Sebi mulls prohibiting differential rights to AIF investors
May 24, 2023
Synopsis
The Securities and Exchange Board of India (SEBI) has proposed that alternative investment fund (AIF) investors should not be given any differential treatment that may impact the economic rights of other investors. SEBI has also suggested that the pro-rata rights of investors should be maintained so that each investor has proportional rights based on their scheme commitment and investment in each investee company when an investment is made or proceeds are distributed. The regulator has recommended prohibiting AIFs from adopting a differential distribution model and creating clarity on pro-rata rights of investors in an AIF scheme.
Markets regulator Sebi on Wednesday proposed that AIF (alternative investment fund) investors should not be given any differential treatment, which affects the economic rights of other investors. In addition, the regulator is looking to provide clarity on the pro-rata rights of investors in an AIF scheme.
AIF is a privately pooled investment vehicle, which collects funds from investors, for investing under a defined investment policy for the benefit of its investors.
In its consultation paper, Sebi suggested that no differential rights should be provided to investors of the AIF/scheme, which would affect the economic rights of other investors. However, this should not apply in case of differential rights provided on terms with respect to the hurdle rate of return, performance-linked fee/additional return and management fee.
With respect to the pro-rata rights of investors, the regulator recommended that the rights of each investor should be maintained at pro-rata to their commitment to the scheme, in each investment of the scheme, while making an investment. Besides, the rights of each investor should be maintained at pro-rata to the investment made in the investee company, while distributing the proceeds of the investment.
Further, the manager can charge a performance-linked fee as per the terms of the contribution agreement with each investor.
"While manager/sponsor may continue to have differential distribution to bear loss more than their pro-rata holding, the same is subject to the condition that the amount invested by the AIF in the investee company shall not be utilised directly or indirectly to repay any pending obligations to the manager/sponsor or their associates," the regulator said.
Existing schemes of AIFs, which have adopted the priority distribution (PD) model, can continue with the existing investments, but should not accept any fresh commitment or make the investment in a new investee company, it added.
Sebi noted that AIFs with a priority distribution model may be misused to mask true asset quality, which may lead to the ever-greening of bad/doubtful assets and therefore, it might not be prudent to permit AIFs to adopt such a model.
"It is necessary to explicitly prohibit adopting of differential distribution model by AIFs and any such practice providing differential rights to investors which affect the pooling requirement of the investment vehicle," it said.
Sebi noted that AIFs with a priority distribution model may be misused to mask true asset quality, which may lead to the ever-greening of bad/doubtful assets and therefore, it might not be prudent to permit AIFs to adopt such a model.
"It is necessary to explicitly prohibit adopting of differential distribution model by AIFs and any such practice providing differential rights to investors which affect the pooling requirement of the investment vehicle," it said.
In November 2022, the regulator barred AIF schemes with a priority distribution model from making investments in a new investee company as the model provides for significant scope for mis-selling to investors. Sebi had said it stopped such investment till it takes a view on the same.
The Securities and Exchange Board of India (Sebi) had sought comments from the public till July 4 on the proposal.
[The Economic Times]
