Maples Group - Global Registration Services

GLOBAL REGISTRATION SERVICES Marketing Alternative Investment Funds to European Investors without an AIFMD Passport

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EUROPEAN PRIVATE PLACEMENT LANDSCAPE While AIFMD primarily impacts EU managers (“AIFMs”) of EU-domiciled alternative investment funds (“AIFs”), it also extends to non-EU AIFMs seeking to raise capital directly or indirectly in or from EEA (and / or UK) professional investors. This effectively means that since 22 July 2014, non- EU AIFMs can only (continue to) market their AIF on a private placement basis to professional investors in compliance with national laws, including: 1) private placement rules (“NPPR”) being the local implementing provisions of Art. 42 of AIFMD, which is subject to prior notification and / or approval from the relevant EEA and / or UK National Competent Authority (“NCA”); and 2) the Sustainable Finance Disclosure Regulation, (“SFDR”), which requires firms to provide transparency on how they integrate sustainability considerations into the investment process with respect to the investment funds they manage.

Notably, in August 2021, the Cross-Border Distribution of Funds Directive and Regulation¹ (“CBFD”), amended certain provisions of AIFMD and introduced certain new marketing provisions including the introduction of a definition of pre- marketing – detailed further below.

The NPPR mechanism allows a non-EU AIFM to market an AIF to professional investors under local private placement regimes even though such funds cannot be passported through the AIFMD marketing passport. The same NPPR mechanism also applies to an AIFM seeking to market EU feeder AIFs where the master AIFM and / or AIF are non-EU. Since the introduction of NPPR in July 2014, the market has grown considerably, where the NAV of non-EU AIFs marketed under NPPR regimes as at 31 December 2021, amounts to EUR 1.3tn, which represents more than one-fifth of the AIF market. That said, NPPR fund marketing remains concentrated in a relatively small number of Member States, and more than 99% of investors are professional investors².

Pre-Marketing The CBFD introduced a new definition of and requirements for ‘pre-marketing’, whereby, subject to certain conditions, AIFMs are now permitted to engage in pre-marketing activities relating to an investment idea / strategy of an AIF which is not yet established or, which has been established but not yet been notified for marketing. These provisions are now harmonised across Member States thereby allowing AIFMs to undertake pre-marketing activities in order to gauge market interest before establishing an AIF or registering an AIF for marketing under NPPRs. While the pre-marketing requirements apply to EU AIFMs, in principle, non-EU AIFMs are subject to the same provisions.

Notably, any subscriptions made within 18 months of the AIFM having begun pre-marketing activities is considered as a result of marketing, and is subject to the relevant marketing / NPPR approvals.

Please contact us for more information regarding the provisions implemented by certain Member States.

Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010.

2 Source : EU Alternative Investment Funds ESMA Annual Statistical Report 2022 1

HOW THE MAPLES GROUP CAN HELP Global Registration Services The Maples Group’s Global Registration Services (“GRS”) team supports and assists managers navigate the complexity of requirements associated with distributing their products in a multi-jurisdictional environment.

Combining expert local knowledge with full project management functionality, we provide a centrally managed service supported by an integrated global network of experts. We manage all legal and regulatory aspects governing the cross-border marketing of fund products on both a private placement and public offer basis.

Our aim is to offer a service that provides efficiency, value and peace of mind so that our services become solutions, tailored to the needs of our clients. We offer our clients a range of services addressing regulatory aspects to help optimise fund distribution activities.

Our core GRS services include: • Market intelligence, including practical information on distributing fund products cross-border • Advice on permissibility of pre-marketing activities • Advice on the SFDR and associated assistance with SFDR product categorisation • Ongoing registration maintenance • EEA³ pre-marketing notifications • Restricted offerings / NPPRs • EEA de-notification / cessation of marketing • Development of SFDR compliant policies and procedures • Development of SFDR compliant precontractual and periodic disclosures for EEA investors • Development of SFDR compliant website disclosures

“One-Stop-Shop” to NPPR • NPPR compliance and advice • Filings and regulatory approvals • SFDR advice and support • Pre-marketing advisory and / or notification • NPPR notification and / or application • Ongoing AIFMD Annex IV Reporting obligations and / or filings • AIFMD Depo Lite Services for Denmark and Germany • Assistance with distribution outside the EEA

³ EEA consists of 30 member countries including the 27 EU Member States together with Iceland, Liechtenstein and Norway.

(Note: Switzerland and UK are not EEA countries).

EUROPEAN NPPR WORK STREAM OVERVIEW The AIFMD allows local regulators the discretion to impose additional requirements to those required under AIFMD. Requirements differ from country to country with some imposing more than others in areas such as fees, service providers, required documentation and / or information to be disclosed.

