the daily changes in UGAs unit price on the NYSE Arca to closely track the daily changes in UGAs per unit NAV. USCF believes that the net effect of these two expected relationships and the relationships described above between UGAs per unit NAV and the Benchmark Futures Contract, will be that the daily changes in the price of UGAs units on the NYSE Arca will closely track, in percentage terms, the daily changes in the spot price of gasoline, less UGAs expenses. For performance data relating to UGAs ability to track its benchmark, see Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations Tracking UGAs Benchmark in this annual report on Form 10-K.
The specific Futures Contracts purchased depend on various factors, including a judgment by USCF as to the appropriate diversification of UGAs investments in futures contracts with respect to the month of expiration, and the prevailing price volatility of particular contracts. While USCF has made significant investments in NYMEX Futures Contracts, for various reasons, including the ability to enter into the precise amount of exposure to the crude oil market, position limits or other regulatory requirements limiting UGAs holdings, and market conditions, it may invest in Futures Contracts traded on other exchanges or invest in Other Gasoline-Related Investments. To the extent that UGA invests in Other Gasoline-Related Investments, it would prioritize investments in contracts and instruments that are economically equivalent to the Benchmark Futures Contract, including cleared swaps that satisfy such criteria, and then, to a lesser extent, it would invest in other types of cleared swaps and other contracts, instruments and swaps, including swaps in the over-the-counter market. If UGA is required by law or regulation, or by one of its regulators, including a futures exchange, to reduce its position in the Benchmark Futures Contracts to the applicable position limit or to a specified accountability level or if market conditions dictate it would be more appropriate to invest in Other Gasoline-Related Investments, a substantial portion of UGAs assets could be invested in accordance with such priority in Other Gasoline-Related Investments that are intended to replicate the return on the Benchmark Futures Contract. As UGAs assets reach higher levels, it is more likely to exceed position limits, accountability levels or other regulatory limits and, as a result, it is more likely that it will invest in accordance with such priority in Other Gasoline-Related Investments at such higher levels. In addition, market conditions that USCF currently anticipates could cause UGA to invest in Other Gasoline-Related Investments include those allowing UGA to obtain greater liquidity or to execute transactions with more favorable pricing. See Item 1. Business Regulation in this annual report on Form 10-K for a discussion of the potential impact of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) on UGAs ability to invest in over-the-counter transactions and cleared swaps.
USCF may not be able to fully invest UGAs assets in Futures Contracts having an aggregate notional amount exactly equal to UGAs NAV. For example, as standardized contracts, the Futures Contracts are for a specified amount of a particular commodity, and UGAs NAV and the proceeds from the sale of a Creation Basket are unlikely to be an exact multiple of the amounts of those contracts. As a result, in such circumstances, UGA may be better able to achieve the exact amount of exposure to changes in price of the Benchmark Futures Contract through the use of Other Gasoline-Related Investments, such as over-the-counter contracts that have better correlation with changes in price of the Benchmark Futures Contract.
UGA anticipates that to the extent it invests in Futures Contracts other than contracts on gasoline (such as futures contracts for heating oil, natural gas, and other petroleum-based fuels) and Other Gasoline-Related Investments, it will enter into various non-exchange-traded derivative contracts to hedge the short-term price movements of such Futures Contracts and Other Gasoline-Related Investments against the current Benchmark Futures Contract.
4
USCF does not anticipate letting UGAs Futures Contracts expire and taking delivery of the underlying commodity. Instead, USCF closes existing positions, e.g., when it changes the Benchmark Futures Contract or Other Gasoline-Related Investments or it otherwise determines it would be appropriate to do so and reinvests the proceeds in new Futures Contracts or Other Gasoline-Related Investments. Positions may also be closed out to meet orders for Redemption Baskets and in such case proceeds for such baskets will not be reinvested.
What is the Gasoline Market and the Petroleum-Based Fuel Market?
UGA may purchase Futures Contracts traded on the NYMEX that are based on gasoline. The ICE Futures also offers an RBOB Gasoline Futures Contract which trades in units of 42,000 U.S. gallons (1,000 barrels). The RBOB Gasoline Futures Contract is cash settled against the prevailing market price for RBOB gasoline in the New York harbor. It may also purchase contracts on other exchanges, including the ICE Futures, the Singapore Exchange and the Dubai Mercantile Exchange.
Gasoline. Gasoline is the largest single volume refined product sold in the U.S. and accounts for almost half of national oil consumption. The gasoline futures contract listed and traded on the NYMEX trades in units of 42,000 gallons (1,000 barrels) and is based on delivery at petroleum products terminals in the New York harbor, the major East Coast trading center for imports and domestic shipments from refineries in the New York harbor area or from the Gulf Coast refining centers. The price of gasoline has historically been volatile.
In 2005, the NYMEX introduced new physical specifications for unleaded gasoline contracts to reflect the changes in the national standards for such fuels. Unleaded gasoline using MTBE was being phased out and replaced with unleaded gasoline using ethanol. As a result, NYMEX introduced a new gasoline futures contract in 2005. The new futures contract trades under the ticker symbol RB. The pre-existing unleaded gasoline futures contract, ticker symbol HU, ceased trading on December 29th, 2006. For a period of approximately 15 months both contracts were traded on the NYMEX.
Light, Sweet Crude Oil. Light, sweet crudes are preferred by refiners because of their low sulfur content and relatively high yields of high-value products such as gasoline, diesel fuel, heating oil, and jet fuel. The price of light, sweet crude oil has historically exhibited periods of significant volatility.
Demand for petroleum products by consumers, as well as agricultural, manufacturing and transportation industries, determines demand for crude oil by refiners. Since the precursors of product demand are linked to economic activity, crude oil demand will tend to reflect economic conditions. However, other factors such as weather also influence product and crude oil demand.
Crude oil supply is determined by both economic and political factors. Oil prices (along with drilling costs, availability of attractive prospects for drilling, taxes and technology, among other factors) determine exploration and development spending, which influence output capacity with a lag. In the short run, production decisions by the Organization of Petroleum Exporting Countries (OPEC) also affect supply and prices. Oil export embargoes and the current conflict in Iraq represent other routes through which political developments move the market. It is not possible to predict the aggregate effect of all or any combination of these factors.
Heating Oil. Heating oil, also known as No. 2 fuel oil, accounts for 25% of the yield of a barrel of crude oil, the second largest cut from oil after gasoline. The heating oil futures contract listed and traded on the NYMEX trades in units of 42,000 gallons (1,000 barrels) and is based on delivery in the New York harbor, the principal cash market center. The ICE Futures also offers a Heating Oil Futures Contract which trades in units of 42,000 U.S. gallons (1,000 barrels). The Heating Oil Futures Contract is cash-settled against the prevailing market price for Heating Oil delivered to the New York Harbor.
Natural Gas. Natural gas accounts for almost a quarter of U.S. energy consumption. The natural gas futures contract listed and traded on the NYMEX trades in units of 10,000 million British thermal units and is based on delivery at the Henry Hub in Louisiana, the nexus of 16 intra- and interstate natural gas pipeline systems that draw supplies from the regions prolific gas deposits. The pipelines serve markets throughout the U.S. East Coast, the Gulf Coast, the Midwest, and up to the Canadian border. The price of natural gas has historically been volatile.
5
What are Futures Contracts?
Futures Contracts are agreements between two parties. One party agrees to buy a commodity such as gasoline from the other party at a later date at a price and quantity agreed-upon when the contract is made. Futures Contracts are traded on futures exchanges, including the NYMEX. For example, the Benchmark Futures Contract is traded on the NYMEX in units of 42,000 gallons (1,000 barrels). Futures Contracts traded on the NYMEX are priced by floor brokers and other exchange members both through an open outcry of offers to purchase or sell the contracts and through an electronic, screen-based system that determines the price by matching electronically offers to purchase and sell. Additional risks of investing in Futures Contracts are included in Item 1A. Risk Factors in this annual report on Form 10-K.
Impact of Accountability Levels, Position Limits and Price Fluctuation Limits. Futures contracts include typical and significant characteristics. Most significantly, the CFTC and U.S. designated contract markets such as the NYMEX have established accountability levels and position limits on the maximum net long or net short futures contracts in commodity interests that any person or group of persons under common trading control (other than as a hedge, which an investment by UGA is not) may hold, own or control. The net position is the difference between an individual or firms open long contracts and open short contracts in any one commodity. In addition, most U.S. based futures exchanges, such as the NYMEX, limit the daily price fluctuation for futures contracts. Currently, the ICE Futures imposes position and accountability limits that are similar to those imposed by U.S. based futures exchanges but does not limit the maximum daily price fluctuation, while some other non-U.S. futures exchanges have not adopted such limits.
The accountability levels for the Benchmark Futures Contract and other Futures Contracts traded on U.S. based futures exchanges, such as the NYMEX, are not a fixed ceiling, but rather a threshold above which the NYMEX may exercise greater scrutiny and control over an investors positions. The current accountability level for investments for any one-month in the Benchmark Futures Contract is 5,000 net contracts. In addition, the NYMEX imposes an accountability level for all months of 7,000 net futures contracts for gasoline. If UGA and the Related Public Funds exceed these accountability levels for investments in the futures contract for gasoline, the NYMEX will monitor such exposure and ask for further information on their activities, including the total size of all positions, investment and trading strategy, and the extent of liquidity resources of UGA and the Related Public Funds. If deemed necessary by the NYMEX, it could also order UGA and the Related Public Funds to reduce their aggregate net position back to the accountability level. In addition, the ICE Futures maintains the same accountability levels, position limits and monitoring authority for its gasoline contract as the NYMEX. As of December 31, 2011, UGA held a net of 693 NYMEX RBOB Gasoline Futures RB contracts and the Related Public Funds held 239 NYMEX RBOB Gasoline Futures XB contracts. As of December 31, 2011, UGA did not hold any Futures Contracts traded on the ICE Futures.
Position limits differ from accountability levels in that they represent fixed limits on the maximum number of futures contracts that any person may hold and cannot allow such limits to be exceeded without express CFTC authority to do so. In addition to accountability levels and position limits that may apply at any time, the NYMEX and the ICE Futures impose position limits on contracts held in the last few days of trading n the near month contract to expire. It is unlikely that UGA will run up against such position limits because of UGAs investment strategy is to close out its positions and roll from the near month contract to expire to the next month contract to expire during one day each month.
On October 18, 2011, the CFTC adopted new rules, which establish position limits and limit formulas for certain physical commodity futures including Futures Contracts and options on Futures Contracts, executed pursuant to the rules of designated contract markets (i.e., certain regulated exchanges) and commodity swaps that are economically equivalent to such futures and options contracts. See Commodity Interest Markets Regulation in this annual report on Form 10-K for information regarding the Dodd-Frank Act.
Price Volatility. The price volatility of Futures Contracts generally has been historically greater than that for traditional securities such as stocks and bonds. Price volatility often is greater day-to-day as opposed to intra-day. Futures Contracts tend to be more volatile than stocks and bonds because price movements for gasoline are more currently and directly influenced by economic factors for which current data is available and are traded by gasoline futures traders throughout the day. Because UGA invests a significant portion of its assets in Futures Contracts, the assets of UGA, and therefore the prices of UGA units, may be subject to greater volatility than traditional securities.
6
Marking-to-Market Futures Positions. Futures Contracts are marked to market at the end of each trading day and the margin required with respect to such contracts is adjusted accordingly. This process of marking-to-market is designed to prevent losses from accumulating in any futures account. Therefore, if UGAs futures positions have declined in value, UGA may be required to post variation margin to cover this decline. Alternatively, if UGA futures positions have increased in value, this increase will be credited to UGAs account.
Why Does UGA Purchase and Sell Futures Contracts?
UGAs investment objective is for the daily changes in percentage terms of its units per unit NAV to reflect the daily changes in percentage terms of the Benchmark Futures Contract, less UGAs expenses. UGA invests primarily in Futures Contracts. UGA seeks to have its aggregate NAV approximate at all times the aggregate market value of the Futures Contracts (or Other Gasoline-Related Investments) it holds.
In connection with investing in Futures Contracts and Other Gasoline-Related Investments, UGA holds Treasuries, cash and/or cash equivalents that serve as segregated assets supporting UGAs positions in Futures Contracts and Other Gasoline-Related Investments. For example, the purchase of a Futures Contract with a notional value of $10 million would not require UGA to pay $10 million upon entering into the contract; rather, only a margin deposit, generally of 5% to 30% of the stated value of the Futures Contract, would be required. To secure its Futures Contract obligations, UGA would deposit the required margin with the futures commission merchant and would separately hold, through its Custodian or futures commission merchant, Treasuries, cash and/or cash equivalents in an amount equal to the balance of the current market value of the contract, which at the contracts inception would be $10 million minus the amount of the margin deposit, or $9 million (assuming a 10% margin).
As a result of the foregoing, typically 5% to 30% of UGAs assets are held as margin in segregated accounts with a futures commission merchant. In addition to the Treasuries and cash it posts with the futures commission merchant for the Futures Contracts it owns, UGA may hold, through the Custodian, Treasuries, cash and/or cash equivalents that can be posted as additional margin or as other collateral to support its over-the-counter contracts. UGA earns income from the Treasuries and/or cash equivalents that it purchases, and on the cash it holds through the Custodian or futures commission merchant. UGA anticipates that the earned income will increase the NAV and limited partners capital contribution accounts. UGA reinvests the earned income, holds it in cash, or uses it to pay its expenses. If UGA reinvests the earned income, it makes investments that are consistent with its investment objective.
What are the Trading Policies of UGA?
Liquidity
UGA invests only in Futures Contracts and Other Gasoline-Related Investments that, in the opinion of USCF, are traded in sufficient volume to permit the ready taking and liquidation of positions in these financial interests and in Other Gasoline-Related Investments that, in the opinion of USCF, may be readily liquidated with the original counterparty or through a third party assuming the position of UGA.
Spot Commodities
While the gasoline Futures Contracts traded on the NYMEX can be physically settled, UGA does not intend to take or make physical delivery. UGA may from time to time trade in Other Gasoline-Related Investments, including contracts based on the spot price of gasoline.
Leverage
USCF endeavors to have the value of UGAs Treasuries, cash and cash equivalents, whether held by UGA or posted as margin or other collateral, at all times approximate the aggregate market value of its obligations under its Futures Contracts and Other Gasoline-Related Investments. Commodity pools trading positions in futures contracts or other related investments are typically required to be secured by the deposit of margin funds that represent only a small percentage of a futures contracts (or other commodity interests) entire market value. While USCF has not and does not intend to leverage UGAs assets, it is not prohibited from doing so under the LP Agreement.
7
Borrowings
Borrowings are not used by UGA unless UGA is required to borrow money in the event of physical delivery, if UGA trades in cash commodities, or for short-term needs created by unexpected redemptions.
Over-the-Counter Derivatives (Including Spreads and Straddles)
In addition to Futures Contracts, there are also a number of listed options on the Futures Contracts on the principal futures exchanges. These contracts offer investors and hedgers another set of financial vehicles to use in managing exposure to the gasoline market. Consequently, UGA may purchase options on gasoline Futures Contracts on these exchanges in pursuing its investment objective.
In addition to the Futures Contracts and options on the Futures Contracts, there also exists an active non-exchange-traded market in derivatives tied to gasoline. These derivatives transactions (also known as over-the-counter contracts) are usually entered into between two parties in private contracts. Unlike most of the exchange-traded Futures Contracts or exchange-traded options on the Futures Contracts, each party to such contract bears the credit risk of the other party, i.e., the risk that the other party may not be able to perform its obligations under its contract. To reduce the credit risk that arises in connection with such contracts, UGA will generally enter into an agreement with each counterparty based on the Master Agreement published by the International Swaps and Derivatives Association, Inc. that provides for the netting of its overall exposure to its counterparty.
USCF assesses or reviews, as appropriate, the creditworthiness of each potential or existing counterparty to an over-the-counter contract pursuant to guidelines approved by USCFs Board.
UGA may employ spreads or straddles in its trading to mitigate the differences in its investment portfolio and its goal of tracking the price of the Benchmark Futures Contract. UGA would use a spread when it chooses to take simultaneous long and short positions in futures written on the same underlying asset, but with different delivery months.
UGA has not employed any hedging methods since all of its investments have been made over an exchange. Therefore, UGA has not been exposed to counterparty risk.
Pyramiding
UGA has not and will not employ the technique, commonly known as pyramiding, in which the speculator uses unrealized profits on existing positions as variation margin for the purchase or sale of additional positions in the same or another commodity interest.
Who are the Service Providers?
In its capacity as the Custodian for UGA, BBH&Co. holds UGAs Treasuries, cash and/or cash equivalents pursuant to a custodial agreement. BBH&Co. is also the registrar and transfer agent for the units. In addition, in its capacity as Administrator for UGA, BBH&Co. performs certain administrative and accounting services for UGA and prepares certain SEC, NFA and CFTC reports on behalf of UGA. USCF pays BBH&Co.s fees for these services.
BBH&Co.s principal business address is 50 Milk Street, Boston, MA 02109-3661. BBH&Co., a private bank founded in 1818, is not a publicly held company nor is it insured by the Federal Deposit Insurance Corporation. BBH&Co. is authorized to conduct a commercial banking business in accordance with the provisions of Article IV of the New York State Banking Law, New York Banking Law §§160181, and is subject to regulation, supervision, and examination by the New York State Banking Department. BBH&Co. is also licensed to conduct a commercial banking business by the Commonwealths of Massachusetts and Pennsylvania and is subject to supervision and examination by the banking supervisors of those states.
8
UGA also employs ALPS Distributors, Inc. as the Marketing Agent. USCF pays the Marketing Agent an annual fee. In no event may the aggregate compensation paid to the Marketing Agent and any affiliate of USCF for distribution-related services in connection with the offering of units exceed ten percent (10%) of the gross proceeds of the offering.
ALPSs principal business address is 1290 Broadway, Suite 1100, Denver, CO 80203. ALPS is the marketing agent for UGA. ALPS is a broker-dealer registered with the Financial Industry Regulatory Authority (FINRA) and a member of the Securities Investor Protection Corporation.
UBS Securities LLC (UBS Securities) is UGAs futures commission merchant. UGA and UBS have entered into an Institutional Futures Client Account Agreement. This agreement requires UBS Securities to provide services to UGA in connection with the purchase and sale of Gasoline Interests that may be purchased or sold by or through UBS Securities for UGAs account. UGA pays UBS Securities commissions for executing and clearing trades on behalf of UGA.
UBS Securities principal business address is 677 Washington Blvd, Stamford, CT 06901. UBS Securities is a futures clearing broker for UGA. UBS Securities is registered in the U.S. with the FINRA as a broker- dealer and with the CFTC as a futures commission merchant. UBS Securities is a member of various U.S. futures and securities exchanges.
UBS is and has been a defendant in numerous legal proceedings, including actions brought by regulatory organizations and government agencies, relating to its securities and commodities business that allege various violations of federal and state securities laws. UBS AG, the ultimate parent company to UBS Securities LLC, files annual reports and quarterly reports to the SEC in which it discloses material information about UBS matters, including information about any material litigation or regulatory investigations (https://www.ubs.com/global/en/about_ubs/investor_relations/quarterly_reporting/2011.html). Actions with respect to UBS Securities futures commission merchant business are publicly available on the website of the National Futures Association (http://www.nfa.futures.org/).
On April 29, 2010, the CFTC issued an order with respect to UBS Securities LLC and levied a fine of $200,000. The Order stated that on February 6, 2009, UBS Securities employee broker aided and abetted UBS Securities customers concealment of material facts from the NYMEX in violation of Section 9(a)(4) of the CEA, 7 U.S.C. § 13(a)(4) (2006). Pursuant to NYMEX Rules, a block trade must be reported to NYMEX within five minutes of the time of execution consistent with the requirements of NYMEX Rule 6.21C(A)(6). Although the block trade in question was executed earlier in the day, UBS Securities employee broker allegedly aided and abetted its customers concealment of facts when, in response to the customers request to delay reporting the trade until after the close of trading, UBS Securities employee did not report the trade until after the close. The fine has been paid and the matter is now closed.
On August 14, 2008 the New Hampshire Bureau of Securities Regulation filed an administrative action against UBS Securities relating to a student loan issuer, the New Hampshire Higher Education Loan Corp. (NHHELCO). The complaint alleged fraudulent and unethical conduct in violation of New Hampshire state statutes. On April 14, 2010, UBS entered into a Consent Order resolving all of the Bureaus claims. UBS paid $750,000 to the Bureau for all costs associated with the Bureaus investigation. UBS entered a separate civil settlement with NHHELCO and provided a total financial benefit of $20M to NHHELCO.
In the summer of 2008, the Massachusetts Securities Division, Texas State Securities Board, and the New York Attorney General all brought actions against UBS and UBS Financial Services, Inc. (UBS Financial), alleging violations of various state law anti-fraud provisions in connection with the marketing and sale of auction rate securities.
9
On August 8, 2008, UBS Securities and UBS Financial Services reached agreements with the SEC, the NYAG, the Massachusetts Securities Division and other state regulatory agencies represented by the North American Securities Administrators Association (NASAA) to restore liquidity to all remaining clients holdings of auction rate securities by June 30, 2012. On October 2, 2008, UBS Securities and UBS Financial entered into a final consent agreement with the Massachusetts Securities Division settling all allegations in the Massachusetts Securities Divisions administrative proceeding against UBS Securities and UBS Financial with regards to the auction rate securities matter. On December 11, 2008, UBS Securities and UBS Financial executed an Assurance of Discontinuance in the auction rate securities settlement with the NYAG. On the same day, UBS Securities and UBS Financial finalized settlements with the SEC. UBS paid penalties of $75M to NYAG and an additional $75M to be apportioned among the participating NASAA states. In March 2010, UBS and NASAA agreed on final settlement terms, pursuant to which, UBS agreed to provide client liquidity up to an additional $200 million.
The Jerome F. Sheldon Trust, et al. v. UBS Securities LLC, et al. is one of a series of consolidated actions filed beginning in 2008 in the Superior Court of California, County of San Francisco relating to Solidus Networks, Inc., d/b/a Pay by Touch (PBT), for which UBS served as a placement agent in several offerings by PBT securities. Plaintiffs in the consolidated actions allege, among other things, that UBS and executives of PBT misrepresented the financial condition of PBT and failed to disclose certain legal difficulties of John Rogers (the initial founder and CEO of PBT) including alleged drug use. Plaintiffs complaint asserts that these alleged misrepresentations and omissions constituted fraud against certain investors in PBT and violated provisions of California securities law. Plaintiff claims $95 million in damages, plus interest and punitive damages. Trial is scheduled to begin the week of November 21, 2011.
On June 27, 2007, the Securities Division of the Secretary of the Commonwealth of Massachusetts (Massachusetts Securities Division) filed an administrative complaint (the Complaint) and notice of adjudicatory proceeding against UBS Securities LLC, captioned In The Matter of UBS Securities, LLC, Docket No. E-2007-0049, which alleged that UBS Securities violated the Massachusetts Uniform Securities Act (the Act) and related regulations by providing the advisers for certain hedge funds with gifts and gratuities in the form of below market office rents, personal loans with below market interest rates, event tickets, and other perks, in order to induce those hedge fund advisers to increase or retain their level of prime brokerage fees paid to UBS Securities. On November 22, 2010, UBS entered into a Consent Order and Settlement with the Massachusetts Securities Division, pursuant to which UBS agreed to implementing a disclosure policy and retaining an independent consultant to monitor the policy. UBS also paid a $100,000 fine.
UBS Securities will act only as clearing broker for UGA and as such will be paid commissions for executing and clearing trades on behalf of UGA. UBS Securities has not passed upon the adequacy or accuracy of this annual report on Form 10-K. UBS Securities neither will act in any supervisory capacity with respect to USCF nor participate in the management of USCF or UGA.
UBS Securities is not affiliated with UGA or USCF. Therefore, UGA does not believe that UGA has any conflicts of interest with UBS Securities or their trading principals arising from their acting as UGAs futures commission merchant.
Currently, USCF does not employ commodity trading advisors for trading of UGA contracts. USCF currently does, however, employ a trading advisor for USCI and CPER, SummerHaven Investment Management, LLC (SummerHaven). If, in the future, USCF does employ commodity trading advisors for UGA, it will choose each advisor based on arms-length negotiations and will consider the advisors experience, fees and reputation.
10
Fees of UGA
Fees and Compensation Arrangements with USCF and Non-Affiliated Service Providers(1)
Service Provider |
Compensation Paid by USCF |
|||
BBH & Co., Custodian and Administrator | Minimum amount of $75,000 annually for its custody, fund accounting and fund administration services rendered to all funds, as well as a $20,000 annual fee for its transfer agency services. In addition, an asset-based charge of (a) 0.06% for the first $500 million of UGAs and the Related Public Funds combined net assets, (b) 0.0465% for UGAs and the Related Public Funds combined net assets greater than $500 million but less than $1 billion, and (c) 0.035% once UGAs and the Related Public Funds combined net assets exceed $1 billion.(2) | |||
ALPS Distributors, Inc., Marketing Agent | 0.06% on UGAs assets up to $3 billion and 0.04% on UGAs assets in excess of $3 billion. |
(1) | USCF pays this compensation. |
(2) | The annual minimum amount will not apply if the asset-based charge for all accounts in the aggregate exceeds $75,000. USCF also will pay transaction charge fees to BBH&Co., ranging from $7.00 to $15.00 per transaction for the funds. |
Compensation to USCF
UGA is contractually obligated to pay USCF a management fee based on 0.60% per annum on its average net assets. Fees are calculated on a daily basis (accrued at 1/365 of the applicable percentage of NAV on that day) and paid on a monthly basis. NAV is calculated by taking the current market value of UGAs total assets and subtracting any liabilities.
Fees and Compensation Arrangements between UGA and Non-Affiliated Service Providers(3)
Service Provider |
Compensation Paid by UGA | |
UBS Securities LLC, Futures Commission Merchant |
Approximately $3.50 per buy or sell; charges may vary |
(3) | UGA pays this compensation. |
New York Mercantile Exchange Licensing Fee(4)
Assets |
Licensing Fee | |
Prior to October 19, 2011: |
||
First $1,000,000,000 |
0.04% of NAV | |
After the first $1,000,000,000 |
0.02% of NAV | |
On and after October 20, 2011: |
0.015% on all net assets |
(4) | Fees are calculated on a daily basis (accrued at 1/365 of the applicable percentage of NAV on that day) and paid on a monthly basis. UGA is responsible for its pro rata share of the assets held by UGA and the Related Public Funds, other than USBO, USCI, CPER, USMI and USAG. |
Expenses Paid or Accrued by UGA through December 31, 2011 in dollar terms:
Expenses: |
Amount in Dollar Terms | |
Amount Paid or Accrued to USCF: |
$1,581,460 | |
Amount Paid or Accrued in Portfolio Brokerage Commissions: |
$239,478 | |
Other Amounts Paid or Accrued(5): |
$1,240,197 | |
Total Expenses Paid or Accrued: |
$3,061,135 | |
Expenses Waived(6): |
$(753,640) | |
Total Expenses Paid or Accrued Including Expenses Waived(6): |
$2,307,495 |
(5) | Includes expenses relating to the registration of additional units, legal fees, auditing fees, printing expenses, licensing fees, tax reporting fees, prepaid insurance expenses and miscellaneous expenses and fees and expenses paid to the independent directors of USCF. |
(6) | USCF, though under no obligation to do so, agreed to pay certain expenses, to the extent that such expenses exceeded 0.15% (15 basis points) of UGAs NAV, on an annualized basis, through at least June 30, 2012. USCF has no obligation to pay such expenses in subsequent periods. |
11
Expenses Paid or Accrued by UGA through December 31, 2011 as a Percentage of Average Daily Net Assets:
Expenses: |
Amount as a Percentage of Average Daily Net Assets | |
Amount Paid or Accrued to USCF: |
0.60 % annualized | |
Amount Paid or Accrued in Portfolio Brokerage Commissions: |
0.09 % annualized | |
Other Amounts Paid or Accrued(7): |
0.47 % annualized | |
Total Expenses Paid or Accrued: |
1.16 % annualized | |
Expenses Waived(8): |
(0.29)% annualized | |
Total Expenses Paid or Accrued Including Expenses Waived(8): |
0.87 % annualized |
(7) | Includes expenses relating to the registration of additional units, legal fees, auditing fees, printing expenses, licensing fees, tax reporting fees, prepaid insurance expenses and miscellaneous expenses and fees and expenses paid to the independent directors of USCF. |
(8) | USCF, though under no obligation to do so, agreed to pay certain expenses, to the extent that such expenses exceeded 0.15% (15 basis points) of UGAs NAV, on an annualized basis, through at least June 30, 2012. USCF has no obligation to pay such expenses in subsequent periods. |
Other Fees. UGA also pays the fees and expenses associated with its tax accounting and reporting requirements. These fees were approximately $250,000 for the fiscal year ended December 31, 2011. In addition, UGA is responsible for paying its portion of the directors and officers liability insurance for UGA and the Related Public Funds and the fees and expenses of the independent directors who also serve as audit committee members of UGA and the Related Public Funds organized as limited partnerships and, as of July 8, 2011, those Related Public Funds organized as a series of a Delaware statutory trust. UGA shares the fees and expenses with each Related Public Fund, as described above, based on the relative assets of each fund computed on a daily basis. These fees and expenses for the year ended December 31, 2011 were $607,582 for UGA and the Related Public Funds, and UGAs portion of such fees and expenses was $14,746.
Form of Units
Registered Form. Units are issued in registered form in accordance with the LP Agreement. The Administrator has been appointed registrar and transfer agent for the purpose of transferring units in certificated form. The Administrator keeps a record of all limited partners and holders of the units in certificated form in the registry (the Register). USCF recognizes transfers of units in certificated form only if done in accordance with the LP Agreement. The beneficial interests in such units are held in book-entry form through participants and/or accountholders in the Depository Trust Company (DTC).
Book Entry. Individual certificates are not issued for the units. Instead, units are represented by one or more global certificates, which are deposited by the Administrator with DTC and registered in the name of Cede & Co., as nominee for DTC. The global certificates evidence all of the units outstanding at any time. Unitholders are limited to: (1) participants in DTC such as banks, brokers, dealers and trust companies (DTC Participants), (2) those who maintain, either directly or indirectly, a custodial relationship with a DTC Participant (Indirect Participants), and (3) those banks, brokers, dealers, trust companies and others who hold interests in the units through DTC Participants or Indirect Participants, in each case who satisfy the requirements for transfers of units. DTC Participants acting on behalf of investors holding units through such participants accounts in DTC will follow the delivery practice applicable to securities eligible for DTCs Same-Day Funds Settlement System. Units are credited to DTC Participants securities accounts following confirmation of receipt of payment.
12
DTC. DTC has advised UGA as follows: It is a limited purpose trust company organized under the laws of the State of New York and is a member of the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code and a clearing agency registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities for DTC Participants and facilitates the clearance and settlement of transactions between DTC Participants through electronic book-entry changes in accounts of DTC Participants.
Calculating Per Unit NAV
UGAs per unit NAV is calculated by:
| Taking the current market value of its total assets; |
| Subtracting any liabilities; and |
| Dividing that total by the total number of outstanding units. |
The Administrator calculates the per unit NAV of UGA once each NYSE Arca trading day. The per unit NAV for a particular trading day is released after 4:00 p.m. New York time. Trading during the core trading session on the NYSE Arca typically closes at 4:00 p.m. New York time. The Administrator uses the NYMEX closing price (determined at the earlier of the close of the NYMEX or 2:30 p.m. New York time) for the Futures Contracts traded on the NYMEX, but calculates or determines the value of all other UGA investments (including Futures Contracts not traded on the NYMEX, Other Gasoline-Related Investments and Treasuries) using market quotations, if available, or other information customarily used to determine the fair value of such investments as of the earlier of the close of the NYSE Arca or 4:00 p.m. New York time, in accordance with the current Administrative Agency Agreement among BBH&Co., UGA and USCF. Other information customarily used in determining fair value includes information consisting of market data in the relevant market supplied by one or more third parties including, without limitation, relevant rates, prices, yields, yield curves, volatilities, spreads, correlations or other market data in the relevant market; or information of the types described above from internal sources if that information is of the same type used by UGA in the regular course of its business for the valuation of similar transactions. The information may include costs of funding, to the extent costs of funding are not and would not be a component of the other information being utilized. Third parties supplying quotations or market data may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors, brokers and other sources of market information.
In addition, in order to provide updated information relating to UGA for use by investors and market professionals, the NYSE Arca calculates and disseminates throughout the core trading session on each trading day an updated indicative fund value. The indicative fund value is calculated by using the prior days closing per unit NAV of UGA as a base and updating that value throughout the trading day to reflect changes in the most recently reported trade price for the Futures Contracts on the NYMEX. The prices reported for those Futures Contract months are adjusted based on the prior days spread differential between settlement values for the relevant contract and the spot month contract. In the event that the spot month contract is also the Benchmark Futures Contract, the last sale price for that contract is not adjusted. The indicative fund value unit basis disseminated during NYSE Arca core trading session hours should not be viewed as an actual real time update of the per unit NAV, because the per unit NAV is calculated only once at the end of each trading day based upon the relevant end of day values of UGAs investments.
The indicative fund value is disseminated on a per unit basis every 15 seconds during regular NYSE Arca core trading session hours of 9:30 a.m. New York time to 4:00 p.m. New York time. The normal trading hours of the NYMEX are 10:00 a.m. New York time to 2:30 p.m. New York time. This means that there is a gap in time at the beginning and the end of each day during which UGAs units are traded on the NYSE Arca, but real-time NYMEX trading prices for gasoline Futures Contracts traded on the NYMEX are not available. As a result, during those gaps there will be no update to the indicative fund value.
The NYSE Arca disseminates the indicative fund value through the facilities of CTA/CQ High Speed Lines. In addition, the indicative fund value is published on the NYSE Arcas website and is available through on-line information services such as Bloomberg and Reuters.
13
Dissemination of the indicative fund value provides additional information that is not otherwise available to the public and is useful to investors and market professionals in connection with the trading of UGA units on the NYSE Arca. Investors and market professionals are able throughout the trading day to compare the market price of UGA and the indicative fund value. If the market price of UGA units diverges significantly from the indicative fund value, market professionals will have an incentive to execute arbitrage trades. For example, if UGA appears to be trading at a discount compared to the indicative fund value, a market professional could buy UGA units on the NYSE Arca and sell short gasoline Futures Contracts. Such arbitrage trades can tighten the tracking between the market price of UGA and the indicative fund value and thus can be beneficial to all market participants.
In addition, other Futures Contracts, Other Gasoline-Related Investments and Treasuries held by UGA are valued by the Administrator, using rates and points received from client approved third party vendors (such as Reuters and WM Company) and advisor quotes. These investments are not included in the indicative value. The indicative fund value is based on the prior days per unit NAV and moves up and down solely according to changes in the price of the Benchmark Futures Contract.
Creation and Redemption of Units
UGA creates and redeems units from time to time, but only in one or more Creation Baskets or Redemption Baskets. The creation and redemption of baskets are only made in exchange for delivery to UGA or the distribution by UGA of the amount of Treasuries and any cash represented by the baskets being created or redeemed, the amount of which is based on the combined NAV of the number of units included in the baskets being created or redeemed determined after 4:00 p.m. New York time on the day the order to create or redeem baskets is properly received.
Authorized Purchasers are the only persons that may place orders to create and redeem baskets. Authorized Purchasers must be: (1) registered broker-dealers or other securities market participants, such as banks and other financial institutions, that are not required to register as broker-dealers to engage in securities transactions as described below, and (2) DTC Participants. To become an Authorized Purchaser, a person must enter into an Authorized Purchaser Agreement with USCF on behalf of UGA. The Authorized Purchaser Agreement provides the procedures for the creation and redemption of baskets and for the delivery of the Treasuries and any cash required for such creations and redemptions. The Authorized Purchaser Agreement and the related procedures attached thereto may be amended by UGA, without the consent of any limited partner or unitholder or Authorized Purchaser. From July 1, 2011 through December 31, 2011, the applicable transaction fee paid by Authorized Purchasers was $350 to UGA for each order they place to create or redeem one or more baskets; prior to July 1, 2011, this fee was $1,000. Authorized Purchasers who make deposits with UGA in exchange for baskets receive no fees, commissions or other form of compensation or inducement of any kind from either UGA or USCF, and no such person will have any obligation or responsibility to USCF or UGA to effect any sale or resale of units. As of December 31, 2011, 13 Authorized Purchasers had entered into agreements with USCF on behalf of UGA. During the year ended December 31, 2011, UGA issued 19 Creation Baskets and redeemed 19 Redemption Baskets.
Certain Authorized Purchasers are expected to be capable of participating directly in the physical gasoline market and the gasoline futures market. In some cases, Authorized Purchasers or their affiliates may from time to time buy gasoline or sell gasoline or Gasoline Interests and may profit in these instances. USCF believes that the size and operation of the gasoline market make it unlikely that an Authorized Purchasers direct activities in the gasoline or securities markets will significantly affect the price of gasoline, Gasoline Interests, or the price of the units.
Each Authorized Purchaser is required to be registered as a broker-dealer under the Exchange Act and is a member in good standing with FINRA, or exempt from being or otherwise not required to be registered as a broker-dealer or a member of FINRA, and qualified to act as a broker or dealer in the states or other jurisdictions where the nature of its business so requires. Certain Authorized Purchasers may also be regulated under federal and state banking laws and regulations. Each Authorized Purchaser has its own set of rules and procedures, internal controls and information barriers as it determines is appropriate in light of its own regulatory regime.
Under the Authorized Purchaser Agreement, USCF has agreed to indemnify the Authorized Purchasers against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the Securities Act), and to contribute to the payments the Authorized Purchasers may be required to make in respect of those liabilities.
14
The following description of the procedures for the creation and redemption of baskets is only a summary and an investor should refer to the relevant provisions of the LP Agreement and the form of Authorized Purchaser Agreement for more detail, each of which is incorporated by reference into this annual report on Form 10-K.
Creation Procedures
On any business day, an Authorized Purchaser may place an order with the Marketing Agent to create one or more baskets. For purposes of processing purchase and redemption orders, a business day means any day other than a day when any of the NYSE Arca, the NYMEX or the NYSE is closed for regular trading. Purchase orders must be placed by 12:00 p.m. New York time or the close of regular trading on the NYSE Arca, whichever is earlier. The day on which the Marketing Agent receives a valid purchase order is referred to as the purchase order date.
By placing a purchase order, an Authorized Purchaser agrees to deposit Treasuries, cash, or a combination of Treasuries and cash, as described below. Prior to the delivery of baskets for a purchase order, the Authorized Purchaser must also have wired to the Custodian the non-refundable transaction fee due for the purchase order. Authorized Purchasers may not withdraw a creation request.
The manner by which creations are made is dictated by the terms of the Authorized Purchaser Agreement. By placing a purchase order, an Authorized Purchaser agrees to (1) deposit Treasuries, cash, or a combination of Treasuries and cash with the Custodian, and (2) if required by USCF in its sole discretion, enter into or arrange for a block trade, an exchange for physical or exchange for swap, or any other over-the-counter energy transaction (through itself or a designated acceptable broker) with UGA for the purchase of a number and type of futures contracts at the closing settlement price for such contracts on the purchase order date. If an Authorized Purchaser fails to consummate (1) and (2), the order shall be cancelled. The number and type of contracts specified shall be determined by USCF, in its sole discretion, to meet UGAs investment objective and shall be purchased as a result of the Authorized Purchasers purchase of units.
Determination of Required Deposits
The total deposit required to create each basket (Creation Basket Deposit) is the amount of Treasuries and/or cash that is in the same proportion to the total assets of UGA (net of estimated accrued but unpaid fees, expenses and other liabilities) on the purchase order date as the number of units to be created under the purchase order is in proportion to the total number of units outstanding on the purchase order dates. USCF determines, directly in its sole discretion or in consultation with the Administrator, the requirements for Treasuries and the amount of cash, including the maximum permitted remaining maturity of a Treasury and proportions of Treasury and cash that may be included in deposits to create baskets. The Marketing Agent will publish such requirements at the beginning of each business day. The amount of cash deposit required is the difference between the aggregate market value of the Treasuries required to be included in a Creation Basket Deposit as of 4:00 p.m. New York time on the date the order to purchase is properly received and the total required deposit.
Delivery of Required Deposits
An Authorized Purchaser who places a purchase order is responsible for transferring to UGAs account with the Custodian the required amount of Treasuries and cash by the end of the third business day following the purchase order date. Upon receipt of the deposit amount, the Administrator directs DTC to credit the number of baskets ordered to the Authorized Purchasers DTC account on the third business day following the purchase order date. The expense and risk of delivery and ownership of Treasuries until such Treasuries have been received by the Custodian on behalf of UGA shall be borne solely by the Authorized Purchaser.
