For the Investor
On 29 September 2023, the Act of 16 August 2023 amending certain acts in connection with ensuring the development of the financial market and the protection of investors in this market (Journal of Laws of 2023, item 1723, hereinafter referred to as the “Amending Act”) entered into force. The Act introduced a number of amendments to the provisions of the Act of 27 May 2004 on Investment Funds and Management of Alternative Investment Funds (Journal of Laws of 2023, item 681, as amended, hereinafter referred to as the “Fund Act”) regulating the activities of AIF managers and alternative investment companies.
In connection with the content of Article 56 of the Amending Act, the investors of Lantan Capital Spółka z ograniczoną odpowiedzialnością ASI spółka komandytowa with its registered office in Wrocław, entered into the Register of Entrepreneurs under KRS number 0000741808 (hereinafter referred to as the “Investors”), are informed about the changes concerning the acquisition of participation rights of alternative investment companies by retail clients, in particular the content of Article 56(1) and (2) of the Amending Act, which read:
1. Article 56(1). natural persons who, on the date of entry into force of this Act, have the participation rights of an alternative investment company, at least 50% of the participation rights of which are not held by professional clients referred to in Article 2(13a)(a)-(m) of the Act as amended by Article 14, who do not meet the condition set out in Article 70k(3) of the Act as amended by Article 14, investors in the alternative investment company.
2. Article 56(2). The natural persons referred to in paragraph 1 shall not take up new participation rights of an alternative investment company, in particular participate in:
– increasing the nominal value of existing shares in a limited liability company,
– acquisition of new shares, sale of own shares, increase of the nominal value of shares – in a joint-stock company and a limited joint-stock partnership,
– increasing the contribution of existing limited partners – in a limited partnership
– if the value of the new contributions, calculated together with the existing contributions of those natural persons, is less than that specified in Article 70k(3) of the Act as amended by Article 14, and unless a positive assessment is made by the natural person in accordance with Article 70k(1) of the Act as amended by Article 14, as amended by this Act.
Investors are also informed of Article 8a(4) and Article 70k of the Fund Act, which read:
1. Article 8a(4) An alternative investment company may not enter into a loan agreement or other agreement of a similar nature, issue bonds or other securities that are not participation rights of an alternative investment company, if the person granting the loan or concluding another agreement of a similar nature or taking up or purchasing bonds or other securities is a natural person. This restriction does not apply to a natural person considered to be a professional client, taking into account Article 70k(1) and (3).
2. Article 70k(1). The manager of an AIF, at the request of an entity other than those referred to in Article 2(13a)(a-m) and to the extent specified in such a request, may treat that entity as a professional client, provided that the entity has the knowledge and experience to make appropriate investment decisions and to properly assess the risks associated with those decisions, and meets the condition that referred to in paragraph 3. Before granting the application, the manager of the AIF shall determine the entity’s knowledge of the rules for the treatment of professional clients in the scope to which the application relates.
3. Article 70k(2). The manager of an AIF, at the request of a professional client and to the extent specified in such a request, may treat the client as a retail client. The manager of an AIF may also treat a professional client as a retail client in the absence of such a request in the case of an alternative investment company authorised under Article 5(1) of Regulation 2015/760.
4. Article 70k(3). A natural person may be considered a professional client if the value of his or her contribution to an alternative investment company is not less than the PLN equivalent of EUR 60,000.
5. Article 70k(4). Funds for a contribution or share by a natural person in the case referred to in paragraph 3 may not come from a loan, gift or other agreement of a similar nature concluded with an alternative investment company, managing an AIF or an entity related to these entities within the meaning of the provisions of the Accounting Act.
6. Article 70k(5). The PLN equivalent of the amount expressed in euro referred to in paragraph 3 shall be determined using the average euro exchange rate announced by the National Bank of Polish as at the date of making the contribution or share.
7. Article 70k(6). A legal transaction relating to the rights to participate in an alternative investment company which leads to the transfer of those rights or the rights arising therefrom to an entity other than the investor of the alternative investment company and the manager of the AIF managing the alternative investment company shall require the written consent of the manager of the AIF managing the alternative investment company. The manager of an AIF shall refuse to give consent if, after verification, the entity referred to in the first sentence does not meet the conditions for being considered a professional client, taking into account paragraphs 3 and 4. A legal transaction carried out without the consent of the manager of the AIF is null and void.
8. Article 70k(7). Paragraphs 3 to 6 shall not apply where at least 50% of the participation rights of the alternative investment company are held by professional clients referred to in Article 2(13a)(a) to (m).
The acts referred to above can be downloaded from the ISAP website – Internet System of Legal Acts.