NOW

Decide countries W O R K S T R E A M PREPARATORY

NOTIFICATION

ANNUALLY

Pre-marketing

‣ Identify whether pre-marketing will be undertaken – ensure compliance ‣ Submission of pre-marketing notification letter

NPPR Marketing

‣ Confirm co-operation agreement ‣ AIFMD Art. 23, and where relevant, SFDR investor disclosures (PPM / OM wrapper / update other documents) ‣ Review / modification of existing AIFM programme of operations4 ‣ Registration / notification packs ‣ Identification of depositary 4 ; or if Denmark and / or Germany in scope depo-lite set up5 ‣ Annex IV reporting (discuss process with service providers) ‣ Financial Reports (discuss the AIFMD compliant requirements with auditors (including remuneration disclosure))

Submission to each relevant EEA Member State NCA

Annex IV reporting obligations & Audited financial reports to each NCA

⁴ Applies to Art. 36 of AIFMD only. ⁵ Applies to Art. 42 provisions of AIFMD which have been gold plated in Denmark and Germany. It is therefore necessary to appoint one or more entities to carry out the following depo-lite functions in respect of the AIF being marketed: (1) cash monitoring; (2) custody of assets; and (3) general oversight.

They have great strength in handling country registrations and all aspects of maintaining all regulatory filings...

Commercially minded, aware of new developments and very proactive…

They are outstanding on international aspects...

CHAMBERS GLOBAL Maples is a global titan in the investment funds arena... ...regarded by some as being ‘the best in Dublin’...

Exceptional knowledge of the investment funds industry sector...

LEGAL 500 Partners and associates are technically excellent and can be relied on for practical and sound business advice...

The team at Maples is outstanding...

Leading Irish firm advising on funds & investment management, often being the first to implement new products...

IFLR

The Maples Group’s Irish legal services team is independently ranked first among legal service providers in Ireland in terms of total number of funds advised (based on the most recent Monterey Insight Ireland Fund Report, as at 30 June 2022).

AT A GLANCE: EUROPEAN NPPR LANDSCAPE Iceland

Article 426 Region 1

Straightforward

Region 2

Medium

Region 3

Challenging

Region 4

Not Available

Finland Norway Sweden

Estonia Latvia

Denmark Ireland

UK

Lithuania

Neth.

Belgium

France

Poland

Germany Lux.

Czech Rep.

Slovakia

Austria

Hungary Slovenia Croatia

Switzerland

Romania

Italy

Bulgaria

Spain

Greece

Portugal

Malta

Cyprus

NOTE: Switzerland is not an EEA Member State, however local agents and local investor disclosures are required where the offer is diirected towards qualified and non-qualified investors – further details available on request.

As of September 2022, pre-marketing in each of Germany, Luxembourg, the Netherlands and Finland requires prior notification to NCAs within two weeks of undertaking activities.

This document is a high-level summary of the regimes applicable in each EEA Member State and has been produced on the basis of Article 421 our understanding of the laws in theNOTE: relevant jurisdiction the date state, of publication. This document does not constitute legal advice. If Switzerland is not anat EEA member you would like any further information, please a member of the Maples Group GRS team. however localcontact agents and local investor disclosures are required where the offer is Region 1 Straightforward directed towards qualified and non-qualified investors – further details available on request.

Note slight variances for Art. 36 filings (ie EU AIFM with non-EU AIF)

1

6

Note slight variances for Art. 36 filings, i.e. EU AIFM with non-EU.

Region 2

Medium

Region 3

Challenging

Region 4

Others

CONTACTS For further information on our services, please contact:

Legal Services

Annex IV Reporting Obligations

Emma Conaty Head of Global Registration Services +353 1 619 2708 emma.conaty@maples.com

Mark Weir Deputy Global Head of Fund Services +1 514 228 2217 mark.weir@maples.com

Depositary Lite Services Michelle Bailey Senior Vice President - Head of Cayman AEOI +1 345 814 5711 michelle.bailey@maples.com

Brian Burns Senior Vice President +1 514 228 2423 brian.burns@maples.com Jelena Carmody Vice President - Senior Account Manager +353 1 697 3262 jelena.carmody@maples.com

The Maples Group is a leading service provider offering clients a comprehensive range of legal services on the laws of the British Virgin Islands, the Cayman Islands, Ireland, Jersey and Luxembourg, and is an independent provider of fiduciary, fund services, regulatory and compliance, and entity formation and management services.

The Maples Group distinguishes itself with a clientfocused approach, providing solutions tailored to their specific needs. Its global network of lawyers and industry professionals are strategically located in the Americas, Europe, Asia and the Middle East to ensure that clients gain immediate access to expert advice and bespoke support, within convenient time zones.

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