Because orders to purchase baskets must be placed by 12:00 p.m., New York time, but the total payment required to create a basket during the continuous offering period will not be determined until after 4:00 p.m. New York time on the date the purchase order is received, Authorized Purchasers will not know the total amount of the payment required to create a basket at the time they submit an irrevocable purchase order for the basket. UGAs per unit NAV and the total amount of the payment required to create a basket could rise or fall substantially between the time an irrevocable purchase order is submitted and the time the amount of the purchase price in respect thereof is determined.
15
Rejection of Purchase Orders
USCF acting by itself or through the Marketing Agent shall have the absolute right but no obligation to reject a purchase order or a Creation Basket Deposit if:
| it determines that the investment alternative available to UGA at that time will not enable it to meet its investment objective; |
| it determines that the purchase order or the Creation Basket Deposit is not in proper form; |
| it believes that the purchase order or the Creation Basket Deposit would have adverse tax consequences to UGA, the limited partners or its unitholders; |
| the acceptance or receipt of the Creation Basket Deposit would, in the opinion of counsel to USCF, be unlawful; or |
| circumstances outside the control of USCF, Marketing Agent or Custodian make it, for all practical purposes, not feasible to process creations of baskets. |
None of USCF, the Marketing Agent or the Custodian will be liable for the rejection of any purchase order or Creation Basket Deposit.
Redemption Procedures
The procedures by which an Authorized Purchaser can redeem one or more baskets mirror the procedures for the creation of baskets. On any business day, an Authorized Purchaser may place an order with the Marketing Agent to redeem one or more baskets. Redemption orders must be placed by 12:00 p.m. New York time or the close of regular trading on the NYSE Arca, whichever is earlier. A redemption order so received will be effective on the date it is received in satisfactory form by the Marketing Agent. The redemption procedures allow Authorized Purchasers to redeem baskets and do not entitle an individual unitholder to redeem any units in an amount less than a Redemption Basket, or to redeem baskets other than through an Authorized Purchaser.
By placing a redemption order, an Authorized Purchaser agrees to deliver the baskets to be redeemed through DTCs book-entry system to UGA, as described below. Prior to the delivery of the redemption distribution for a redemption order, the Authorized Purchaser must also have wired to UGAs account at the Custodian the non-refundable transaction fee due for the redemption order. An Authorized Purchaser may not withdraw a redemption order.
The manner by which redemptions are made is dictated by the terms of the Authorized Purchaser Agreement. By placing a redemption order, an Authorized Purchaser agrees to (1) deliver the Redemption Basket to be redeemed through DTCs book-entry system to UGAs account with the Custodian not later than 3:00 p.m. New York time on the third business day following the effective date of the redemption order (Redemption Distribution Date), and (2) if required by USCF in its sole discretion, enter into or arrange for a block trade, an exchange for physical or exchange for swap, or any other over-the-counter energy transaction (through itself or a designated acceptable broker) with UGA for the sale of a number and type of futures contracts at the closing settlement price for such contracts on the Redemption Order Date. If an Authorized Purchaser fails to consummate (1) and (2) above, the order shall be cancelled. The number and type of contracts specified shall be determined by USCF, in its sole discretion, to meet UGAs investment objective and shall be sold as a result of the Authorized Purchasers sale of units.
Determination of Redemption Distribution
The redemption distribution from UGA consists of a transfer to the redeeming Authorized Purchaser of an amount of Treasuries and/or cash that is in the same proportion to the total assets of UGA (net of estimated accrued but unpaid fees, expenses and other liabilities) on the date the order to redeem is properly received as the number of units to be redeemed under the redemption order is in proportion to the total number of units outstanding on the date the order is received. USCF, directly or in consultation with the Administrator, determines the requirements for Treasuries and the amounts of cash, including the maximum permitted remaining maturity of a Treasury, and the proportions of Treasuries and cash that may be included in distributions to redeem baskets. The Marketing Agent will publish an estimate of the redemption distribution per basket as of the beginning of each business day.
16
Delivery of Redemption Distribution
The redemption distribution due from UGA will be delivered to the Authorized Purchaser by 3:00 p.m. New York time on the third business day following the redemption order date if, by 3:00 p.m. New York time on such third business day, UGAs DTC account has been credited with the baskets to be redeemed. If UGAs DTC account has not been credited with all of the baskets to be redeemed by such time, the redemption distribution will be delivered to the extent of whole baskets received. Any remainder of the redemption distribution will be delivered on the next business day to the extent of remaining whole baskets received if UGA receives the fee applicable to the extension of the redemption distribution date which USCF may, from time to time, determine and the remaining baskets to be redeemed are credited to UGAs DTC account by 3:00 p.m. New York time on such next business day. Any further outstanding amount of the redemption order shall be cancelled. Pursuant to information from USCF, the Custodian will also be authorized to deliver the redemption distribution notwithstanding that the baskets to be redeemed are not credited to UGAs DTC account by 3:00 p.m. New York time on the third business day following the redemption order date if the Authorized Purchaser has collateralized its obligation to deliver the baskets through DTCs book entry-system on such terms as USCF may from time to time determine.
Suspension or Rejection of Redemption Orders
USCF may, in its discretion, suspend the right of redemption, or postpone the redemption settlement date, (1) for any period during which the NYSE Arca or the NYMEX is closed other than customary weekend or holiday closings, or trading on the NYSE Arca or the NYMEX is suspended or restricted, (2) for any period during which an emergency exists as a result of which delivery, disposal or evaluation of Treasuries is not reasonably practicable, or (3) for such other period as USCF determines to be necessary for the protection of the limited partners or unitholders. For example, USCF may determine that it is necessary to suspend redemptions to allow for the orderly liquidation of UGAs assets at an appropriate value to fund a redemption. If USCF has difficulty liquidating its positions, e.g., because of a market disruption event in the futures markets, a suspension of trading by the exchange where the futures contracts are listed or an unanticipated delay in the liquidation of a position in an over-the-counter contract, it may be appropriate to suspend redemptions until such time as such circumstances are rectified. None of USCF, the Marketing Agent, the Administrator, or the Custodian will be liable to any person or in any way for any loss or damages that may result from any such suspension or postponement.
Redemption orders must be made in whole baskets. USCF will reject a redemption order if the order is not in proper form as described in the Authorized Purchaser Agreement or if the fulfillment of the order, in the opinion of its counsel, might be unlawful. USCF may also reject a redemption order if the number of units being redeemed would reduce the remaining outstanding units to 100,000 units (i.e., two baskets) or less.
Creation and Redemption Transaction Fee
To compensate UGA for its expenses in connection with the creation and redemption of baskets, an Authorized Purchaser is required to pay a transaction fee per order to create or redeem baskets, regardless of the number of baskets in such order. From July 1, 2011 through December 31, 2011, the applicable transaction fee paid by Authorized Purchasers was $350 for each order they place to create or redeem one or more baskets; prior to July 1, 2011, this fee was $1,000. The transaction fee may be reduced, increased or otherwise changed by USCF. USCF shall notify DTC of any change in the transaction fee and will not implement any increase in the fee for the redemption of baskets until 30 days after the date of the notice.
17
Tax Responsibility
Authorized Purchasers are responsible for any transfer tax, sales or use tax, stamp tax, recording tax, value added tax or similar tax or governmental charge applicable to the creation or redemption of baskets, regardless of whether or not such tax or charge is imposed directly on the Authorized Purchaser, and agree to indemnify USCF and UGA if they are required by law to pay any such tax, together with any applicable penalties, additions to tax and interest thereon.
Secondary Market Transactions
As noted, UGA creates and redeems units from time to time, but only in one or more Creation Baskets or Redemption Baskets. The creation and redemption of baskets are only made in exchange for delivery to UGA or the distribution by UGA of the amount of Treasuries and cash represented by the baskets being created or redeemed, the amount of which will be based on the aggregate NAV of the number of units included in the baskets being created or redeemed determined on the day the order to create or redeem baskets is properly received.
As discussed above, Authorized Purchasers are the only persons that may place orders to create and redeem baskets. Authorized Purchasers must be registered broker-dealers or other securities market participants, such as banks and other financial institutions that are not required to register as broker-dealers to engage in securities transactions. An Authorized Purchaser is under no obligation to create or redeem baskets, and an Authorized Purchaser is under no obligation to offer to the public units of any baskets it does create. Authorized Purchasers that do offer to the public units from the baskets they create will do so at per-unit offering prices that are expected to reflect, among other factors, the trading price of the units on the NYSE Arca, the NAV of UGA at the time the Authorized Purchaser purchased the Creation Baskets and the per unit NAV of the units at the time of the offer of the units to the public, the supply of and demand for units at the time of sale, and the liquidity of the Futures Contract market and the market for Other Gasoline-Related Investments. The prices of units offered by Authorized Purchasers are expected to fall between UGAs per unit NAV and the trading price of the units on the NYSE Arca at the time of sale. Units initially comprising the same basket but offered by Authorized Purchasers to the public at different times may have different offering prices. An order for one or more baskets may be placed by an Authorized Purchaser on behalf of multiple clients. Authorized Purchasers who make deposits with UGA in exchange for baskets receive no fees, commissions or other form of compensation or inducement of any kind from either UGA or USCF, and no such person has any obligation or responsibility to USCF or UGA to effect any sale or resale of units. Units trade in the secondary market on the NYSE Arca. Units may trade in the secondary market at prices that are lower or higher relative to their per unit NAV. The amount of the discount or premium in the trading price relative to the per unit NAV may be influenced by various factors, including the number of investors who seek to purchase or sell units in the secondary market and the liquidity of the Futures Contracts market and the market for Other Gasoline-Related Investments. While the units trade during the core trading session on the NYSE Arca until 4:00 p.m. New York time, liquidity in the market for Futures Contracts and Other Gasoline-Related Investments may be reduced after the close of the NYMEX at 2:30 p.m. New York time. As a result, during this time, trading spreads, and the resulting premium or discount, on the units may widen.
Investments
USCF causes UGA to transfer the proceeds from the sale of Creation Baskets to the Custodian or other custodian for trading activities. USCF will invest UGAs assets in Futures Contracts and Other Gasoline-Related Investments and investments in Treasuries, cash and/or cash equivalents. When UGA purchases a Futures Contract and certain exchange-traded Other Gasoline-Related Investments, UGA is required to deposit 5% to 30% with the selling futures commission merchant on behalf of the exchange a portion of the value of the contract or other interest as security to ensure payment for the obligation under Gasoline Interests at maturity. This deposit is known as initial margin. Counterparties in transactions in over-the-counter Gasoline Interests will generally impose similar collateral requirements on UGA. USCF will invest the assets that remain after margin and collateral are posted in Treasuries, cash and/or cash equivalents subject to these margin and collateral requirements. USCF has sole authority to determine the percentage of assets that are:
| held on deposit with the futures commission merchant or other custodian, |
| used for other investments, and |
| held in bank accounts to pay current obligations and as reserves. |
18
Ongoing margin and collateral payments will generally be required for both exchange-traded and over-the-counter Gasoline Interests based on changes in the value of the Gasoline Interests. Furthermore, ongoing collateral requirements with respect to over-the-counter Gasoline Interests are negotiated by the parties, and may be affected by overall market volatility, volatility of the underlying commodity or index, the ability of the counterparty to hedge its exposure under a Gasoline Interest, and each partys creditworthiness. In light of the differing requirements for initial payments under exchange-traded and over-the-counter Gasoline Interests and the fluctuating nature of ongoing margin and collateral payments, it is not possible to estimate what portion of UGAs assets will be posted as margin or collateral at any given time. The Treasuries, cash and cash equivalents held by UGA will constitute reserves that will be available to meet ongoing margin and collateral requirements. All interest income will be used for UGAs benefit.
A futures commission merchant, counterparty, government agency or commodity exchange could increase margin or collateral requirements applicable to UGA to hold trading positions at any time. Moreover, margin is merely a security deposit and has no bearing on the profit or loss potential for any positions held.
The assets of UGA posted as margin for Futures Contracts are held in segregated accounts pursuant to the Commodity Exchange Act and CFTC regulations.
The Commodity Interest Markets
General
The CEA governs the regulation of commodity interest transactions, markets and intermediaries. The CEA provides for varying degrees of regulation of commodity interest transactions depending upon: (1) the type of instrument being traded (e.g., contracts for future delivery, options, swaps or spot contracts), (2) the type of commodity underlying the instrument (distinctions are made between instruments based on agricultural commodities, energy and metals commodities and financial commodities), (3) the nature of the parties to the transaction (retail, eligible contract participant, or eligible commercial entity), (4) whether the transaction is entered into on a principal-to-principal or intermediated basis, (5) the type of market on which the transaction occurs, and (6) whether the transaction is subject to clearing through a clearing organization.
The offer and sale of units of UGA, as well as units of each of the Related Public Funds is registered under the Securities Act. UGA and the Related Public Funds are subject to the requirements of the Securities Act, the Exchange Act and the rules and regulations adopted thereunder as administered by the Securities and Exchange Commission (the SEC). Firms participation in the distribution of units are regulated as described above, as well as by the self regulatory association, FINRA.
Futures Contracts
A futures contract is a standardized contract traded on, or subject to the rules of, an exchange that calls for the future delivery of a specified quantity and type of a commodity at a specified time and place. Futures contracts are traded on a wide variety of commodities, including agricultural products, bonds, stock indices, interest rates, currencies, energy and metals. The size and terms of futures contracts on a particular commodity are identical and are not subject to any negotiation, other than with respect to price and the number of contracts traded between the buyer and seller.
The contractual obligations of a buyer or seller may generally be satisfied by taking or making physical delivery of the underlying commodity or by making an offsetting sale or purchase of an identical futures contract on the same or linked exchange before the designated date of delivery. The difference between the price at which the futures contract is purchased or sold and the price paid for the offsetting sale or purchase, after allowance for brokerage commissions, constitutes the profit or loss to the trader. Some futures contracts, such as stock index contracts, settle in cash (reflecting the difference between the contract purchase/sale price and the contract settlement price) rather than by delivery of the underlying commodity.
19
In market terminology, a trader who purchases a futures contract is long in the market and a trader who sells a futures contract is short in the market. Before a trader closes out his long or short position by an offsetting sale or purchase, his outstanding contracts are known as open trades or open positions. The aggregate amount of open positions held by traders in a particular contract is referred to as the open interest in such contract.
Forward Contracts
A forward contract is a contractual obligation to purchase or sell a specified quantity of a commodity at or before a specified date in the future at a specified price and, therefore, is economically similar to a futures contract. Unlike futures contracts, however, forward contracts are typically traded in the over-the-counter markets and are not standardized contracts. Forward contracts for a given commodity are generally available for various amounts and maturities and are subject to individual negotiation between the parties involved. Moreover, generally there is no direct means of offsetting or closing out a forward contract by taking an offsetting position as one would a futures contract on a U.S. exchange. If a trader desires to close out a forward contract position, he generally will establish an opposite position in the contract but will settle and recognize the profit or loss on both positions simultaneously on the delivery date. Thus, unlike in the futures contract market where a trader who has offset positions will recognize profit or loss immediately, in the forward market a trader with a position that has been offset at a profit will generally not receive such profit until the delivery date, and likewise a trader with a position that has been offset at a loss will generally not have to pay money until the delivery date. In recent years, however, the terms of forward contracts have become more standardized, and in some instances such contracts now provide a right of offset or cash settlement as an alternative to making or taking delivery of the underlying commodity.
To date, the forward markets have been largely unregulated, forward contracts have been executed bilaterally and, in general, forward contracts have not been cleared or guaranteed by a third party. While recently adopted laws and regulations may require certain forward contracts to be cleared through regulated clearing organizations, absent such clearing organizations, UGAs trading in forward contracts will be exposed to the creditworthiness of the counterparties on the other side of the trade.
Options on Futures Contracts
Options on futures contracts are standardized contracts traded on an exchange. An option on a futures contract gives the buyer of the option the right, but not the obligation, to take a position at a specified price (the striking, strike, or exercise price) in the underlying futures contract or underlying interest. The buyer of a call option acquires the right, but not the obligation, to purchase or take a long position in the underlying interest, and the buyer of a put option acquires the right, but not the obligation, to sell or take a short position in the underlying interest.
The seller, or writer, of an option is obligated to take a position in the underlying interest at a specified price opposite to the option buyer if the option is exercised. The seller of a call option must stand ready to take a short position in the underlying interest at the strike price if the buyer should exercise the option. The seller of a put option, on the other hand, must stand ready to take a long position in the underlying interest at the strike price.
A call option is said to be in-the-money if the strike price is below current market levels and out-of-the-money if the strike price is above current market levels. Conversely, a put option is said to be in-the-money if the strike price is above the current market levels and out-of-the-money if the strike price is below current market levels.
Options have limited life spans, usually tied to the delivery or settlement date of the underlying interest. Some options, however, expire significantly in advance of such date. The purchase price of an option is referred to as its premium, which consists of its intrinsic value (which is related to the underlying market value) plus its time value. As an option nears its expiration date, the time value shrinks and the market and intrinsic values move into parity. An option that is out-of-the-money and not offset by the time it expires becomes worthless. On certain exchanges, in-the-money options are automatically exercised on their expiration date, but on others unexercised options simply become worthless after their expiration date.
Regardless of how much the market swings, the most an option buyer can lose is the option premium. The option buyer deposits his premium with his broker, and the money goes to the option seller. Option sellers, on the other hand, face risks similar to participants in the futures markets. For example, since the seller of a call option is assigned a short futures position if the option is exercised, his risk is the same as someone who initially sold a futures contract. Because no one can predict exactly how the market will move, the option seller posts margin to demonstrate his ability to meet any potential contractual obligations.
20
Options on Forward Contracts or Commodities
Options on forward contracts or commodities operate in a manner similar to options on futures contracts. An option on a forward contract or commodity gives the buyer of the option the right, but not the obligation, to take a position at a specified price in the underlying forward contract or commodity. However, unlike options on futures contracts, options on forward contracts or on commodities are individually negotiated contracts between counterparties and are typically traded in the over-the-counter market. Therefore, options on forward contracts and physical commodities possess many of the same characteristics of forward contracts with respect to offsetting positions and credit risk that are described above.
Swap Contracts
Swap transactions generally involve contracts between two parties to exchange a stream of payments computed by reference to a notional amount and the price of the asset that is the subject of the swap. Swap contracts are principally traded off-exchange, although certain swap contracts are also being traded in electronic trading facilities and cleared through clearing organizations.
Swaps are usually entered into on a net basis, that is, the two payment streams are netted out in a cash settlement on the payment date or dates specified in the agreement, with the parties receiving or paying, as the case may be, only the net amount of the two payments. Swaps do not generally involve the delivery of underlying assets or principal. Accordingly, the risk of loss with respect to swaps is generally limited to the net amount of payments that the party is contractually obligated to make. In some swap transactions one or both parties may require collateral deposits from the counterparty to support that counterpartys obligation under the swap agreement. If the counterparty to such a swap defaults, the risk of loss consists of the net amount of payments that the party is contractually entitled to receive less any collateral deposits it is holding.
Some swap transactions are cleared through central counterparties. These transactions, known as cleared swaps, involve two counterparties first agreeing to the terms of a swap transaction, then submitting the transaction to a clearing house that acts as the central counterparty. Once accepted by the clearing house, the original swap transaction is novated and the central counterparty becomes the counterparty to a trade with each of the original parties based upon the trade terms determined in the original transaction. In this manner each individual swap counterparty reduces its risk of loss due to counterparty nonperformance because the clearing house acts as the counterparty to each transaction.
Regulation
Futures exchanges in the United States are subject to varying degrees of regulation under the CEA depending on whether such exchange is a designated contract market, exempt board of trade or electronic trading facility. Clearing organizations are also subject to the CEA and the rules and regulations adopted thereunder and administered by the CFTC. The CFTC is the governmental agency charged with responsibility for regulation of futures exchanges and commodity interest trading conducted on those exchanges. The CFTCs function is to implement the CEAs objectives of preventing price manipulation and excessive speculation and promoting orderly and efficient commodity interest markets. In addition, the various exchanges and clearing organizations themselves exercise regulatory and supervisory authority over their member firms.
The CFTC also regulates the activities of commodity trading advisors and commodity pool operators and the CFTC has adopted regulations with respect to certain of such persons activities. Pursuant to its authority, the CFTC requires a CPO, such as USCF, to keep accurate, current and orderly records with respect to each pool it operates. The CFTC may suspend, modify or terminate the registration of any registrant for failure to comply with CFTC rules or regulations. Suspension, restriction or termination of USCFs registration as a CPO would prevent it, until such time (if any) as such registration were to be reinstated, from managing, and might result in the termination of, UGA or the Related Public Funds.
21
The CEA also gives the states certain powers to enforce its provisions and the regulations of the CFTC.
Under certain circumstances, the CEA grants unitholders the right to institute a reparations proceeding before the CFTC against USCF (as a registered commodity pool operator), as well as those of their respective employees who are required to be registered under the CEA. Unitholders may also be able to maintain a private right of action for certain violations of the CEA.
Pursuant to authority in the CEA, the NFA has been formed and registered with the CFTC as a registered futures association. The NFA is the only self regulatory association for commodities professionals other than the exchanges. As such, the NFA promulgates rules governing the conduct of commodity professionals and disciplines those professionals that do not comply with such standards. The CFTC has delegated to the NFA responsibility for the registration of commodity pool operation. USCF is a member of the NFA. As a member of the NFA, USCF is subject to NFA standards relating to fair trade practices, financial condition, and consumer protection. The CFTC is prohibited by statute from regulating trading on foreign commodity exchanges and markets.
The CEA requires all futures commission merchants (FCMs), such as UGAs clearing brokers, to meet and maintain specified fitness and financial requirements, to segregate customer funds from proprietary funds and account separately for all customers funds and positions, and to maintain specified books and records open to inspection by the staff of the CFTC. The CFTC has similar authority over introducing brokers, or persons who solicit or accept orders for commodity interest trades but who do not accept margin deposits for the execution of trades. The CEA authorizes the CFTC to regulate trading by futures commission merchants and by their officers and directors, permits the CFTC to require action by exchanges in the event of market emergencies, and establishes an administrative procedure under which customers may institute complaints for damages arising from alleged violations of the CEA. The CEA also gives the states powers to enforce its provisions and the regulations of the CFTC.
The regulations of the CFTC and the NFA prohibit any representation by a person registered with the CFTC or by any member of the NFA, that registration with the CFTC, or membership in the NFA, in any respect indicates that the CFTC or the NFA, as the case may be, has approved or endorsed that person or that persons trading program or objectives. The registrations and memberships of the parties described in this summary must not be considered as constituting any such approval or endorsement. Likewise, no futures exchange has given or will give any similar approval or endorsement.
The regulation of commodity interest trading in the United States and other countries is an evolving area of the law. The various statements made in this summary are subject to modification by legislative action and changes in the rules and regulations of the CFTC, the NFA, the futures exchanges, clearing organizations and other regulatory bodies.
On July 21, 2010, a broad financial regulatory reform bill, the Dodd-Frank Act, was signed into law. All of the Dodd-Frank Acts provisions became effective on July 16, 2011, but the actual implementation of some of the provisions is subject to continuing uncertainty because implementing rules and regulations have not been completely finalized and have been challenged in court. Pending final resolution of all applicable regulatory requirements, some specific examples of how the new Dodd-Frank Act provisions and rules adopted thereunder could impact UGA are discussed below.
Futures Contracts and Position Limits
Provisions in the Dodd-Frank Act include the requirement that position limits be established on a wide range of commodity interests including energy-based and other commodity futures contracts, certain cleared commodity swaps and certain over-the-counter commodity contracts; new registration, recordkeeping, capital and margin requirements for swap dealers and major swap participants as determined by the new law and applicable regulations; and the forced use of clearinghouse mechanisms for most swap transactions that are currently entered into in the over-the-counter market. The new law and the rules thereunder may negatively impact UGAs ability to meet its investment objective either through limits or requirements imposed on it or upon its counterparties. Further, increased regulation of, and the imposition of additional costs on, swap transactions under the new legislation and implementing regulations could cause a reduction in the swap market and the overall derivatives markets, which could restrict liquidity and adversely affect UGA. In particular, new position limits imposed on UGA or its counterparties may impact UGAs ability to invest in a manner that most efficiently meets its investment objective, and new requirements, including capital and mandatory clearing, may increase the cost of UGAs investments and doing business, which could adversely impact the ability of UGA to achieve its investment objective.
22
On October 18, 2011, the CFTC adopted regulations implementing position limits and limit formulas for 28 core physical commodity futures contracts, including the Futures Contracts and options on Futures Contracts executed pursuant to the rules of designated contract markets (i.e., certain regulated exchanges) and commodity swaps that are economically equivalent to such futures and options contracts (collectively, Referenced Contracts). The new regulations require, among other things, aggregation of position limits that would apply across different trading venues to contracts based on the same underlying commodity. However, the regulations do not appear to require aggregation of Referenced Contracts held by separate Related Public Funds.
Although the regulations are effective on January 17, 2012, the position limit rules will be implemented in two phases: spot-month position limits and non-spot-month position limits. Spot-month limits will be effective sixty days after the term swap is defined under the Dodd-Frank Act (see below). The limits adopted will be based on the spot-month position limit levels currently in place at applicable futures exchanges (or designated contract market or DCM). Thereafter, the spot-month limits will be adjusted annually for energy contracts. These subsequent limits will be based on the CFTCs determination of deliverable supply in consultation with the futures exchanges. Spot-month position limit levels will be set generally at 25% of estimated deliverable supply, and limits will be applied separately for physical-delivery and cash-settled contracts in the same commodity.
Non-spot-month position limits will go into effect by CFTC order after the CFTC has received one year of open interest data on physical commodity cleared and uncleared swaps under the swaps large trader reporting rule. The non-spot month limits will be adjusted biennially based on Referenced Contract open interest. Non-spot-month position limits (i.e., limits applied to positions in all contract months combined or in a single contract month) will be set using the 10/2.5 percent formula: 10 percent of the contracts first 25,000 of open interest and 2.5 percent thereafter. These limits will be reset biennially based on two years of open interest data.
On December 2, 2011, the Securities Industry and Financial Markets Association (SIFMA) and the International Swaps and Derivatives Association (ISDA) filed a lawsuit challenging the CFTCs position limits rule. The lawsuit asserts that the position limits rule inadequately fulfills the required cost-benefit analysis. It is not known at this time what effect this lawsuit will have on the implementation of the new position limits rule.
Based on its current understanding of the final position limit regulations, USCF does not anticipate significant negative impact on the ability of UGA to achieve its investment objective. However, as of the filing of this annual report on Form 10-K, additional studies are required to be conducted before all requirements of the final rules are implemented, and therefore, it cannot be determined with certainty what impact such regulations will have on UGA.
Swap Transactions
The Dodd-Frank Acts imposes new regulatory requirements on certain swap transactions that UGA is authorized to engage in, that may ultimately impact the ability of UGA to meet its investment objective.
On April 27, 2011, the CFTC and the SEC proposed joint rules defining the term swap and thus providing more clarity regarding which transactions will be regulated as such under the Dodd-Frank Act. However, the CFTC and SEC have not implemented final regulations on this issue and it is therefore still uncertain which types of transactions will be ultimately regulated as swaps. The proposed rule defining swap and security-based swap has not been finalized as of the filing of this annual report on Form 10-K.
The Dodd-Frank Act requires that certain transactions ultimately falling within the definition of swap be executed on organized exchanges or swap execution facilities and cleared through regulated clearing organizations (which are referred to in the Dodd-Frank Act as derivative clearing organizations). However, as described above, it is currently unknown which swaps will be subject to such trading and clearing requirements. If a swap is required to be cleared, the initial margin will be set by the clearing organization, subject to certain regulatory requirements and guidelines. Initial and variation margin requirements for swap dealers and major swap participants who enter into uncleared swaps and capital requirements for swap dealers and major swap participants who enter into both cleared and uncleared trades will be set by the CFTC, the SEC or the applicable Prudential Regulator. On July 25, 2011, the CFTC adopted final regulations to determine which entities will be regulated as swap dealers and major swap participants and thus have to comply with these capital and margin requirements (as well as a multitude of other requirements under the Dodd-Frank Act). In general, increased regulation of, and the imposition of additional costs on, swap transactions could have an adverse effect on UGA by, for example, reducing the size of and therefore liquidity in the derivatives market, increasing transaction costs and decreasing the ability to customize derivative transactions. The final rule regarding review of swaps for mandatory clearing went effective September 26, 2011.
23
On July 14, 2011, the CFTC issued an order providing temporary relief from certain swaps-related provisions of Title VII that would have automatically taken effect on July 16, 2011. The final order granted temporary exemptive relief that, by its terms, expires upon the earlier of the effective date of the required final rulemaking or December 31, 2011. On October 18, 2011, the CFTC issued an order, which modifies the July 14, 2011 order by extending the temporary exemptive relief to the earlier of the effective date of the required final rulemaking or July 16, 2012.
On January 11, 2012, the CFTC adopted a rule requiring FCMs and derivative clearing organizations to segregate customer collateral supporting cleared swaps. This rule is scheduled to be effective November 8, 2012. UGA does not anticipate any impact to its operations in order to meet the requirements of the new rule.
Commodity Margin
Original or initial margin is the minimum amount of funds that must be deposited by a commodity interest trader with the traders broker to initiate and maintain an open position in futures contracts. Maintenance margin is the amount (generally less than the original margin) to which a traders account may decline before he must deliver additional margin. A margin deposit is like a cash performance bond. It helps assure the traders performance of the futures contracts that he or she purchases or sells. Futures contracts are customarily bought and sold on initial margin that represents a very small percentage (ranging upward from 5%) of the aggregate purchase or sales price of the contract. Because of such low margin requirements, price fluctuations occurring in the futures markets may create profits and losses that, in relation to the amount invested, are greater than are customary in other forms of investment or speculation. As discussed below, adverse price changes in the futures contract may result in margin requirements that greatly exceed the initial margin. In addition, the amount of margin required in connection with a particular futures contract is set from time to time by the exchange on which the contract is traded and may be modified from time to time by the exchange during the term of the contract.
Brokerage firms, such as UGAs clearing brokers, carrying accounts for traders in commodity interest contracts may not accept lower, and generally require higher, amounts of margin as a matter of policy to further protect themselves. The clearing brokers require UGA to make margin deposits equal to exchange minimum levels for all commodity interest contracts. This requirement may be altered from time to time in the clearing brokers discretion.
Trading in the over-the-counter markets where no clearing facility is provided generally does not require margin but generally does require the extension of credit between counterparties. This extension of credit is generally secured by transfers of collateral and/or independent amounts. Collateral is transferred between counterparties during the term of an over-the-counter transaction based upon the changing value of the transaction, while independent amounts are fixed amounts posted by one or both counterparties at the start of an over-the-counter transaction.
When a trader purchases an option, there is no margin requirement; however, the option premium must be paid in full. When a trader sells an option, on the other hand, he or she is required to deposit margin in an amount determined by the margin requirements established for the underlying interest and, in addition, an amount substantially equal to the current premium for the option. The margin requirements imposed on the selling of options, although adjusted to reflect the probability that out-of-the-money options will not be exercised, can in fact be higher than those imposed in dealing in the futures markets directly. Complicated margin requirements apply to spreads and conversions, which are complex trading strategies in which a trader acquires a mixture of options positions and positions in the underlying interest.
Margin requirements are computed each day by a traders clearing broker. When the market value of a particular open commodity interest position changes to a point where the margin on deposit does not satisfy maintenance margin requirements, a margin call is made by the broker. If the margin call is not met within a reasonable time, the broker may close out the traders position. With respect to UGAs trading, UGA (and not its investors personally) is subject to margin calls.
24
Finally, many major U.S. exchanges have passed certain cross margining arrangements involving procedures pursuant to which the futures and options positions held in an account would, in the case of some accounts, be aggregated and margin requirements would be assessed on a portfolio basis, measuring the total risk of the combined positions.
SEC Reports
UGA makes available, free of charge, on its website, its annual reports on Form 10-K, its quarterly reports on Form 10-Q, its current reports on Form 8-K and amendments to these reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after these forms are filed with, or furnished to, the SEC. These reports are also available from the SEC though its website at: www.sec.gov.
CFTC Reports
UGA also makes available its monthly reports and its annual reports required to be prepared and filed with the NFA under the CFTC regulations.
Intellectual Property
USCF owns trademark registrations for UNITED STATES GASOLINE FUND (U.S. Reg. No. 3486625) for fund investment services in the field of gasoline futures contracts, cash-settled options on gasoline futures contracts, forward contracts for gasoline, over-the-counter transactions based on the price of gasoline, and indices based on the foregoing, in use since February 22, 2008, and UGA UNITED STATES GASOLINE FUND, LP (and Design) (U.S. Reg. No. 3638984) for investment services in the field of gasoline futures contracts and other gasoline related investments, in use since February 26, 2008. UGA relies upon these trademarks through which it markets its services and strives to build and maintain brand recognition in the market and among current and potential investors. So long as UGA continues to use these trademarks to identify its services, without challenge from any third party, and properly maintains and renews the trademark registrations under applicable laws, rules and regulations, it will continue to have indefinite protection for these trademarks under current laws, rules and regulations. USCF has been granted two patents, Nos. 7,739,186 and 8,019,675, for systems and methods for an exchange traded fund (ETF) that tracks the price of one or more commodities.
The risk factors should be read in connection with the other information included in this annual report on Form 10-K, including Managements Discussion and Analysis of Financial Condition and Results of Operations and UGAs financial statements and the related notes.
Risks Associated With Investing Directly or Indirectly in Gasoline
Investing in Gasoline Interests subjects UGA to the risks of the gasoline industry and this could result in large fluctuations in the price of UGAs units.
UGA is subject to the risks and hazards of the gasoline industry because it invests in Gasoline Interests. The risks and hazards that are inherent in the gasoline industry may cause the price of gasoline to widely fluctuate. If the changes in percentage terms of UGAs units accurately track the changes in percentage terms of the Benchmark Futures Contract or the spot price of gasoline, then the price of its units may also fluctuate. The exploration for crude oil, the raw material used in the production of gasoline, and production of gasoline are uncertain processes with many risks. The cost of drilling, completing and operating wells for crude oil is often uncertain, and a number of factors can delay or prevent drilling operations or production of gasoline, including:
| unexpected drilling conditions; |
| pressure or irregularities in formations; |
| equipment failures or repairs; |
| fires or other accidents; |
25
| adverse weather conditions; |
| pipeline ruptures, spills or other supply disruptions; and |
| shortages or delays in the availability of drilling rigs and the delivery of equipment. |
Gasoline transmission, distribution, gathering, and processing activities involve numerous risks that may affect the price of gasoline.
There are a variety of hazards inherent in gasoline transmission, distribution, gathering, and processing, such as leaks, explosions, pollution, release of toxic substances, adverse weather conditions (such as hurricanes and flooding), pipeline failure, abnormal pressures, uncontrollable flows of crude oil, scheduled and unscheduled maintenance, physical damage to the gathering or transportation system, and other hazards which could affect the price of gasoline. To the extent these hazards limit the supply or delivery of gasoline, gasoline prices will increase.
The price of gasoline fluctuates on a seasonal basis and this would result in fluctuations in the price of UGAs units.
Gasoline prices fluctuate seasonally. For example, during the winter months the heating season can have a major impact on prices in the fuel industry. During the summer months, people are more likely to travel by automobile when taking spring and summer vacations along with weekend trips. The increase in travel drives fuel demand and gasoline prices typically follow.
Refineries usually use the spring months for major routine maintenance and to retool for summer gasoline blends required in various parts of the country to meet air emission requirements. Refinery maintenance as well as unplanned shut-downs reduce gasoline production. Depending on inventory levels and the strength of gasoline demand, this situation may put pressure on prices until additional gasoline supplies can be imported.
Supply interruptions may also affect inventories. For example, the Gulf Coast hurricanes of 2005 had a major impact on energy-producing facilities in the Gulf of Mexico, where roughly one-third of oil production in the United States occurs. In addition, the effects remain as repairs are continuing at some production and pipeline facilities that were severely damaged.
Changes in the political climate could have negative consequences for gasoline prices.
Tensions with Iran, the worlds fourth largest oil exporter, could put oil exports in jeopardy. Other global concerns include civil unrest and sabotage affecting the flow of oil from Nigeria, a large oil exporter. Meanwhile, friction continues between the governments of the United States and Venezuela, a major exporter of oil to the United States. Additionally, a series of production cuts by members of OPEC followed by a refusal to subsequently increase oil production have tightened world oil markets.
Limitations on ability to develop additional sources of oil could impact future prices of gasoline.
In the past, a supply disruption in one area of the world was softened by the ability of major oil-producing nations such as Saudi Arabia to increase output to make up the difference. Now, much of that spare reserve capacity has been absorbed by increased demand. The current global economic downturn, however, has led to a decrease in the demand for oil that lasted through 2009 and a corresponding increase in spare capacities. According to the United States Governments Energy Information Administration, global oil demand is expected to rise by 2 million barrels a day in 2012, to a total global consumption of 90 million barrels per day, up from 88 million barrels per day in 2011.
Gasoline refinement and production is subject to government regulations which could have an impact on the price of gasoline.
Gasoline refinement and production in North America are subject to regulation and oversight by the Federal Energy Regulatory Commission and various state regulatory agencies. For example, as a result of changes in fuel specifications, United States refiners in the spring and summer of 2006 began phasing out the fuel additive methyl tertiary butyl ether (MTBE) and replacing it with ethanol. The switch to ethanol, which is mandated by federal law, has resulted in a tightened supply and higher prices for this grain-based product. Although increased use of ethanol is expected to bring environmental benefits, ethanol adds to gasoline production costs because it currently is more expensive than the MTBE it is replacing.
26
Various formulations and compositions of gasoline as may be required by different state environmental laws and/or the U.S. Government may impact the price of gasoline.
Some areas of the country are required to use special formulations of gasoline. Environmental programs, aimed at reducing carbon monoxide, smog, and air toxics, include the Federal and/or state-required oxygenated, reformulated, and low-volatility (evaporates more slowly) gasoline. Other environmental programs put restrictions on transportation and storage. The reformulated gasoline required in some urban areas and in California cost more to produce than conventional gasoline served elsewhere, increasing the price paid at the pump. Changing standards in the future may further impact the price of gasoline in this regard.
Daily changes in UGAs per unit NAV may not correlate with daily changes in the price of the Benchmark Futures Contract. If this were to occur, investors may not be able to effectively use UGA as a way to hedge against gasoline-related losses or as a way to indirectly invest in gasoline.
