§ 302.070. Registration exemption for investment advisers to private funds.
(a) Exemption for private fund advisers. Subject to the additional requirements of subsection (b), a private fund adviser is exempt from the registration requirements of section 301(c) of the act (70 P.S. § 1-301(c)) if the private fund adviser satisfies the following conditions:
(1) The private fund adviser and any of its advisory affiliates are not subject to a disqualification as described in Rule 262 of Securities and Exchange Commission Regulation A (17 CFR 230.262) (relating to disqualification provisions).
(2) The private fund adviser files with the Department each report and amendment that an exempt reporting adviser is required to file with the Securities and Exchange Commission under Securities and Exchange Commission Rule 204-4 (17 CFR 275.204-4) (relating to reporting by exempt reporting advisers).
(b) Additional requirements for private fund advisers to certain 3(c)(1) funds. To qualify for the exemption described in subsection (a), a private fund adviser who advises at least one 3(c)(1) fund that is not a venture capital fund shall also:
(1) Advise only those 3(c)(1) funds, other than venture capital funds, whose outstanding securities other than short-term paper are beneficially owned entirely by persons who would each meet the definition of “qualified client” in Securities and Exchange Commission Rule 205-3 (17 CFR 275.205-3) (relating to exemption from the compensation prohibition of section 205(a)(1) for investment advisers) at the time the securities are purchased from the issuer.
(2) Disclose, at the time of purchase, the following in writing to each beneficial owner of a 3(c)(1) fund that is not a venture capital fund:
(i) Services, if any, to be provided to individual beneficial owners.
(ii) Duties, if any, the investment adviser owes to the beneficial owners.
(iii) Any other material information affecting the rights or responsibilities of the beneficial owners.
(3) Obtain on an annual basis audited financial statements of each 3(c)(1) fund that is not a venture capital fund and deliver a copy of the audited financial statements to each beneficial owner of the fund.
(c) Federally covered investment advisers. If a private fund adviser is registered with the Securities and Exchange Commission, the adviser is not eligible for this exemption and shall comply with the State notice filing requirements applicable to Federally covered investment advisers in section 303(a)(iii) of the act (70 P.S. § 1-303(a)(iii)).
(d) Investment adviser representatives. A person is exempt from the registration requirements of section 301(c) of the act if the person:
(1) Is employed by or associated with an investment adviser that is exempt from registration in this Commonwealth under this section.
(2) Does not otherwise act as an investment adviser representative.
(e) Electronic filing.
(1) A private fund adviser shall file the report filings described in subsection (a)(2) electronically through the IARD.
(2) The Department will consider a report filed when the report is filed and accepted by the IARD on the Department’s behalf.
(f) Transition. If an investment adviser becomes ineligible for the exemption provided in this section, the investment adviser shall comply with all applicable laws and rules requiring registration or notice filing within 90 days from the date the investment adviser’s eligibility for this exemption ceases.
(g) Grandfathering for investment advisers to 3(c)(1) funds with nonqualified clients. An investment adviser to a 3(c)(1) fund, other than a venture capital fund, that has one or more beneficial owners who are not qualified clients as described in subsection (b)(1) is eligible for the exemption contained in subsection (a) if all of the following conditions are satisfied:
(1) The subject fund existed before January 13, 2018.
(2) The subject fund ceases to accept beneficial owners who are not qualified clients, as described in subsection (b)(1), as of January 13, 2018.
(3) The investment adviser discloses in writing the information described in subsection (b)(2) to all beneficial owners of the fund.
(4) The investment adviser delivers audited financial statements as required under subsection (b)(3) as of January 13, 2018.
(h) Scope. This section does not supersede an applicable exclusion from the definition of investment adviser or exemption from registration for an investment adviser in the act.
Authority The provisions of this § 302.070 issued under section 202.C of the Department of Banking and Securities Code (71 P.S. § 733-202.C); section 609(a) of the Pennsylvania Securities Act of 1972 (70 P.S. § 1-609(a)); and section 9(b) of the Takeover Disclosure Law (70 P.S. § 79(b)).
Source The provisions of this § 302.070 adopted January 12, 2018, effective January 13, 2018, 48 Pa.B. 389.
Cross References This section cited in 10 Pa. Code § 102.021 (relating to definitions).
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