20 September 2012

Hedgeweek: Private equity funds and the AIFM Directive

Currently the Malta Financial Authority (MFSA), through supplementary rules, regulates only one aspect of private equity funds; drawdowns on investors’ committed funds. Requests on committed funds must be effected on a pro rata basis amongst all relevant investors in the fund and further calls can only be made by the fund once all outstanding commitments from existing investors have been requested. The fund is also obliged to retain copies of written agreements concluded with investors committing to invest in the fund, at its registered office.

Local regulation also provides for the issuing of units at a discount to investors who have committed to subscribe for units, by written agreement. The discount must apply exclusively to any outstanding commitment arising under the agreement and must be provided for in the constitutive document of the fund. The nature of such discount must be disclosed in the fund’s offering documentation. The regulations also impose a cap on the value of the units to be issued at a discount and if such discount is in excess of that permitted by the regulations, the investor is bound to pay the fund the difference plus interest.

Although the PIF regime is flexible enough to cater for private equity funds, the rules specific to such funds are currently limited. The MFSA has therefore recognised the need to consider additional regulation to facilitate the establishment of local private equity funds and in this regard will shortly introduce bespoke rules for these types of funds. The introduction of the rules will also serve as a means to align the current rules with the AIFM Directive.

In order to protect companies from short-term investments and prevent asset stripping, the AIFM Directive has also sought to regulate buy-outs of companies. The Directive prohibits a fund which has acquired control in a company, from facilitating, supporting, instructing or voting in favour of any distribution, capital reduction, share redemption and/or acquisitions of own shares for a period of 24 months following the acquisition of control.

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