USCF endeavors to invest UGAs assets as fully as possible in Futures Contracts and Other Gasoline-Related Investments so that the daily changes in percentage terms of the per unit NAV closely correlate with the daily changes in percentage terms in the price of the Benchmark Futures Contract. However, daily changes in UGAs per unit NAV may not correlate with the daily changes in the price of the Benchmark Futures Contract for several reasons as set forth below:
| UGA (i) may not be able to buy/sell the exact amount of Futures Contracts and Other Gasoline-Related Investments to have a perfect correlation with the per unit NAV; (ii) may not always be able to buy and sell Futures Contracts or Other Gasoline-Related Investments at the market price; and (iii) is required to pay fees, including brokerage fees and the management fee, which will have an effect on the correlation. |
| Short-term supply and demand for gasoline may cause the changes in the market price of the Benchmark Futures Contract to vary from the changes in UGAs per unit NAV if UGA has fully invested in Futures Contracts that do not reflect such supply and demand and it is unable to replace such contracts with Futures Contracts that do reflect such supply and demand. |
| UGA sells and buys only as many Futures Contracts and Other Gasoline-Related Investments that it can to get the daily changes in percentage terms of the per unit NAV as close as possible to the daily changes in percentage terms in the price of the Benchmark Futures Contract. The remainder of its assets are invested in Treasuries, cash and/or cash equivalents and are used to satisfy initial margin and additional margin requirements, if any, and to otherwise support its investments in Gasoline Interests. Investments in Treasuries, cash and/or cash equivalents, both directly and as margin, provide rates of return that vary from changes in the price of the Benchmark Futures Contract. |
| In addition, because UGA incurs certain expenses in connection with its investment activities, and holds most of its assets in more liquid short-term securities for margin and other liquidity purposes and for redemptions that may be necessary on an ongoing basis, USCF is generally not able to fully invest UGAs assets in Futures Contracts or Other Gasoline-Related Investments and there cannot be perfect correlation between changes in UGAs per unit NAV and changes in the price of the Benchmark Futures Contract. |
| As UGA grows, there may be more or less correlation. For example, if UGA only has enough money to buy three Futures Contracts and it needs to buy four contracts to track the price of gasoline then the correlation will be lower, but if it buys 20,000 Futures Contracts and it needs to buy 20,001 contracts then the correlation will be higher. At certain asset levels, UGA may be limited in its ability to purchase the Benchmark Futures Contract or Other Gasoline-Related Investments due to accountability levels imposed by the relevant exchanges. To the extent that UGA invests in these other Futures Contracts or Other Gasoline-Related Investments, the correlation with the Benchmark Futures Contract may be lower. If UGA is required to invest in other Futures Contracts and Other Gasoline-Related Investments that are less correlated with the Benchmark Futures Contract, UGA would likely invest in over-the-counter contracts to increase the level of correlation of UGAs assets. Over-the-counter contracts entail certain risks described below under Over-the-Counter Contract Risk. |
27
| UGA may not be able to buy the exact number of Futures Contracts and Other Gasoline-Related Investments to have a perfect correlation with the Benchmark Futures Contract if the purchase price of Futures Contracts required to be fully invested in such contracts is higher than the proceeds received for the sale of a Creation Basket on the day the basket was sold. In such case, UGA could not invest the entire proceeds from the purchase of the Creation Basket in such futures contracts (for example, assume UGA receives $4,000,000 for the sale of a Creation Basket and assume that the price of a Futures Contract for gasoline is $59,950, then UGA could only invest in only 66 Futures Contracts with an aggregate value of $3,956,700), UGA would be required to invest a percentage of the proceeds in cash, Treasuries or other liquid securities to be deposited as margin with the futures commission merchant through which the contracts were purchased. The remainder of the purchase price for the Creation Basket would remain invested in Treasuries, cash and/or cash equivalents or other liquid securities as determined by USCF from time to time based on factors such as potential calls for margin or anticipated redemptions. If the trading market for Futures Contracts is suspended or closed, UGA may not be able to purchase these investments at the last reported price. |
If daily changes in UGAs per unit NAV do not correlate with daily changes in the price of the Benchmark Futures Contract, then investing in UGA may not be an effective way to hedge against gasoline-related losses or indirectly invest in gasoline.
The Benchmark Futures Contract may not correlate with the spot price of gasoline and this could cause changes in the price of the units to substantially vary from the changes in the spot price of gasoline. If this were to occur, then investors may not be able to effectively use UGA as a way to hedge against gasoline-related losses or as a way to indirectly invest in gasoline. In addition, the price relationship between the near month contract and the next month contract that compose the Benchmark Futures Contract will vary and may impact both the total return over time of UGAs NAV, as well as the degree to which its total return tracks to other gasoline price indices total returns.
When using the Benchmark Futures Contract as a strategy to track the spot price of gasoline, at best the correlation between changes in prices of such Gasoline Interests and the spot price of gasoline can be only approximate. The degree of imperfection of correlation depends upon circumstances such as variations in the speculative gasoline market, supply of and demand for such Gasoline Interests and technical influences in futures trading. If there is a weak correlation between the Gasoline Interests and the spot price of gasoline, then, even in situations where there is also tracking among the prices of units, the per unit NAV and Gasoline Interests, the price of units may not accurately track the spot price of gasoline and investors may not be able to effectively use UGA as a way to hedge the risk of losses in their gasoline-related transactions or as a way to indirectly invest in gasoline.
Backwardation and contango may increase UGAs tracking error and/or negatively impact total return.
The design of UGAs Benchmark Futures Contract is such that every month it begins by using the near month contract to expire until the near month contract is within two weeks of expiration, when the near month contract is sold and replaced with the next month contract to expire. In the event of a gasoline futures market where near month contracts trade at a higher price than next month to expire contracts, a situation described as backwardation in the futures market, then absent the impact of the overall movement in gasoline prices the value of the benchmark contract would tend to rise as it approaches expiration. As a result, the total return of the Benchmark Futures Contract would tend to track higher. Conversely, in the event of a gasoline futures market where near month contracts trade at a lower price than next month contracts, a situation described as contango in the futures market, then absent the impact of the overall movement in gasoline prices the value of the benchmark contract would tend to decline as it approaches expiration. As a result the total return of the Benchmark Futures Contract would tend to track lower. When compared to total return of other price indices, such as the spot price of gasoline, the impact of backwardation and contango may lead the total return of UGAs per unit NAV to vary significantly. In the event of a prolonged period of contango, and absent the impact of rising or falling gasoline prices, this could have a significant negative impact on UGAs per unit NAV and total return. See Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations in this annual report on Form 10-K for a discussion of the potential effects of contango and backwardation.
28
UGA may experience a loss if it is required to sell Treasuries at a price lower than the price at which they were acquired.
The value of Treasuries generally moves inversely with movements in interest rates. If UGA is required to sell Treasuries at a price lower than the price at which they were acquired, UGA will experience a loss. This loss may adversely impact the price of the units and may decrease the correlation among the price of units, the per unit NAV of units, the price of the Benchmark Futures Contract and Other Gasoline-Related Investments, and the spot price of gasoline.
Certain of UGAs investments could be illiquid which could cause large losses to investors at any time or from time to time.
UGA may not always be able to liquidate its positions in its investments at the desired price. It is difficult to execute a trade at a specific price when there is a relatively small volume of buy and sell orders in a market. A market disruption, such as a foreign government taking political actions that disrupt the market in its currency, its gasoline production or exports, or in another major export, can also make it difficult to liquidate a position. Alternatively, limits imposed by futures exchanges or other regulatory organizations, such as accountability levels, position limits and daily price fluctuation limits, may contribute to a lack of liquidity with respect to some commodity interests.
Unexpected market illiquidity may cause major losses to investors at any time or from time to time. In addition, UGA has not and does not intend at this time to establish a credit facility, which would provide an additional source of liquidity and instead relies only on the Treasuries, cash and/or cash equivalents that it holds. The anticipated large value of the positions in Futures Contracts that USCF will acquire or enter into for UGA increases the risk of illiquidity. The Other Gasoline-Related Investments that UGA invests in, such as negotiated over-the-counter contracts, may have a greater likelihood of being illiquid since they are contracts between two parties that take into account not only market risk, but also the relative credit, tax, and settlement risks under such contracts. Such contracts also have limited transferability that results from such risks and from the contracts express limitations.
Because both Futures Contracts and Other Gasoline-Related Investments may be illiquid, UGAs Gasoline Interests may be more difficult to liquidate at favorable prices in periods of illiquid markets and losses may be incurred during the period in which positions are being liquidated.
If the nature of hedgers and speculators in futures markets has shifted such that gasoline purchasers are the predominant hedgers in the market, UGA might have to reinvest at higher futures prices or choose Other Gasoline-Related Investments.
The changing nature of the hedgers and speculators in the gasoline market influences whether futures prices are above or below the expected future spot price. In order to induce speculators to take the corresponding long side of the same futures contract, gasoline producers must generally be willing to sell futures contracts at prices that are below expected future spot prices. Conversely, if the predominant hedgers in the futures market are the purchasers of the gasoline who purchase futures contracts to hedge against a rise in prices, then speculators will only take the short side of the futures contract if the futures price is greater than the expected future spot price of gasoline. This can have significant implications for UGA when it is time to reinvest the proceeds from a maturing Futures Contract into a new Futures Contract.
While UGA does not intend to take physical delivery of gasoline under its Futures Contracts, physical delivery under such contracts impacts the value of the contracts.
While it is not the current intention of UGA to take physical delivery of gasoline under any of its Futures Contracts, futures contracts are not required to be cash-settled and it is possible to take delivery under some of these contracts. Storage costs associated with purchasing gasoline could result in costs and other liabilities that could impact the value of Futures Contracts or Other Gasoline-Related Investments. Storage costs include the time value of money invested in gasoline as a physical commodity plus the actual costs of storing the gasoline less any benefits from ownership of gasoline that are not obtained by the holder of a futures contract. In general, Futures Contracts have a one-month delay for contract delivery and the back month (the back month is any future delivery month other than the spot month) includes storage costs. To the extent that these storage costs change for gasoline while UGA holds Futures Contracts or Other Gasoline-Related Investments, the value of the Futures Contracts or Other Gasoline-Related Investments, and therefore UGAs NAV, may change as well.
29
Regulation of the commodity interests and energy markets is extensive and constantly changing; future regulatory developments are impossible to predict but may significantly and adversely affect UGA.
The futures markets are subject to comprehensive statutes, regulations, and margin requirements. In addition, the CFTC and the exchanges are authorized to take extraordinary actions in the event of a market emergency, including, for example, the retroactive implementation of speculative position limits or higher margin requirements, the establishment of daily price limits and the suspension of trading.
The regulation of commodity interest transactions in the United States is a rapidly changing area of law and is subject to ongoing modification by governmental and judicial action. Considerable regulatory attention has been focused on non-traditional investment pools that are publicly distributed in the United States. Under the Dodd-Frank Act and otherwise, there is a possibility of future regulatory changes within the United States altering, perhaps to a material extent, the nature of an investment in UGA or the ability of UGA to continue to implement its investment strategy. In addition, various national governments outside of the United States have expressed concern regarding the disruptive effects of speculative trading in the energy markets and the need to regulate the derivatives markets in general. The effect of any future regulatory change on UGA is impossible to predict, but it could be substantial and adverse. For a more detailed discussion of the regulations to be imposed by the CFTC and SEC and the potential impacts thereof on UGA, please see Item 1. Business Regulation in this annual report on Form 10-K.
Investing in UGA for purposes of hedging may be subject to several risks including the possibility of losing the benefit of favorable market movement.
Participants in the gasoline or in other industries may use UGA as a vehicle to hedge the risk of losses in their gasoline-related transactions. There are several risks in connection with using UGA as a hedging device. While hedging can provide protection against an adverse movement in market prices, it can also preclude a hedgers opportunity to benefit from a favorable market movement. In a hedging transaction, the hedger may be concerned that the hedged item will increase in price, but must recognize the risk that the price may instead decline and if this happens he will have lost his opportunity to profit from the change in price because the hedging transaction will result in a loss rather than a gain. Thus, the hedger foregoes the opportunity to profit from favorable price movements.
An investment in UGA may provide little or no diversification benefits. Thus, in a declining market, UGA may have no gains to offset losses from other investments, and an investor may suffer losses on an investment in UGA while incurring losses with respect to other asset classes.
Historically, Futures Contracts and Other Gasoline-Related Investments have generally been non-correlated to the performance of other asset classes such as stocks and bonds. Non-correlation means that there is a low statistically valid relationship between the performance of futures and other commodity interest transactions, on the one hand, and stocks or bonds, on the other hand. However, there can be no assurance that such non-correlation will continue during future periods. If, contrary to historic patterns, UGAs performance were to move in the same general direction as the financial markets, investors will obtain little or no diversification benefits from an investment in the units. In such a case, UGA may have no gains to offset losses from other investments, and investors may suffer losses on their investment in UGA at the same time they incur losses with respect to other investments.
Variables such as drought, floods, weather, embargoes, tariffs and other political events may have a larger impact on gasoline prices and gasoline-linked instruments, including Futures Contracts and Other Gasoline-Related Investments, than on traditional securities. These additional variables may create additional investment risks that subject UGAs investments to greater volatility than investments in traditional securities.
30
Non-correlation should not be confused with negative correlation, where the performance of two asset classes would be opposite of each other. There is no historic evidence that the spot price of gasoline and prices of other financial assets, such as stocks and bonds, are negatively correlated. In the absence of negative correlation, UGA cannot be expected to be automatically profitable during unfavorable periods for the stock market, or vice versa.
UGAs Operating Risks
UGA is not a registered investment company so unitholders do not have the protections of the 1940 Act.
UGA is not an investment company subject to the 1940 Act. Accordingly, investors do not have the protections afforded by that statute which, for example, requires investment companies to have a majority of disinterested directors and regulates the relationship between the investment company and its investment manager.
USCF is leanly staffed and relies heavily on key personnel to manage trading activities.
In managing and directing the day-to-day activities and affairs of UGA, USCF relies heavily on Messrs. Howard Mah and John Hyland. If Messrs. Mah or Hyland were to leave or be unable to carry out their present responsibilities, it may have an adverse effect on the management of UGA. Furthermore, Messrs. Mah and Hyland are currently involved in the management of the Related Public Funds. USCF has also filed registration statements to register units of USSF, UNGD, USGO and USABF, each a series of the United States Commodity Funds Trust I. Mr. Mah is also employed by Ameristock Corporation, a registered investment adviser that manages a public mutual fund. It is estimated that Mr. Mah will spend approximately 90% of his time on UGA and Related Public Fund matters. Mr. Hyland will spend approximately 100% of his time on UGA and Related Public Fund matters. To the extent that USCF establishes additional funds, even greater demands will be placed on Messrs. Mah and Hyland, as well as the other officers of USCF and its Board.
Accountability levels, position limits, and daily price fluctuation limits set by the exchanges have the potential to cause a tracking error, which could cause the price of units to substantially vary from the price of the Benchmark Futures Contract and prevent investors from being able to effectively use UGA as a way to hedge against gasoline-related losses or as a way to indirectly invest in gasoline.
U.S. designated contract markets such as the NYMEX have established accountability levels and position limits on the maximum net long or net short futures contracts in commodity interests that any person or group of persons under common trading control (other than as a hedge, which an investment by UGA is not) may hold, own or control. In addition to accountability levels and position limits, the NYMEX also sets daily price fluctuation limits on futures contracts. The daily price fluctuation limit establishes the maximum amount that the price of a futures contract may vary either up or down from the previous days settlement price. Once the daily price fluctuation limit has been reached in a particular futures contract, no trades may be made at a price beyond that limit.
Additionally, on October 18, 2011, the CFTC adopted new rules, which establish position limits and limit formulas for certain physical commodity futures contracts including Futures Contracts and options on Futures Contracts, executed pursuant to the rules of designated contract markets (i.e., certain regulated exchanges) and commodity swaps that are economically equivalent to such futures and options contracts. The CFTC also adopted aggregate position limits that would apply across different trading venues to contracts based on the same underlying commodity. For a more detailed discussion of the position limits to be imposed by the CFTC under the Dodd-Frank Act and the potential impacts thereof on UGA, please see Item 1. Business What are Futures Contracts? and Regulation in this annual report on Form 10-K.
All of these limits may potentially cause a tracking error between the price of the units and the price of the Benchmark Futures Contract. This may in turn prevent investors from being able to effectively use UGA as a way to hedge against gasoline-related losses or as a way to indirectly invest in gasoline.
UGA has not limited the size of its offering and is committed to utilizing substantially all of its proceeds to purchase Futures Contracts and Other Gasoline-Related Investments. If UGA encounters accountability levels, position limits, or price fluctuation limits for Futures Contracts on the NYMEX, it may then, if permitted under applicable regulatory requirements, purchase Futures Contracts on the ICE Futures or other exchanges that trade listed gasoline futures. The Futures Contracts available on the ICE Futures are comparable to the contracts on the NYMEX, but they may have different underlying commodities, sizes, deliveries, and prices. In addition, certain of the Futures Contracts available on the ICE Futures are subject to accountability levels and position limits.
31
To the extent that USCF uses spreads and straddles as part of its trading strategy, there is the risk that the per unit NAV may not closely track the changes in the Benchmark Futures Contract.
If USCF were to utilize a spread or straddle position and the spread performed differently than expected, the results could impact UGAs tracking error. This could affect UGAs investment objective of having its per unit NAV closely track the changes in the Benchmark Futures Contract. Additionally, a loss on a spread position would negatively impact UGAs absolute return. For a more detailed discussion regarding spreads and straddles, please see Item 1. Business Spreads and Straddles in this annual report on Form 10-K.
UGA and USCF may have conflicts of interest, which may permit them to favor their own interests to the detriment of unitholders.
UGA and USCF may have inherent conflicts to the extent USCF attempts to maintain UGAs asset size in order to preserve its fee income and this may not always be consistent with UGAs objective of having the value of its units per unit NAV track the changes in the Benchmark Futures Contract. USCFs officers, directors and employees do not devote their time exclusively to UGA. These persons are directors, officers or employees of other entities that may compete with UGA for their services. They could have a conflict between their responsibilities to UGA and to those other entities.
In addition, USCFs principals, officers, directors or employees may trade futures and related contracts for their own account. A conflict of interest may exist if their trades are in the same markets and at the same time as UGA trades using the clearing broker to be used by UGA. A potential conflict also may occur if USCFs principals, officers, directors or employees trade their accounts more aggressively or take positions in their accounts which are opposite, or ahead of, the positions taken by UGA.
USCF has sole current authority to manage the investments and operations of UGA, and this may allow it to act in a way that furthers its own interests which may create a conflict with the best interests of investors. Limited partners have limited voting control, which will limit the ability to influence matters such as amendment of the LP Agreement, change in UGAs basic investment policy, dissolution of this fund, or the sale or distribution of UGAs assets.
USCF serves as the general partner to each of UGA, USOF, USNG, US12OF, USHO, USSO, US12NG and USBO and the sponsor for USCI and CPER, and will serve as the sponsor for USMI, USAG, USSF, UNGD, USGO and USABF if such funds offer their securities to the public or begin operations. USCF may have a conflict to the extent that its trading decisions for UGA may be influenced by the effect they would have on the other funds it manages. These trading decisions may be influenced since USCF also serves as the general partner or sponsor for all of the funds and is required to meet all of the funds investment objectives as well as UGAs. If USCF believes that a trading decision it made on behalf of UGA might (i) impede its other funds from reaching their investment objectives, or (ii) improve the likelihood of meeting its other funds objectives, then USCF may choose to change its trading decision for UGA, which could either impede or improve the opportunity for UGA to meet its investment objective. In addition, USCF is required to indemnify the officers and directors of its other funds if the need for indemnification arises. This potential indemnification will cause USCFs assets to decrease. If USCFs other sources of income are not sufficient to compensate for the indemnification, then USCF may terminate and investors could lose their investment.
32
Unitholders may only vote on the removal of USCF and limited partners have only limited voting rights. Unitholders and limited partners will not participate in the management of UGA and do not control USCF so they will not have influence over basic matters that affect UGA. In addition, UGA could terminate at any time and cause the liquidation and potential loss of an investors investment and could upset the overall maturity and timing of an investors investment portfolio.
Limited partners will have limited voting rights with respect to UGAs affairs. Unitholders must apply to become limited partners, and unitholders that have not applied to become limited partners have no voting rights, other than to remove USCF as the general partner of UGA. Even then, unitholders may remove USCF only if 66 2/3% of the unitholders elect to do so. Unitholders and limited partners will not be permitted to participate in the management or control of UGA or the conduct of its business. Unitholders and limited partners must therefore rely upon the duties and judgment of USCF to manage UGAs affairs.
UGA may terminate at any time, regardless of whether UGA has incurred losses, subject to the terms of the LP Agreement. In particular, unforeseen circumstances, including the death, adjudication of incompetence, bankruptcy, dissolution, or removal of USCF as the general partner of UGA could cause UGA to terminate unless a majority in interest of the limited partners within 90 days of the event elects to continue the partnership and appoints a successor general partner, or the affirmative vote of a majority in interest of the limited partners subject to certain conditions. However, no level of losses will require USCF to terminate UGA. UGAs termination would cause the liquidation and potential loss of an investors investment. Termination could also negatively affect the overall maturity and timing of an investors investment portfolio.
USCF may manage a large amount of assets and this could affect UGAs ability to trade profitably.
Increases in assets under management may affect trading decisions. In general, USCF does not intend to limit the amount of assets of UGA that it may manage. The more assets USCF manages, the more difficult it may be for it to trade profitably because of the difficulty of trading larger positions without adversely affecting prices and performance and of managing risk associated with larger positions.
Limited partners may have limited liability in certain circumstances, including potentially having liability for the return of wrongful distributions.
Under Delaware law, a limited partner might be held liable for UGA obligations as if it were a general partner if the limited partner participates in the control of the partnerships business and the persons who transact business with the partnership think the limited partner is the general partner.
A limited partner will not be liable for assessments in addition to its initial capital investment in any of UGAs capital securities representing units. However, a limited partner may be required to repay to UGA any amounts wrongfully returned or distributed to it under some circumstances. Under Delaware law, UGA may not make a distribution to limited partners if the distribution causes UGAs liabilities (other than liabilities to partners on account of their partnership interests and nonrecourse liabilities) to exceed the fair value of UGAs assets. Delaware law provides that a limited partner who receives such a distribution and knew at the time of the distribution that the distribution violated the law will be liable to the limited partnership for the amount of the distribution for three years from the date of the distribution.
With adequate notice, a limited partner may be required to withdraw from the partnership for any reason.
If USCF gives at least fifteen (15) days written notice to a limited partner, then USCF may for any reason, in its sole discretion, require any such limited partner to withdraw entirely from the partnership or to withdraw a portion of its partner capital account. USCF may require withdrawal even in situations where the limited partner has complied completely with the provisions of the LP Agreement.
UGA does not expect to make cash distributions.
UGA has not previously made any cash distributions and intends to re-invest any realized gains in additional Gasoline Interests rather than distributing cash to limited partners. Therefore, unlike mutual funds, commodity pools or other investment pools that actively manage their investments in an attempt to realize income and gains from their investing activities and distribute such income and gains to their investors, UGA generally does not expect to distribute cash to limited partners. An investor should not invest in UGA if it will need cash distributions from UGA to pay taxes on its share of income and gains of UGA, if any, or for any other reason. Although UGA does not intend to make cash distributions, the income earned from its investments held directly or posted as margin may reach levels that merit distribution, e.g., at levels where such income is not necessary to support its underlying investments in Gasoline Interests and investors adversely react to being taxed on such income without receiving distributions that could be used to pay such tax. If this income becomes significant then cash distributions may be made.
33
There is a risk that UGA will not earn trading gains sufficient to compensate for the fees and expenses that it must pay and as such UGA may not earn any profit.
UGA pays brokerage charges of approximately 0.07% of average total net assets based on futures commission merchant fees of $3.50 per buy or sell, any licensing fees for the use of intellectual property, registration fees with the SEC, FINRA, or other regulatory agency in connection with offers and sales of the units subsequent to the initial offering of the units including the legal, printing, accounting and other expenses associated therewith. UGA also pays the fees and expenses, including directors and officers liability insurance, of the independent directors, management fees of 0.60% of NAV on its average net assets, tax accounting and reporting costs, and over-the-counter spreads and extraordinary expenses (e.g., subsequent offering expenses, other expenses not in the ordinary course of business, including the indemnification of any person against liabilities and obligations to the extent permitted by law and required under the LP Agreement and under agreements entered into by USCF on UGAs behalf and the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expenses and the settlement of claims and litigation) that cannot be quantified. These fees and expenses must be paid in all cases regardless of whether UGAs activities are profitable. Accordingly, UGA must earn trading gains sufficient to compensate for these fees and expenses before it can earn any profit.
If offerings of the units do not raise sufficient funds to pay UGAs future expenses and no other source of funding of expenses is found, UGA may be forced to terminate and investors may lose all or part of their investment.
Prior to the offering of units that commenced on February 26, 2008, all of UGAs expenses were funded by USCF and its affiliates. These payments by USCF and its affiliates were designed to allow UGA the ability to commence the public offering of its units. UGA now directly pays certain of these fees and expenses. USCF will continue to pay other fees and expenses, as set forth in the LP Agreement. If USCF and UGA are unable to raise sufficient funds to cover their expenses or locate any other source of funding, UGA may be forced to terminate and investors may lose all or part of their investment.
UGA may incur higher fees and expenses upon renewing existing or entering into new contractual relationships.
The clearing arrangements between the clearing brokers and UGA generally are terminable by the clearing brokers once the clearing broker has given UGA notice. Upon termination, USCF may be required to renegotiate or make other arrangements for obtaining similar services if UGA intends to continue trading in Futures Contracts or Other Gasoline-Related Investments at its present level of capacity. The services of any clearing broker may not be available, or even if available, these services may not be available on the terms as favorable as those of the expired or terminated clearing arrangements.
UGA may miss certain trading opportunities because it will not receive the benefit of the expertise of independent trading advisors.
USCF does not employ trading advisors for UGA; however, it reserves the right to employ them in the future. The only advisor to UGA is USCF. A lack of independent trading advisors may be disadvantageous to UGA because it will not receive the benefit of a trading advisors expertise.
An unanticipated number of redemption requests during a short period of time could have an adverse effect on the NAV of UGA.
If a substantial number of requests for redemption of Redemption Baskets are received by UGA during a relatively short period of time, UGA may not be able to satisfy the requests from UGAs assets not committed to trading. As a consequence, it could be necessary to liquidate positions in UGAs trading positions before the time that the trading strategies would otherwise dictate liquidation.
34
The financial markets are currently in a period of disruption and UGA does not expect these conditions to improve in the near future.
Since 2008, the financial markets have experienced very difficult conditions and volatility as well as significant adverse trends. The conditions in these markets have resulted in a decrease in availability of corporate credit and liquidity and have led indirectly to the insolvency, closure or acquisition of a number of major financial institutions and have contributed to further consolidation within the financial services industry. In addition, the Administration and Congress have periodically been reaching impasses in passing a fiscal budget which could create long-term concerns regarding the credit of the United States and interest earned, as well as the United States Governments ability to pay its obligations to holders of Treasuries. If low interest rates on Treasuries continues or if UGA is not able to redeem its investments in Treasuries prior to maturity and the U.S. Government cannot pay its obligations, UGA would be negatively impacted. In addition, UGA might also be negatively impacted by its use of money market mutual funds to the extent those funds might themselves be using Treasuries. Although the financial markets saw signs of recovery beginning in late 2010, economic growth in 2011 has been slow and the financial markets are still fragile and could fall into another recession. Another recession could adversely affect the financial condition and results of operations of UGAs service providers and Authorized Purchasers, which would impact the ability of USCF to achieve UGAs investment objective.
The failure or bankruptcy of a clearing broker or UGAs Custodian could result in a substantial loss of UGAs assets and could impair UGA in its ability to execute trades.
Under CFTC regulations, a clearing broker maintains customers assets in a bulk segregated account. If a clearing broker fails to do so, or even if the customers funds are segregated by the clearing broker but the clearing broker is unable to satisfy a substantial deficit in a customer account, the clearing brokers other customers may be subject to risk of a substantial loss of their funds in the event of that clearing brokers bankruptcy. In that event, the clearing brokers customers, such as UGA, are entitled to recover, even in respect of property specifically traceable to them, only a proportional share of all property available for distribution to all of that clearing brokers customers. The bankruptcy of a clearing broker could result in the complete loss of UGAs assets posted with the clearing broker; though the majority of UGAs assets are held in Treasuries, cash and/or cash equivalents with the Custodian and would not be impacted by the bankruptcy of a clearing broker. UGA also may be subject to the risk of the failure of, or delay in performance by, any exchanges and markets and their clearing organizations, if any, on which commodity interest contracts are traded.
In addition, to the extent UGAs clearing broker is required to post UGAs assets as margin to a clearinghouse, the margin will be maintained in an omnibus account containing the margin of all of the clearing brokers customers. If UGAs clearing broker defaults to the clearinghouse because of a default by one of the clearing brokers other customers or otherwise, then the clearinghouse can look to all of the margin in the omnibus account, including margin posted by UGA and any other non-defaulting customers of the clearing broker to satisfy the obligations of the clearing broker.
From time to time, the clearing brokers may be subject to legal or regulatory proceedings in the ordinary course of their business. A clearing brokers involvement in costly or time-consuming legal proceedings may divert financial resources or personnel away from the clearing brokers trading operations, which could impair the clearing brokers ability to successfully execute and clear UGAs trades.
In addition, the majority of UGAs assets are held in Treasuries, cash and/or cash equivalents with the Custodian. The insolvency of the Custodian could result in a complete loss of UGAs assets held by that custodian, which, at any given time, would likely comprise a substantial portion of UGAs total assets.
Third parties may infringe upon or otherwise violate intellectual property rights or assert that USCF has infringed or otherwise violated their intellectual property rights, which may result in significant costs and diverted attention.
Third parties may utilize UGAs intellectual property or technology, including the use of its business methods, trademarks and trading program software, without permission. USCF has a patent for UGAs business method and it has registered its trademarks. UGA does not currently have any proprietary software. However, if it obtains proprietary software in the future, then any unauthorized use of UGAs proprietary software and other technology could also adversely affect its competitive advantage. UGA may not have adequate resources to implement procedures for monitoring unauthorized uses of its patents, trademarks, proprietary software and other technology. Also, third parties may independently develop business methods, trademarks or proprietary software and other technology similar to that of USCF or claim that USCF has violated their intellectual property rights, including their copyrights, trademark rights, trade names, trade secrets and patent rights. As a result, USCF may have to litigate in the future to protect its trade secrets, determine the validity and scope of other parties proprietary rights, defend itself against claims that it has infringed or otherwise violated other parties rights, or defend itself against claims that its rights are invalid. Any litigation of this type, even if USCF is successful and regardless of the merits, may result in significant costs, divert its resources from UGA, or require it to change its proprietary software and other technology or enter into royalty or licensing agreements.
35
The success of UGA depends on the ability of USCF to accurately implement trading systems, and any failure to do so could subject UGA to losses on such transactions.
USCF uses mathematical formulas built into a generally available spreadsheet program to decide whether it should buy or sell Gasoline Interests each day. Specifically, USCF uses the spreadsheet to make mathematical calculations and to monitor positions in Gasoline Interests and Treasuries and correlations to the Benchmark Futures Contract. USCF must accurately process the spreadsheets outputs and execute the transactions called for by the formulas. In addition, UGA relies on USCF to properly operate and maintain its computer and communications systems. Extraordinary transaction volume, hardware or software failure, power or telecommunications failure, a natural disaster or other catastrophe could cause the computer systems to operate at an unacceptably slow speed or even fail. Any significant degradation or failure of the systems that USCF uses to gather and analyze information, enter orders, process data, monitor risk levels and otherwise engage in trading activities may result in substantial losses on transactions, liability to other parties, lost profit opportunities, damages to USCFs and UGAs reputations, increased operational expenses and diversion of technical resources. Any failure, inaccuracy or delay in implementing any of the formulas or systems, including implementing upgrades and compatibility with the computer systems of third parties, and executing UGAs transactions could impair its ability to achieve UGAs investment objective. It could also result in decisions to undertake transactions based on inaccurate or incomplete information. This could cause substantial losses on transactions.
The occurrence of a terrorist attack, or the outbreak, continuation or expansion of war or other hostilities could disrupt UGAs trading activity and materially affect UGAs profitability.
The operations of UGA, the exchanges, brokers and counterparties with which UGA does business, and the markets in which UGA does business could be severely disrupted in the event of a major terrorist attack or the outbreak, continuation or expansion of war or other hostilities. Global anti-terrorism initiatives, political unrest in the Middle East and Southeast Asia, as well as political hostility towards the United States, continue to fuel this concern.
Risk of Leverage and Volatility
If USCF permits UGA to become leveraged, investors could lose all or substantially all of their investment if UGAs trading positions suddenly turn unprofitable.
Commodity pools trading positions in futures contracts or other commodity interests are typically required to be secured by the deposit of margin funds that represent only a small percentage of a futures contracts (or other commodity interests) entire market value. This feature permits commodity pools to leverage their assets by purchasing or selling futures contracts (or other commodity interests) with an aggregate value in excess of the commodity pools assets. While this leverage can increase the pools profits, relatively small adverse movements in the price of the pools futures contracts can cause significant losses to the pool. While USCF has not and does not currently intend to leverage UGAs assets, it is not prohibited from doing so under the LP Agreement or otherwise.
36
The price of gasoline is volatile which could cause large fluctuations in the price of units.
Movements in the price of gasoline may be the result of factors outside of USCFs control and may not be anticipated by USCF. Among the factors that can cause volatility in the price of gasoline are:
| worldwide or regional demand for energy, which is affected by economic conditions; |
| the domestic and foreign supply and inventories of oil and gas; |
| weather conditions, including abnormally mild winter or summer weather, and abnormally harsh winter or summer weather; |
| availability and adequacy of pipeline and other transportation facilities; |
| availability of storage facilities; |
| domestic and foreign governmental regulations and taxes; |
| political conditions in gas or oil producing regions; |
| technological advances relating to energy usage or relating to technology for exploration, production, refining and petrochemical manufacturing; |
| the ability of members of OPEC to agree upon and maintain oil prices and production levels; |
| the price and availability of alternative fuels; |
| the impact of energy conservation efforts, and |
| the impact of environmental and other governmental regulations |
Over-the-Counter Contract Risk
Currently, over-the-counter transactions are subject to little regulation.
A portion of UGAs assets may be used to trade over-the-counter contracts, such as forward contracts or swap or spot contracts. Currently, over-the-counter contracts are typically contracts traded on a principal-to-principal basis through dealer markets that are dominated by major money center and investment banks and other institutions and that prior to the passage of the Dodd-Frank Act had been essentially unregulated by the CFTC. The markets for over-the-counter contracts have relied upon the integrity of market participants in lieu of the additional regulation imposed by the CFTC on participants in the futures markets. While the Dodd-Frank Act and certain regulations adopted thereunder are intended to provide additional protections to participants in the over-the-counter market, the current regulation of the over-the-counter contracts could expose UGA in certain circumstances to significant losses in the event of trading abuses or financial failure by participants. See Item 1. Business Regulation for a discussion of how the over-the-counter market will be subject to much more extensive CFTC oversight and regulation after the implementation of the Dodd-Frank Act.
UGA will be subject to credit risk with respect to counterparties to over-the-counter contracts entered into by UGA or held by special purpose or structured vehicles.
UGA faces the risk of non-performance by the counterparties to the over-the-counter contracts. Unlike in futures contracts, the counterparty to these contracts is generally a single bank or other financial institution, rather than a clearing organization backed by a group of financial institutions. As a result, there will be greater counterparty credit risk in these transactions. A counterparty may not be able to meet its obligations to UGA, in which case UGA could suffer significant losses on these contracts.
If a counterparty becomes bankrupt or otherwise fails to perform its obligations due to financial difficulties, UGA may experience significant delays in obtaining any recovery in a bankruptcy or other reorganization proceeding. UGA may obtain only limited recovery or may obtain no recovery in such circumstances.
UGA may be subject to liquidity risk with respect to its over-the-counter contracts.
Over-the-counter contracts are less marketable because they are not traded on an exchange, do not have uniform terms and conditions, and are entered into based upon the creditworthiness of the parties and the availability of credit support, such as collateral, and in general, they are not transferable without the consent of the counterparty. These conditions make such contracts less liquid than standardized futures contracts traded on a commodities exchange and could adversely impact UGAs ability to realize the full value of such contracts. In addition, even if collateral is used to reduce counterparty credit risk, sudden changes in the value of over-the-counter transactions may leave a party open to financial risk due to a counterparty default since the collateral held may not cover a partys exposure on the transaction in such situations.
37
In general, valuing over-the-counter derivatives is less certain than valuing actively traded financial instruments such as exchange traded futures contracts and securities or cleared swaps because the price and terms on which such over-the-counter derivatives are entered into or can be terminated are individually negotiated, and those prices and terms may not reflect the best price or terms available from other sources. In addition, while market makers and dealers generally quote indicative prices or terms for entering into or terminating over-the-counter contracts, they typically are not contractually obligated to do so, particularly if they are not a party to the transaction. As a result, it may be difficult to obtain an independent value for an outstanding over-the-counter derivatives transaction.
Risk of Trading in International Markets
Trading in international markets could expose UGA to credit and regulatory risk.
UGA invests primarily in Futures Contracts, a significant portion of which are traded on United States exchanges, including the NYMEX. However, a portion of UGAs trades may take place on markets and exchanges outside the United States. Some non-U.S. markets present risks because they are not subject to the same degree of regulation as their U.S. counterparts. The CFTC, NFA and the domestic exchanges have little, if any, regulatory authority over the activities of any foreign boards of trade or exchanges, including the execution, delivery and clearing of transactions, and have little, if any, power to compel enforcement of the rules of a foreign board of trade or exchange or of any applicable non-U.S. laws. Similarly, the rights of market participants, such as UGA, in the event of the insolvency or bankruptcy of a non-U.S. market or broker are also likely to be more limited than in the case of U.S. markets or brokers. As a result, in these markets, UGA has less legal and regulatory protection than it does when it trades domestically.
In some of these non-U.S. markets, the performance on a contract is the responsibility of the counterparty and is not backed by an exchange or clearing corporation and therefore exposes UGA to credit risk. Trading in non-U.S. markets also leaves UGA susceptible to swings in the value of the local currency against the U.S. dollar. Additionally, trading on non-U.S. exchanges is subject to the risks presented by exchange controls, expropriation, increased tax burdens and exposure to local economic declines and political instability. An adverse development with respect to any of these variables could reduce the profit or increase the loss earned on trades in the affected international markets.
UGAs international trading could expose it to losses resulting from non-U.S. exchanges that are less developed or less reliable than United States exchanges.
Some non-U.S. exchanges may be in a more developmental stage so that prior price histories may not be indicative of current price dynamics. In addition, UGA may not have the same access to certain positions on foreign trading exchanges as do local traders, and the historical market data on which USCF bases its strategies may not be as reliable or accessible as it is for U.S. exchanges.
Tax Risk
An investors tax liability may exceed the amount of distributions, if any, on its units.
Cash or property will be distributed at the sole discretion of USCF. USCF has not and does not currently intend to make cash or other distributions with respect to units. Investors will be required to pay U.S. federal income tax and, in some cases, state, local, or foreign income tax, on their allocable share of UGAs taxable income, without regard to whether they receive distributions or the amount of any distributions. Therefore, the tax liability of an investor with respect to its units may exceed the amount of cash or value of property (if any) distributed.
An investors allocable share of taxable income or loss may differ from its economic income or loss on its units.
Due to the application of the assumptions and conventions applied by UGA in making allocations for tax purposes and other factors, an investors allocable share of UGAs income, gain, deduction or loss may be different than its economic profit or loss from its units for a taxable year. This difference could be temporary or permanent and, if permanent, could result in it being taxed on amounts in excess of its economic income.
38
Items of income, gain, deduction, loss and credit with respect to units could be reallocated if the IRS does not accept the assumptions and conventions applied by UGA in allocating those items, with potential adverse consequences for an investor.
The U.S. tax rules pertaining to partnerships are complex and their application to large, publicly traded partnerships such as UGA is in many respects uncertain. UGA applies certain assumptions and conventions in an attempt to comply with the intent of the applicable rules and to report taxable income, gains, deductions, losses and credits in a manner that properly reflects unitholders economic gains and losses. These assumptions and conventions may not fully comply with all aspects of the Internal Revenue Code (the Code) and applicable Treasury Regulations, however, and it is possible that the U.S. Internal Revenue Service, will successfully challenge UGAs allocation methods and require UGA to reallocate items of income, gain, deduction, loss or credit in a manner that adversely affects investors. If this occurs, investors may be required to file an amended tax return and to pay additional taxes plus deficiency interest.
UGA could be treated as a corporation for federal income tax purposes, which may substantially reduce the value of the units.
UGA has received an opinion of counsel that, under current U.S. federal income tax laws, UGA will be treated as a partnership that is not taxable as a corporation for U.S. federal income tax purposes, provided that (i) at least 90 percent of UGAs annual gross income consists of qualifying income as defined in the Code, (ii) UGA is organized and operated in accordance with its governing agreements and applicable law and (iii) UGA does not elect to be taxed as a corporation for federal income tax purposes. Although USCF anticipates that UGA has satisfied and will continue to satisfy the qualifying income requirement for all of its taxable years, that result cannot be assured. UGA has not requested and will not request any ruling from the IRS with respect to its classification as a partnership not taxable as a corporation for federal income tax purposes. If the IRS were to successfully assert that UGA is taxable as a corporation for federal income tax purposes in any taxable year, rather than passing through its income, gains, losses and deductions proportionately to unitholders, UGA would be subject to tax on its net income for the year at corporate tax rates. In addition, although USCF does not currently intend to make distributions with respect to units, any distributions would be taxable to unitholders as dividend income. Taxation of UGA as a corporation could materially reduce the after-tax return on an investment in units and could substantially reduce the value of the units.
Item 1B. | Unresolved Staff Comments. |
Not applicable.
Item 2. | Properties. |
Not applicable.
Item 3. | Legal Proceedings. |
Although UGA may, from time to time, be involved in litigation arising out of its operations in the normal course of business or otherwise, UGA is not currently a party to any pending material legal proceedings.
Item 4. | Mine Safety Disclosures. |
Not applicable.
