Going forward, advisers relying upon the private fund adviser exemption, as so-called exempt reporting advisers, will be required to file Form ADV with the SEC and thereafter update it annually and upon the occurrence of certain events. Form ADV is the form that is filed by investment advisers registered under the Advisers Act; however, exempt reporting advisers will not be required to complete the entire form. Instead, in general terms they will be required to provide information about (i) who they are, (ii) who owns or controls them, (iii) what other activities they are engaged in, (iv) the private funds they advise and (v) the disciplinary history of the adviser and its employees, among other things. The SEC has specifically indicated that it currently will not require disclosure of the following information: (a) each private fund’s net assets; (b) the private fund’s assets and liabilities separated by class and categorisation in the fair value hierarchy; and (c) the percentage of each fund owned by particular types of beneficial owners. The SEC has also made clear that a non-US fund that has never used US jurisdictional means in the offering of securities (roughly, in other words, has not offered its securities in the United States), would not be a “private fund” within the meaning of the rule and therefore would not be subject to any of the fund-specific disclosure requirements in Form ADV. The information filed on Form ADV will be publicly available.
Exempt reporting advisers effectively have until between 1 January and 31 March 2012 to file their initial Form ADV. Following this initial compliance period, the adviser must submit its initial Form ADV within 60 days of relying on the exemption from registration under the Advisers Act.
Exempt reporting advisers must update the form at least annually within 90 days of the end of its fiscal year, or more frequently as may be required by Form ADV (such as changes to basic identification information, form of organisation, disciplinary information or control persons). Should an adviser cease to be a private fund adviser for any reason, it is required to file an amendment to its Form ADV indicating that it is filing a final report.
Advisers filing the form must pay an annual filing fee designed to pay the reasonable costs associated with the filing and maintenance of the system. Although not yet set, the fee is currently expected to range from $40 to $225 based on the amount of assets an adviser has under management.
The SEC has not yet set any specific additional record keeping requirements for exempt reporting advisers, and has said that it will address the issue in a future rule making. The SEC also indicated that it does not anticipate that its staff will conduct compliance examinations of exempt reporting advisers on a regular basis, but instead where there are indications of wrongdoing, e.g. those examinations prompted by tips, complaints and referrals.
It should be emphasised that advisers who are relying on the foreign private adviser exemption are not subject to these requirements.