39
Part II
Item 5. | Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities. |
Price Range of Units
UGAs units have traded on the NYSE Arca under the symbol UGA since November 25, 2008. Prior to trading on the NYSE Arca, UGAs units traded on the AMEX under the symbol UGA since its initial public offering on February 26, 2008. The following table sets forth the range of reported high and low sales prices of the units as reported on the AMEX and NYSE Arca, as applicable, for the periods indicated below.
High | Low | |||||||
Fiscal year 2011 |
||||||||
First quarter |
$ | 50.36 | $ | 40.81 | ||||
Second quarter |
$ | 55.74 | $ | 46.00 | ||||
Third quarter |
$ | 53.18 | $ | 45.94 | ||||
Fourth quarter |
$ | 51.26 | $ | 45.37 |
High | Low | |||||||
Fiscal year 2010 |
||||||||
First quarter |
$ | 38.38 | $ | 33.26 | ||||
Second quarter |
$ | 39.85 | $ | 31.67 | ||||
Third quarter |
$ | 35.97 | $ | 30.36 | ||||
Fourth quarter |
$ | 42.11 | $ | 34.38 |
As of December 31, 2011, UGA had approximately 26,024 holders of units.
Dividends
UGA has not made and does not currently intend to make cash distributions to its unitholders.
Issuer Purchases of Equity Securities
UGA does not purchase units directly from its unitholders; however, in connection with its redemption of baskets held by Authorized Purchasers, UGA redeemed 19 baskets (comprising 1,900,000 units) during the year ended December 31, 2011.
Item 6. | Selected Financial Data. |
Financial Highlights (for the years ended December 31, 2011, 2010, 2009 and 2008 and the period from April 13, 2007 (inception) to December 31, 2007)
(Dollar amounts in 000s except for per unit information)
Year
ended December 31, 2011 |
Year
ended December 31, 2010 |
Year ended December 31, 2009 |
Year ended December 31, 2008 |
Period from April 13, 2007 to December 31, 2007 |
||||||||||||||||
Total assets |
$ | 77,673 | $ | 67,708 | $ | 69,578 | $ | 20,369 | $ | 1 | ||||||||||
Net realized and unrealized gain (loss) on futures transactions, inclusive of commissions |
$ | 14,789 | $ | 6,822 | $ | 32,948 | $ | (9,949 | ) | $ | - | |||||||||
Net income (loss) |
$ | 13,972 | $ | 6,286 | $ | 32,580 | $ | (9,799 | ) | $ | - | |||||||||
Weighted-average limited partnership units |
2,303,014 | 2,026,027 | 2,072,603 | 413,548 | - | |||||||||||||||
Net income (loss) per unit |
$ | 6.31 | $ | 5.65 | $ | 16.20 | $ | (29.79 | ) | $ | - | |||||||||
Net income (loss) per weighted average unit |
$ | 6.07 | $ | 3.10 | $ | 15.72 | $ | (23.69 | ) | $ | - | |||||||||
Cash and cash equivalents at end of year/period |
$ | 68,137 | $ | 61,357 | $ | 61,883 | $ | 11,692 | $ | 1 |
40
Item 7. | Managements Discussion and Analysis of Financial Condition and Results of Operations. |
The following discussion should be read in conjunction with the financial statements and the notes thereto of UGA included elsewhere in this annual report on Form 10-K.
Forward-Looking Information
This annual report on Form 10-K, including this Managements Discussion and Analysis of Financial Condition and Results of Operations, contains forward-looking statements regarding the plans and objectives of management for future operations. This information may involve known and unknown risks, uncertainties and other factors that may cause UGAs actual results, performance or achievements to be materially different from future results, performance or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe UGAs future plans, strategies and expectations, are generally identifiable by use of the words may, will, should, expect, anticipate, estimate, believe, intend or project, the negative of these words, other variations on these words or comparable terminology. These forward-looking statements are based on assumptions that may be incorrect, and UGA cannot assure investors that the projections included in these forward-looking statements will come to pass. UGAs actual results could differ materially from those expressed or implied by the forward-looking statements as a result of various factors.
UGA has based the forward-looking statements included in this annual report on Form 10-K on information available to it on the date of this annual report on Form 10-K, and UGA assumes no obligation to update any such forward-looking statements. Although UGA undertakes no obligation to revise or update any forward-looking statements, whether as a result of new information, future events or otherwise, investors are advised to consult any additional disclosures that UGA may make directly to them or through reports that UGA in the future files with the SEC, including annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K.
Introduction
UGA, a Delaware limited partnership, is a commodity pool that issues units that may be purchased and sold on the NYSE Arca. The investment objective of UGA is for the daily changes in percentage terms of its units per unit NAV to reflect the daily changes in percentage terms of the spot price of gasoline, as measured by the changes in the price of the futures contract for unleaded gasoline (also known as reformulated gasoline blendstock for oxygen blending, or RBOB, for delivery to the New York harbor), traded on the NYMEX that is the near month contract to expire, except when the near month contract is within two weeks of expiration, in which case it will be measured by the futures contract that is the next month contract to expire (the Benchmark Futures Contract), less UGAs expenses. It is not the intent of UGA to be operated in a fashion such that the per unit NAV will equal, in dollar terms, the spot price of gasoline or any particular futures contract based on gasoline. It is not the intent of UGA to be operated in a fashion such that its per unit NAV will reflect the percentage change of the price of any particular futures contract as measured over a time period greater than one day. USCF believes that it is not practical to manage the portfolio to achieve such an investment goal when investing in Futures Contracts and Other Gasoline-Related Investments.
UGA seeks to achieve its investment objective by investing in a combination of Futures Contracts and Other Gasoline-Related Investments such that daily changes in its per unit NAV, measured in percentage terms, will closely track the daily changes in the price of the Benchmark Futures Contract, also measured in percentage terms. USCF believes the daily changes in the price of the Benchmark Futures Contract have historically exhibited a close correlation with the daily changes in the spot price of gasoline. It is not the intent of UGA to be operated in a fashion such that the per unit NAV will equal, in dollar terms, the spot price of gasoline or any particular futures contract based on gasoline. USCF believes that it is not practical to manage the portfolio to achieve such an investment goal when investing in Futures Contracts and Other Gasoline-Related Investments.
On any valuation day, the Benchmark Futures Contract is the near month futures contract for gasoline traded on the NYMEX unless the near month contract is within two weeks of expiration in which case the Benchmark Futures Contract is the next month contract for gasoline traded on the NYMEX. Near month contract means the next contract traded on the NYMEX due to expire. Next month contract means the first contract traded on the NYMEX due to expire after the near month contract.
41
The regulation of commodity interests in the United States is subject to ongoing modification by governmental and judicial action. On July 21, 2010, a broad financial regulatory reform bill, the Dodd-Frank Act, was signed into law. All of the Dodd-Frank Acts provisions became effective on July 16, 2011. However, some new rules implementing, and in many cases, interpreting and clarifying, the Dodd-Frank Acts new requirements have not been completely finalized and have been challenged in court. Pending final resolution of all applicable regulatory requirements, some specific examples of how the new Dodd-Frank Act provisions and rules adopted thereunder could impact USGA are discussed in Item 1. Business and Item 1A. Risk Factors in this annual report on Form 10-K.
Price Movements
Gasoline futures prices were volatile during the year ended December 31, 2011 and exhibited a general uptrend through April, 2011 followed by a general downward trend until December 2011 that was punctuated by several spikes upward. The price of the Benchmark Futures Contract started the year at $2.4303 per gallon. Prices rose sharply over the course of the year and hit a peak on April 29, 2011 of $3.3984 per gallon. The year ended with the Benchmark Futures Contract at $2.6574 per gallon, up approximately 9.34% over the year (investors are cautioned that these represent prices for gasoline on a wholesale basis and should not be directly compared to retail prices at a gasoline service station). UGAs per unit NAV rose during the year from a starting level of $42.06 to a high of $55.71 on April 29, 2011. UGAs per unit NAV reached its low for the year on January 25, 2011 at $40.76. UGAs per unit NAV on December 31, 2011 was $48.37, up approximately 15.00% over the year. The Benchmark Futures Contract prices listed above began with the February 2011 contract and ended with the February 2012 contract. The return of approximately 9.34% on the Benchmark Futures Contract listed above is a hypothetical return only and could not actually be achieved by an investor holding Futures Contracts. An investment in Futures Contracts would need to be rolled forward during the time period described in order to achieve such a result. Furthermore, the change in the nominal price of these differing Futures Contracts, measured from the start of the year to the end of the year, does not represent the actual benchmark results that UGA seeks to track, which are more fully described below in the section titled Tracking UGAs Benchmark.
During the year ended December 31, 2011, the gasoline futures market exhibited periods of both contango and backwardation. During periods of contango, the price of the near month gasoline Futures Contract was typically lower than the price of the next month gasoline Futures Contract, or contracts further away from expiration. On days when the market was in backwardation, the price of the near month gasoline Futures Contract was typically higher than the price of the next month gasoline Futures Contract, or contracts further away from expiration. For a discussion of the impact of backwardation and contango on total returns, see Term Structure of Gasoline Prices and the Impact on Total Returns below.
Valuation of Futures Contracts and the Computation of the NAV
The NAV of UGAs units is calculated once each NYSE Arca trading day. The per unit NAV for a particular trading day is released after 4:00 p.m. New York time. Trading during the core trading session on the NYSE Arca typically closes at 4:00 p.m. New York time. The Administrator uses the NYMEX closing price (determined at the earlier of the close of the NYMEX or 2:30 p.m. New York time) for the contracts held on the NYMEX, but calculates or determines the value of all other UGA investments, including ICE Futures contracts or other futures contracts, as of the earlier of the close of the NYSE Arca or 4:00 p.m. New York time.
Results of Operations and the Gasoline Market
Results of Operations. On February 26, 2008, UGA listed its units on the AMEX under the ticker symbol UGA. On that day, UGA established its initial offering price at $50.00 per unit and issued 300,000 units to the initial Authorized Purchaser, Merrill Lynch Professional Clearing Group, in exchange for $15,001,000 in cash. As a result of the acquisition of the AMEX by NYSE Euronext, UGAs units no longer trade on the AMEX and commenced trading on the NYSE Arca on November 25, 2008.
Since its initial offering of 30,000,000 units, UGA has registered one subsequent offering of its units: 50,000,000 units which were registered with the SEC on April 30, 2010. As of December 31, 2011, UGA had issued 7,200,000 units, 1,600,000 of which were outstanding. As of December 31, 2011, there were 72,800,000 units registered but not yet issued.
42
More units may have been issued by UGA than are outstanding due to the redemption of units. Unlike funds that are registered under the 1940 Act, units that have been redeemed by UGA cannot be resold by UGA. As a result, UGA contemplates that additional offerings of its units will be registered with the SEC in the future in anticipation of additional issuances and redemptions.
For the Year Ended December 31, 2011 Compared to the Years Ended December 31, 2010 and 2009
As of December 31, 2011, the total unrealized gain on Futures Contracts owned or held on that day was $4,729,725 and UGA established cash deposits and investments in Treasuries and money market funds that were equal to $72,599,046. UGA held 93.85% of its cash assets in overnight deposits and money market funds at the Custodian, while 6.15% of the cash balance was held as margin deposits and in Treasuries for the Futures Contracts purchased. The ending per unit NAV on December 31, 2011 was $48.37.
By comparison, as of December 31, 2010, the total unrealized gain on gasoline Futures Contracts owned or held on that day was $3,265,416 and UGA established cash deposits and investments in money market funds that were equal to $63,925,522. UGA held 95.98% of its cash assets in overnight deposits and money market funds at the Custodian, while 4.02% of the cash balance was held as margin deposits for the Futures Contracts purchased. The increase in cash assets in overnight deposits and money market funds and Treasuries for December 31, 2011, as compared to December 31, 2010, was the result of UGAs greater size in the current period as measured by total net assets. The ending per unit NAV on December 31, 2010 was $42.06. The increase in the per unit NAV for December 31, 2011, as compared to December 31, 2010 was primarily due to the increase in the price of the Benchmark Futures Contract between the year ended December 31, 2010 and the year ended December 31, 2011.
By comparison, as of December 31, 2009, the total unrealized gain on gasoline Futures Contracts owned or held on that day was $5,883,944 and UGA established cash deposits and investments in money market funds that were equal to $63,237,601. UGA held 97.86% of its cash assets in overnight deposits and money market funds at the Custodian, while 2.14% of the cash balance was held as margin deposits for the Futures Contracts purchased. The small increase in cash assets in overnight deposits and money market funds for December 31, 2010, as compared to December 31, 2009, was the result of the relative proportions of each periods net assets that were composed of cash versus unrealized gains. The ending per unit NAV on December 31, 2009 was $36.41. The increase in the per unit NAV for December 31, 2010, as compared to December 31, 2009 was primarily a result of the increase in the price of the Benchmark Futures Contract between the year ended December 31, 2009 and the year ended December 31, 2010.
Portfolio Expenses. UGAs expenses consist of investment management fees, brokerage fees and commissions, certain offering costs, licensing fees, the fees and expenses of the independent directors of USCF and expenses relating to tax accounting and reporting requirements. The management fee that UGA pays to USCF is calculated as a percentage of the total net assets of UGA. UGA pays USCF a management fee of 0.60% of its average net assets. The fee is accrued daily and paid monthly.
During the year ended December 31, 2011, the daily average total net assets of UGA were $112,658,149. The management fee incurred by UGA during the year amounted to $675,949. By comparison, during the year ended December 31, 2010, the daily average total net assets of UGA were $71,827,960. The management fee paid by UGA during the year amounted to $430,698. By comparison, during the year ended December 31, 2009, the daily average total net assets of UGA were $62,768,546. The management fee paid by UGA during the year amounted to $376,611.
43
In addition to the management fee, UGA pays all brokerage fees and other expenses, including tax reporting costs, licensing fees for the use of intellectual property, ongoing registration or other fees paid to the SEC, FINRA and any other regulatory agency in connection with offers and sales of its units subsequent to the initial offering and all legal, accounting, printing and other expenses associated therewith. The gross total of these fees and expenses for the year ended December 31, 2011 was $371,963, as compared to $487,116 for the year ended December 31, 2010 and $445,650 for the year ended December 31, 2009. The decrease in total gross expenses for the year ended December 31, 2011, as compared to the years ended December 31, 2010 and 2009 was primarily due to decreased estimates for tax reporting, auditing and other costs during the year ended December 31, 2011. For the year ended December 31, 2011, UGA incurred $9,125 in ongoing registration fees and other expenses relating to the registration and offering of additional units. By comparison, for the years ended December 31, 2010 and 2009, UGA incurred $12,241 and $1,080, respectively in ongoing registration fees and other expenses relating to the registration and offering of additional units. The decrease in registration fees and expenses incurred by UGA for the year ended December 31, 2011, as compared to the year ended December 31, 2010 was primarily due to a smaller estimate for share creation activity in 2011. The increase in registration fees and expenses incurred by UGA for the year ended December 31, 2010 as compared to the year ended December 31, 2009 was primarily due to an increase in expected activity during the year ended December 31, 2010. During the years ended December 31, 2011, 2010 and 2009, an expense waiver was in effect which offset certain of the expenses incurred by UGA. The total amount of the expense waiver was $104,053, $266,884 and $256,355 for the years ended December 31, 2011, 2010 and 2009, respectively. For the years ended December 31, 2011, 2010 and 2009, the expenses of UGA, including management fees, commissions, and all other expenses, before allowance for the expense waiver, totaled $1,047,912, $918,084 and $822,621, respectively, and after allowance for the expense waiver, totaled $943,859, $651,200 and $565,906, respectively.
UGA is responsible for paying its portion of the directors and officers liability insurance of UGA and the Related Public Funds and the fees and expenses of the independent directors who also serve as audit committee members of the Related Public Funds organized as limited partnerships and, as of July 8, 2011, the Related Public Funds organized as a series of a Delaware statutory trust. UGA shares the fees and expenses with each Related Public Fund, as described above, based on the relative assets of each fund computed on a daily basis. These fees and expenses for the year ended December 31, 2011 amounted to a total of $607,582 for UGA and the Related Public Funds, and UGAs portion of such fees and expenses was $14,746. By comparison, for the year ended December 31, 2010, these fees and expenses amounted to a total of $1,107,140 for UGA and the Related Public Funds, except USCI, USAG, CPER and USMI, and UGAs portion of such fees and expenses was $15,803. The decrease in directors fees and expenses for the year ended December 31, 2011, as compared to the year ended December 31, 2010 was primarily due to the non-inccurrence of the independent directors deferred compensation expense for the year ended December 31, 2011. By comparison, for the year ended December 31, 2009, these fees and expenses amounted to a total of $433,046 for UGA and the Related Public Funds, except USCI, USAG, CPER and USMI, and UGAs portion of such fees and expenses was $3,734. The increase in directors fees and expenses for the year ended December 31, 2010, as compared to the year ended December 31, 2009 was primarily due to an increase in the amount of directors and officers liability insurance coverage and the incurrence of the independent directors deferred compensation expense. Effective as of March 3, 2009, USCF obtained directors and officers liability insurance covering all of the directors and officers of USCF. Previously, USCF did not have liability insurance for its directors and officers; instead, the independent directors received a payment in lieu of directors and officers liability insurance coverage. Effective as of April 1, 2010, UGA also became responsible for paying its portion of any payments that may become due to the independent directors pursuant to the deferred compensation agreements entered into between the independent directors, USCF, UGA, and the Related Public Funds, except USCI, USAG, CPER and USMI.
UGA also incurs commissions to brokers for the purchase and sale of Futures Contracts, Other Gasoline-Related Investments or Treasuries. During the year ended December 31, 2011, total commissions paid to brokers amounted to $81,427. By comparison, during the years ended December 31, 2010 and 2009, total commissions paid to brokers amounted to $67,294 and $74,584, respectively. The increase in the total commissions paid to brokers for the year ended December 31, 2011, as compared to the year ended December 31, 2010, was primarily a function of increased redemptions and creations of units during the year ended December 31, 2011. The increase in activity required UGA to trade a greater number of futures contracts and incur a higher amount of commissions. The decrease in the total commissions paid to brokers for the year ended December 31, 2010, as compared to the year ended December 31, 2009, was primarily a function of decreased redemptions and creations of units during the year ended December 31, 2010. The decrease in activity required UGA to trade a lesser number of futures contracts and incur a lower amount of commissions. As an annualized percentage of average total net assets, the figure for the year ended December 31, 2011 represents approximately 0.07% of average total net assets. By comparison, the figure for the year ended December 31, 2010 represented approximately 0.09% of average total net assets and the figure for the year ended December 31, 2009 represented approximately 0.12% of average total net assets. However, there can be no assurance that commission costs and portfolio turnover will not cause commission expenses to rise in future quarters.
44
The fees and expenses associated with UGAs audit expenses and tax accounting and reporting requirements are paid by UGA. These costs are estimated to be $250,000 for the year ended December 31, 2011. USCF, though under no obligation to do so, agreed to pay certain expenses, to the extent that such expenses exceeded 0.15% (15 basis points) of UGAs NAV, on an annualized basis, through at least June 30, 2012. USCF has no obligation to continue such payments into subsequent periods.
Dividend and Interest Income. UGA seeks to invest its assets such that it holds Futures Contracts and Other Gasoline-Related Investments in an amount equal to the total net assets of its portfolio. Typically, such investments do not require UGA to pay the full amount of the contract value at the time of purchase, but rather require UGA to post an amount as a margin deposit against the eventual settlement of the contract. As a result, UGA retains an amount that is approximately equal to its total net assets, which UGA invests in Treasuries, cash and/or cash equivalents. This includes both the amount on deposit with the futures commission merchant as margin, as well as unrestricted cash and cash equivalents held with UGAs Custodian. The Treasuries, cash and/or cash equivalents earn income that accrues on a daily basis. For the year ended December 31, 2011, UGA earned $19,169 in dividend and interest income on such cash and/or cash equivalents. Based on UGAs average daily total net assets, this was equivalent to an annualized yield of 0.02%. UGA purchased Treasuries during the year ended December 31, 2011 and held cash and/or cash equivalents during this time period. By comparison, for the years ended December 31, 2010, and 2009, UGA earned $31,732 and $94,681, respectively, in dividend and interest income on such cash and/or cash equivalents. Based on UGAs average daily total net assets, this was equivalent to an annualized yield of 0.04% and 0.15%, respectively. UGA did not purchase Treasuries during the years ended December 31, 2010 or 2009 and held only cash and/or cash equivalents during these time periods. Interest rates on short-term investments, including cash, cash equivalents and Treasuries, were lower during the year ended December 31, 2011, as compared to the years ended December 31, 2010 and 2009. As a result, the amount of income earned by UGA as a percentage of average total net assets was lower during the year ended December 31, 2011, as compared to the years ended December 31, 2010 and 2009.
For the Three Months Ended December 31, 2011 Compared to the Three Months Ended December 31, 2010 and 2009
Portfolio Expenses. During the three months ended December 31, 2011, the daily average total net assets of UGA were $77,734,009. The management fee incurred by UGA during the period amounted to $117,560.
By comparison, during the three months ended December 31, 2010, the daily average total net assets of UGA were $61,818,014. The management fee paid by UGA during the period amounted to $93,489. By comparison, during the three months ended December 31, 2009, the daily average total net assets of UGA were $66,567,924. The management fee paid by UGA during the period amounted to $100,672.
In addition to the management fee, UGA pays all brokerage fees and other expenses, including tax reporting costs, licensing fees for the use of intellectual property, ongoing registration or other fees paid to the SEC, FINRA and any other regulatory agency in connection with offers and sales of its units subsequent to the initial offering and all legal, accounting, printing and other expenses associated therewith. The gross total of these fees and expenses for the three months ended December 31, 2011 was $23,791, as compared to $96,805 for the three months ended December 31, 2010 and $261,772 for the three months ended December 31, 2009. The decrease in total gross expenses for the three months ended December 31, 2011 as compared to the three months ended December 31, 2010 and 2009 was primarily due to a reduction in the amount of tax reporting and audit expenses expected for the year ended December 31, 2011. For the three months ended December 31, 2011, UGA incurred $2,300 in ongoing registration fees and other expenses relating to the registration and offering of additional units. By comparison, for the three months ended December 31, 2010 and 2009, UGA incurred $2,300 and $1,080, respectively, in ongoing registration fees and other expenses relating to the registration and offering of additional units. The registration fees and expenses incurred by UGA for the three months ended December 31, 2011 were equivalent as compared to the three months ended December 31, 2010 and the increase in registration fees for the three months ended December 31, 2010, as compared to the three months ended December 31, 2009 was primarily due to an increase in expected share creation activity during the three months ended December 31, 2010. During the three months ended December 31, 2011, an expense waiver was in effect to offset certain of the expenses incurred by UGA, but UGAs expenses did not exceed 0.15% (15 basis points) of its NAV; therefore, no expenses were waived by USCF. During the three months ended December 31, 2010 and 2009, the total amount of the expense waiver was $52,143 and $213,152, respectively. For the three months ended December 31, 2010 and 2009, the expenses of UGA, including management fees, commissions, and all other expenses, before allowance for the expense waiver, totaled $190,294 and $362,444, respectively, and after allowance for the expense waiver, totaled $131,151 and $149,292, respectively.
45
UGA is responsible for paying its portion of the directors and officers liability insurance of UGA and the Related Public Funds and the fees and expenses of the independent directors who also serve as audit committee members of the Related Public Funds organized as limited partnerships and, as of July 8, 2011, the Related Public Funds organized as a series of a Delaware statutory trust. UGA shares the fees and expenses with each Related Public Fund, as described above, based on the relative assets of each fund computed on a daily basis. These fees and expenses for the year ended December 31, 2011 amounted to a total of 607,582 for UGA and the Related Public Funds, and UGAs portion of such fees and expenses was 14,746.
UGA also incurs commissions to brokers for the purchase and sale of Futures Contracts, Other Gasoline-Related Investments or Treasuries. During the three months ended December 31, 2011, total commissions paid to brokers amounted to $15,051. By comparison, during the three months ended December 31, 2010 and 2009, total commissions paid to brokers amounted to $12,686 and $17,282, respectively. The increase in the total commissions paid to brokers for the three months ended December 31, 2011, as compared to the three months ended December 31, 2010 was primarily a function of increased redemption and creation activity during the three months ended December 31, 2011. The decrease in the total commissions paid to brokers for the three months ended December 31, 2010, as compared to the three months ended December 31, 2009 was primarily a function of decreased redemption and creation activity during the three months ended December 31, 2010. The decrease in activity required UGA to trade a lesser number of futures contracts and incur a lower amount of commissions. As an annualized percentage of average total net assets, the figure for the three months ended December 31, 2011 represents approximately 0.08% of average total net assets. By comparison, the figure for the three months ended December 31, 2010 represented approximately 0.08% of average total net assets and the figure for the three months ended December 31, 2009 represented approximately 0.10% of average total net assets. However, there can be no assurance that commission costs and portfolio turnover will not cause commission expenses to rise in future quarters.
The fees and expenses associated with UGAs audit expenses and tax accounting and reporting requirements are paid by UGA.
Dividend and Interest Income. UGA seeks to invest its assets such that it holds Futures Contracts and Other Gasoline-Related Investments in an amount equal to the total net assets of its portfolio. Typically, such investments do not require UGA to pay the full amount of the contract value at the time of purchase, but rather require UGA to post an amount as a margin deposit against the eventual settlement of the contract. As a result, UGA retains an amount that is approximately equal to its total net assets, which UGA invests in Treasuries, cash and/or cash equivalents. This includes both the amount on deposit with the futures commission merchant as margin, as well as unrestricted cash and cash equivalents held with UGAs Custodian. The Treasuries, cash and/or cash equivalents earn income that accrues on a daily basis. For the three months ended December 31, 2011, UGA earned $3,851 in dividend and interest income on such cash and/or cash equivalents. Based on UGAs average daily total net assets, this was equivalent to an annualized yield of 0.02%. UGA purchased Treasuries during the three months ended December 31, 2011 and held cash and/or cash equivalents during this time period. By comparison, for the three months ended December 31, 2010 and 2009, UGA earned $7,637 and $9,118, respectively, in dividend and interest income on such cash and/or cash equivalents. Based on UGAs average daily total net assets, this was equivalent to an annualized yield of 0.05%, and 0.05% respectively. UGA did not purchase Treasuries during the three months ended December 31, 2010 or 2009 and held only cash and/or cash equivalents during these time periods. Interest rates on short-term investments, including cash, cash equivalents and Treasuries, were lower during the three months ended December 31, 2011 compared to the three months ended December 31, 2010 and 2009. As a result, the amount of income earned by UGA as a percentage of average total net assets was lower during the three months ended December 31, 2011 compared to the three months ended December 31, 2010 and 2009.
46
Tracking UGAs Benchmark. USCF seeks to manage UGAs portfolio such that changes in its average daily per unit NAV, on a percentage basis, closely track the changes in the average daily price of the Benchmark Futures Contract, also on a percentage basis. Specifically, USCF seeks to manage the portfolio such that over any rolling period of 30 valuation days, the average daily change in UGAs per unit NAV is within a range of 90% to 110% (0.9 to 1.1) of the average daily change in the price of the Benchmark Futures Contract. As an example, if the average daily movement of the price of the Benchmark Futures Contract for a particular 30-valuation day time period was 0.5% per day, USCF would attempt to manage the portfolio such that the average daily movement of the per unit NAV during that same time period fell between 0.45% and 0.55% (i.e., between 0.9 and 1.1 of the benchmarks results). UGAs portfolio management goals do not include trying to make the nominal price of UGAs per unit NAV equal to the nominal price of the current Benchmark Futures Contract or the spot price for gasoline. USCF believes that it is not practical to manage the portfolio to achieve such an investment goal when investing in listed gasoline Futures Contracts.
For the 30 valuation days ended December 31, 2011, the simple average daily change in the Benchmark Futures Contract was 0.040%, while the simple average daily change in the per unit NAV of UGA over the same time period was 0.037%. The average daily difference was (0.003)% (or (0.3) basis points, where 1 basis point equals 1/100 of 1%). As a percentage of the daily movement of the Benchmark Futures Contract, the average error in daily tracking by the per unit NAV was (1.140)%, meaning that over this time period UGAs tracking error was within the plus or minus 10% range established as its benchmark tracking goal. The first chart below shows the daily movement of UGAs per unit NAV versus the daily movement of the Benchmark Futures Contract for the 30-valuation day period ended December 31, 2011. The second chart below shows the monthly total returns of UGA as compared to the monthly value of the Benchmark Futures Contract since inception.
Since the commencement of the offering of UGA units to the public on February 26, 2008 to December 31, 2011, the simple average daily change in the Benchmark Futures Contract was 0.034%, while the simple average daily change in the per unit NAV of UGA over the same time period was 0.032%. The average daily difference was (0.002)% (or (0.2) basis points, where 1 basis point equals 1/100 of 1%). As a percentage of the daily movement of the Benchmark Futures Contract, the average error in daily tracking by the per unit NAV was (0.566)%, meaning that over this time period UGAs tracking error was within the plus or minus 10% range established as its benchmark tracking goal.
47
*PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
48
*PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
An alternative tracking measurement of the return performance of UGA versus the return of its Benchmark Futures Contract can be calculated by comparing the actual return of UGA, measured by changes in its NAV, versus the expected changes in its NAV under the assumption that UGAs returns had been exactly the same as the daily changes in its Benchmark Futures Contract.
For the year ended December 31, 2011, the actual total return of UGA as measured by changes in its per unit NAV was 15.00%. This is based on an initial per unit NAV of $42.06 on December 31, 2010 and an ending per unit NAV as of December 31, 2011 of $48.37. During this time period, UGA made no distributions to its unitholders. However, if UGAs daily changes in its per unit NAV had instead exactly tracked the changes in the daily total return of the Benchmark Futures Contract, UGA would have had an estimated per unit NAV of $48.76 as of December 31, 2011, for a total return over the relevant time period of 15.93%. The difference between the actual per unit NAV total return of UGA of 15.00% and the expected total return based on the Benchmark Futures Contract of 15.93% was an error over the time period of (0.93)%, which is to say that UGAs actual total return underperformed the benchmark result by that percentage. USCF believes that a portion of the difference between the actual total return and the expected benchmark total return can be attributed to the net impact of the expenses that UGA pays, offset in part by the income that UGA collects on its cash and cash equivalent holdings. During the year ended December 31, 2011, UGA received dividend and interest income of $19,169, which is equivalent to a weighted average income rate of 0.02% for such period. In addition, during the year ended December 31, 2011, UGA also collected $26,200 from its Authorized Purchasers for creating or redeeming baskets of units. This income also contributed to UGAs actual total return. During the year ended December 31, 2011, UGA incurred net expenses of $943,859. Income from dividends and interest and Authorized Purchaser collections net of expenses was $(898,490), which is equivalent to a weighted average net income rate of (0.80)% for the year ended December 31, 2011.
49
By comparison, for the year ended December 31, 2010, the actual total return of UGA as measured by changes in its per unit NAV was 15.52%. This was based on an initial per unit NAV of $36.41 on December 31, 2009 and an ending per unit NAV as of December 31, 2010 of $42.06. During this time period, UGA made no distributions to its unitholders. However, if UGAs daily changes in its per unit NAV had instead exactly tracked the changes in the daily total return of the Benchmark Futures Contract, UGA would have had an estimated per unit NAV of $42.42 as of December 31, 2010, for a total return over the relevant time period of 16.51%. The difference between the actual per unit NAV total return of UGA of 15.52% and the expected total return based on the Benchmark Futures Contract of 16.51% was an error over the time period of 0.99%, which is to say that UGAs actual total return underperformed the benchmark result by that percentage. USCF believes that a portion of the difference between the actual total return and the expected benchmark total return can be attributed to the net impact of the expenses that UGA paid, offset in part by the income that UGA collected on its cash and cash equivalent holdings. During the year ended December 31, 2010, UGA received dividend and interest income of $31,732, which is equivalent to a weighted average income rate of 0.04% for such period. In addition, during the year ended December 31, 2010, UGA also collected $16,000 from its Authorized Purchasers for creating or redeeming baskets of units. This income also contributed to UGAs actual total return. During the year ended December 31, 2010, UGA incurred net expenses of $651,200. Income from dividends and interest and Authorized Purchaser collections net of expenses was $(603,468), which is equivalent to a weighted average net income rate of (0.84)% for the year ended December 31, 2010.
By comparison, for the year ended December 31, 2009, the actual total return of UGA as measured by changes in its per unit NAV was 80.16%. This was based on an initial per unit NAV of $20.21 on December 31, 2008 and an ending per unit NAV as of December 31, 2009 of $36.41. During this time period, UGA made no distributions to its unitholders. However, if UGAs daily changes in its per unit NAV had instead exactly tracked the changes in the daily total return of the Benchmark Futures Contract, UGA would have had an estimated per unit NAV of $36.74 as of December 31, 2009, for a total return over the relevant time period of 81.79%. The difference between the actual per unit NAV total return of UGA of 80.16% and the expected total return based on the Benchmark Futures Contract of 81.79% was an error over the time period of (1.63)%, which is to say that UGAs actual total return underperformed the benchmark result by that percentage. USCF believes that a portion of the difference between the actual total return and the expected benchmark total return can be attributed to the net impact of the expenses that UGA paid, offset in part by the income that UGA collected on its cash and cash equivalent holdings. During the year ended December 31, 2009, UGA received dividend and interest income of $94,681, which is equivalent to a weighted average income rate of 0.15% for such period. In addition, during the year ended December 31, 2009, UGA also collected $29,000 from its Authorized Purchasers for creating or redeeming baskets of units. This income also contributed to UGAs actual total return. During the year ended December 31, 2009, UGA incurred net expenses of $565,906. Income from dividends and interest and Authorized Purchaser collections net of expenses was $(442,225), which is equivalent to a weighted average net income rate of (0.70)% for the year ended December 31, 2009.
There are currently three factors that have impacted or are most likely to impact UGAs ability to accurately track its Benchmark Futures Contract.
First, UGA may buy or sell its holdings in the then current Benchmark Futures Contract at a price other than the closing settlement price of that contract on the day during which UGA executes the trade. In that case, UGA may pay a price that is higher, or lower, than that of the Benchmark Futures Contract, which could cause the changes in the daily per unit NAV of UGA to either be too high or too low relative to the changes in the Benchmark Futures Contract. During the year ended December 31, 2011, USCF attempted to minimize the effect of these transactions by seeking to execute its purchase or sale of the Benchmark Futures Contract at, or as close as possible to, the end of the day settlement price. However, it may not always be possible for UGA to obtain the closing settlement price and there is no assurance that failure to obtain the closing settlement price in the future will not adversely impact UGAs attempt to track the Benchmark Futures Contract over time.
Second, UGA earns dividend and interest income on its cash and cash equivalents. UGA is not required to distribute any portion of its income to its unitholders and did not make any distributions to unitholders during the year ended December 31, 2011. Interest payments, and any other income, were retained within the portfolio and added to UGAs NAV. When this income exceeds the level of UGAs expenses for its management fee, brokerage commissions and other expenses (including ongoing registration fees, licensing fees and the fees and expenses of the independent directors of USCF), UGA will realize a net yield that will tend to cause daily changes in the per unit NAV of UGA to track slightly higher than daily changes in the Benchmark Futures Contract. During the year ended December 31, 2011, UGA earned, on an annualized basis, approximately 0.02% on its cash holdings. It also incurred cash expenses on an annualized basis of 0.60% for management fees and approximately 0.07% in brokerage commission costs related to the purchase and sale of futures contracts, and 0.17% for other expenses. The foregoing fees and expenses resulted in a net yield on an annualized basis of approximately (0.82)% and affected UGAs ability to track its benchmark. If short-term interest rates rise above the current levels, the level of deviation created by the yield would decrease. Conversely, if short-term interest rates were to decline, the amount of error created by the yield would increase. When short-term yields drop to a level lower than the combined expenses of the management fee and the brokerage commissions, then the tracking error becomes a negative number and would tend to cause the daily returns of the per unit NAV to underperform the daily returns of the Benchmark Futures Contract.
50
Third, UGA may hold Other Gasoline-Related Investments in its portfolio that may fail to closely track the Benchmark Futures Contracts total return movements. In that case, the error in tracking the Benchmark Futures Contract could result in daily changes in the per unit NAV of UGA that are either too high, or too low, relative to the daily changes in the Benchmark Futures Contract. During the year ended December 31, 2011, UGA did not hold any Other Gasoline-Related Investments. If UGA increases in size, and due to its obligations to comply with regulatory limits, UGA may invest in Other Gasoline-Related Investments which may have the effect of increasing transaction related expenses and may result in increased tracking error.
Term Structure of Gasoline Futures Prices and the Impact on Total Returns. Several factors determine the total return from investing in a futures contract position. One factor that impacts the total return that will result from investing in near month futures contracts and rolling those contracts forward each month is the price relationship between the current near month contract and the next month contract. For example, if the price of the near month contract is higher than the next month contract (a situation referred to as backwardation in the futures market), then absent any other change there is a tendency for the price of a next month contract to rise in value as it becomes the near month contract and approaches expiration. Conversely, if the price of a near month contract is lower than the next month contract (a situation referred to as contango in the futures market), then absent any other change there is a tendency for the price of a next month contract to decline in value as it becomes the near month contract and approaches expiration.
As an example, assume that the price of gasoline for immediate delivery (the spot price), was $2.00 per gallon, and the value of a position in the near month futures contract was also $2.00. Over time, the price of a gallon of gasoline will fluctuate based on a number of market factors, including demand for gasoline relative to its supply. The value of the near month contract will likewise fluctuate in reaction to a number of market factors. If investors seek to maintain their position in a near month contract and not take delivery of the gasoline, every month they must sell their current near month contract as it approaches expiration and invest in the next month contract.
If the futures market is in backwardation, e.g., when the expected price of gasoline in the future would be less, the investor would be buying a next month contract for a lower price than the current near month contract. Using the $2 per gallon price above to represent the front month price, the price of the next month contract could be $1.96 per barrel, that is, 2% cheaper than the front month contract. Hypothetically, and assuming no other changes to either prevailing gasoline prices or the price relationship between the spot price, the near month contract and the next month contract (and ignoring the impact of commission costs and the income earned on cash and/or cash equivalents), the value of the $1.96 next month contract would rise as it approaches expiration and becomes the new near month contract with a price of $2. In this example, the value of an investment in the second month contract would tend to rise faster than the spot price of gasoline, or fall slower. As a result, it would be possible in this hypothetical example for the spot price of gasoline to have risen 10% after some period of time, while the value of the investment in the second month futures contract would have risen 12%, assuming backwardation is large enough or enough time has elapsed. Similarly, the spot price of gasoline could have fallen 10% while the value of an investment in the futures contract could have fallen only 8%. Over time, if backwardation remained constant, the difference would continue to increase.
If the futures market is in contango, the investor would be buying a next month contract for a higher price than the current near month contract. Using again the $2 per gallon price above to represent the front month price, the price of the next month contract could be $2.04 per barrel, that is, 2% more expensive than the front month contract. Hypothetically, and assuming no other changes to either prevailing gasoline prices or the price relationship between the spot price, the near month contract and the next month contract (and ignoring the impact of commission costs and the income earned on cash and/or cash equivalents), the value of the next month contract would fall as it approaches expiration and becomes the new near month contract with a price of $2. In this example, it would mean that the value of an investment in the second month would tend to rise slower than the spot price of gasoline, or fall faster. As a result, it would be possible in this hypothetical example for the spot price of gasoline to have risen 10% after some period of time, while the value of the investment in the second month futures contract will have risen only 8%, assuming contango is large enough or enough time has elapsed. Similarly, the spot price of gasoline could have fallen 10% while the value of an investment in the second month futures contract could have fallen 12%. Over time, if contango remained constant, the difference would continue to increase.
51
The chart below compares the price of the near month contract to the price of the next month contract over the last 10 years (2002-2011). When the price of the near month contract is higher than the price of the next month contract, the market would be described as being in backwardation. When the price of the near month contract is lower than the price of the next month contract, the market would be described as being in contango. Although the prices of the near month contract and the price of the next month contract do tend to move up or down together, it can be seen that at times the near month prices are clearly higher than the price of the next month contract (backwardation), and other times they are below the price of the next month contract (contango). In addition, investors can observe that gasoline prices, both near month and next month, often display a seasonal pattern in which the price of gasoline tends to rise in the summer months and decline in the winter months. This mirrors the physical demand for gasoline, which typically peaks in the summer.
*PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
An alternative way to view backwardation and contango data over time is to subtract the dollar price of the next month gasoline futures contract from the dollar price of the near month gasoline futures contract. If the resulting number is a positive number, then the price of the near month contract is higher than the price of the next month and the market could be described as being in backwardation. If the resulting number is a negative number, then the near month price is lower than the price of the next month and the market could be described as being in contango. The chart below shows the results from subtracting the next month contract price from the price of the near month contract for the 10 year period between 2002 and 2011. Investors will note that the near month gasoline futures contract spent time in both backwardation and contango. Investors will further note that the markets display a very seasonal pattern that corresponds to the seasonal demand patterns for gasoline mentioned above. That is, in many, but not all cases, the price of the near month is higher than the next month during the middle of the summer months as the price of gasoline for delivery in those summer months rises to meet peak demand. At the same time, the price of the near month contract, when that month is just before the onset of spring, does not rise as far or as fast as the price of a next month contract whose delivery falls closer to the start of the summer season.
52
*PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
While the investment objective of UGA is not to have the market price of its units match, dollar for dollar, changes in the spot price of gasoline, contango and backwardation have impacted the total return on an investment in UGA units during the past year relative to a hypothetical direct investment in gasoline. For example, an investment in UGA units made on December 31, 2010 and held to December 31, 2011 increased based upon the changes in the NAV for UGA units on those days, by 15.00%, while the spot price of gasoline for immediate delivery during the same period increased by 9.34% (note: this comparison ignores the potential costs associated with physically owning and storing gasoline, which could be substantial). By comparison, an investment in UGA units made on December 31, 2009 and held to December 31, 2010 increased based upon the changes in the NAV for UGA units on those days, by 15.52%, while the spot price of gasoline for immediate delivery during the same period increased by 18.38% (note: this comparison ignores the potential costs associated with physically owning and storing gasoline, which could be substantial).
Periods of contango or backwardation do not materially impact UGAs investment objective of having the daily percentage changes in its per unit NAV track the daily percentage changes in the price of the Benchmark Futures Contract since the impact of backwardation and contango tend to equally impact the percentage changes in price of both UGAs units and the Benchmark Futures Contract. It is impossible to predict with any degree of certainty whether backwardation or contango will occur in the future. It is likely that both conditions will occur during different periods.
Gasoline Market. During the year ended December 31, 2011, the price of unleaded gasoline in the United States was impacted by several factors. The price of the Benchmark Futures Contract began 2011 at $2.4303 per gallon. It rose over the course of the year and hit a peak on April 29, 2011 of $3.3984 per gallon. The year ended with the Benchmark Futures Contract at $2.6574 per gallon, up approximately 9.34% over the year (investors are cautioned that these represent prices for gasoline on a wholesale basis and should not be directly compared to retail prices at a gasoline service station).
53
During the year ended December 31, 2011, crude oil prices were impacted by several factors. On the consumption side, demand increased inside and outside the United States as global economic growth, including emerging economies such as China and India, continued to improve during 2011. On the supply side, efforts to reduce production by OPEC to more closely match global consumption were partially successful. In the summer of 2011, production was also disrupted by political unrest in the Middle East, particularly Libya, which reduced global supply by approximately 1.8 million barrels per day. On June 23, 2011, the United States and other industrial nations announced the release of 60 million barrels of crude oil from strategic stockpiles in an effort to reduce the price of fuel. This announcement briefly lowered the price of crude oil, but the release of oil from strategic stockpiles did not in and of itself have an impact on the price of crude oil as of December 31, 2011. Crude oil prices finished 2011 approximately 8.15% higher than at the beginning of the year, as the global economy continues to adjust to periods of slow recovery and economic growth. USCF believes that should the global economic situation cease to improve, or decline, there is a meaningful possibility that crude oil prices could further retreat from their current levels.
USCF believes that over both the medium-term and the long-term, changes in the price of crude oil will exert the greatest influence on the price of refined petroleum products such as gasoline. At the same time, there can be other factors that, particularly in the short term, cause the price of gasoline to rise (or fall), more (or less) than the price of crude oil. For example, higher gasoline prices cause American consumers to reduce their gasoline consumption, particularly during the high demand period of the summer driving season and gasoline prices are impacted by the availability of refining capacity. Furthermore, a slowdown or recession in the U.S. economy may have a greater impact on U.S. gasoline prices than on global crude oil prices. As a result, it is possible that changes in gasoline prices may not match the changes in crude oil prices.
Unleaded Gasoline Price Movements in Comparison to Other Energy Commodities and Investment Categories.
USCF believes that investors frequently measure the degree to which prices or total returns of one investment or asset class move up or down in value in concert with another investment or asset class. Statistically, such a measure is usually done by measuring the correlation of the price movements of the two different investments or asset classes over some period of time. The correlation is scaled between 1 and -1, where 1 indicates that the two investment options move up or down in price or value together, known as positive correlation, and -1 indicates that they move in completely opposite directions, known as negative correlation. A correlation of 0 would mean that the movements of the two are neither positively nor negatively correlated, known as non-correlation. That is, the investment options sometimes move up and down together and other times move in opposite directions.
For the ten year time period between 2002 and 2011, the chart below compares the monthly movements of unleaded gasoline prices versus the monthly movements of the prices of several other energy commodities, such as natural gas, crude oil and heating oil, as well as several major non-commodity investment asset classes, such as large cap U.S. equities, U.S. government bonds and global equities. It can be seen that over this particular time period, the movement of unleaded gasoline on a monthly basis was not strongly correlated, positively or negatively, with the movements of large cap U.S. equities, U.S. government bonds or global equities. However, movements in unleaded gasoline had a strong positive correlation to movements in crude oil and heating oil. Finally, unleaded gasoline had a positive, but weak, correlation with natural gas.
54
Correlation Matrix December 31 2002-2011 |
Large Cap U.S. Equities (S&P 500) |
U.S. Govt. Bonds (EFFAS U.S. Govt. Bond Index) |
Global Equities (FTSE World Index) |
Crude Oil |
Heating Oil |
Natural Gas |
Unleaded Gasoline |
|||||||||||||||||||||
Large Cap U.S. Equities (S&P 500) |
1.000 | (0.337) | 0.968 | 0.269 | 0.224 | 0.059 | 0.189 | |||||||||||||||||||||
U.S. Govt. Bonds (EFFAS U.S. Govt. Bond Index) |
1.000 | (0.313) | (0.195) | (0.142) | 0.038 | (0.247) | ||||||||||||||||||||||
Global Equities (FTSE World Index) |
1.000 | 0.353 | 0.302 | 0.114 | 0.248 | |||||||||||||||||||||||
Crude Oil |
1.000 | 0.836 | 0.437 | 0.741 | ||||||||||||||||||||||||
Heating Oil |
1.000 | 0.548 | 0.717 | |||||||||||||||||||||||||
Natural Gas |
1.000 | 0.350 | ||||||||||||||||||||||||||
Unleaded Gasoline |
1.000 | |||||||||||||||||||||||||||
Source: Bloomberg, NYMEX |
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
The chart below covers a more recent, but much shorter, range of dates than the above chart. Over the one year period ended December 31, 2011, unleaded gasoline continued to have a strong positive correlation with crude oil and heating oil. During this period, it also had positive, yet weak correlation with the movements of natural gas. The correlation between unleaded gasoline and both large cap U.S. equities and global equities, which had been essentially non-correlated over the prior ten - year period ended December 31, 2011, had a positive correlation over the one-year period ended December 31, 2011. Finally, the results showed that unleaded gasoline and U.S. government bonds, which had essentially been non-correlated for the prior ten year period, were negatively correlated over this more recent time period.
Correlation Matrix 12 Months ended |
Large Cap U.S. Equities (S&P 500) |
U.S. Govt. Bonds (EFFAS U.S. Govt. Bond Index) |
Global Equities (FTSE World Index) |
Crude Oil |
Heating Oil |
Natural Gas |
Unleaded Gasoline |
|||||||||||||||||||||
Large Cap U.S. Equities (S&P 500) |
1.000 | (0.731) | 0.985 | 0.826 | 0.754 | 0.494 | 0.532 | |||||||||||||||||||||
U.S. Govt. Bonds (EFFAS U.S. Govt. Bond Index) |
1.000 | (0.725) | (0.617) | (0.543) | (0.331) | (0.423) | ||||||||||||||||||||||
Global Equities (FTSE World Index) |
1.000 | 0.800 | 0.791 | 0.546 | 0.594) | |||||||||||||||||||||||
Crude Oil |
1.000 | 8.10 | 0.532 | 0.680 | ||||||||||||||||||||||||
Heating Oil |
1.000 | 0.604 | 0.762 | |||||||||||||||||||||||||
Natural Gas |
1.000 | 0.428 | ||||||||||||||||||||||||||
Unleaded Gasoline |
1.000 | |||||||||||||||||||||||||||
Source: Bloomberg, NYMEX |
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
55
Investors are cautioned that the historical price relationships between gasoline and various other energy commodities, as well as other investment asset classes, as measured by correlation may not be reliable predictors of future price movements and correlation results. The results pictured above would have been different if a different range of dates had been selected. USCF believes that gasoline has historically not demonstrated a strong correlation with equities or bonds over long periods of time. However, USCF also believes that in the future it is possible that gasoline could have long term correlation results that indicate prices of gasoline more closely track the movements of equities or bonds. In addition, USCF believes that, when measured over time periods shorter than ten years, there will always be some periods where the correlation of gasoline to equities and bonds will be either more strongly positively correlated or more strongly negatively correlated than the long term historical results suggest.
The correlations between gasoline, crude oil, natural gas and heating oil are relevant because USCF endeavors to invest UGAs assets in Futures Contracts and Other Gasoline-Related Investments so that daily changes in percentage terms in UGAs per unit NAV correlate as closely as possible with daily changes in percentage terms in the price of the Benchmark Futures Contract. If certain other fuel-based commodity futures contracts do not closely correlate with the gasoline Futures Contract, then their use could lead to greater tracking error. As noted above, USCF also believes that the changes in percentage terms in the price of the Benchmark Futures Contract will closely correlate with changes in percentage terms in the spot price of gasoline.
Critical Accounting Policies
Preparation of the financial statements and related disclosures in compliance with accounting principles generally accepted in the United States of America requires the application of appropriate accounting rules and guidance, as well as the use of estimates. UGAs application of these policies involves judgments and actual results may differ from the estimates used.
USCF has evaluated the nature and types of estimates that it makes in preparing UGAs financial statements and related disclosures and has determined that the valuation of its investments, which are not traded on a United States or internationally recognized futures exchange (such as forward contracts and over-the-counter contracts) involves a critical accounting policy. The values which are used by UGA for its Futures Contracts are provided by its commodity broker who uses market prices when available, while over-the-counter contracts are valued based on the present value of estimated future cash flows that would be received from or paid to a third party in settlement of these derivative contracts prior to their delivery date and valued on a daily basis. In addition, UGA estimates interest and dividend income on a daily basis using prevailing rates earned on its cash and cash equivalents. These estimates are adjusted to the actual amount received on a monthly basis and the difference, if any, is not considered material.
Liquidity and Capital Resources
UGA has not made, and does not anticipate making, use of borrowings or other lines of credit to meet its obligations. UGA has met, and it is anticipated that UGA will continue to meet, its liquidity needs in the normal course of business from the proceeds of the sale of its investments or from the Treasuries, cash and/or cash equivalents that it intends to hold at all times. UGAs liquidity needs include: redeeming units, providing margin deposits for its existing Futures Contracts or the purchase of additional Futures Contracts and posting collateral for its over-the-counter contracts and payment of its expenses, summarized below under Contractual Obligations.
UGA currently generates cash primarily from: (i) the sale of Creation Baskets and (ii) income earned on cash and/or cash equivalents. UGA has allocated substantially all of its net assets to trading in Gasoline Interests. UGA invests in Gasoline Interests to the fullest extent possible without being leveraged or unable to satisfy its current or potential margin or collateral obligations with respect to its investments in Futures Contracts and Other Gasoline-Related Investments. A significant portion of UGAs NAV is held in cash and cash equivalents that are used as margin and as collateral for its trading in Gasoline Interests. The balance of the net assets is held in UGAs account at the Custodian and in Treasuries at the futures commission merchant. Income received from UGAs money market funds and Treasuries is paid to UGA. During the years ended December 31, 2011 and 2010, UGAs expenses exceeded the income UGA earned and the cash earned from the sale of Creation Baskets and the redemption of Redemption Baskets. During the years ended December 31, 2011 and 2010, UGA was forced to use other assets to pay cash expenses, which could cause a drop in UGAs NAV over time. To the extent expenses exceed income, UGAs NAV will be negatively impacted.
56
UGAs investments in Gasoline Interests may be subject to periods of illiquidity because of market conditions, regulatory considerations and other reasons. For example, most commodity exchanges limit the fluctuations in futures contracts prices during a single day by regulations referred to as daily limits. During a single day, no trades may be executed at prices beyond the daily limit. Once the price of a futures contract has increased or decreased by an amount equal to the daily limit, positions in the contracts can neither be taken nor liquidated unless the traders are willing to effect trades at or within the specified daily limit. Such market conditions could prevent UGA from promptly liquidating its positions in Futures Contracts. During the year ended December 31, 2011, UGA was not forced to purchase or liquidate any of its positions while daily limits were in effect; however, UGA cannot predict whether such an event may occur in the future.
Prior to the initial offering of UGA, all payments with respect to UGAs expenses were paid by USCF. UGA does not have an obligation or intention to refund such payments by USCF. USCF is under no obligation to pay UGAs current or future expenses. Since the initial offering of units, UGA has been responsible for expenses relating to: (i) management fees, (ii) brokerage fees and commissions, (iii) licensing fees for the use of intellectual property, (iv) ongoing registration expenses in connection with offers and sales of its units subsequent to the initial offering, (v) other expenses, including tax reporting costs, (vi) fees and expenses of the independent directors of USCF and (vii) other extraordinary expenses not in the ordinary course of business, while USCF has been responsible for expenses relating to the fees of UGAs Marketing Agent, Administrator and Custodian and registration expenses relating to the initial offering of units. If USCF and UGA are unsuccessful in raising sufficient funds to cover these respective expenses or in locating any other source of funding, UGA will terminate and investors may lose all or part of their investment.
Market Risk
Trading in Futures Contracts and Other Gasoline-Related Investments, such as forwards, involves UGA entering into contractual commitments to purchase or sell gasoline at a specified date in the future. The aggregate market value of the contracts will significantly exceed UGAs future cash requirements since UGA intends to close out its open positions prior to settlement. As a result, UGA is generally only subject to the risk of loss arising from the change in value of the contracts. UGA considers the fair value of its derivative instruments to be the unrealized gain or loss on the contracts. The market risk associated with UGAs commitments to purchase gasoline is limited to the aggregate market value of the contracts held. However, should UGA enter into a contractual commitment to sell gasoline, it would be required to make delivery of the gasoline at the contract price, repurchase the contract at prevailing prices or settle in cash. Since there are no limits on the future price of gasoline, the market risk to UGA could be unlimited.
UGAs exposure to market risk depends on a number of factors, including the markets for gasoline, the volatility of interest rates and foreign exchange rates, the liquidity of the Futures Contracts and Other Gasoline-Related Investments markets and the relationships among the contracts held by UGA. Drastic market occurrences could ultimately lead to the loss of all or substantially all of an investors capital.
Credit Risk
When UGA enters into Futures Contracts and Other Gasoline-Related Investments, it is exposed to the credit risk that the counterparty will not be able to meet its obligations. The counterparty for the Futures Contracts traded on the NYMEX and on most other futures exchanges is the clearinghouse associated with the particular exchange. In general, in addition to margin required to be posted by the clearinghouse in connection with cleared trades, clearinghouses are backed by their members who may be required to share in the financial burden resulting from the nonperformance of one of their members and, therefore, this additional member support should significantly reduce credit risk. Some foreign exchanges are not backed by their clearinghouse members but may be backed by a consortium of banks or other financial institutions. There can be no assurance that any counterparty, clearinghouse, or their members or their financial backers will satisfy their obligations to UGA in such circumstances.
USCF attempts to manage the credit risk of UGA by following various trading limitations and policies. In particular, UGA generally posts margin and/or holds liquid assets that are approximately equal to the market value of its obligations to counterparties under the Futures Contracts and Other Gasoline-Related Investments it holds. USCF has implemented procedures that include, but are not limited to, executing and clearing trades only with creditworthy parties and/or requiring the posting of collateral or margin by such parties for the benefit of UGA to limit its credit exposure.
57
UBS Securities, UGAs commodity broker, or any other broker that may be retained by UGA in the future, when acting as UGAs futures commission merchant in accepting orders to purchase or sell Futures Contracts on United States exchanges, is required by CFTC regulations to separately account for and segregate as belonging to UGA, all assets of UGA relating to domestic Futures Contracts trading. These futures commission merchants are not allowed to commingle UGAs assets with their other assets. In addition, the CFTC requires commodity brokers to hold in a secure account UGAs assets related to foreign Futures Contracts trading.
If, in the future, UGA purchases over-the-counter contracts, see Item 7A. Quantitative and Qualitative Disclosures About Market Risk in this annual report on Form 10-K for a discussion of over-the-counter contracts.
As of December 31, 2011, UGA held cash deposits and investments in Treasuries and money market funds in the amount of $72,599,046. This amount may be subject to loss should the Custodian cease operations.
Off Balance Sheet Financing
As of December 31, 2011, UGA had no loan guarantee, credit support or other off-balance sheet arrangements of any kind other than agreements entered into in the normal course of business, which may include indemnification provisions relating to certain risks that service providers undertake in performing services which are in the best interests of UGA. While UGAs exposure under these indemnification provisions cannot be estimated, they are not expected to have a material impact on UGAs financial position.
European Sovereign Debt
UGA had no direct exposure to European sovereign debt as of December 31, 2011 and has no direct exposure to European sovereign debt as of the filing of this annual report on Form 10-K.
Redemption Basket Obligation
In order to meet its investment objective and pay its contractual obligations described below, UGA requires liquidity to redeem units, which redemptions must be in blocks of 50,000 units as of February 29, 2012 called Redemption Baskets. (Prior to February 29, 2012, the size of the Redemption Basket was 100,000 units). UGA has to date satisfied this obligation by paying from the cash or cash equivalents it holds or through the sale of its Treasuries in an amount proportionate to the number of units being redeemed.
Contractual Obligations
UGAs primary contractual obligations are with USCF. In return for its services, USCF is entitled to a management fee calculated monthly as a fixed percentage of UGAs NAV, currently 0.60% of NAV on its average daily net assets.
USCF agreed to pay the start-up costs associated with the formation of UGA, primarily its legal, accounting and other costs in connection with USCFs registration with the CFTC as a CPO and the registration and listing of UGA and its units with the SEC, FINRA and NYSE Arca (formerly, AMEX), respectively. However, since UGAs initial offering of units, offering costs incurred in connection with registering and listing additional units of UGA have been directly borne on an ongoing basis by UGA, and not by USCF.
USCF pays the fees of the Marketing Agent and the fees of the Custodian and Transfer Agent, BBH&Co., as well as BBH&Co.s fees for performing administrative services, including those in connection with the preparation of UGAs financial statements and its SEC, NFA and CFTC reports. USCF and UGA have also entered into a licensing agreement with the NYMEX pursuant to which UGA and the Related Public Funds, other than USBO, USCI, CPER, USAG and USMI, pay a licensing fee to the NYMEX. UGA also pays the fees and expenses associated with its tax accounting and reporting requirements. USCF, though under no obligation to do so, agreed to pay certain expenses normally borne by UGA to the extent that such expenses exceeded 0.15% (15 basis points) of UGAs NAV, on an annualized basis, through at least June 30, 2012. USCF has no obligation to continue such payments into subsequent periods.
58
In addition to USCFs management fee, UGA pays its brokerage fees (including fees to a futures commission merchant), over-the-counter dealer spreads, any licensing fees for the use of intellectual property, and, subsequent to the initial offering, registration and other fees paid to the SEC, FINRA, or other regulatory agencies in connection with the offer and sale of units, as well as legal, printing, accounting and other expenses associated therewith, and extraordinary expenses. The latter are expenses not incurred in the ordinary course of UGAs business, including expenses relating to the indemnification of any person against liabilities and obligations to the extent permitted by law and under the LP Agreement, the bringing or defending of actions in law or in equity or otherwise conducting litigation and incurring legal expenses and the settlement of claims and litigation. Commission payments to a futures commission merchant are on a contract-by-contract, or round turn, basis. UGA also pays a portion of the fees and expenses of the independent directors of USCF. See Note 3 to the Notes to Financial Statements in Item 8 of this annual report on Form 10-K.
The parties cannot anticipate the amount of payments that will be required under these arrangements for future periods, as UGAs NAVs and trading levels to meet its investment objective will not be known until a future date. These agreements are effective for a specific term agreed upon by the parties with an option to renew, or, in some cases, are in effect for the duration of UGAs existence. Either party may terminate these agreements earlier for certain reasons described in the agreements. As of December 31, 2011, UGAs portfolio consisted of 693 RBOB Gasoline Futures RB Contracts traded on the NYMEX. For a list of UGAs current holdings, please see UGAs website at www.unitedstatesgasolinefund.com.
Item 7A. | Quantitative and Qualitative Disclosures About Market Risk. |
Over-the-Counter Derivatives (Including Spreads and Straddles)
In the future, UGA may purchase over-the-counter contracts (OTC Contracts). Unlike most exchange-traded futures contracts or exchange-traded options on such futures, each party to an OTC Contract bears the credit risk that the other party may not be able to perform its obligations under its contract.
To reduce the credit risk that arises in connection with such contracts, UGA will generally enter into an agreement with each counterparty based on the Master Agreement published by the International Swaps and Derivatives Association, Inc. that provides for the netting of its overall exposure to its counterparty.
USCF assesses or reviews, as appropriate, the creditworthiness of each potential or existing counterparty to an OTC Contract pursuant to guidelines approved by USCFs Board. Furthermore, USCF on behalf of UGA only enters into OTC Contracts with counterparties who are, or are affiliates of, (a) banks regulated by a United States federal bank regulator, (b) broker-dealers regulated by the SEC, (c) insurance companies domiciled in the United States, or (d) producers, users or traders of energy, whether or not regulated by the CFTC. Any entity acting as a counterparty shall be regulated in either the United States or the United Kingdom unless otherwise approved by the Board after consultation with its legal counsel. Existing counterparties are also reviewed periodically by USCF. UGA will also require that the counterparty be highly rated and /or provide collateral or other credit support. Even if collateral is used to reduce counterparty credit risk, sudden changes in the value of OTC transactions may leave a party open to financial risk due to a counterparty default since the collateral held may not cover a partys exposure on the transaction in such situations.
In general, valuing OTC derivatives is less certain than valuing actively traded financial instruments such as exchange-traded futures contracts and securities or cleared swaps because the price and terms on which such OTC derivatives are entered into or can be terminated are individually negotiated, and those prices and terms may not reflect the best price or terms available from other sources. In addition, while market makers and dealers generally quote indicative prices or terms for entering into or terminating OTC Contracts, they typically are not contractually obligated to do so, particularly if they are not a party to the transaction. As a result, it may be difficult to obtain an independent value for an outstanding OTC derivatives transaction.
59
During the year ended December 31, 2011, UGA did not employ any hedging methods such as those described above since all of its investments were made over an exchange. Therefore, during such period, UGA was not exposed to counterparty risk.
UGA anticipates that the use of Other Gasoline-Related Investments together with its investments in Futures Contracts will produce price and total return results that closely track the investment goals of UGA. However, there can be no assurance of this. OTC Contracts may result in higher transaction-related expenses than the brokerage commissions paid in connection with the purchase of Futures Contracts, which may impact UGAs ability to successfully track the Benchmark Futures Contract.
60
Item 8. | Financial Statements and Supplementary Data. |
United States Gasoline Fund, LP
Index to Financial Statements
61
Managements Annual Report on Internal Control Over Financial Reporting.
USCF assessed the effectiveness of UGAs internal control over financial reporting as of December 31, 2011. In making this assessment, it used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control Integrated Framework. Based on the assessment, USCF believes that, as of December 31, 2011, UGAs internal control over financial reporting is effective.
62
Attestation Report of Registered Public Accounting Firm.
Report of Independent Registered Public Accounting Firm
Auditors Report on Internal Control over Financial Reporting
To the Partners of
United States Gasoline Fund, LP
We have audited the internal control over financial reporting of United States Gasoline Fund, LP (the Fund) as of December 31, 2011, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Funds management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Managements Annual Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the Funds internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
An entitys internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America. An entitys internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the entity; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the entity are being made only in accordance with authorizations of management and directors of the entity; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the entitys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of the effectiveness to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, the Fund maintained, in all material respects, effective internal control over financial reporting as of December 31, 2011, based on the criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the financial statements as of and for the year ended December 31, 2011, of the Fund and our report dated March 8, 2012 expressed an unqualified opinion on those financial statements.
/s/ Spicer Jeffries LLP
Greenwood Village, Colorado
March 8, 2012
63
Report of Independent Registered Public Accounting Firm
To the Partners of
United States Gasoline Fund, LP
We have audited the accompanying statements of financial condition of United States Gasoline Fund, LP (the Fund) as of December 31, 2011 and 2010, including the schedule of investments as of December 31, 2011 and 2010, and the related statements of operations, changes in partners capital and cash flows for the years ended December 31, 2011, 2010 and 2009. These financial statements are the responsibility of the Funds management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of United States Gasoline Fund, LP as of December 31, 2011 and 2010, and the results of its operations and its cash flows for the years ended December 31, 2011, 2010 and 2009, in conformity with accounting principles generally accepted in the United States of America.
We also have audited, in accordance with standards of the Public Company Accounting Oversight Board (United States), the Funds internal control over financial reporting as of December 31, 2011, based on criteria established in Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 8, 2012 expressed an unqualified opinion on the Funds internal control over financial reporting.
/s/ Spicer Jeffries LLP
Greenwood Village, Colorado
March 8, 2012
64
United States Gasoline Fund, LP
Statements of Financial Condition
At December 31, 2011 and 2010
2011 | 2010 | |||||||
Assets |
||||||||
Cash and cash equivalents (Note 5) |
$ | 68,137,372 | $ | 61,356,629 | ||||
Equity in UBS Securities LLC trading accounts: |
||||||||
Cash and cash equivalents |
4,461,674 | 2,568,893 | ||||||
Unrealized gain on open commodity futures contracts |
4,729,725 | 3,265,416 | ||||||
Receivable from General Partner (Note 3) |
104,053 | 266,884 | ||||||
Dividend receivable |
692 | 1,556 | ||||||
Interest receivable |
26 | - | ||||||
Other assets |
239,474 | 248,975 | ||||||
|
|
|
|
|||||
|
||||||||
Total assets |
$ | 77,673,016 | $ | 67,708,353 | ||||
|
|
|
|
|||||
|
||||||||
Liabilities and Partners Capital |
||||||||
Investment payable |
$ | 33 | $ | | ||||
Professional fees payable |
239,758 | 374,626 | ||||||
General Partner management fees payable (Note 3) |
38,635 | 33,078 | ||||||
Brokerage commissions payable |
3,315 | 2,185 | ||||||
Other liabilities |
4,177 | 3,880 | ||||||
|
|
|
|
|||||
Total liabilities |
285,918 | 413,769 | ||||||
|
|
|
|
|||||
|
||||||||
Commitments and Contingencies (Notes 3, 4, and 5) |
||||||||
|
||||||||
Partners Capital |
||||||||
General Partner |
| | ||||||
Limited Partners |
77,387,098 | 67,294,584 | ||||||
|
|
|
|
|||||
Total Partners Capital |
77,387,098 | 67,294,584 | ||||||
|
|
|
|
|||||
|
||||||||
Total liabilities and partners capital |
$ | 77,673,016 | $ | 67,708,353 | ||||
|
|
|
|
|||||
|
||||||||
Limited Partners units outstanding |
1,600,000 | 1,600,000 | ||||||
|
|
|
|
|||||
Net asset value per unit |
$ | 48.37 | $ | 42.06 | ||||
|
|
|
|
|||||
Market value per unit |
$ | 48.32 | $ | 42.11 | ||||
|
|
|
|
See accompanying notes to financial statements.
65
United States Gasoline Fund, LP
Schedule of Investments
At December 31, 2011
Number of Contracts |
Unrealized Gain on Open Commodity Contracts |
% of Partners Capital |
||||||||||
Open Futures Contracts - Long |
||||||||||||
United States Contracts |
||||||||||||
NYMEX RBOB Gasoline Futures RB February 2012 contracts, expiring January 2012 |
693 | $ | 4,729,725 | 6.11 | ||||||||
|
|
|
|
|
|
|||||||
|
Principal Amount |
Market
Value |
|||||||||||
Cash Equivalents |
||||||||||||
United States Treasury Obligation |
||||||||||||
U.S. Treasury Bill, 0.03%, 6/21/2012 |
$ | 6,050,000 | $ | 6,049,132 | 7.82 | |||||||
|
|
|
|
|||||||||
|
||||||||||||
|
||||||||||||
United States - Money Market Funds |
||||||||||||
Fidelity Institutional Government Portfolio - Class I |
8,061,869 | 8,061,869 | 10.42 | |||||||||
Goldman Sachs Financial Square Funds - Government Fund - Class SL |
6,403,264 | 6,403,264 | 8.27 | |||||||||
Morgan Stanley Institutional Liquidity Fund - Government Portfolio |
23,016,217 | 23,016,217 | 29.74 | |||||||||
|
|
|
|
|||||||||
Total Money Market Funds |
37,481,350 | 48.43 | ||||||||||
|
|
|
|
|||||||||
|
||||||||||||
Total Cash Equivalents |
$ | 43,530,482 | 56.25 | |||||||||
|
|
|
|
See accompanying notes to financial statements.
66
United States Gasoline Fund, LP
Schedule of Investments
At December 31, 2010
Number of Contracts |
Unrealized Gain on Open Commodity Contracts |
% of Partners Capital |
||||||||||
Open Futures Contracts - Long |
||||||||||||
United States Contracts |
||||||||||||
NYMEX RBOB Gasoline Futures RB February 2011 contracts, expiring January 2011 |
660 | $ | 3,265,416 | 4.85 | ||||||||
|
|
|
|
|
|
|||||||
Principal Amount |
Market
Value |
|||||||||||
Cash Equivalents |
||||||||||||
United States - Money Market Funds |
||||||||||||
Fidelity Institutional Government Portfolio - Class I |
$ | 29,058,323 | $ | 29,058,323 | 43.18 | |||||||
Goldman Sachs Financial Square Funds - Government Fund - Class SL |
6,402,423 | 6,402,423 | 9.51 | |||||||||
Morgan Stanley Institutional Liquidity Fund - Government Portfolio |
18,006,188 | 18,006,188 | 26.76 | |||||||||
|
|
|
|
|||||||||
Total Cash Equivalents |
$ | 53,466,934 | 79.45 | |||||||||
|
|
|
|
See accompanying notes to financial statements.
67
United States Gasoline Fund, LP
Statements of Operations
For the years ended December 31, 2011, 2010 and 2009
Year ended December 31, 2011 |
Year ended December 31, 2010 |
Year ended December 31, 2009 |
||||||||||
Income |
||||||||||||
Gain (loss) on trading of commodity futures contracts: |
||||||||||||
Realized gain on closed positions |
$ | 13,406,173 | $ | 9,508,139 | $ | 28,570,005 | ||||||
Change in unrealized gain (loss) on open positions |
1,464,309 | (2,618,528 | ) | 4,452,223 | ||||||||
Dividend income |
13,520 | 29,792 | 90,303 | |||||||||
Interest income |
5,649 | 1,940 | 4,378 | |||||||||
Other income |
26,200 | 16,000 | 29,000 | |||||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Total income |
14,915,851 | 6,937,343 | 33,145,909 | |||||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Expenses |
||||||||||||
General Partners management fees (Note 3) |
675,949 | 430,968 | 376,611 | |||||||||
Professional fees |
239,758 | 374,626 | 350,250 | |||||||||
Brokerage commissions |
81,427 | 67,294 | 74,584 | |||||||||
Other expenses |
50,778 | 45,196 | 20,816 | |||||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Total expenses |
1,047,912 | 918,084 | 822,261 | |||||||||
|
||||||||||||
Expense waiver (Note 3) |
(104,053 | ) | (266,884 | ) | (256,355 | ) | ||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Net expenses |
943,859 | 651,200 | 565,906 | |||||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Net income |
$ | 13,971,992 | $ | 6,286,143 | $ | 32,580,003 | ||||||
|
|
|
|
|
|
|||||||
Net income per limited partnership unit |
$ | 6.31 | $ | 5.65 | $ | 16.20 | ||||||
|
|
|
|
|
|
|||||||
Net income per weighted average limited partnership unit |
$ | 6.07 | $ | 3.10 | $ | 15.72 | ||||||
|
|
|
|
|
|
|||||||
Weighted average limited partnership units outstanding |
2,303,014 | 2,026,027 | 2,072,603 | |||||||||
|
|
|
|
|
|
See accompanying notes to financial statements.
68
United States Gasoline Fund, LP
Statements of Changes in Partners Capital
For the years ended December 31, 2011, 2010 and 2009
General Partner | Limited Partners | Total | ||||||||||
|
||||||||||||
Balances, at December 31, 2008 |
$ | | $ | 20,209,419 | $ | 20,209,419 | ||||||
Addition of 2,900,000 partnership units |
| 80,148,752 | 80,148,752 | |||||||||
Redemption of 2,000,000 partnership units |
| (63,752,434 | ) | (63,752,434 | ) | |||||||
Net income |
| 32,580,003 | 32,580,003 | |||||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Balances, at December 31, 2009 |
| 69,185,740 | 69,185,740 | |||||||||
Addition of 1,100,000 partnership units |
| 40,505,135 | 40,505,135 | |||||||||
Redemption of 1,400,000 partnership units |
| (48,682,434 | ) | (48,682,434 | ) | |||||||
Net income |
| 6,286,143 | 6,286,143 | |||||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Balances, at December 31, 2010 |
| 67,294,584 | 67,294,584 | |||||||||
Addition of 1,900,000 partnership units |
| 90,155,234 | 90,155,234 | |||||||||
Redemption of 1,900,000 partnership units |
| (94,034,712 | ) | (94,034,712 | ) | |||||||
Net income |
| 13,971,992 | 13,971,992 | |||||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Balances at, December 31, 2011 |
$ | | $ | 77,387,098 | $ | 77,387,098 | ||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Net Asset Value Per Unit: |
||||||||||||
At December 31, 2008 |
$ | 20.21 | ||||||||||
|
|
|||||||||||
At December 31, 2009 |
$ | 36.41 | ||||||||||
|
|
|||||||||||
At December 31, 2010 |
$ | 42.06 | ||||||||||
|
|
|||||||||||
At December 31, 2011 |
$ | 48.37 | ||||||||||
|
|
See accompanying notes to financial statements.
69
United States Gasoline Fund, LP
Statements of Cash Flows
For the years ended December 31, 2011, 2010 and 2009
Year
ended December 31, 2011 |
Year
ended December 31, 2010 |
Year
ended December 31, 2009 |
||||||||||
Cash Flows from Operating Activities: |
||||||||||||
Net income |
$ | 13,971,992 | $ | 6,286,143 | $ | 32,580,003 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||||||
(Increase) decrease in commodity futures trading account - cash and cash equivalents |
(1,892,781 | ) | (1,214,332 | ) | 5,760,280 | |||||||
Unrealized (gain) loss on futures contracts |
(1,464,309 | ) | 2,618,528 | (4,452,223 | ) | |||||||
(Increase) decrease in receivable from General Partner |
162,831 | (10,529 | ) | (130,007 | ) | |||||||
Decrease in dividend receivable |
864 | 1,312 | 1,383 | |||||||||
Increase in interest receivable |
(26 | ) | - | - | ||||||||
(Increase) decrease in other assets |
9,501 | (51,610 | ) | (197,365 | ) | |||||||
Increase in investment payable |
33 | - | - | |||||||||
Increase (decrease) in professional fees payable |
(134,868 | ) | 24,376 | 199,456 | ||||||||
Increase (decrease) in General Partner management fees payable |
5,557 | (1,696 | ) | 28,872 | ||||||||
Increase (decrease) in brokerage commissions payable |
1,130 | (515 | ) | 1,300 | ||||||||
Increase (decrease) in other liabilities |
297 | (789 | ) | 3,513 | ||||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
10,660,221 | 7,650,888 | 33,795,212 | |||||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Cash Flows from Financing Activities: |
||||||||||||
Addition of partnership units |
90,155,234 | 40,505,135 | 80,148,752 | |||||||||
Redemption of partnership units |
(94,034,712 | ) | (48,682,434 | ) | (63,752,434 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) financing activities |
(3,879,478 | ) | (8,177,299 | ) | 16,396,318 | |||||||
|
|
|
|
|
|
|||||||
|
||||||||||||
Net Increase (Decrease) in Cash and Cash Equivalents |
6,780,743 | (526,411 | ) | 50,191,530 | ||||||||
|
||||||||||||
Cash and Cash Equivalents, beginning of year |
||||||||||||
Cash and Cash Equivalents, end of year |
61,356,629 | 61,883,040 | 11,691,510 | |||||||||
|
|
|
|
|
|
|||||||
$ | 68,137,372 | $ | 61,356,629 | $ | 61,883,040 | |||||||
|
|
|
|
|
|
|||||||
|
See accompanying notes to financial statements.
70
United States Gasoline Fund, LP
Notes to Financial Statements
For the years ended December 31, 2011, 2010 and 2009
NOTE 1 - ORGANIZATION AND BUSINESS
The United States Gasoline Fund, LP (UGA) was organized as a limited partnership under the laws of the state of Delaware on April 13, 2007. UGA is a commodity pool that issues limited partnership units (units) that may be purchased and sold on the NYSE Arca, Inc. (the NYSE Arca). Prior to November 25, 2008, UGAs units traded on the American Stock Exchange (the AMEX). UGA will continue in perpetuity, unless terminated sooner upon the occurrence of one or more events as described in its Amended and Restated Agreement of Limited Partnership dated as of February 11, 2008 (the LP Agreement). The investment objective of UGA is for the daily changes in percentage terms of its units per unit net asset value (NAV) to reflect the daily changes in percentage terms of the spot price of gasoline (also known as reformulated gasoline blendstock for oxygen blending, or RBOB, for delivery to the New York harbor), as measured by the changes in the price of the futures contract for gasoline traded on the New York Mercantile Exchange (the NYMEX) that is the near month contract to expire, except when the near month contract is within two weeks of expiration, in which case the futures contract will be the next month contract to expire (the Benchmark Futures Contract), less UGAs expenses. It is not the intent of UGA to be operated in a fashion such that the per unit NAV will equal, in dollar terms, the spot price of gasoline or any particular futures contract based on gasoline. It is not the intent of UGA to be operated in a fashion such that its per unit NAV will reflect the percentage change of the price of any particular futures contract as measured over a time period greater than one day. United States Commodity Funds LLC (USCF) believes that it is not practical to manage the portfolio to achieve such an investment goal when investing in Futures Contracts (as defined below) and Other Gasoline-Related Investments (as defined below). UGA accomplishes its objective through investments in futures contracts for gasoline, crude oil, natural gas, heating oil and other petroleum-based fuels that are traded on the NYMEX, ICE Futures or other U.S. and foreign exchanges (collectively, Futures Contracts) and other gasoline-related investments such as cash-settled options on Futures Contracts, forward contracts for gasoline, cleared swap contracts and over-the-counter transactions that are based on the price of gasoline, crude oil and other petroleum-based fuels, Futures Contracts and indices based on the foregoing (collectively, Other Gasoline-Related Investments). As of December 31, 2011, UGA held 693 Futures Contracts for gasoline traded on the NYMEX.
UGA commenced investment operations on February 26, 2008 and has a fiscal year ending on December 31. USCF is responsible for the management of UGA. USCF is a member of the National Futures Association (the NFA) and became a commodity pool operator registered with the Commodity Futures Trading Commission (the CFTC) effective December 1, 2005. USCF is also the general partner of the United States Oil Fund, LP (USOF), the United States Natural Gas Fund, LP (USNG), the United States 12 Month Oil Fund, LP (US12OF) and the United States Heating Oil Fund, LP (USHO), which listed their limited partnership units on the AMEX under the ticker symbols USO on April 10, 2006, UNG on April 18, 2007, USL on December 6, 2007 and UHN on April 9, 2008, respectively. As a result of the acquisition of the AMEX by NYSE Euronext, each of USOFs, USNGs, US12OFs and USHOs units commenced trading on the NYSE Arca on November 25, 2008. USCF is also the general partner of the United States Short Oil Fund, LP (USSO), the United States 12 Month Natural Gas Fund, LP (US12NG) and the United States Brent Oil Fund, LP (USBO), which listed their limited partnership units on the NYSE Arca under the ticker symbols DNO on September 24, 2009, UNL on November 18, 2009 and BNO on June 2, 2010, respectively. USCF is also the sponsor of the United States Commodity Index Fund (USCI), the United States Agriculture Index Fund (USAG), the United States Copper Index Fund (CPER) and the United States Metals Index Fund (USMI), each a series of the United States Commodity Index Funds Trust. USCI and CPER listed their units on the NYSE Arca under the ticker symbol USCI on August 10, 2010 and CPER on November 15, 2011, respectively. USAG and USMI are not listed on the NYSE Arca as of the filing of this annual report on Form 10-K. All funds listed previously are referred to collectively herein as the Related Public Funds. USCF has also filed registration statements to register units of the United States Sugar Fund (USSF), the United States Natural Gas Double Inverse Fund (UNGD), the United States Gasoil Fund (USGO) and the United States Asian Commodities Basket Fund (USABF), each a series of the United States Commodity Funds Trust I.
Effective February 29, 2012, UGA issues units to certain authorized purchasers (Authorized Purchasers) by offering baskets consisting of 50,000 units (Creation Baskets) through ALPS Distributors, Inc., as the marketing agent (the Marketing Agent). Prior to February 29, 2012, UGA issued units to Authorized Purchasers by offering baskets consisting of 100,000 units through the Marketing Agent. The purchase price for a Creation Basket is based upon the NAV of a unit calculated shortly after the close of the core trading session on the NYSE Arca on the day the order to create the basket is properly received.
71
From July 1, 2011 through December 31, 2011, Authorized Purchasers paid UGA $350 for each order placed to create one or more Creation Baskets or to redeem one or more baskets (Redemption Baskets); prior to July 1, 2011, Authorized Purchasers paid $1,000 for each order placed to create one or more Creation Baskets or to redeem one or more Redemption Baskets. Units purchased or sold on a nationally recognized securities exchange are not purchased or sold at the per unit NAV of UGA but rather at market prices quoted on such exchange.
In November 2007, UGA initially registered 30,000,000 units on Form S-1 with the U.S. Securities and Exchange Commission (the SEC). On February 26, 2008, UGA listed its units on the AMEX under the ticker symbol UGA. On that day, UGA established its initial per unit NAV by setting the price at $50.00 and issued 300,000 units in exchange for $15,000,000. UGA also commenced investment operations on February 26, 2008, by purchasing Futures Contracts traded on the NYMEX based on gasoline. As of December 31, 2011, UGA had registered a total of 72,800,000 units.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Revenue Recognition
Commodity futures contracts, forward contracts, physical commodities, and related options are recorded on the trade date. All such transactions are recorded on the identified cost basis and marked to market daily. Unrealized gains or losses on open contracts are reflected in the statement of financial condition and represent the difference between the original contract amount and the market value (as determined by exchange settlement prices for futures contracts and related options and cash dealer prices at a predetermined time for forward contracts, physical commodities, and their related options) as of the last business day of the year or as of the last date of the financial statements. Changes in the unrealized gains or losses between periods are reflected in the statements of operations. UGA earns interest on its assets denominated in U.S. dollars on deposit with the futures commission merchant at the 90-day Treasury bill rate. In addition, UGA earns income on funds held at the custodian and futures commission merchant at prevailing market rates earned on such investments.
Brokerage Commissions
Brokerage commissions on all open commodity futures contracts are accrued on a full-turn basis.
Income Taxes
UGA is not subject to federal income taxes; each partner reports his/her allocable share of income, gain, loss deductions or credits on his/her own income tax return.
In accordance with accounting principles generally accepted in the United States of America (GAAP), UGA is required to determine whether a tax position is more likely than not to be sustained upon examination by the applicable taxing authority, including resolution of any tax related appeals or litigation processes, based on the technical merits of the position. UGA files an income tax return in the U.S. federal jurisdiction, and may file income tax returns in various U.S. states. UGA is not subject to income tax return examinations by major taxing authorities for years before 2007. The tax benefit recognized is measured as the largest amount of benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. De-recognition of a tax benefit previously recognized results in UGA recording a tax liability that reduces net assets. However, UGAs conclusions regarding this policy may be subject to review and adjustment at a later date based on factors including, but not limited to, on-going analysis of and changes to tax laws, regulations and interpretations thereof. UGA recognizes interest accrued related to unrecognized tax benefits and penalties related to unrecognized tax benefits in income tax fees payable, if assessed. No interest expense or penalties have been recognized as of and for the year ended December 31, 2011.
72
Creations and Redemptions
Effective February 29, 2012, Authorized Purchasers may purchase Creation Baskets or redeem Redemption Baskets only in blocks of 50,000 units at a price equal to the NAV of the units calculated shortly after the close of the core trading session on the NYSE Arca on the day the order is placed. Prior to February 29, 2012, Authorized Purchasers could only purchase Creation Baskets or redeem Redemption Baskets in blocks of 100,000 units.
UGA receives or pays the proceeds from units sold or redeemed within three business days after the trade date of the purchase or redemption. The amounts due from Authorized Purchasers are reflected in UGAs statements of financial condition as receivable for units sold, and amounts payable to Authorized Purchasers upon redemption are reflected as payable for units redeemed.
Partnership Capital and Allocation of Partnership Income and Losses
Profit or loss shall be allocated among the partners of UGA in proportion to the number of units each partner holds as of the close of each month. USCF may revise, alter or otherwise modify this method of allocation as described in the LP Agreement.
Calculation of Net Asset Value Per Unit
UGAs per unit NAV is calculated on each NYSE Arca trading day by taking the current market value of its total assets, subtracting any liabilities and dividing the amount by the total number of units issued and outstanding. UGA uses the closing price for the contracts on the relevant exchange on that day to determine the value of contracts held on such exchange.
Net Income (Loss) Per Unit
Net income (loss) per unit is the difference between the per unit NAV at the beginning of each period and at the end of each period. The weighted average number of units outstanding was computed for purposes of disclosing net income (loss) per weighted average unit. The weighted average units are equal to the number of units outstanding at the end of the period, adjusted proportionately for units added and redeemed based on the amount of time the units were outstanding during such period. There were no units held by USCF at December 31, 2011.
Offering Costs
Offering costs incurred in connection with the registration of additional units after the initial registration of units are borne by UGA. These costs include registration fees paid to regulatory agencies and all legal, accounting, printing and other expenses associated with such offerings. These costs are accounted for as a deferred charge and thereafter amortized to expense over twelve months on a straight-line basis or a shorter period if warranted.
Cash Equivalents
Cash equivalents include money market funds and overnight deposits or time deposits with original maturity dates of six months or less.
Reclassification
Certain amounts in the accompanying financial statements were reclassified to conform to the current presentation.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires USCF to make estimates and assumptions that affect the reported amount of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of the revenue and expenses during the reporting period. Actual results may differ from those estimates and assumptions.
73
NOTE 3 - FEES PAID BY THE FUND AND RELATED PARTY TRANSACTIONS
USCF Management Fee
Under the LP Agreement, USCF is responsible for investing the assets of UGA in accordance with the objectives and policies of UGA. In addition, USCF has arranged for one or more third parties to provide administrative, custody, accounting, transfer agency and other necessary services to UGA. For these services, UGA is contractually obligated to pay USCF a fee, which is paid monthly, equal to 0.60% per annum of average daily net assets.
Ongoing Registration Fees and Other Offering Expenses
UGA pays all costs and expenses associated with the ongoing registration of its units subsequent to the initial offering. These costs include registration or other fees paid to regulatory agencies in connection with the offer and sale of units, and all legal, accounting, printing and other expenses associated with such offer and sale. For the years ended December 31, 2011, 2010 and 2009, UGA incurred $9,125, $12,241 and $1,080, respectively, in registration fees and other offering expenses.
Directors Fees and Expenses
UGA is responsible for paying its portion of the directors and officers liability insurance for UGA and the Related Public Funds and the fees and expenses of the independent directors who also serve as audit committee members of the Related Public Funds organized as limited partnerships and, as of July 8, 2011, the Related Public Funds organized as a series of a Delaware statutory trust. UGA shares the fees and expenses with each Related Public Fund, as described above, based on the relative assets of each fund computed on a daily basis. These fees and expenses for the year ended December 31, 2011 were $607,582 for UGA and the Related Public Funds, and UGAs portion of such fees and expenses was $14,746. For the years ended December 31, 2010 and 2009, these fees and expenses were $1,107,140 and $433,046, respectively, for UGA and the Related Public Funds, other than USCI, USAG, CPER and USMI, and UGAs portion of such fees and expenses was $15,802.79 and $3,734, respectively. Effective as of April 1, 2010, UGA became responsible for paying its portion of any payments that may become due to the independent directors pursuant to the deferred compensation agreements entered into between the independent directors, USCF, UGA, and the Related Public Funds, except USCI, USAG, CPER and USMI.
Licensing Fees
As discussed in Note 4 below, UGA entered into a licensing agreement with the NYMEX on April 10, 2006, as amended on October 20, 2011. Pursuant to the agreement, up to October 19, 2011, UGA and the Related Public Funds, other than USBO, USCI, CPER, USAG and USMI, paid a licensing fee that was equal to 0.04% for the first $1,000,000,000 of combined net assets of the funds and 0.02% for combined net assets above $1,000,000,000. On and after October 20, 2011, UGA and the Related Public Funds, other than USBO, USCI, CPER, USAG and USMI, pay a licensing fee that is equal to 0.015% on all net assets. During the years ended December 30, 2011, 2010 and 2009, UGA incurred $26,907, $17,153 and $14,846, respectively, under this arrangement.
Investor Tax Reporting Cost
The fees and expenses associated with UGAs audit expenses and tax accounting and reporting requirements are paid by UGA. These costs were approximately $250,000 for the year ended December 31, 2011.
Other Expenses and Fees and Expense Waivers
In addition to the fees described above, UGA pays all brokerage fees and other expenses in connection with the operation of UGA, excluding costs and expenses paid by USCF as outlined in Note 4 below. USCF, though under no obligation to do so, agreed to pay certain expenses, to the extent that such expenses exceeded 0.15% (15 basis points) of UGAs NAV, on an annualized basis, through at least June 30, 2012. USCF has no obligation to continue such payments into subsequent periods.
74
NOTE 4 - CONTRACTS AND AGREEMENTS
UGA is party to a marketing agent agreement, dated as of February 15, 2008, as amended from time to time, with the Marketing Agent and USCF, whereby the Marketing Agent provides certain marketing services for UGA as outlined in the agreement. The fee of the Marketing Agent, which is borne by USCF, is equal to 0.06% on UGAs assets up to $3 billion; and 0.04% on UGAs assets in excess of $3 billion.
The above fee does not include the following expenses, which are also borne by USCF: the cost of placing advertisements in various periodicals; web construction and development; or the printing and production of various marketing materials.
UGA is also party to a custodian agreement, dated January 16, 2008, as amended from time to time, with Brown Brothers Harriman & Co. (BBH&Co.) and USCF, whereby BBH&Co. holds investments on behalf of UGA. USCF pays the fees of the custodian, which are determined by the parties from time to time. In addition, UGA is party to an administrative agency agreement, dated February 7, 2008, as amended from time to time, with USCF and BBH&Co., whereby BBH&Co. acts as the administrative agent, transfer agent and registrar for UGA. USCF also pays the fees of BBH&Co. for its services under such agreement and such fees are determined by the parties from time to time.
Currently, USCF pays BBH&Co. for its services, in the foregoing capacities, a minimum amount of $75,000 annually for its custody, fund accounting and fund administration services rendered to UGA and each of the Related Public Funds, as well as a $20,000 annual fee for its transfer agency services. In addition, USCF pays BBH&Co. an asset-based charge of (a) 0.06% for the first $500 million of UGAs, USOFs, USNGs, US12OFs, USHOs, USSOs, US12NGs, USBOs, USCIs, CPERs, USAGs and USMIs combined net assets, (b) 0.0465% for UGAs, USOFs, USNGs, US12OFs, USHOs, USSOs, US12NGs, USBOs, USCIs, CPERs, USAGs and USMIs combined net assets greater than $500 million but less than $1 billion, and (c) 0.035% once UGAs, USOFs, USNGs, US12OFs, USHOs, USSOs, US12NGs, USBOs, USCIs, CPERs, USAGs and USMIs combined net assets exceed $1 billion. The annual minimum amount will not apply if the asset-based charge for all accounts in the aggregate exceeds $75,000. USCF also pays transaction fees ranging from $7 to $15 per transaction.
UGA has entered into a brokerage agreement with UBS Securities LLC (UBS Securities). The agreement requires UBS Securities to provide services to UGA in connection with the purchase and sale of Futures Contracts and Other Gasoline-Related Investments that may be purchased and sold by or through UBS Securities for UGAs account. In accordance with the agreement, UBS Securities charges UGA commissions of approximately $7 to $15 per round-turn trade, including applicable exchange and NFA fees for Futures Contracts and options on Futures Contracts.
UGA and the NYMEX entered into a licensing agreement on April 10, 2006, as amended on October 20, 2011, whereby UGA was granted a non-exclusive license to use certain of the NYMEXs settlement prices and service marks. Under the licensing agreement, UGA and the Related Public Funds, other than USBO, USCI, CPER, USAG and USMI, pay the NYMEX an asset-based fee for the license, the terms of which are described in Note 3. UGA expressly disclaims any association with the NYMEX or endorsement of UGA by the NYMEX and acknowledges that NYMEX and New York Mercantile Exchange are registered trademarks of the NYMEX.
NOTE 5 - FINANCIAL INSTRUMENTS, OFF-BALANCE SHEET RISKS AND CONTINGENCIES
UGA engages in the trading of futures contracts, options on futures contracts and cleared swaps (collectively, derivatives). UGA is exposed to both market risk, which is the risk arising from changes in the market value of the contracts, and credit risk, which is the risk of failure by another party to perform according to the terms of a contract.
UGA may enter into futures contracts, options on futures contracts and cleared swaps to gain exposure to changes in the value of an underlying commodity. A futures contract obligates the seller to deliver (and the purchaser to accept) the future delivery of a specified quantity and type of a commodity at a specified time and place. Some futures contracts may call for physical delivery of the asset, while others are settled in cash. The contractual obligations of a buyer or seller may generally be satisfied by taking or making physical delivery of the underlying commodity or by making an offsetting sale or purchase of an identical futures contract on the same or linked exchange before the designated date of delivery.
75
The purchase and sale of futures contracts, options on futures contracts and cleared swaps require margin deposits with a futures commission merchant. Additional deposits may be necessary for any loss on contract value. The Commodity Exchange Act requires a futures commission merchant to segregate all customer transactions and assets from the futures commission merchants proprietary activities.
Futures contracts and cleared swaps involve, to varying degrees, elements of market risk (specifically commodity price risk) and exposure to loss in excess of the amount of variation margin. The face or contract amounts reflect the extent of the total exposure UGA has in the particular classes of instruments. Additional risks associated with the use of futures contracts are an imperfect correlation between movements in the price of the futures contracts and the market value of the underlying securities and the possibility of an illiquid market for a futures contract.
All of the futures contracts held by UGA were exchange-traded through December 31, 2011. The risks associated with exchange-traded contracts are generally perceived to be less than those associated with over-the-counter transactions since, in over-the-counter transactions, a party must rely solely on the credit of its respective individual counterparties. However, in the future, if UGA were to enter into non-exchange traded contracts, it would be subject to the credit risk associated with counterparty non-performance. The credit risk from counterparty non-performance associated with such instruments is the net unrealized gain, if any, on the transaction. UGA has credit risk under its futures contracts since the sole counterparty to all domestic and foreign futures contracts is the clearinghouse for the exchange on which the relevant contracts are traded. In addition, UGA bears the risk of financial failure by the clearing broker.
UGAs cash and other property, such as Treasuries, deposited with a futures commission merchant are considered commingled with all other customer funds, subject to the futures commission merchants segregation requirements. In the event of a futures commission merchants insolvency, recovery may be limited to a pro rata share of segregated funds available. It is possible that the recovered amount could be less than the total of cash and other property deposited. The insolvency of a futures commission merchant could result in the complete loss of UGAs assets posted with that futures commission merchant; however, the majority of UGAs assets are held in Treasuries, cash and/or cash equivalents with UGAs custodian and would not be impacted by the insolvency of a futures commission merchant. Also, the failure or insolvency of UGAs custodian could result in a substantial loss of UGAs assets.
USCF invests a portion of UGAs cash in money market funds that seek to maintain a stable per unit NAV. UGA is exposed to any risk of loss associated with an investment in such money market funds. As of December 31, 2011 and December 31, 2010, UGA held investments in money market funds in the amounts of $37,481,350 and $53,466,934, respectively. USCF holds cash deposits with its custodian. Pursuant to a written agreement with BBH&Co., uninvested overnight cash balances are swept to offshore branches of U.S. regulated and domiciled banks located in Toronto, Canada, London, United Kingdom, Grand Cayman, Cayman Islands and Nassau, Bahamas, which are subject to U.S. regulation and regulatory oversight. As of December 31, 2011 and December 31, 2010, UGA held cash deposits and investments in Treasuries in the amounts of $35,117,696 and $10,458,588, respectively. This amount may be subject to loss should UGAs custodian cease operations.
For derivatives, risks arise from changes in the market value of the contracts. Theoretically, UGA is exposed to market risk equal to the value of futures contracts purchased and unlimited liability on such contracts sold short. As both a buyer and a seller of options, UGA pays or receives a premium at the outset and then bears the risk of unfavorable changes in the price of the contract underlying the option.
UGAs policy is to continuously monitor its exposure to market and counterparty risk through the use of a variety of financial, position and credit exposure reporting controls and procedures. In addition, UGA has a policy of requiring review of the credit standing of each broker or counterparty with which it conducts business.
76
The financial instruments held by UGA are reported in its statement of financial condition at market or fair value, or at carrying amounts that approximate fair value, because of their highly liquid nature and short-term maturity.
NOTE 6 FINANCIAL HIGHLIGHTS
The following table presents per unit performance data and other supplemental financial data for the years ended December 31, 2011, 2010 and 2009. This information has been derived from information presented in the financial statements.
Year ended December 31, 2011 |
Year
ended December 31, 2010 |
Year
ended December 31, 2009 |
||||||||||
Per Unit Operating Performance: |
||||||||||||
Net asset value, beginning of year |
$ | 42.06 | $ | 36.41 | $ | 20.21 | ||||||
Total income |
6.72 | 5.97 | 16.47 | |||||||||
Net expenses |
(0.41 | ) | (0.32 | ) | (0.27 | ) | ||||||
|
|
|
|
|
|
|||||||
Net increase in net asset value |
6.31 | 5.65 | 16.20 | |||||||||
|
|
|
|
|
|
|||||||
Net asset value, end of year |
$ | 48.37 | $ | 42.06 | $ | 36.41 | ||||||
|
|
|
|
|
|
|||||||
Total Return |
15.00 | % | 15.52 | % | 80.16 | % | ||||||
|
|
|
|
|
|
|||||||
Ratios to Average Net Assets |
||||||||||||
Total income |
13.24 | % | 9.66 | % | 52.81 | % | ||||||
|
|
|
|
|
|
|||||||
Management fees |
0.60 | % | 0.60 | % | 0.60 | % | ||||||
|
|
|
|
|
|
|||||||
Total expenses excluding management fees |
0.33 | % | 0.68 | % | 0.71 | % | ||||||
|
|
|
|
|
|
|||||||
Expenses waived |
(0.09 | )% | (0.37 | )% | (0.41 | )% | ||||||
|
|
|
|
|
|
|||||||
Net expenses excluding management fees |
0.24 | % | 0.31 | % | 0.30 | % | ||||||
|
|
|
|
|
|
|||||||
Net income |
12.40 | % | 8.75 | % | 51.90 | % | ||||||
|
|
|
|
|
|
Total returns are calculated based on the change in value during the period. An individual unitholders total return and ratio may vary from the above total returns and ratios based on the timing of contributions to and withdrawals from UGA.
NOTE 7 QUARTERLY FINANCIAL DATA (Unaudited)
The following summarized (unaudited) quarterly financial information presents the results of operations and other data for three-month periods ended March 31, June 30, September 30 and December 31, 2011 and 2010.
First Quarter 2011 |
Second Quarter 2011 |
Third Quarter 2011 |
Fourth Quarter 2011 |
|||||||||||||
Total Income (Loss) |
$ | 19,815,251 | $ | (1,598,870 | ) | $ | (8,074,248 | ) | $ | 4,773,718 | ||||||
|
|
|
|
|
|
|
|
|||||||||
Total Expenses |
277,898 | 373,791 | 254,872 | 141,351 | ||||||||||||
Expense Waivers |
(61,842 | ) | (41,407 | ) | (804 | ) | - | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Net Expenses |
216,056 | 332,384 | 254,068 | 141,351 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net Income (Loss) |
$ | 19,599,195 | $ | (1,931,254 | ) | $ | (8,328,316 | ) | $ | 4,632,367 | ||||||
|
|
|
|
|
|
|
|
|||||||||
Net Income (Loss) per Unit |
$ | 8.38 | $ | (0.36 | ) | $ | (4.15 | ) | $ | 2.44 | ||||||
|
|
|
|
|
|
|
|
77
First Quarter 2010 |
Second Quarter 2010 |
Third Quarter 2010 |
Fourth Quarter 2010 |
|||||||||||||
Total Income (Loss) |
$ | 3,602,286 | $ | (11,129,662 | ) | $ | 1,312,987 | $ | 13,151,732 | |||||||
|
|
|
|
|
|
|
|
|||||||||
Total Expenses |
297,246 | 261,798 | 168,746 | 190,294 | ||||||||||||
Expense Waivers |
(144,624 | ) | (56,839 | ) | (13,278 | ) | (52,143 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Net Expenses |
152,622 | 204,959 | 155,468 | 138,151 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net Income (Loss) |
$ | 3,449,664 | $ | (11,334,621 | ) | $ | 1,157,519 | $ | 13,013,581 | |||||||
|
|
|
|
|
|
|
|
|||||||||
Net Income (Loss) per Unit |
$ | 1.71 | $ | (4.27 | ) | $ | 0.32 | $ | 7.89 | |||||||
|
|
|
|
|
|
|
|
NOTE 8 - FAIR VALUE OF FINANCIAL INSTRUMENTS
UGA values its investments in accordance with Accounting Standards Codification 820 Fair Value Measurements and Disclosures (ASC 820). ASC 820 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles, and expands disclosures about fair value measurement. The changes to past practice resulting from the application of ASC 820 relate to the definition of fair value, the methods used to measure fair value, and the expanded disclosures about fair value measurement. ASC 820 establishes a fair value hierarchy that distinguishes between: (1) market participant assumptions developed based on market data obtained from sources independent of UGA (observable inputs) and (2) UGAs own assumptions about market participant assumptions developed based on the best information available under the circumstances (unobservable inputs). The three levels defined by the ASC 820 hierarchy are as follows:
Level I Quoted prices (unadjusted) in active markets for identical assets or liabilities that the reporting entity has the ability to access at the measurement date.
Level II Inputs other than quoted prices included within Level I that are observable for the asset or liability, either directly or indirectly. Level II assets include the following: quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability, and inputs that are derived principally from or corroborated by observable market data by correlation or other means (market-corroborated inputs).
Level III Unobservable pricing input at the measurement date for the asset or liability. Unobservable inputs shall be used to measure fair value to the extent that observable inputs are not available.
In some instances, the inputs used to measure fair value might fall within different levels of the fair value hierarchy. The level in the fair value hierarchy within which the fair value measurement in its entirety falls shall be determined based on the lowest input level that is significant to the fair value measurement in its entirety.
The following table summarizes the valuation of UGAs securities at December 31, 2011 using the fair value hierarchy:
At December 31, 2011 | Total | Level I | Level II | Level III | ||||||||||||
|
||||||||||||||||
Short-Term Investments |
$ | 43,530,482 | $ | 43,530,482 | $ | - | $ | - | ||||||||
Exchange-Traded Futures Contracts |
||||||||||||||||
United States Contracts |
4,729,725 | 4,729,725 | - | - |
During the year ended December 31, 2011, there were no significant transfers between Level I and Level II.
78
The following table summarizes the valuation of UGAs securities at December 31, 2010 using the fair value hierarchy:
At December 31, 2010 | Total | Level I | Level II | Level III | ||||||||||||
|
||||||||||||||||
Short-Term Investments |
$ | 53,466,934 | $ | 53,466,934 | $ | - | $ | - | ||||||||
Exchange-Traded Futures Contracts |
||||||||||||||||
United States Contracts |
3,265,416 | 3,265,416 | - | - |
During the year ended December 31, 2010, there were no significant transfers between Level I and Level II.
Effective January 1, 2009, UGA adopted the provisions of Accounting Standards Codification 815 Derivatives and Hedging, which require presentation of qualitative disclosures about objectives and strategies for using derivatives, quantitative disclosures about fair value amounts and gains and losses on derivatives.
Fair Value of Derivative Instruments
Derivatives not Accounted for as Hedging Instruments |
Statements of
Financial Condition Location |
Fair Value at December 31, 2011 |
Fair Value
at December 31, 2010 |
|||||||
|
||||||||||
Futures - |
||||||||||
Commodity Contracts |
Assets | $ | 4,729,725 | $ | 3,265,416 |
The Effect of Derivative Instruments on the Statements of Operations
For the year ended December 31, 2011 |
For the year ended December 31, 2010 |
For the year ended December 31, 2009 |
||||||||||||||||||||||||||
Derivatives not Accounted for as Hedging Instruments |
Location of |
Realized Gain or (Loss) on Derivatives Recognized in Income |
Change in Unrealized Gain or (Loss) Recognized in Income |
Realized Gain or (Loss) on Derivatives Recognized in Income |
Change in Unrealized Gain or (Loss) Recognized in Income |
Realized Gain or (Loss) on Derivatives Recognized in Income |
Change in Unrealized Gain or (Loss) Recognized in Income |
|||||||||||||||||||||
|
||||||||||||||||||||||||||||
Futures - Commodity Contracts |
Realized gain on closed positions | $ | 13,406,173 | $ | 9,508,139 | $ | 28,570,005 | |||||||||||||||||||||
|
||||||||||||||||||||||||||||
Change in unrealized gain (loss) on positions | $ | 1,464,309 | $ | (2,618,528) | $ | 4,452,223 |
NOTE 9 RECENT ACCOUNTING PRONOUNCEMENTS
In December 2011, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2011-11, Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities. The amendments in ASU No. 2011-11 require an entity to disclose information about offsetting and related arrangements to enable users of its financial statements to understand the effect of those arrangements on its financial position. ASU No. 2011-11 is effective for annual reporting periods beginning on or after January 1, 2013, and interim periods within those annual periods. The guidance requires retrospective application for all comparative periods presented. USCF is currently evaluating the impact ASU No. 2011-11 will have on UGAs financial statements.
In May 2011, FASB issued ASU No. 2011-04, Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRS. ASU No. 2011-04 clarifies existing requirements for measuring fair value and for disclosure about fair value measurements in converged guidance of the FASB and the International Accounting Standards Board. The amendments are to be applied prospectively. For public entities, the amendments are effective during interim and annual periods beginning after December 15, 2011. For nonpublic entities, the amendments are effective for annual periods beginning after December 15, 2011. Early application by public entities is not permitted. Nonpublic entities may apply the amendments early, but no earlier than for interim periods beginning after December 15, 2011. The implementation of ASU No. 2011-04 is not expected to have a material impact on UGAs financial statements.
79
NOTE 10 SUBSEQUENT EVENTS
Effective as of February 29, 2012, the size of the Creation Basket and Redemption Basket was reduced from 100,000 units to 50,000 units.
Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.
Not applicable.
Item 9A. Controls and Procedures.
Disclosure Controls and Procedures
UGA maintains disclosure controls and procedures that are designed to ensure that material information required to be disclosed in UGAs periodic reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time period specified in the SECs rules and forms.
The duly appointed officers of USCF, including its chief executive officer and chief financial officer, who perform functions equivalent to those of a principal executive officer and principal financial officer of UGA if UGA had any officers, have evaluated the effectiveness of UGAs disclosure controls and procedures and have concluded that the disclosure controls and procedures of UGA have been effective as of the end of the period covered by this annual report on Form 10-K.
Managements Annual Report on Internal Control Over Financial Reporting
UGA is responsible for establishing and maintaining adequate internal control over financial reporting. UGAs internal control system is designed to provide reasonable assurance to USCF and the Board of USCF regarding the preparation and fair presentation of published financial statements. All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. USCFs report on internal control over financial reporting is set forth above under the heading, Managements Annual Report on Internal Control Over Financial Reporting in Item 8 of this annual report on Form 10-K.
Change in Internal Control Over Financial Reporting
There were no changes in UGAs internal control over financial reporting during UGAs last fiscal quarter that have materially affected, or are reasonably likely to materially affect, UGAs internal control over financial reporting.
Monthly Account Statements
Pursuant to the requirement under Rule 4.22 under the CEA, each month UGA publishes an account statement for its unitholders, which includes a Statement of Income (Loss) and a Statement of Changes in Net Asset Value. The account statement is furnished to the SEC on a current report on Form 8-K pursuant to Section 13 or 15(d) of the Exchange Act and posted each month on UGAs website at www.unitedstatesgasolinefund.com.
80
Part III
Item 10. Directors, Executive Officers and Corporate Governance.
Mr. Nicholas Gerber and Mr. Howard Mah serve as executive officers of USCF. UGA has no executive officers. Its affairs are generally managed by USCF. The following individuals serve as Management Directors of USCF.
Nicholas Gerber has been the President and CEO of USCF since June 9, 2005 and a Management Director of USCF since May 10, 2005. He maintains his main business office at 1320 Harbor Bay Parkway, Suite 145, Alameda, California 94502. He has been listed with the CFTC as a Principal of USCF since November 29, 2005, as Branch Manager of USCF since May 15, 2009, and registered with the CFTC as an Associated Person of USCF on December 1, 2005. Mr. Gerber also served as Vice President/Chief Investment Officer of Lyons Gate Reinsurance Company, Ltd., a company formed to reinsure workmens compensation insurance, from June 2003 to December 2009. Mr. Gerber has an extensive background in securities portfolio management and in developing investment funds that make use of indexing and futures contracts. He is also the founder of Ameristock Corporation, a California-based investment adviser registered under the Investment Advisers Act of 1940, that has been sponsoring and providing portfolio management services to mutual funds since March 1995. Since August 1995, Mr. Gerber has been the portfolio manager of the Ameristock Mutual Fund, Inc. a mutual fund registered under the Investment Company Act of 1940, focused on large cap U.S. equities that, as of December 31, 2011, had $200,749,014 in assets. He has also been a Trustee for the Ameristock ETF Trust since June 2006, and served as a portfolio manager for the Ameristock/Ryan 1 Year, 2 Year, 5 Year, 10 Year and 20 Year Treasury ETF from June 2007 to June 2008 when such funds were liquidated. In these roles, Mr. Gerber has gained extensive experience in evaluating and retaining third-party service providers, including custodians, accountants, transfer agents, and distributors. Mr. Gerber has passed the Series 3 examination for associated persons. He holds an MBA in finance from the University of San Francisco and a BA from Skidmore College. Mr. Gerber is 49 years old.
In concluding that Mr. Gerber should serve as Management Director of USCF, USCF considered his broad business experiences in the industry including: forming and managing investment companies and commodity pools, raising capital for such entities and founding and managing non-finance related companies.
Howard Mah has been a Management Director of USCF since May 10, 2005, Secretary of USCF since June 9, 2005, and Chief Financial Officer of USCF since May 23, 2006. He has been listed with the CFTC as a Principal of USCF since November 29, 2005. In these roles, Mr. Mah is currently involved in the management of UGA and the Related Public Funds and will be involved in the management of USMI, USAG, USSF, UNGD, USGO and USABF, if such funds commence operations. Mr. Mah also serves as USCFs Chief Compliance Officer. He received a Bachelor of Education from the University of Alberta, in 1986 and an MBA from the University of San Francisco in 1988. He served as Secretary and Chief Compliance Officer of the Ameristock ETF Trust from February 2007 until June 2008 when the trust was liquidated, Chief Compliance Officer of Ameristock Corporation since January 2001; a tax and finance consultant in private practice since January 1995, Secretary of Ameristock Mutual Fund since June 1995 and Ameristock Focused Value Fund from December 2000 to January 2005; Chief Compliance Officer of Ameristock Mutual Fund since August 2004 and the Co-Portfolio Manager of the Ameristock Focused Value Fund from December 2000 to January 2005. Mr. Mah is 47 years old.
In concluding that Mr. Mah should serve as Management Director of USCF, USCF considered his background in accounting and finance, as well as his experience as Chief Compliance Officer for USCF and Ameristock Corporation.
Andrew F. Ngim has been a Management Director of USCF since May 10, 2005 and Treasurer of USCF since June 9, 2005. He has been listed with the CFTC as a Principal of USCF since November 29, 2005. As Treasurer of USCF, Mr. Ngim is currently involved in the management of UGA and the Related Public Funds and will be involved in the management of USMI, USAG, USSF, UNGD, USGO and USABF, if such funds commence operations. He received a Bachelor of Arts from the University of California at Berkeley in 1983. Mr. Ngim has been Ameristock Corporations Managing Director since January 1999 and co-portfolio manager of Ameristock Corporation since January 2000, Trustee of the Ameristock ETF Trust since February 2007, and served as a portfolio manager for the Ameristock/Ryan 1 Year, 2 Year, 5 Year, 10 Year and 20 Year Treasury ETF from June 2007 to June 2008 when such funds were liquidated. Mr. Ngim is 51 years old.
81
In concluding that Mr. Ngim should serve as Management Director of USCF, USCF considered his broad career in the financial services industry as well as experience as co-Portfolio Manager of the Ameristock Mutual Fund.
Robert L. Nguyen has been a Management Director of USCF since May 10, 2005. He has been listed with the CFTC as a Principal of USCF since November 29, 2005 and registered with the CFTC as an Associated Person on November 9, 2007. As a Management Director of USCF, Mr. Nguyen is currently involved in the management of UGA and the Related Public Funds and will be involved in the management of USMI, USAG, USSF, UNGD, USGO and USABF, if such funds commence operations. He received a Bachelor of Science from California State University Sacramento in 1981. Mr. Nguyen has been the Managing Principal of Ameristock Corporation since January 2000. Mr. Nguyen is 52 years old.
In concluding that Mr. Nguyen should serve as Management Director of USCF, USCF considered his background in the financial services industry as well as his experience in leading the marketing efforts for Ameristock Corporation.
The following individuals provide significant services to UGA but are employed by USCF.
John P. Love has acted as the Portfolio Operations Manager for UGA since it commenced operations in February 2008 and the Related Public Funds since January 2006 and, effective March 1, 2010, became the Senior Portfolio Manager for UGA and the Related Public Funds. He is expected to be Senior Portfolio Manager for USMI, USAG, USSF, UNGD, USGO and USABF, if such funds commence operations. Mr. Love is also employed by USCF. He has been listed with the CFTC as a Principal of USCF since January 17, 2006. Mr. Love also served as the operations manager of Ameristock Corporation from October 2002 to January 2007, where he was responsible for back office and marketing activities for the Ameristock Mutual Fund and Ameristock Focused Value Fund and for the firm in general. Mr. Love holds a Series 3 license and was registered with the CFTC as an Associated Person of USCF from December 1, 2005 through April 16, 2009. Mr. Love has passed the Level I and Level II Chartered Financial Analyst examinations. He holds a BFA in cinema-television from the University of Southern California. Mr. Love is 40 years old.
John T. Hyland, CFA acts as a Portfolio Manager and as the Chief Investment Officer for USCF. Mr. Hyland is employed by USCF. He registered with the CFTC as an Associated Person of USCF on December 1, 2005, and has been listed with the CFTC as a Principal of USCF since January 17, 2006. Mr. Hyland became the Portfolio Manager for USOF, USNG, US12OF, UGA, USHO, USSO, US12NG, USBO, USCI and CPER in April 2006, April 2007, December 2007, February 2008, April 2008, September 2009, November 2009, June 2010, August 2010 and November 2011, respectively, and as Chief Investment Officer of USCF since January 2008, acts in such capacity on behalf of UGA and the Related Public Funds. He will also be the Portfolio Manager for USMI, USAG, USSF, UNGD, USGO and USABF upon the commencement of such funds operations. As part of his responsibilities for UGA and the Related Public Funds, Mr. Hyland handles day-to-day trading, helps set investment policies, and oversees UGAs and the Related Public Funds activities with their futures commission brokers, custodian-administrator, and marketing agent. Mr. Hyland has an extensive background in portfolio management and research with both equity and fixed income securities, as well as in the development of new types of complex investment funds. In July 2001, Mr. Hyland founded Towerhouse Capital Management, LLC, a firm that provided portfolio management and new fund development expertise to non-U.S. institutional investors through December 2009. Since January 2010, Towerhouse Capital Management has been inactive. Mr. Hyland was a Principal for Towerhouse in charge of portfolio research and product development regarding U.S. and non-U.S. real estate related securities. Mr. Hyland received his Chartered Financial Analyst (CFA) designation in 1994. Mr. Hyland is a member of the CFA Institute (formerly AIMR) and is a member and former president of the CFA Society of San Francisco. He is also a member of the National Association of Petroleum Investment Analysts, a not-for-profit organization of investment professionals focused on the oil industry. He is a graduate of the University of California, Berkeley. Mr. Hyland is 52 years old.
82
Ray W. Allen acts as a Portfolio Operations Manager for USOF, US12OF, USSO and USBO. He has been employed by USCF since January 14, 2008. He holds a Series 3 license and registered with the CFTC as an Associated Person of USCF on March 25, 2008. He has been listed with the CFTC as a Principal of USCF since March 18, 2009. Mr. Allens responsibilities include daily trading and operations for USOF, US12OF, USSO and USBO. Mr. Allen also acted as a Portfolio Operations Manager for UGA, USHO and US12NG until March 1, 2010. In addition, from February 2002 to October 2007, Mr. Allen was responsible for analyzing and evaluating the creditworthiness of client companies at Marble Bridge Funding Group Inc., in Walnut Creek, CA. Marble Bridge Funding Group Inc. is a commercial finance company providing capital to entrepreneurial companies. For the period from October 2007 to January 14, 2008, Mr. Allen was not employed by USCF and did not engage in any business-related activity. Mr. Allen received a BA in Economics from the University of California at Berkeley in 1980. Mr. Allen is 55 years old.
The following individuals serve as independent directors of USCF.
Peter M. Robinson has been an independent director of USCF since September 30, 2005 and, as such, serves on the Board of USCF, which acts on behalf of UGA and the Related Public Funds. He has been listed with the CFTC as a Principal of USCF since December 2005. Mr. Robinson has been employed as a Research Fellow with the Hoover Institution since 1993. The Hoover Institution is a public policy think tank located on the campus of Stanford University. Mr. Robinson graduated from Dartmouth College in 1979 and Oxford University in 1982. Mr. Robinson received an MBA from the Stanford University Graduate School of Business. Mr. Robinson has also written three books and has been published in the New York Times, Red Herring, and Forbes ASAP and he is the editor of Can Congress Be Fixed?: Five Essays on Congressional Reform (Hoover Institution Press, 1995). Mr. Robinson is 54 years old.
In concluding that Mr. Robinson should serve as independent director of USCF, USCF considered his broad experience in the United States government, including his employment at the SEC, and his knowledge of and insight into public policy.
Gordon L. Ellis has been an independent director of USCF since September 30, 2005 and, as such, serves on the Board of USCF, which acts on behalf of UGA and the Related Public Funds. He has been listed with the CFTC as a Principal of USCF since November 2005. Mr. Ellis has been Chairman of International Absorbents, Inc., a holding company of Absorption Corp., since July 1988, President and Chief Executive Officer since November 1996 and a Class I Director of the company since July 1985. Mr. Ellis is also a director of Absorption Corp., International Absorbents, Inc.s wholly-owned subsidiary which is engaged in developing, manufacturing and marketing a wide range of animal care and industrial absorbent products. Mr. Ellis is a director/trustee of Polymer Solutions, Inc., a former publicly-held company that sold all of its assets effective as of February 3, 2004 and is currently winding down its operations and liquidating following such sale. Polymer Solutions previously developed and manufactured paints, coatings, stains and primers for wood furniture manufacturers. Mr. Ellis is a professional engineer with an MBA in international finance. Mr. Ellis is 65 years old.
In concluding that Mr. Ellis should serve as independent director of USCF, USCF considered his experience serving as the Chairman and Chief Executive Officer of a former publicly-traded corporation as well as his experience as an entrepreneur.
Malcolm R. Fobes III has been an independent director of USCF since September 30, 2005 and, as such, serves on the Board of USCF, which acts on behalf of UGA and the Related Public Funds. He has been listed with the CFTC as a Principal of USCF since November 2005. Mr. Fobes is the founder, Chairman and Chief Executive Officer of Berkshire Capital Holdings, Inc., a California-based investment adviser registered under the Investment Advisers Act of 1940, that has been sponsoring and providing portfolio management services to mutual funds since June 1997. Since June 1997, Mr. Fobes has been the Chairman and President of The Berkshire Funds, a mutual fund investment company registered under the Investment Company Act of 1940. Mr. Fobes also serves as portfolio manager of the Berkshire Focus Fund, a mutual fund registered under the Investment Company Act of 1940, which concentrates its investments in the electronic technology industry. From April 2000 to July 2006, Mr. Fobes also served as co-portfolio manager of The Wireless Fund, a mutual fund registered under the Investment Company Act of 1940, which concentrates its investments in companies engaged in the development, production, or distribution of wireless-related products or services. In these roles, Mr. Fobes has gained extensive experience in evaluating and retaining third-party service providers, including custodians, accountants, transfer agents, and distributors. Mr. Fobes was also contributing editor of Start a Successful Mutual Fund: The Step-by-Step Reference Guide to Make It Happen (JV Books, 1995). Mr. Fobes holds a B.S. degree in Finance and Economics from San Jose State University in California. Mr. Fobes is 47 years old.
83
In concluding that Mr. Fobes should serve as independent director of USCF, USCF considered his background as founder, Chairman and Chief Executive Officer of a registered investment adviser as well as Chairman, President, Chief Financial Officer and Portfolio Manager of a mutual fund investment company.
The following are individual Principals, as that term is defined in CFTC Rule 3.1, for USCF: Nicholas Gerber, Melinda Gerber, the Nicholas and Melinda Gerber Living Trust, Howard Mah, Andrew Ngim, Robert Nguyen, Peter Robinson, Gordon Ellis, Malcolm Fobes, John Love, John Hyland, Ray Allen and Wainwright Holdings Inc and Margaret Johnson. These individuals are Principals due to their positions, however, Nicholas Gerber and Melinda Gerber are also Principals due to their controlling stake in Wainwright. None of the Principals owns or has any other beneficial interest in UGA. John Love and John Hyland make trading and investment decisions for UGA. John Love and Ray Allen execute trades on behalf of UGA. In addition, Nicholas Gerber, John Hyland, Robert Nguyen and Ray Allen are registered with the CFTC as Associated Persons of USCF and are NFA Associate Members.
Audit Committee
The Board of USCF has an audit committee which is made up of the three independent directors (Peter M. Robinson, Gordon L. Ellis, and Malcolm R. Fobes III). The audit committee is governed by an audit committee charter that is posted on UGAs website at www.unitedstatesgasolinefund.com. Any unitholder of UGA may also obtain a printed copy of the audit committee charter, free of charge, by calling 1-800-920-0259. The Board has determined that each member of the audit committee meets the financial literacy requirements of the NYSE Arca and the audit committee charter. The Board has further determined that each of Messrs. Ellis and Fobes have accounting or related financial management expertise, as required by the NYSE Arca, such that each of them is considered an Audit Committee Financial Expert as such term is defined in Item 407(d)(5) of Regulation S-K.
Other Committees
Since the individuals who perform work on behalf of UGA are not compensated by UGA, but instead by USCF, UGA does not have a compensation committee. Similarly, since the directors noted above serve on the Board of USCF, there is no nominating committee of the Board that acts on behalf of UGA. USCF believes that it is necessary for each member of the Board to possess many qualities and skills. USCF further believes that all directors should possess a considerable amount of business management and educational experience. There have not been any vacancies on USCFs Board since the commencement of operations of UGA in April 2007; however, if such a vacancy were to occur, the members of the Board would consider a candidates management experience as well as his/her background, stature, conflicts of interest, integrity and ethics. In connection with this, the Board would also consider issues of diversity, such as diversity of gender, race and national origin, education, professional experience and differences in viewpoints and skills. The Board does not have a formal policy with respect to diversity; however, the Board believes that it is essential that the Board members represent diverse viewpoints.
Corporate Governance Policy
The Board of USCF has adopted a Corporate Governance Policy that applies to UGA and the Related Public Funds. UGA has posted the text of the Corporate Governance Policy on its website at www.unitedstatesgasolinefund.com. Any unitholder of UGA may also obtain a printed copy of the Corporate Governance Policy, free of charge, by calling 1-800-920-0259.
84
Code of Ethics
USCF has adopted a Code of Business Conduct and Ethics (the Code of Ethics) that applies to its principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions, and also to UGA. UGA has posted the text of the Code of Ethics on its website at www.unitedstatesgasolinefund.com. Any unitholder of UGA may also obtain a printed copy of the Code of Ethics, free of charge, by calling 1-800-920-0259. UGA intends to disclose any amendments or waivers to the Code of Ethics applicable to USCFs principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions, on its website.
Executive Sessions of the Non-Management Directors
In accordance with the Corporate Governance Policy of USCF, the non-management directors of the Board (who are the same as the independent directors of the Board) meet separately from the other directors in regularly scheduled executive sessions, without the presence of Management Directors or executive officers of USCF. The non-management directors have designated Malcolm R. Fobes III to preside over each such executive session. Interested parties who wish to make their concerns known to the non-management directors may communicate directly with Mr. Fobes by writing to 475 Milan Drive, No. 103, San Jose, CA 95134-2453 or by e-mail at uscf.director@gmail.com.
Board Leadership Structure and Role in Risk Oversight
The Board of USCF is led by a Chairman, Nicholas Gerber, who is also the President and CEO of USCF. The Boards responsibilities include: (i) the selection, evaluation, retention and succession of the Chief Executive Officer and the oversight of the selection and performance of other executive officers, (ii) understanding, reviewing and monitoring the implementation of strategic plans, annual operating plans and budgets, (iii) the selection and oversight of UGAs independent auditors and the oversight of UGAs financial statements, (iv) advising management on significant issues, (v) the review and approval of significant company actions and certain other matters, (vi) nominating directors and committee members and overseeing effective corporate governance and (vii) the consideration of other constituencies, such as USCFs and UGAs customers, employees, suppliers and the communities impacted by UGA. The non-management directors have designated Malcolm R. Fobes III as the presiding independent director. Mr. Fobes role as the presiding independent director includes presiding over each executive session of the non-management directors, facilitating communications by shareholders and employees with the non-management directors and may also include representing the non-management directors with respect to certain matters as to which the views of the non-management directors are sought pursuant to UGAs Corporate Governance Policy.
The Board believes that Mr. Gerber is best situated to serve as Chairman of USCF because he is the director most familiar with the business of USCF, including investing in the futures contracts and other commodity interests in order to track the benchmark futures contracts of UGA and the Related Public Funds. Because of his background, he is most capable of effectively leading the discussion and execution of new strategic objectives. The independent directors of USCF are actively involved in the oversight of USCF and, because of their varied backgrounds, provide different perspectives in connection with the oversight of USCF, UGA and the Related Public Funds. USCFs independent directors bring expertise from outside USCF and the commodities industry, while Mr. Gerber brings company-specific and industry-specific experience and expertise. The Board believes that the combined role of Chairman and Chief Executive Officer facilitates information flow between USCF and the Board, including the independent directors, which is essential to effective governance.
Risk Management
The full Board is actively involved in overseeing the management and operation of USCF, including oversight of the risks that face UGA and the Related Public Funds. For example, the Board has adopted an Investment Policy and a Policy for Use of Derivatives. The policies are intended to ensure that USCF takes prudent and careful action while entering into and managing investments taken by UGA, including Futures Contracts or Other Gasoline-Related Investments such as over-the-counter swap contracts. Additionally, the policies are intended to provide assurance that there is sufficient flexibility in controlling risks and returns associated with the use of investments by UGA. The policies, among other things, limit UGAs ability to have too high of a concentration of its assets in non-exchange traded futures contracts or cleared swap contracts or concentrating its investments in too few counterparties, absent prior approval from the Board. Existing counterparties are reviewed periodically by the Board to ensure that they continue to meet the criteria outlined in the policies. The Board tasks USCF with assessing risks, including market risk, credit risk, liquidity risk, cash flow risk, basis risk, legal and tax risk, settlement risk, and operational risk.
85
The Board also determines compensation payable to employees of USCF, including the portfolio managers of each of UGA and the Related Public Funds. The compensation of certain employees of USCF is, in part, based on the amount of assets under management by UGA and the Related Public Funds. The Board feels that compensating certain employees, in part, based on the amount of assets under management is appropriate since having more assets in a fund generally reflects that investors perceive the funds investment objective is being met. There are certain risks that may arise as a result of a growth in assets under management. For example, if position limits are imposed on UGA and the assets under management continue to increase, then UGA may not be able to invest solely in the Benchmark Futures Contract and may have to invest in over-the-counter swap contracts or Other Gasoline-Related Investments as it seeks to track its benchmark. Other Futures Contracts in which UGA may invest may not track changes in the price of the Benchmark Futures Contract. Other Gasoline-Related Investments, including over-the-counter swap contracts, may also expose UGA to increased counterparty credit risk and may be less liquid and more difficult to value than Futures Contracts. UGA and the Related Public Funds ameliorate the potential credit, liquidity and valuation risks by fully collateralizing any over-the-counter swap contracts or other investments. In making compensation decisions, the Board considers whether a compensation arrangement would expose UGA or the Related Public Funds to additional risks and whether the risks posed by such arrangement are consistent with the best interests of UGAs investors.
Other Information
In addition to the certifications of the Chief Executive Officer and Chief Financial Officer of USCF filed or furnished with this annual report on Form 10-K regarding the quality of UGAs public disclosure, UGA will submit, within 30 days after filing this annual report on Form 10-K, to the NYSE Arca a certification of the Chief Executive Officer of USCF certifying that he is not aware of any violation by UGA of NYSE Arca corporate governance listing standards.
Item 11. Executive Compensation.
Compensation to USCF and Other Compensation
UGA does not directly compensate any of the executive officers noted above. The executive officers noted above are compensated by USCF for the work they perform on behalf of UGA and other entities controlled by USCF. UGA does not reimburse USCF for, nor does it set the amount or form of any portion of, the compensation paid to the executive officers by USCF. UGA pays fees to USCF pursuant to the LP Agreement under which it is obligated to pay USCF an annualized fee of 0.60% of its average daily net assets. For 2011, UGA accrued aggregate management fees of $675,949.
86
Director Compensation
The following table sets forth compensation earned during the year ended December 31, 2011, by the directors of USCF. UGAs portion of the aggregate fees paid to the directors for the year ended December 31, 2011 was $8,604.
Name |
Fees Earned or Paid in Cash |
Stock Awards |
Option Awards |
Non-Equity Incentive Plan Compensation |
Change in Pension Value and Nonqualified Deferred Compensation Plan |
All Other Compensation |
Total | |||||||||||||||||||||
Management Directors |
||||||||||||||||||||||||||||
Nicholas Gerber |
$ | 0 | NA | NA | NA | $ | 0 | $ | 0 | $ | 0 | |||||||||||||||||
Andrew F. Ngim |
$ | 0 | NA | NA | NA | $ | 0 | $ | 0 | $ | 0 | |||||||||||||||||
Howard Mah |
$ | 0 | NA | NA | NA | $ | 0 | $ | 0 | $ | 0 | |||||||||||||||||
Robert L. Nguyen |
$ | 0 | NA | NA | NA | $ | 0 | $ | 0 | $ | 0 | |||||||||||||||||
Independent Directors |
||||||||||||||||||||||||||||
Peter M. Robinson |
$ | 100,000 | NA | NA | NA | $ | 0 | $ | 0 | $ | 100,000 | |||||||||||||||||
Gordon L. Ellis |
$ | 100,000 | NA | NA | NA | $ | 0 | $ | 0 | $ | 100,000 | |||||||||||||||||
Malcolm R. Fobes III(1) |
$ | 120,000 | NA | NA | NA | $ | 0 | $ | 0 | $ | 120,000 |
(1) | Mr. Fobes serves as chairman of the audit committee of USCF and receives additional compensation in recognition of the additional responsibilities he has undertaken in this role. |
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
None of the directors or executive officers of USCF, nor the employees of UGA own any units of UGA. In addition, UGA is not aware of any 5% holder of its units.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
Certain Relationships and Related Transactions
UGA has and will continue to have certain relationships with USCF and its affiliates. However, there have been no direct financial transactions between UGA and the directors or officers of USCF that have not been disclosed herein. See Item 11. Executive Compensation and Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters. Any transaction with a related person that must be disclosed in accordance with SEC Regulation S-K item 404(a), including financial transactions by UGA with directors or executive officers of USCF or holders of beneficial interests in USCF or UGA of more than 5%, will be subject to the provisions regarding Resolutions of Conflicts of Interest; Standard of Care as set forth in Section 7.7 of the LP Agreement and will be reviewed and approved by the audit committee of the Board of USCF.
Director Independence
In February 2012, the Board undertook a review of the independence of the directors of USCF and considered whether any director has a material relationship or other arrangement with USCF, UGA or the Related Public Funds that could compromise his ability to exercise independent judgment in carrying out his responsibilities. As a result of this review, the Board determined that each of Messrs. Fobes, Ellis and Robinson is an independent director, as defined under the rules of NYSE Arca.
87
Item 14. Principal Accountant Fees and Services.
The fees for services billed to UGA by its independent auditors for the last two fiscal years are as follows:
2011 | 2010 | |||||||
Audit fees |
$ | 60,000 | $ | 60,000 | ||||
Audit-related fees |
- | - | ||||||
Tax fees |
- | - | ||||||
All other fees |
- | - | ||||||
|
|
|
|
|||||
$ | 60,000 | $ | 60,000 | |||||
|
|
|
|
Audit fees consist of fees paid to Spicer Jeffries LLP for (i) the audit of UGAs annual financial statements included in the annual report on Form 10-K, and review of financial statements included in the quarterly reports on Form 10-Q and certain of UGAs current reports on Form 8-K; (ii) the audit of UGAs internal control over financial reporting included in the annual report on Form 10-K; and (iii) services that are normally provided by the Independent Registered Public Accountants in connection with statutory and regulatory filings of registration statements.
Tax fees consist of fees paid to Spicer Jeffries LLP for professional services rendered in connection with tax compliance and partnership income tax return filings.
The audit committee has established policies and procedures which are intended to control the services provided by UGAs independent auditors and to monitor their continuing independence. Under these policies and procedures, no audit or permitted non-audit services (including fees and terms thereof), except for the de minimis exceptions for non-audit services described in Section 10A(i)(1)(B) of the Exchange Act, may be undertaken by UGAs independent auditors unless the engagement is specifically pre-approved by the audit committee. The audit committee may form and delegate authority to subcommittees consisting of one or more members when appropriate, including the authority to grant pre-approvals of audit and permitted non-audit services, provided that decisions of such subcommittee to grant pre-approvals must be presented to the full audit committee at its next scheduled meeting.
88
Part IV
Item 15. Exhibits and Financial Statement Schedules.
1. | See Index to Financial Statements on page 61. |
2. | No financial statement schedules are filed herewith because (i) such schedules are not required or (ii) the information required has been presented in the aforementioned financial statements. |
3. | Exhibits required to be filed by Item 601 of Regulation S-K. |
Listed below are the exhibits which are filed or furnished as part of this annual report on Form 10-K (according to the number assigned to them in Item 601 of Regulation S-K):
Exhibit Number |
Description of Document | |
|
||
3.1(1) |
Certificate of Limited Partnership of the Registrant. | |
3.2(2) |
Amended and Restated Agreement of Limited Partnership. | |
3.3(3) |
Fifth Amended and Restated Limited Liability Company Agreement of USCF. | |
10.1(4) |
Form of Initial Authorized Purchaser Agreement. | |
10.2(5) |
License Agreement. | |
10.3(6) |
Third Amendment to License Agreement between United States Commodity Funds LLC and New York Mercantile Exchange, Inc. | |
10.4(2) |
Custodian Agreement. | |
10.5(7) |
Amendment Agreement to the Custodian Agreement. | |
10.6(2) |
Administrative Agency Agreement. | |
10.7(7) |
Amendment Agreement to the Administrative Agency Agreement. | |
10.8(8) |
Marketing Agent Agreement. | |
10.9(2) |
Amendment Agreement to the Marketing Agent Agreement. | |
10.10(9) |
Form of United States Commodity Funds LLC Director Deferred Compensation Agreement. | |
14.1(3) |
Code of Ethics. | |
23.1(3) |
Consent of Independent Registered Public Accounting Firm. | |
31.1(3) |
Certification of Principal Executive Officer Pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934. | |
31.2(3) |
Certification of Principal Financial Officer Pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934. | |
32.1(3) |
Certification of Principal Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U. S. C. 1350). | |
32.2(3) |
Certification of Principal Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U. S. C. 1350). | |
99.1(2) |
Customer Agreement for Futures Contracts. | |
101.INS(10) |
XBRL Instance Document. | |
101.SCH(10) |
XBRL Taxonomy Extension Schema. | |
101.CAL(10) |
XBRL Taxonomy Extension Calculation Linkbase. | |
101.DEF(10) |
XBRL Taxonomy Extension Definition Linkbase. | |
101.LAB(10) |
XBRL Taxonomy Extension Label Linkbase. | |
101.PRE(10) |
XBRL Taxonomy Extension Presentation Linkbase. | |
(1) |
Incorporated by reference to Registrants Registration Statement on Form S-1 (File No. 333-142206) filed on April 18, 2007. | |
(2) |
Incorporated by reference to Registrants Quarterly Report on Form 10-Q for the Quarter ended September 30, 2009, filed on November 16, 2009. | |
(3) |
Filed herewith. | |
(4) |
Incorporated by reference to Registrants Pre-Effective Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-142206) filed on January 11, 2008. | |
(5) |
Incorporated by reference to United States Natural Gas Fund, LPs Quarterly Report on Form 10-Q for the Quarter ended March 31, 2007, filed on June 1, 2007. |
89
(6) |
Incorporated by reference to the Registrants Current Report on Form 8-K, filed on October 24, 2011. | |
(7) |
Incorporated by reference to Registrants Annual Report on Form 10-K for the year ended December 31, 2008, filed on March 31, 2009. | |
(8) |
Incorporated by reference to Registrants Registration Statement on Form S-1 (File No. 333- 162717) filed on October 28, 2009. | |
(9) |
Incorporated by reference to Registrants Current Report on Form 8-K, filed on April 1, 2010. | |
(10) |
In accordance with Rule 406T of Regulation S-T, the information in these exhibits is furnished and deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, and otherwise is not subject to liability under these sections. |
90
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
United States Gasoline Fund, LP (Registrant) | ||
By: |
United States Commodity Funds LLC, its general partner | |
By: |
/s/ Nicholas D. Gerber | |
Nicholas D. Gerber | ||
President and Chief Executive Officer | ||
(Principal executive officer) | ||
Date: March 8, 2012 | ||
By: |
/s/ Howard Mah | |
Howard Mah | ||
Chief Financial Officer | ||
(Principal financial and accounting officer) | ||
Date: March 8, 2012 |
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the Registrant in the capacities and on the dates indicated.
Signature | Title (Capacity) | Date | ||||||
|
||||||||
/s/ Nicholas D. Gerber |
Management Director |
March 8, 2012 |
||||||
Nicholas D. Gerber |
||||||||
|
||||||||
/s/ Howard Mah |
Management Director |
March 8, 2012 |
||||||
Howard Mah |
||||||||
|
||||||||
/s/ Andrew Ngim |
Management Director |
March 8, 2012 |
||||||
Andrew Ngim |
||||||||
|
||||||||
/s/ Robert Nguyen |
Management Director |
March 8, 2012 |
||||||
Robert Nguyen |
||||||||
|
||||||||
/s/ Peter M. Robinson |
Independent Director |
March 8, 2012 |
||||||
Peter M. Robinson |
||||||||
|
||||||||
/s/ Gordon L. Ellis |
Independent Director |
March 8, 2012 |
||||||
Gordon L. Ellis |
||||||||
|
||||||||
/s/ Malcolm R. Fobes III |
Independent Director |
March 8, 2012 |
||||||
Malcolm R. Fobes III |
91
Exhibit 3.3
FIFTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
UNITED STATES COMMODITY FUNDS LLC
Dated as of July 22, 2011
CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS |
2 | |||||
ARTICLE II ORGANIZATIONAL MATTERS |
3 | |||||
Section 2.1 |
Formation and Continuation. |
3 | ||||
Section 2.2 |
Name. |
3 | ||||
Section 2.3 |
Purposes. |
3 | ||||
Section 2.4 |
Powers. |
3 | ||||
Section 2.5 |
Offices: Statutory Agent. |
3 | ||||
ARTICLE III MEMBER |
4 | |||||
Section 3.1 |
Membership Interest. |
4 | ||||
Section 3.2 |
Capital Contribution |
4 | ||||
Section 3.3 |
Uncertificated Membership Interest. |
4 | ||||
Section 3.4 |
Rights of the Member. |
4 | ||||
ARTICLE IV DIRECTORS |
4 | |||||
Section 4.1 |
Number and Qualification. |
4 | ||||
Section 4.2 |
Election and Term of Office. |
4 | ||||
Section 4.3 |
Resignation. |
4 | ||||
Section 4.4 |
Removal. |
5 | ||||
Section 4.5 |
Vacancies. |
5 | ||||
Section 4.6 |
General Powers. |
5 | ||||
Section 4.7 |
Compensation. |
5 | ||||
ARTICLE V MEETINGS OF DIRECTORS |
5 | |||||
Section 5.1 |
Place of Meeting. |
5 | ||||
Section 5.2 |
Annual Meeting. |
5 | ||||
Section 5.3 |
Regular Meetings |
5 | ||||
Section 5.4 |
Special Meetings. |
5 | ||||
Section 5.5 |
Quorum and Action. |
6 | ||||
Section 5.6 |
Presumption of Assent to Action. |
6 | ||||
Section 5.7 |
Telephonic Meetings. |
6 | ||||
Section 5.8 |
Action Without Meeting |
6 | ||||
Section 5.9 |
Waiver of Notice.6 |
6 | ||||
ARTICLE VI COMMITTEES OF THE DIRECTORS |
7 | |||||
Section 6.1 |
Company and Authorities. |
7 | ||||
Section 6.2 |
Audit Committee. |
7 | ||||
Section 6.3 |
Minutes and Rules of Procedure. |
7 | ||||
Section 6.4 |
Vacancies. |
7 | ||||
Section 6.5 |
Telephonic Meetings. |
7 | ||||
Section 6.6 |
Action Without Meeting |
8 | ||||
ARTICLE VII OFFICERS |
8 | |||||
Section 7.1 |
Positions and Powers. |
8 | ||||
Section 7.2 |
Election, Term of Office and Qualification. |
8 | ||||
Section 7.3 |
Resignation. |
8 | ||||
Section 7.4 |
Removal. |
8 | ||||
Section 7.5 |
Vacancies. |
8 |
Section 7.6 |
The President. |
9 | ||||
Section 7.7 |
The Vice Presidents. |
9 | ||||
Section 7.8 |
The Secretary. |
9 | ||||
Section 7.9 |
Assistant Secretaries. |
9 | ||||
Section 7.10 |
The Treasurer. |
9 | ||||
Section 7.11 |
Assistant Treasurers. |
9 | ||||
Section 7.12 |
Treasurers Bond. |
10 | ||||
Section 7.13 |
Other Officers. |
10 | ||||
Section 7.14 |
Salaries. |
10 | ||||
ARTICLE VIII CAPITAL ACCOUNT |
10 | |||||
Section 8.1 |
Capital Account |
10 | ||||
ARTICLE IX DISTRIBUTIONS |
10 | |||||
Section 9.1 |
Distributions During Term of Company. |
10 | ||||
Section 9.2 |
Distributions Upon Liquidation. |
10 | ||||
Section 9.3 |
Limitation on Distributions. |
10 | ||||
ARTICLE X INDEMNIFICATION |
10 | |||||
Section 10.1 |
Definitions. |
10 | ||||
Section 10.2 |
Indemnification. |
11 | ||||
Section 10.3 |
Successful Defense. |
11 | ||||
Section 10.4 |
Determinations. |
12 | ||||
Section 10.5 |
Advancement of Expenses. |
12 | ||||
Section 10.6 |
Other Indemnification and Insurance. |
12 | ||||
Section 10.7 |
Construction. |
12 | ||||
Section 10.8 |
Continuing Offer, Reliance, etc. |
13 | ||||
Section 10.9 |
Effect of Amendment. |
13 | ||||
ARTICLE XI DISSOLUTION AND FINAL LIQUIDATION |
13 | |||||
Section 11.1 |
Dissolution. |
13 | ||||
Section 11.2 |
Winding Up. |
13 | ||||
Section 11.3 |
Distribution of Assets. |
13 | ||||
Section 11.4 |
Revocation of Voluntary Dissolution Proceedings |
13 | ||||
ARTICLE XII AMENDMENT |
13 | |||||
Section 12.1 |
Amendment of Agreement |
13 | ||||
ARTICLE XIII GENERAL PROVISIONS |
13 | |||||
Section 13.1 |
Liability to Third Parties. |
13 | ||||
Section 13.2 |
Waiver of Notice. |
14 | ||||
Section 13.3 |
Seal. |
14 | ||||
Section 13.4 |
Fiscal Year. |
14 | ||||
Section 13.5 |
Checks, Notes, Etc. |
14 | ||||
Section 13.6 |
Voting Upon Securities by the Company. |
14 | ||||
Section 13.7 |
Titles and Captions. |
14 | ||||
Section 13.8 |
Pronouns and Plurals. |
14 | ||||
Section 13.9 |
Subject to All Laws. |
14 | ||||
Section 13.10 |
Section 13.10 Allocation of Profits and Losses; Tax Status |
15 |
FIFTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
UNITED STATES COMMODITY FUNDS LLC
THIS FIFTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of UNITED STATES COMMODITY FUNDS LLC, is entered into as of the 22nd day of July, 2011, by Wainwight Holdings, Inc., as the sole member of the limited liability company.
Recitals:
A. The Company was formed as a Delaware limited liability company under the name Standard Asset Management, LLC by filing a certificate of formation pursuant to the Delaware Limited Liability Company Act (as amended from time to time, and together with any successor statute, the Act) that was accepted for filing by the Secretary of State on May 10, 2005 and amended on June 10, 2005 to rename the Company Victoria Bay Asset Management, LLC; and
B. The Member entered into a limited liability company agreement dated as of May 10, 2005 as amended and restated by the First Amended and Restated Limited Liability Company Agreement dated as of September 30, 2005, regarding the operation of the Company and its rights and obligations therein, as further amended and restated by the Second Amended and Restated Limited Liability Company Agreement dated as of September 8,2006, and as further amended and restated by the Third Amended and Restated Limited Liability Company Agreement dated as of December 12, 2006, and as further amended and restated by the Fourth Amended and Restated Limited Liability Company Agreement dated as of June 12, 2008 (the LLC Agreement);
C. The Member desires to amend and restate the LLC Agreement to require the Management Directors to establish and maintain an Audit Committee, as defined in Section 6.2 of this amended and restated LLC Agreement, in compliance with both funds for which the Company acts as a general partner, as well as acts as sponsor of series statutory trusts.
NOW, THEREFORE, the Member, intending to be legally bound hereby, agrees as follows:
ARTICLE I
DEFINITIONS
When used in this Fifth Amended and Restated Limited Liability Company Agreement, the following terms shall have the respective meanings assigned to them in this Article I or in the Sections referenced below:
Act shall have the meaning specified in the recitals to this Agreement.
Agreement means this Fifth Amended and Restated Limited Liability Company Agreement, as amended from time to time.
Board of Directors means the board of directors of the Company provided for in Article TV of this Agreement.
Certificate means the Certificate of Formation of the Company filed in the office of the Secretary of State on May 10, 2005, as amended from time to time.
Code means the Internal Revenue Code of 1986, as amended.
Company the Delaware limited liability company known as United States Commodity Funds LLC, as such limited liability company may be constituted from time to time.
Indemnitee shall have the meaning specified in Section 10.1(a).
Management Director shall mean a Person selected in accordance with Article IV of this Agreement who shall have the powers and duties to manage the business and affairs of the Company and exercise its powers to the extent set forth in this Agreement, the Certificate and the Act. Each Management Director shall be a manager of the Company within the meaning of the Act.
Member means Wainwright Holding, Inc., a Delaware corporation, and its successors.
Non-Management Director shall mean any Person selected in accordance with Article JV of this Agreement who is not a Management Director.
Official Capacity shall have the meaning specified in Section 10.1(b).
Person means any individual, corporation, limited liability company, partnership, trust, estate or other entity. Proceeding shall have the meaning specified in Section 10.1(c).
Property means any Company property, real or personal, tangible or intangible, including but not limited to any legal or equitable interest in such property, ownership interests in entities owning real or personal property, and money.
2
Regulations means, except where the context indicates otherwise, the final, temporary, or proposed regulations of the Department of the Treasury under the Code as such regulations may be lawfully changed from time to time.
Secretary of State means the Secretary of State of the State of Delaware.
U.S. means the United States of America.
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1 Formation and Continuation.
(a) The Company was formed upon the issuance by the Secretary of State of the Certificate for the Company. This Agreement shall be effective at the time of such filing. Nicholas D. Gerber is hereby designated as an authorized person, within the meaning of the Act, to execute, deliver and file such certificate of formation, and any action taken prior to the execution of this Agreement in connection therewith by any such person is hereby ratified and confirmed. In addition, Howard Mah is designated as an authorized person within the meaning of the Act. The Management Directors may designate any person to be an authorized person, within the meaning of the Act.
(b) The Company shall continue in existence from the date of its formation in perpetuity, unless earlier dissolved pursuant to Article XI of this Agreement.
(c) The parties hereto intend that this Agreement shall constitute a limited liability company agreement within the meaning of Section 18-101(7) of the Act.
Section 2.2 Name, The name of the Company is United States Commodity Funds LLC. The name of the Company may be changed from time to time by amendment of the Certificate. The Company may transact business under an assumed name by filing an assumed name certificate in the manner prescribed by applicable law.
Section 2.3 Purposes. The Company may engage in any lawful business unless a more limited purpose is stated in the Certificate.
Section 2.4 Powers. The Company shall have the powers provided for a limited liability company under the Act and any powers otherwise allowed under any applicable law.
Section 2.5 Offices: Statutory Agent.
(a) The Companys principal office and the address thereof may be established and changed from time to time by the Management Directors.
(b) The registered office of the Company in Delaware shall be the office of the statutory agent of the Company in Delaware. The statutory agent of the Company in Delaware is the Corporation Service Company and its address in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle. The Companys registered office, registered agent and the addresses thereof may be changed from time to time by the Management Directors in accordance with the Act.
3
(c) The Company may also have offices at such other places, both within and without the State of Delaware, as the Management Directors may from time to time determine or the business of the Company may require.
ARTICLE III
MEMBER
Section 3.1 Membership Interest. The Member is admitted as a member of the Company upon the execution and delivery of this Agreement, and is the only member of the Company. The Member has a one hundred percent (100%) interest in the Company and in the profits and losses thereof.
Section 3.2 Capital Contribution The Member made an initial contribution to the capital of the Company, in cash, the amount of $1,000.00 at time the Company was formed. The Member is not obligated to make any additional capital contributions to the Company.
Section 3.3 Uncertificated Membership Interest. No certificates shall be issued evidencing the membership interest in the Company.
Section 3.4 Rights of the Member. The Member, in its capacity as such, shall take no pat in the management or control of the Companys business and shall have no right to act for or bind the Company or to vote on matters other than the matters specified in this Agreement or required by any non-waivable provision of the Act.
ARTICLE IV
DIRECTORS
Section 4.1 Number and Qualification. Thee shall be seven Directors, four of which shall be Management Directors and thee of which shall be Non-Management Directors. The Management Directors may change the number of Management Directors and Non-Management Directors from time to time by written consent of the Management Directors. Directors need not be residents of the State of Delaware. The Member shall elect the Management Directors and the Non-Management Directors.
Section 4.2 Election and Term of Office. The Directors shall be elected by written consent of the Member (except as provided in Section 4.8). Each Director elected shall hold office until his successor shall be chosen by written consent of the Member and shall qualify, or until his death or his resignation or removal in the manner hereinafter provided.
Section 4.3 Resignation. Any Director may resign at any time by giving written notice to the President or Secretary of the Company. Such resignation shall take effect at die time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
4
Section 4.4 Removal. By written consent of the Member, any Director or Directors, including all of the Directors, may be removed, either with or without cause.
Section 4.5 Vacancies. Any vacancy occurring in the Directors (including a vacancy resulting from an increase in the authorized number of Directors) may be filled by the written consent of the Member. A Director elected to ill a vacancy shall be elected for the unexpired term of his predecessor in office.
Section 4.6 General Powers. The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Management Directors, subject to the terms of this Agreement. The Non-Management Directors shall only have such authority as the Management Directors expressly confer upon them. Notwithstanding the foregoing provisions of this Section 4.6, each of Nicholas D. Gerber and Howard Mah, so long as he shall remain a Manager and in his capacity as such, shall have the right to act for and bind the Company, but no other individual Manager, in his capacity as such, shall have the right to act for or bind the Company.
Section 4.7 Compensation. Management Directors as such shall not receive any stated salary for their service, but expenses of attendance, if any, may be allowed for attendance at any regular or special meeting of the Directors or a committee thereof, provided that nothing herein contained shall be construed to preclude any Management Director from serving the Company in any other capacity and receiving compensation therefore.
Non-Management Directors may receive compensation for their services together with expenses of attendance, if any, for attendance at any regular or special meeting of the Directors or a committee thereof, as such compensation and expenses may be determined from time to time by the Management Directors.
ARTICLE V
MEETINGS OF DIRECTORS
Section 5.1 Place of Meeting. The Directors of the Company may hold their meetings, both regular and special, either within or without the State of Delaware.
Section 5.2 Annual Meeting. An annual meeting of the Directors shall be held at such time and place as shall be fixed by the consent in writing of a majority of the Directors, and no notice to the newly elected Directors of such meeting shall be necessary in order legally to constitute the meeting, provided a quorum shall be present.
Section 5.3 Regular Meetings Regular meetings of the Directors, in addition to the annual meetings referred to in Section 5.2, may be held without notice at such time and place as shall from time to time be determined by the Directors.
Section 5.4 Special Meetings. Special meetings of the Directors may be called by the Chairman, if one shall be elected, the Vice Chairman, if one shall be elected, or by the President, on one (1) days notice (oral or written) to each Director, Special meetings shall be called by the President or the Secretary on like notice on the written request of any Director. Neither the purpose of, nor the business to be transacted at, any special meeting of the Directors need be specified in the notice or waiver of notice of such meeting.
5
Section 5.5 Quorum and Action. At all meetings of the Directors, the presence of a majority of the number of Management Directors fixed by or in accordance with this Agreement shall be necessary and sufficient to constitute a quorum for the transaction of business. Subject to the preceding sentence, the act of a majority of the Management Directors at any meeting at which a quorum is present shall be the act of the Directors unless the act of a greater number is required by law, the Certificate or this Agreement. If a quorum shall not be present at any meeting of the Directors, the Directors present may adjourn the meeting from time to time without notice other than announcement at the meeting until a quorum shall be present.
Section 5.6 Presumption of Assent to Action. A Director who is present at a meeting of the Directors at which action on any matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the Company immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who votes in favor of such action.
Section 5.7 Telephonic Meetings. Directors may participate in and hold a meeting of the Directors by means of conference telephone or similar communications equipment by means of which all Directors participating in the meeting can hear each other. Participation in a meeting pursuant to this Section shall constitute presence in person at such meeting, except where a Director participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
Section 5.8 Action Without Meeting Any action required or permitted to be taken at a meeting of the Directors may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the Management Directors, or members of the committee, as the case may be, and such consent shall have the same force and effect as a unanimous vote at a meeting.
Section 5.9 Waiver of Notice. Attendance of a Director at a meeting shall constitute a waiver of notice of such meeting except where a Director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened.
6
ARTICLE VI
COMMITTEES OF THE DIRECTORS
Section 6.1 Company and Authorities. Subject to Section 6.2, the Management Directors, by written consent, may designate from among the Directors one or more committees, each of which shall be comprised of one or more Directors, and may designate one or more Directors as alternate members of any committee, who may, subject to any limitations imposed by the Management Directors, replace absent or disqualified Directors at any meeting of that committee. Any such committee, to the extent provided in such resolution, shall have and may exercise all of the authority of the Directors in the business and affairs of the Company, subject to the limitations set forth in the Act or this Agreement and Section 6.2. The members of each such committee shall serve at the pleasure of the Management Directors, subject to the limitations set forth in Section 6.2.
Section 6.2 Audit Committee.
(a) The audit committee shall consist of all of the Non-Management Directors.
(b) Notwithstanding anything in this Agreement to the contrary, the Management Directors shall establish and maintain an audit committee in compliance with, and granted the requisite authority and funding pursuant to, any applicable (1) federal securities laws and regulations, including the Sarbanes-Oxley Act of 2002, and (2) rules, policies and procedures of any national securities exchange on which the securities issued by any of United States Oil Fund, LP, United States Natural Gas Fund, LP, United States 12 Month Oil Fund, LP, United States Gasoline Fund, LP, United States Heating Oil Fund, LP, United States 12 Month Natural Gas Fund, LP, United States Brent Oil Fund, LP, United States Shot Oil Fund, LP, all series funds organized under the United States Commodity Index Funds Trust, all series funds organized under the United States Commodity Funds Trust I, all series funds organized under the United States Commodity Funds Trust II or any other fund for which the Company acts as general partner or sponsor, where such securities are registered with the United States Securities and Exchange Commission and/or are listed and traded on any U.S. or foreign exchange.
Section 6.3 Minutes and Rules of Procedure. Each committee designated by the Management Directors shall keep regular minutes of its proceedings and report the same to the Management Directors when required. Subject to the provisions of this Agreement, the members of any committee may fix such committees own rules of procedure.
Section 6.4 Vacancies. The Management Directors shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve, any committee, provided that with respect to the audit committee, the Management Directors shall only have the power to ill vacancies and change the membership of such committee to the extent permitted by Section 6.2.
Section 6.5 Telephonic Meetings. Members of any committee designated by the Management Directors may participate in or hold a meeting by use of conference telephone or similar communications equipment by means of which all committee members participating in the meeting can hear each other. Participation in a meeting pursuant to this Section shall constitute presence in person at such meeting, except where a committee member participates in the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened.
7
Section 6.6 Action Without Meeting. Any action required or permitted to be taken at a meeting of any committee designated by the Management Directors may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the members of the committee, and such consent shall have the same force and effect as a unanimous vote at a meeting.
Section 6.7 Resolution of Conflicts. Should any conflicts arise among the Management Directors regarding the operations of Fund, the audit committee, consisting of the Non-Management Directors will resolve the conflict.
ARTICLE VII
OFFICERS
Section 7.1 Positions and Powers.
(a) The Management Directors may, by written consent, appoint a President, one or more Vice Presidents, a Secretary, a Treasurer, one or more Assistant Secretaries, one or more Assistant Treasurers and other officers. One individual may hold any two or more of these offices.
(b) Every officer is an agent of the Company for the purpose of its business. The act of an officer, including the execution in the name of the Company of any instrument for apparently carrying on in the usual way the business of the Company, binds the Company unless the officer so acting otherwise lacks authority to act for the Company and the Person with whom the officer is dealing has knowledge of the fact that the officer has no such authority.
Section 7.2 Election. Term of Office and Qualification. Any officer duly appointed by the Management Directors shall hold office until his successor shall have been duly appointed and qualified or until his death or his resignation or removal in the manner hereinafter provided.
Section 7.3 Resignation. Any officer may resign at any time by giving written notice thereof to the Management Directors or to the President or Secretary of the Company. Any such resignation shall take effect at the time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 7.4 Removal. Any officer may be removed at any time with or without cause by written consent of the Management Directors. The removal of any officer shall be without prejudice to the contract rights, if any, of the individual so removed. Appointment of an officer or agent shall not of itself create any contract rights.
Section 7.5 Vacancies. A vacancy in any office may be filled for the unexpired portion of the term by the Management Directors by written consent.
8
Section 7.6 The President. The President shall be the chief executive officer of the Company. He shall have general and active management of the business of the Company, shall have the general supervision and direction of all other officers of the Company with full power to see that their duties are properly performed and shall see that all orders and resolutions of the Management Directors are carried into effect. Without limiting the authority of the Management Directors to sign deeds, bonds, mortgages, contracts and other documents on behalf of the Company, the President may sign, with any other proper officer, any deeds, bonds, mortgages, contracts and other documents which the Management Directors have authorized to be executed, except where required by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Management Directors or this Agreement to some other officer or agent of the Company. In addition, the President shall perform whatever duties and shall exercise all the powers that are given to him by the Management Directors.
Section 7.7 The Vice Presidents. The Vice Presidents shall perform the duties as are given to them by this Agreement and as may from time to time be assigned to them by the Management Directors or by the President. At the request of the President, or in his absence or disability, the Vice President designated by the President (or in the absence of such designation, the senior Vice President), shall perform the duties and exercise the powers of the President.
Section 7.8 The Secretary. The Secretary shall be custodian of the limited liability company records and shall perform such other duties as may be prescribed by the Management Directors or by the President, under whose supervision he shall be. He shall keep in safe custody the seal of the Company and, when authorized by the Management Directors, affix the same to any instrument requiring it, and when so affixed, it may be attested by his signature or by the signature of the Treasurer or an Assistant Secretary.
Section 7.9 Assistant Secretaries. The Assistant Secretaries shall perform the duties as are given to them by this Agreement or as may from time to time be assigned to them by the Management Directors or by the Secretary. At the request of the Secretary, or in his absence or disability, the Assistant Secretary designated by the Secretary (or in the absence of such designation the senior Assistant Secretary), shall perform the duties and exercise the powers of the Secretary.
Section 7.10 The Treasurer. The Treasurer shall have custody of and be responsible for all funds and securities of the Company, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all monies and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Management Directors. He shall disburse the funds of the Company as may be ordered by the Management Directors, taking proper vouchers for such disbursements, and shall ender to the President and the Management Directors, whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the Company.
Section 7.11 Assistant Treasurers. The Assistant Treasurers shall perform the duties as are given to them by this Agreement or as may from time to time be assigned to them by the Management Directors or by the Treasurer. At the request of the Treasurer, or in his absence or disability, the Assistant Treasurer, designated by the Treasurer (or in the absence of such designation, the senior Assistant Treasurer), shall perform the duties and exercise the powers of the Treasurer.
9
Section 7.12 Treasurers Bond. If required by the Management Directors, the Treasurer and any Assistant Treasurer shall give the Company a bond in such sum and with such surety or sureties as shall be satisfactory to the Management Directors for the faithful performance of the duties of his office and for the restoration to the Company, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Company.
Section 7.13 Other Officers. The Management Directors may appoint by written consent such other officers and agents as the Management Directors shall deem necessary who shall hold their offices for such terms, have such authority and perform such duties as the Management Directors may from time to time determine.
Section 7.14 Salaries. The salary or other compensation of officers may be fixed from time to time by the Management Directors.
ARTICLE VIII
CAPITAL ACCOUNT
Section 8.1 Capital Account. A capital account shall be maintained for the Member in accordance with § 704 (b) of the Code and the Regulations thereunder.
ARTICLE IX
DISTRIBUTIONS
Section 9.1 Distributions During Term of Company. The Management Directors in their sole discretion prior to dissolution of the Company may, but shall not be obligated to, distribute such Property of the Company, whether in cash or in kind, as the Management Directors may from time to time deem advisable, after the Management Directors have established such reserves as the Management Directors consider appropriate.
Section 9.2 Distributions Upon Liquidation. On the winding up of the Company pursuant to Section 11.2 hereof, all assets of the Company shall be distributed in accordance with Section 11.3.
Section 9.3 Limitation on Distributions. Notwithstanding anything in this Agreement to the contrary, no distribution shall be made if it would not be permitted by the Act.
ARTICLE X
INDEMNIFICATION
Section 10.1 Definitions. In this Article:
(a) Indemnitee means (i) any present or former director or officer of the Company, and (ii) any person who while serving in any of the capacities referred to in clause (i) of this sentence served at the Companys request as a director or officer of any other entity.
10
(b) Official Capacity means the elective or appointive office of the Company held by such Person or the employment or agency relationship undertaken by such Person on behalf of the Company, but in each case does not include service for any other foreign or domestic limited liability company, corporation or any partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise.
(c) Proceeding means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in such an action, suit or proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding.
Section 10.2 Indemnification. The Company shall indemnify every Indemnitee against all judgments, penalties (including excise and similar taxes), fines, amounts paid in settlement and reasonable expenses actually incurred by the Indemnitee in connection with any Proceeding in which he was, or is threatened to be, named as a defendant or respondent, or in which he was or is a witness without being named as a defendant or respondent, by reason, in whole or in part, of his serving or having served, or having been nominated or designated to serve, in any of the capacities referred to in Section 10.1, if it is determined in accordance with Section 10.4 that the Indemnitee (a) conducted himself in good faith, (b) reasonably believed, in the case of conduct in his Official Capacity, that his conduct was in the Companys best interests and, in all other cases, that his conduct was at least not opposed to the Companys best interests, and (c) in the case of any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful; provided, however, that in the event that an Indemnitee is found liable to the Company or is found liable on the basis that personal benefit was improperly received by the Indemnitee, the indemnification (i) is limited to reasonable expenses actually incurred by the Indemnitee in connection with the Proceeding and (ii) shall not be made in respect of any Proceeding in which the Indemnitee shall have been found liable for willful or intentional misconduct in the performance of his duty to the Company. Except as provided in the proviso to the first sentence of this Section 10.2, no indemnification shall be made under this Section 10.2 in respect of any Proceeding in which such Indemnitee shall have been (x) found liable on the basis that personal benefit was improperly received by him, whether or not the benefit resulted from an action taken in the Indemnitees Official Capacity, or (y) found liable to the Company. The termination of any Proceeding by judgment, order, settlement or conviction, or on a plea of nolo contendere or its equivalent, is not of itself determinative that the Indemnitee did not meet the requirements set forth in clauses (a), (b) or (c) in the first sentence of this Section 10.2. An Indemnitee shall be deemed to have been found liable in respect of any claim, issue or matter only after the Indemnitee shall have been so adjudged by a court of competent jurisdiction after exhaustion of all appeals therefrom. Reasonable expenses shall include, but not be limited to, all court costs and all fees and disbursements of attorneys for the Indemnitee. The indemnification provided herein shall be applicable whether or not negligence or gross negligence of the Indemnitee is alleged or proven.
Section 10.3 Successful Defense. Without limiting the generality of Section 10.2 and in addition to the indemnification provided for in Section 10.2, the Company shall indemnify every Indemnitee against reasonable expenses incurred by such Indemnitee in connection with any Proceeding in which he is a witness or a named defendant or respondent because he served in any of the capacities referred to in Section 10.1, if such Indemnitee has been wholly successful, on the merits or otherwise, in defense of the Proceeding.
11
Section 10.4 Determinations. Any indemnification under Section 10.2 (unless ordered by a court of competent jurisdiction) shall be made by the Company only upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct. Such determination shall be made by written consent of the Management Directors. Determination as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible. In the event a determination is made under this Section that the Indemnitee has met the applicable standard of conduct as to some matters but not as to others, amounts to be indemnified may be reasonably prorated.
Section 10.5 Advancement of Expenses. Reasonable expenses (including court costs and attorneys fees) incurred by an Indemnitee who was or is threatened to be made a named defendant or respondent in a Proceeding shall be paid by the Company at reasonable intervals in advance of the final disposition of such Proceeding, and without making any of the determinations specified in Section 10.4, after receipt by the Company of (a) a written affirmation by such Indemnitee of his good faith belief that he has met the standard of conduct necessary for indemnification by the Company under this Article and (b) a written undertaking by or on behalf of such Indemnitee to repay the amount paid or reimbursed by the Company if it shall ultimately be determined that he is not entitled to be indemnified by the Company as authorized in this Article. Such written undertaking shall be an unlimited obligation of the Indemnitee but need not be secured, and it may be accepted without reference to financial ability to make repayment.
Notwithstanding any other provision of this Article, the Company may pay or reimburse expenses incurred by an Indemnitee in connection with his appearance as a witness or other participation in a Proceeding at a time when he has not been named as a defendant or respondent in the Proceeding.
Section 10.6 Other Indemnification and Insurance. The indemnification provided by this Article shall (a) not be deemed exclusive of, or to preclude, any other right to which those seeking indemnification may at any time be entitled under the Certificate, any law, agreement or written consent of the Management Directors, or otherwise, or under any policy or policies of insurance purchased and maintained by the Company on behalf of any Indemnitee, both as to action in an Official Capacity and as to action in any other capacity, (b) continue as to a Person who has ceased to be in the capacity by reason of which he was an Indemnitee with respect to matters arising during the period he was in such capacity, (c) inure to the benefit of the heirs, executors and administrators of such a Person, and (d) not be required if and to the extent that the Person otherwise entitled to payment of such amounts hereunder has actually received payment herefore under any insurance policy, contract or otherwise.
Section 10.7 Construction. The indemnification provided by this Article shall be subject to all valid and applicable laws, and in the event this Article or any of the provisions hereof or the indemnification contemplated hereby are found to be inconsistent with or contrary to any such valid laws, the latter shall be deemed to control and this Article shall be regarded as modified accordingly and, as so modified, to continue in full force and effect.
12
Section 10.8 Continuing Offer. Reliance, etc. The provisions of this Article (a) are for the benefit of, and may be enforced by, each Indemnitee of the Company, as if set forth in their entirety in a written instrument duly executed and delivered by the Company and such Indemnitee and (b) constitute a continuing offer to all present and future Indemnitees.
Section 10.9 Effect of Amendment. No amendment, modification or repeal of this Article or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitees to be indemnified by the Company, nor the obligation of the Company to indemnify any such Indemnitees, under and in accordance with the provisions of the Article as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
ARTICLE XI
DISSOLUTION AND FINAL LIQUIDATION
Section 11.1 Dissolution. Notwithstanding the retirement, resignation, expulsion, bankruptcy or dissolution of the Member, or the occurrence of any other event that terminates the continued membership of the Member in the Company, the term of the Company shall continue from the date of its formation in perpetuity, unless earlier dissolved on the earliest to occur of:
(a) An election to dissolve the Company made by written consent of the Member; or
(b) The entry of a decree of judicial dissolution under the Act
Section 11.2 Winding Up. On the dissolution of the Company, the Companys affairs shall be wound up as soon as reasonably practicable. The winding up shall be accomplished by the Management Directors.
Section 11.3 Distribution of Assets. On the winding up of the Company, its assets shall be applied in the manner, and in the order of priority, provided for in the Act.
Section 11.4 Revocation of Voluntary Dissolution Proceedings. At any time before the filing of a certificate of cancellation with the Secretary of State, the Company may revoke voluntary dissolution proceedings by the written consent of the Member.
ARTICLE XII
AMENDMENT
Section 12.1 Amendment of Agreement. This Agreement may not be amended, supplemented or repealed except by the Member in writing.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1 Liability to Third Parties. Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member or any Director shall be obligated personally for any such debt, obligation or liability of the Company by reason of being the Member or a Director of the Company.
13
Section 13.2 Waiver of Notice.
(a) Whenever, under applicable law, the Certificate or this Agreement, any notice is required to be given to the Member or any Director, a waiver thereof in writing signed by the Person or Persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice.
Section 13.3 Seal. If one be adopted, the Company seal shall have inscribed thereon the name of the Company and shall be in such form as may be approved by the Management Directors. Such seal may be used by causing it or a facsimile of it to be impressed or affixed or in any manner reproduced.
Section 13.4 Fiscal Year. The fiscal year of the Company shall be the calendar year, or as the Member may designate by resolution, subject to the provisions of Code § 706.
Section 13.5 Checks. Notes. Etc. All checks or demands for money and notes of the Company shall be signed by such officer or officers or such other Person or Persons as the Management Directors may from time to time designate by written consent. The Management Directors may authorize by written consent any officer or officers or such other Person or Persons to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Company, and such authority may be general or combined to specific instances.
Section 13.6 Voting Upon Securities by the Company. Unless otherwise ordered by the Management Directors, the President, acting on behalf of the Company, shall have full power and authority to attend and to act and to vote at any meeting of security holders of any corporation, partnership, limited liability company or other entity in which the Company may hold interests and, at any such meeting, shall posses and may exercise any and all of the rights and powers incident to the ownership of such interests which, as the owner thereof, the Company might have possessed and exercised, if present. The Management Directors by written consent from time to time may confer like powers upon any other individual or individuals.
Section 13.7 Titles and Captions. All article or section titles or captions in this Agreement are for convenience only. They shall not be deemed pat of this Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof.
Section 13.8 Pronouns and Plurals. Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
Section 13.9 Subject to All Laws. The provisions of this Agreement shall be subject to all valid and applicable laws, including but not limited to the Act as now or hereafter amended, and in the event that any of the provisions of this Agreement are found to be inconsistent with or contrary to any such valid laws, the latter shall be deemed to control and this Agreement shall be deemed modified accordingly and, as so modified, to continue in full force and effect.
14
Section 13.10 Allocation of Profits and Losses; Tax Status. The Companys profits and losses shall be allocated to the Member. At all times that the Company has only one member (who owns 100% of the membership interests in the Company), it is the intention of the Member that the Company be disregarded for federal income tax purposes. No Person shall take any action that would be inconsistent with such treatment.
15
IN WITNESS WHEREOF, the Member has executed this Agreement as of the day and year first above written. Wainwright Holdings, Inc.
By: /s/ Nicholas D Gerber |
Nicholas D. Gerber |
President |
16
Exhibit 14.1
UNITED STATES COMMODITY FUNDS LLC
CODE OF BUSINESS CONDUCT AND ETHICS
Adopted March 1, 2006
Amended December 9, 2006,
Further Amended: March 4, 2008, October 6, 2008, May 5, 2009, May 6, 2010
and November 22, 2011
TABLE OF CONTENTS
Page | ||
Introduction |
1 | |
Purpose of the Code |
1 | |
Conflict of Interest |
1 | |
Corporate Opportunities |
2 | |
Public Disclosure |
2 | |
Confidentiality |
3 | |
Fair Dealing |
3 | |
Protection and Proper Use of Company Assets |
3 | |
Compliance with Applicable Laws, Rules and Regulations |
3 | |
Equal Opportunity, Harassment |
4 | |
Accuracy of Company Records |
4 | |
Retaining Business Communications |
4 | |
Political Contributions |
5 | |
Media Relations |
5 | |
Promotional Material |
5 | |
Intellectual Property Information |
6 | |
Internet and E-Mail Policy |
6 | |
Reporting Violations and Complaint Handling |
6 | |
Unitholder Complaint Handling |
8 | |
Sanctions for Code Violations |
9 | |
Application/Waivers |
9 | |
Appendices |
||
Ethics Training Policy |
A-1 | |
Code Acknowledgment |
B-1 |
CODE OF BUSINESS CONDUCT AND ETHICS
Introduction
Ethics are important to United States Commodity Funds LLC (the Company) and to each member of our management, our investment professionals, and our employees. The Company is committed to the highest ethical standards and to conducting business with the highest level of integrity.
All officers, directors and employees of the Company are responsible for maintaining this level of integrity and for complying with the policies contained in this Code. If you have a question or concern about what is proper conduct for you or anyone else, please raise these concerns with any member of management, or follow the procedures outlined this Code.
Purpose of the Code
This Code is intended to:
| help you recognize ethical issues and take the appropriate steps to resolve these issues; |
| deter ethical violations; |
| assist you in reporting any unethical or illegal conduct; and |
| reaffirm and promote our commitment to a corporate culture that values honesty and accountability. |
All employees, as a condition of employment or continued employment, will acknowledge in writing that they have received a copy of this Code, read it, and understand that the Code contains our expectations regarding their conduct.
Finally, you should know that this Code is designed to satisfy the standards contained in the Federal Sentencing Guidelines for Organizations published by the U.S. Department of Justice. U.S. federal courts are bound to apply the Federal Sentencing Guidelines for Organizations when sentencing companies convicted of federal offenses arising from the illegal acts of one or more employees. The Federal Sentencing Guidelines for Organizations provide for substantial leniency in sentencing of a company from otherwise severe mandatory penalties, where the company had in effect an adequate compliance program at the time of the illegal activity.
Conflicts of Interest
You must avoid any conflict, or the appearance of a conflict, between your personal interests and our interests. A conflict exists when your personal interest in any way interferes with our interests, or when you take any action or have any interest that may make it difficult for you to perform your job objectively and effectively. For example, a conflict of interest probably exists if:
| you cause us to enter into business relationships with you or a member of your family, or invest in companies affiliated with you or a member of your family; |
| you use for your personal gain, or the gain of a member of your family, any nonpublic information (i) about us, (ii) our affiliates, (iii) our service providers, (iv) our other business partners, (v) the statutory trusts for which the Company acts as sponsor, United States Commodity Index Funds Trust (Trust) and United States Commodity Funds Trust I (the Trust I and together with the Trust, the Trusts) and each series of the Trusts therein, and (vi) the United States Oil Fund, LP (USOF), the United States 12 Month Oil Fund, LP (US12OF), the United States Natural Gas Fund, LP (USNG), the United States 12 Month Natural Gas Fund, LP (US12NG), the United States Heating Oil Fund, LP (USHO), the United States Gasoline Fund, LP (USG), the United States Short Oil Fund, LP (USSO) and the United States Brent Oil Fund, LP (USBO), and any other fund for which the Company is the general partner or sponsor (each a Fund and together, the Funds); or |
| you use or communicate confidential information obtained in the course of your work for your or anothers personal benefit. |
Corporate Opportunities
Each of us has a duty to advance the legitimate interests of the Company when the opportunity to do so presents itself. Therefore, you may not:
| take for yourself personally opportunities, including investment opportunities, discovered through the use of your position with us, or through the use of our property or information; |
| use our property, information, or position for your personal gain or the gain of a family member; or |
| compete, or prepare to compete, with us. |
Public Disclosure
We are committed to a policy of full, fair, accurate, timely, and understandable disclosure to unitholders of all material information regarding our business. This policy extends to our filings with the Securities and Exchange Commission (SEC) and to all other public communications. All individuals involved in our SEC reporting process and in preparing and making public communications regarding our business must take all reasonable steps to comply with this policy.
Confidentiality
You must not disclose confidential information regarding the Company, our service providers, the Trust, the Funds, or our affiliates, unless disclosure is authorized or required by law. Confidential information includes all non-public information that might be harmful to, or useful to the competitors of, the Company, the Trust, any Fund, our affiliates, our service providers, or our other business partners.
Fair Dealing
You must endeavor to deal fairly with companies or individuals with whom we do business or come into contact, including fellow employees of the Company and our competitors. You must not take unfair advantage of these or other parties by means of:
| manipulation; |
| concealment; |
| abuse of privileged information; |
| misrepresentation of material facts; or |
| any other unfair-dealing practice. |
Protection and Proper Use of Company Assets
Our assets are to be used only for legitimate business purposes. You should protect our assets and ensure that they are used efficiently.
Incidental personal use of telephones, fax machines, copy machines, personal computers and similar equipment is generally allowed if there is no significant added cost to us, it does not interfere with your work duties, and is not related to an illegal activity or to any outside business.
Compliance with Applicable Laws, Rules and Regulations
Each of us has a duty to comply with all laws, rules and regulations that apply to our business. Highlighted below are some of the key compliance guidelines that must be followed.
| Insider trading. It is against the law to buy or sell securities using material information that is not available to the public. Individuals who give this inside information to others may be liable to the same extent as the individuals who trade while in possession of such information. You must not trade the units of any Fund, or the securities of our affiliates, our service providers, or any of our other business partners while in the possession of inside information. |
| Whistleblower protections. It is against the law to discharge, demote, suspend, threaten, harass, or discriminate in any manner against an employee who provides information or otherwise assists in investigations or proceedings relating to violations of federal securities laws or other federal laws prohibiting fraud against unitholders. You must not discriminate in any way against an employee who engages in these whistleblower activities. |
| Document Retention. You must adhere to appropriate procedures governing the retention and destruction of records consistent with applicable laws, regulations and our policies. You may not destroy, alter or falsify any document that may be relevant to a threatened or pending lawsuit or governmental investigation. |
Please talk to any member of management if you have any questions about how to comply with the above regulations and other laws, rules and regulations.
Equal Opportunity, Harassment
We are committed to providing equal opportunity in all of our employment practices including selection, hiring, promotion, transfer, and compensation of all qualified applicants and employees without regard to race, color, sex or gender, religion, age, national origin, handicap, disability, citizenship status, or any other status protected by law. With this in mind, there are certain behaviors that will not be tolerated. These include harassment, violence, intimidation, and discrimination of any kind involving race, color, religion, gender, age, national origin, disability, or marital status.
Accuracy of Company Records
We require honest and accurate recording and reporting of information in order to make responsible business decisions. This includes such data as quality, safety, and personnel records, as well as financial records.
All financial books, records and accounts must accurately reflect transactions and events, and conform both to required accounting principles and to our system of internal controls. No false or artificial entries may be made.
Retaining Business Communications
The law requires us to maintain certain types of corporate records, usually for specified periods of time. Failure to retain those records for those minimum periods could subject us to penalties and fines, cause the loss of rights, obstruct justice, place us in contempt of court, or seriously disadvantage us in litigation.
From time to time we establish retention or destruction policies in order to ensure legal compliance. We expect you to fully comply with any published records retention or destruction policies, provided that you should note the following exception: If you believe, or we inform you, that our records are relevant to any litigation or governmental action, or any potential litigation or action, then you must preserve those records until we determine the records are no longer needed. This exception supersedes any previously or subsequently established destruction policies for those records. If you believe that this exception may apply, or have any questions regarding the possible applicability of that exception, please contact our Chief Compliance Officer, Howard Mah (the Chief Compliance Officer).
Political Contributions
No funds of the Company, of the Trust or of any Fund may be given directly to political candidates. You may, however, engage in political activity with your own resources on your own time.
Media Relations
We must speak with a unified voice in all dealings with the press and other media. As a result, the President and CEO is the sole contact for media seeking information about the Company, the Trust or any of the Funds. Any requests from the media must be referred to him. Unless another individual(s) is so authorized by the President and CEO. In the event the President and CEO and other authorized individual(s) are not available, clearance must be obtained through the Chief Compliance Officer.
Promotional Material
USCF, the Funds and each series of the Trusts produce limited promotional material, which includes websites and a fact-sheet for each of the Funds and each series of the Trusts. All promotional material developed by USCF, the Funds and each series of the Trusts, including material posted on a website or printed on a fact-sheet, is reviewed for accuracy and approved prior to its public release by USCFs counsel to ensure its compliance with the relevant requirements of the SEC, the Financial Industry Regulatory Authority, the National Futures Association (NFA) and the Commodity Futures Trading Commission (CFTC), and any other applicable regulatory authority.
In addition to procedures intended to safeguard against a Fund fact-sheet being misleading or deceptive, it is a USCF policy that Fund fact-sheets may only be distributed to the public when accompanied by the current applicable Fund prospectus.
As noted above, all content to be included on a Fund website is reviewed and approved by USCFs counsel prior to publication of such content on such website. A review of website information is performed each time new information placed on the website would lead to a substantively new version of the web page. The review and approval of website material is documented by the supervisor in charge of such review.
USCF does not allow the use of personal websites by its employees or agents for the solicitation of business to any of the Funds.
USCF, or its service providers, maintains the supporting documentation for all statements, claims and performance results referenced in promotional material prepared by or on behalf of the Funds.
Intellectual Property Information
Information generated in our business is a valuable asset. Protecting this information plays an important role in our growth and ability to compete. Such information includes business and research plans; objectives and strategies; trade secrets; unpublished financial information; salary and benefits data; and business partner lists. Employees who have access to our intellectual property information are obligated to safeguard it from unauthorized access and must:
| Not disclose this information to persons outside of the Company; |
| Not use this information for personal benefit or the benefit of persons outside of the Company; and |
| Not share this information with other employees except on a legitimate need to know basis. |
Internet and E-mail Policy
We may provide an e-mail system and Internet access to certain of our employees to help them do their work. You may use the e-mail system and the Internet only for legitimate business purposes in the course of your duties. Incidental and occasional personal use is permitted, but never for personal gain or any improper use. Further, you are prohibited from discussing or posting information regarding the Company, the Trust or any of the Funds in any external electronic forum, including Internet chat rooms or electronic bulletin boards.
All employees engaged in the transmission of futures-related e-mails will be monitored periodically to ensure the accuracy of the information contained in such emails. Review of such emails is performed by ALPS, as principal to registered representatives on an annual basis. Review may also be undertaken by the Chief Compliance Officer and Counsel. This type of review is performed in conformity with NFA and FINRA guidance on e-mail review, in consideration of the fact that USCF generally communicates with institutional or relatively sophisticated clients, while USCFs marketing agent handles most communication with the general public.
Reporting Violations and Internal Complaint Handling
You are responsible for compliance with the rules, standards and principles described in this Code. In addition, you should be alert to possible violations of the Code by the Companys employees, officers and directors, and you are expected to report a violation promptly.
Normally, reports should be made to ones immediate supervisor. Under some circumstances, it may be impractical or you may feel uncomfortable raising a matter with your supervisor. In those instances, you are encouraged to contact our Chief Compliance Officer who will investigate and report the matter to the Board of Directors, as the circumstance dictates. You will also be expected to cooperate in an investigation of a violation.
Anyone who has a concern about our conduct, the conduct of an officer of the Company or our accounting, internal accounting controls or auditing matters, may communicate that concern to the Chief Compliance Officer or to the Audit Committee of the Board of Directors by direct communication with our Chairman of the Audit Committee or by e-mail or in writing. In addition, anyone who has a concern specifically about (i) the Trust or USCI may communicate that concern to the Chief Compliance Officer, or (ii) any of the Funds other than USCI, may communicate that concern to the Chief Compliance Officer or to the Audit Committee. All reported concerns shall be forwarded to the Chief Compliance Officer or the Audit Committee, as applicable, in the same way that other concerns are addressed by us. The status of all outstanding concerns forwarded to the Audit Committee or the Chief Compliance Officer will be reported on a quarterly basis by our Chairman of the Audit Committee or Chief Compliance Officer, as applicable. The Audit Committee or Chief Compliance Officer, as applicable, may direct that certain matters be presented to the full Board of Directors and may also direct special treatment, including the retention of outside advisors or counsel, for any concern reported to it.
All reports will be investigated and whenever possible, requests for confidentiality shall be honored. And, while anonymous reports will be accepted, please understand that anonymity may hinder or impede the investigation of a report. All cases of questionable activity or improper actions will be reviewed for appropriate action, discipline or corrective actions. Whenever possible, we will keep confidential the identity of employees, officers or directors who are accused of violations, unless or until it has been determined that a violation has occurred.
There will be no reprisal, retaliation or adverse action taken against any employee who, in good faith, reports or assists in the investigation of, a violation or suspected violation, or who makes an inquiry about the appropriateness of an anticipated or actual course of action.
For reporting concerns about the conduct of the Company, the Trust or any Fund, the conduct of an officer of the Company, or about accounting, internal accounting controls or auditing matters of the Company, the Trust or any Fund, you may use the following means of communication:
If to the Chief Compliance Officer:
E-MAIL: |
howard@unitedstatesoilfund.com | |
ADDRESS: |
Chief Compliance Officer | |
1320 Harbor Bay Parkway, Suite 145 | ||
Alameda, CA 94502 |
If to the Chairman of the Audit Committee:
E-MAIL: |
uscf.director@gmail.com | |
ADDRESS: |
Audit Committee of the Board of Directors | |
Malcolm R. Fobes III, Chairman of the Audit Committee | ||
475 Milan Drive #103 | ||
San Jose, CA 95134-2453 |
Unitholder Complaint Handling
Complaints from unitholders of a Fund may raise compliance issues that need to be addressed in an expeditious manner. All complaints received by any associated person of USCF or any Fund are to be forwarded to the Chief Compliance Officer. Associated persons have been instructed to forward to the Chief Compliance Officer any oral questions that cannot be readily addressed so that such questions can be treated as complaints if the Chief Compliance Officer deems necessary. It is the general policy of USCF and the Funds to answer all complaints. A discussion of any complaints received will be an agenda item at each quarterly meeting of the Board of Directors of USCF.
The Chief Compliance Officers duties with respect to unitholder complaints include: (1) maintaining a log that documents all complaints, (2) investigating complaints as needed, (3) making a recommendation for resolution of all complaints received, and (4) instituting any necessary changes to policies and procedures in connection with or in response to complaints. USCF maintains records of all written complaints that are received by any party in connection with the Funds, as well as records relating to the resolution of such complaints.
In light of the responsibilities placed on USCFs marketing agent, it is likely that the marketing agent will also receive complaints from unitholders from time to time. The marketing agent will address these complaints pursuant to its own procedures, but notice of such complaints will be forwarded to the Chief Compliance Officer to be documented in the complaint log.
The marketing agent will be responsible for addressing any complaints that it receives pursuant to the marketing agents own procedures and will forward notice of material complaints to the Chief Compliance Officer. The Chief Compliance Officer must follow the complaint handling procedures described below:
UNITHOLDER COMPLAINTS PROCEDURE
Who: |
Chief Compliance Officer | |||||
What: |
|
Investigate complaints received by associated persons of USCF or any Fund | ||||
|
Review information on complaints forwarded by the marketing agent to see if they have been appropriately dealt with or if there is anything further that needs to be done to resolve the complaint | |||||
|
Recommend a resolution and any necessary changes to policies or procedures | |||||
|
Include complaints in materials for the Board of Directors |
|
Maintain a complaint log for outstanding complaints, that includes at a minimum:
(1) the identity of the complaining person, (2) the date the complaint was received, and (3) a brief description of the nature of the complaint | |||||
|
Maintain a complaint file, that includes a copy of: (1) each complaint, (2) all correspondence relating to each complaint, and (3) information gathered in the course of the investigation of each complaint | |||||
When: |
|
Quarterly for review by the Board of Directors | ||||
|
Investigate complaints as received | |||||
How Evidenced: |
|
Written complaints | ||||
|
Notes of oral complaints | |||||
|
Notes relating to investigations of complaints | |||||
|
Responses and file memos documenting rationale for nature of response | |||||
|
Complaint log | |||||
Where Maintained: |
|
Complaint/Correspondence file | ||||
|
Copies of complaints also to be maintained in the file of materials provided to the Board of Directors | |||||
Retention Period: |
|
Six (6) years, the first two (2) years in an easily accessible place |
Sanctions for Code Violations
All violations of the Code will result in appropriate corrective action, up to and including dismissal. If the violation involves potentially criminal activity, the individual or individuals in question will be reported, as warranted, to the appropriate authorities.
Application/Waivers
All of the officers, directors, and employees are subject to this Code. Any waiver of this Code for an executive officer or director of the Company may only be made by the Board of Directors or the Audit Committee. Any waiver of the Code for an officer or member of our Boards of Directors must be promptly disclosed to unitholders.
APPENDIX A
ETHICS TRAINING POLICY
The Chief Compliance Officer of USCF is responsible for overseeing our ethics training program. The Chief Compliance Officer of USCF conducts an annual review of USCFs ethics training policy and will require ethics training on an as needed basis.
APPENDIX B
United States Commodity Funds LLC
1320 Harbor Parkway, Suite 145
Alameda, California 94502
Acknowledgment Regarding
Code of Business Conduct and Ethics
This acknowledgment is to be signed and returned to our Chief Compliance Officer, Howard Mah, and will be retained as part of your permanent personnel file.
I have received a copy of United States Commodity Funds LLCs Code of Business Conduct and Ethics, read it, and understand that the Code contains the expectations of United States Commodity Funds LLC regarding employee conduct. I also understand that the Code is issued for informational purposes and that it is not intended to create, nor does it represent, a contract of employment.
|
Employees Name (Printed) |
|
Employees Signature |
|
Date |
The failure to read and/or sign this acknowledgment in no way relieves you of your responsibility to comply with United States Commodity Funds LLCs Code of Business Conduct and Ethics.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement Number 333-178823 on Form S-3 of our report dated March 8, 2012 relating to the financial statements of United States Gasoline Fund, LP as of December 31, 2011 and 2010 and for the years ended December 31, 2011, 2010 and 2009 and the effectiveness of United States Gasoline Fund, LPs internal control over financial reporting dated March 8, 2012, appearing in this Annual Report on Form 10-K of United States Gasoline Fund, LP for the year ended December 31, 2011.
/s/ SPICER JEFFRIES LLP |
Greenwood Village, Colorado
March 8, 2012
Exhibit 31.1
Certification of Principal Executive Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Nicholas D. Gerber, certify that:
1. I have reviewed this annual report on Form 10-K of United States Gasoline Fund, LP;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants Board of Directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: March 8, 2012 | By: | /s/ Nicholas D. Gerber | ||
Name: | Nicholas D. Gerber | |||
Title: | President and Chief Executive Officer | |||
United States Commodity Funds LLC, | ||||
General Partner of United States Gasoline Fund, LP |
Exhibit 31.2
Certification of Principal Financial Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Howard Mah, certify that:
1. I have reviewed this annual report on Form 10-K of United States Gasoline Fund, LP;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants Board of Directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: March 8, 2012 | By: | /s/ Howard Mah | ||
Name: | Howard Mah | |||
Title: | Chief Financial Officer | |||
United States Commodity Funds LLC, | ||||
General Partner of United States Gasoline Fund, LP |
Exhibit 32.1
Certification of Principal Executive Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report on Form 10-K for the year ended December 31, 2011 (the Report) of United States Gasoline Fund, LP (the Registrant), as filed with the Securities and Exchange Commission on the date hereof, I, Nicholas D. Gerber, the President and Chief Executive Officer of United States Commodity Funds LLC, General Partner of the Registrant, hereby certify, to the best of my knowledge, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.
Date: March 8, 2012 |
By: |
/s/ Nicholas D. Gerber | ||
Name: |
Nicholas D. Gerber | |||
Title: |
President and Chief Executive Officer | |||
United States Commodity Funds LLC, | ||||
General Partner of United States Gasoline Fund, LP |
Exhibit 32.2
Certification of Principal Financial Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report on Form 10-K for the year ended December 31, 2011 (the Report) of United States Gasoline Fund, LP (the Registrant), as filed with the Securities and Exchange Commission on the date hereof, I, Howard Mah, the Chief Financial Officer of United States Commodity Funds LLC, General Partner of the Registrant, hereby certify, to the best of my knowledge, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.
Date: March 8, 2012 |
By: |
/s/ Howard Mah | ||
Name: |
Howard Mah | |||
Title: |
Chief Financial Officer | |||
United States Commodity Funds LLC, | ||||
General Partner of United States Gasoline Fund, LP |
!P/HX-P3QM+'!"!&".
M'"%LPJVT7BV)-H?EL&K($TZO1>54=6=7-Y0-9SXS050&V)BWFG*S=1]CFHSW
MBI+1E,?#]P)9*8RJ>Z4[X]R-*1'(MB:#MB$]N$3M'`FK'!;X52Q/TC)L<)LQ
MH$:0#&AI235]3P=4OR$J/ IXRL\D=P._>T<3SM+ZE
M=09)B@4"@4"@4"@4"@4"@4"@4$0=\_JGRM_P-^LEG4$OJ!0*!04__P`Y3^'_
M`/`5!,'1'ZL[7_'^?OM!RE02_H*M-B(`W#FK:=NN5?:>ODF:>1( B>,77Q&`)*D^/(]'6%#3L9)!?#U;33%5
M`B<6R#@;%3@U]33\SH97,P'83(*V5L+YXVRY.=;EE6Z^F3^C3]$+?UQ[P;WW
M3$]6M.M+K8:L]I6`/;)'7I'6N2%SD<<67HGD[9;AI@1K)\>2$.CI._HRL"QW
MJVG8*EA'(`:N!051#0%-0S)!FLRXE@\A;8VSOAE;'EYM^2S=!.\:S]RS/5;K
M7;IZ)/Z5/VH4G_*^2$P8UWS8R[(KX9[`1#?"C?Z256'JY45JI1E5'V&U6.`)
MA=073I`H,H#%"`XN`..=Q,@P1,K6YN&5[2S/_8X_DH7OJK^&N4/85'TTN^?K
M8:L]I6`/;)'7I'6L14ZV&K/:5@#VR1UZ1T#K8:L]I6`/;)'7I'0.MAJSVE8`
M]LD=>D=`ZV&K/:5@#VR1UZ1T#K8:L]I6`/;)'7I'0.MAJSVE8`]LD=>D=`ZV
M&K/:5@#VR1UZ1T#K8:L]I6`/;)'7I'0.MAJSVE8`]LD=>D=!%W<_8K7UY:UR
M,V6A.L..IQJHC*!2V^VY.9*XMJ0H,A-,T*$02DQ;-'S@@18#,3+$,/*^.&&6
M5_N6O>@LAH%`H%!3_P#SE/X?_P`!4$P=$?JSM?\`'^?OM!RE02_H-+RY"2!,
M"Y!BZN*RPF&(&F@A-KL
M)13KUL*QA`VJY3\]1O$9ASB$\EEVJJ)BH--Y26F/571WJK)P5LUM%/7"+!IQ
ML`L>!"0FS6G+(VNLN)TG.5S8-@_!,PPPA("%D1*8M54FY,)MUVRNFCG`%`L;
M?R6TB%DI(S,EA2I1/4%4N*&8+JAD&X;"UT@W&!&2O-\V[U!_NI[21(,M/YYG
MTI/;V*\]Y(<9MP+(R6VDB^:8W$-/#&!)$R@68PEBY;$0P,8-"#F!0CYM/];K
MAB_Y@)_^Q1L303^H%`H%`H%`H**OF5?]%W;7\:=1?MLZY5F[;_</*KO7'O#WO[[:]6M*CL'_`%_R/>*UZM4^G545
M3`H%`H%`H%`H/F>\3KZP7$!_K<1I^HY#JX['W(97O38]5EU73/O7V/[Y9\["
MW74R7Y4@;Y5Z;96A-^KT82@UYDG8-JOUL9E`U]MCN'?C-KJ1Q+$/%3I4,T*B
MK1D&V686?-L)>]N2_)>TK:V+=A9P9!]GII1O"XRE'L,)#QCQS-%AMYZ%42#5#762%*=E6Q)IR
M,T7ZENF1'4^"J8.)FUFFP5'/F%QV^KY'PMZBE\-"1X[:CP8LF-&9&TI)O@I:
M3F*LMQ?:SQ4$,R.@+ZHF*;2.J#
D=`ZV&K/:5@#VR1UZ1T#K8:L]I6`/;)'7I'04N_,/;%:^O+@S;T
M-EH3K#CJ<:JPV$"EM]MR#3W:EO2NX(ZCK:A+]3"@62WPBO"&2J8N$SIR,GQ,!0($LE/
M!<*X^$Q['"RH87,#%^4,G>W^T0+GX5=NNU5-%R)BN/@ELMSVO<=FS:]MW:S<
MQ]PMZ<=NY3--=/%3%=.M,]L:TU15'QQ,2AXO?-=<.IKDDY1<4+;W(I!6CY`E
M=,-J6O[6*ES\:.H4R`VWT5$%EG'$9L+8Q,7$L;MR@BW#RMC>_)>MAG;-NNVQ
M:JW#'NV8OXU&1;XZ9IX[%S7@NTZ^&BO2>&J.R=)T?M^=N5C(R=OM7+V/B4
M\5ZJB)JBU3KIK7,?FQKV:S\*.O&?=LE;;R?J/*NLFJNV
&7V
MB1#3D5F@!$D^".-#0V\Y%5+M&@]A2:(ZC[F3&^?S%R5+%LPU(^S5,/''#/+/
M&Y3*^>.-LL+Y`A(826;8&&
MX*9#RPQ-8WN%?*U[
U\[9WQPOP^;?
MHR,B;MO7ATB.WY(T4CJ5S+MW-O-=S>MKBY&'7CV*(\93%-6MNS1;J[(FJ-.*
MF=.WMCXE`$L:,\15ZQG$C11^&YO=BJLG0='UJ6!Q"3\U$V4!`/F_%I*P@^6),K8(/7B*'
MF!!C,"84;IBLGH&*TXW(<,.-WO*0G4NN-W+9YQ.1PNM^R(ONI]O!>5E=1%$%
M.*JD<,\SF!8YV!""#P"I#C8?X?Q+^('$5_\`;`V^H/G>;U_[I&OZ;FBW]YN&
MKOUA],V[W7VS[-:F],>[KG3R6+ZU+LGX\22E(NYNM)-'3$])*#:`\256&*IA
M,L0+"JJ^[X%75U3$`*AA!9J"TMJ)@X;&O:XADT.(*)?(3/+*_GT"_%&Y>[^;
M]%M']T_84>5I^M7Y\J(DI2UL[)9-83$]6*`\.'416!*J9,L?+!*J!+*ZNH2F
M&`:#%"P4$5;3BYPH-:UA"QH`,4.^(F&.5H[N'[C[O1]:X]7/\8]T-N_C.]RM
M