Conflict of Interest Management Procedure
DATE : 20/06/2023
This procedure for managing conflicts of interest (the " Procedure ") has been put in place by RAIZERS in order to comply with the new regulatory obligations defined by EU Regulation 2020/1503 of October 7, 2020 on European providers of participatory financing services for entrepreneurs (the " Regulation "), certain provisions of which have been adapted into French law by Ordinance No. 2021-1735 of December 22, 2021 modernizing the framework relating to participatory financing...
RAIZERS was an investment platform authorized by the Autorité des marchés financiers (" AMF "), in France, as a Conseiller en investissements participatifs (" CIP "). It was also authorized in Belgium by the Autorité des services et marchés financiers (" FSMA ") as an alternative financing platform (" AFP "). Having become a Participative Financing Services Provider ("PSFP"), and in order to comply with the new French and Belgian laws and regulations applicable, RAIZERS has set up the present procedure for managing conflicts of interest (the " Procedure ").
After general considerations, the Procedure sets out in particular: 1) the conflicts of interest identified by RAIZERS, 2) the preventive measures put in place by RAIZERS to avoid the occurrence of such conflicts, and 3) RAIZERS' obligation to inform its investors.
SCOPE OF APPLICATION :
This Procedure applies to the following RAIZERS entities: RAIZERS SAS and RAIZERS TRANSACTIONS.
All these entities are referred to as " RAIZERS " or the " Company ".
MAIN APPLICABLE LEGISLATION :
- European texts
The Regulation, which came into force on November 10, 2021, provides in Recital 26 that European providers of participatory finance services should act as neutral intermediaries between customers using their platforms. In order to prevent conflicts of interest, the Regulation imposes certain requirements with regard to providers of participatory finance services, but also their shareholders, managers and employees, as well as any natural or legal person closely linked to them by a control relationship. These requirements are set out in Article 8 of the Regulation, and are more precisely described in the technical regulatory standards drawn up by the European Securities and Markets Authority ("ESMA") relating to Article 8(7) of the Regulation.
Particularly with regard to managing conflicts of interest, the Regulations are intended to refer to concepts used in texts relating to the capital markets union, and in particular to Directive 2014/65/EU on markets in financial instruments (" MiFID 2 ").
- National texts
Paragraph 2 of Article L. 547-1 of the French Monetary and Financial Code states:
" Participative finance service providers] are approved by the Autorité des marchés financiers, in accordance with the conditions set out in these regulations.
Article 12 of the Regulations also stipulates that :
" Any legal entity intending to provide participatory finance services shall submit an application for authorisation (...) to the competent authority of the Member State in which it is established .
The application referred to in paragraph 1 shall contain all of the following:
- e) a description of the governance arrangements and internal control mechanisms put in place by the prospective provider of participatory finance services to ensure compliance with this Regulation (...) ;
- m) a description of the internal rules defined by the potential provider of participatory financing services to prevent the persons referred to in the first subparagraph of Article 8(2) from participating, as project promoters, in participatory financing services offered by the potential provider of participatory financing services;
The Belgian law of December 18, 2016 organizing the recognition and supervision of crowdfunding and containing various provisions on finance provides, in Article 27, that:
"1. The persons referred to in Article 21 [in particular alternative financing platforms] must take all reasonable steps to avoid conflicts of interest between themselves, including where applicable the persons who control them, their managers and employees, and the investors or between the investors themselves and, if a conflict cannot be avoided, to identify and manage this conflict in order to avoid harming the interests of the investors.
If the measures taken to manage a conflict of interest are not sufficient to guarantee with reasonable certainty that the risk of harming the investor's interests will be avoided, the investor is informed, prior to the provision of the service, in a clear and durable manner, of the general nature and/or source of the conflict of interest. The information provided must be sufficiently detailed, taking into account the investor's personal situation, to enable the investor to make an informed decision as to whether or not to continue to use the proposed services. If the investor decides not to use the services for this reason, no compensation will be due.
- 2. Regulated firms that have established a policy for managing conflicts of interest in connection with the provision of investment services must extend the implementation of that policy to conflicts of interest that arise in connection with the provision of alternative financing services."
Clients " refers without distinction to any potential or actual investor or project owner to whom RAIZERS provides or intends to provide its participatory financing services.
RAIZERS' Investor Clients refer to all investors, whether natural persons or legal entities, participating in the financing of one or more Transaction(s) by subscribing to bonds on the Platform.
RAIZERS Buyer Clients refer to all purchasers, individuals or legal entities, wishing to purchase lots offered by RAIZERS TRANSACTIONS.
TheIssuer refers to the company wishing to use RAIZERS to issue a bond in the context of its business (financing, refinancing of real estate projects in particular).
TheTransaction refers to the real estate project to which the bond issue relates, and the funds raised are intended to be used entirely for this Transaction.
The Platform refers to the www.raizers.com website.
0. GENERAL CONSIDERATIONS
In accordance with Article 8 of the Regulations, RAIZERS undertakes not to participate in any equity financing offer on its Platform.
RAIZERS does not accept as Issuer in connection with the equity crowdfunding services on its equity crowdfunding platform any of the following persons:
- its shareholders holding 20% or more of the share capital or voting rights ;
- its managers or employees ;
- any natural or legal person linked to the above-mentioned persons by a relationship of control, which control is understood to mean the relationship between a parent company and a subsidiary, or a similar relationship between any natural or legal person and a company, any subsidiary of a subsidiary company also being considered a subsidiary of the parent company which is at the head of them*.
RAIZERS authorizes itself to accept as Investor Clients, in the participatory financing projects offered on its Platform, any of the persons referred to in the preceding paragraph. This possibility is clearly mentioned on the Platform's website in a prominent place, as well as in each Key Investment Information Sheet or "KIIF". The Procedure is accessible to all and is available on the RAIZERS website by clicking on the following link: https://raizers.com/conditions-generales-utilisation. RAIZERS also undertakes to publish on its website information on the specific participative financing projects in which these people invest.
RAIZERS ensures that such investments are made under the same conditions as those applicable to other investors, and that such persons do not benefit from any preferential treatment or privileged access to information.
This Procedure may be freely consulted by all RAIZERS customers as it is available online. This procedure will also be accessible to any person, registered or not on the RAIZERS platform.
* Article 4, §1, point 35) b) of the MiFID Directive2
- IDENTIFYING SITUATIONS OF CONFLICT OF INTEREST
The Company has identified a number of situations that could potentially give rise to conflicts of interest, whether: (a) in its relations with the Issuer and its Customers (Investor and Purchasers), (b) in relations between RAIZERS employees and the Issuer, (c) in relations within RAIZERS itself, or (d) in relations between two Customers.
a) In RAIZERS' dealings with the Issuer and its Customers (Investors or Purchasers)
A conflict of interest may arise in the following situations:
- Where RAIZERS holds securities of the Issuer prior to the Transaction;
- Where the Issuer holds RAIZERS securities prior to the Transaction ;
- Where RAIZERS has a commercial relationship with one (or more) of the Issuer's competitors;
- When the interest of the Client Investor or Purchaser diverges from the commercial interest of RAIZERS (for example when the implementation of the Transaction would be likely to provide RAIZERS with a lower remuneration);
- The Investor Customer or the Buyer Customer holds an interest equal to or greater than 20% of the share capital or voting rights of RAIZERS ;
- The Investor or Buyer is a director or employee of RAIZERS ;
- The Investor Customer or the Buyer Customer is a natural or legal person linked to the shareholders, managers or employees of RAIZERS by a relationship of control;
- When the remuneration paid by the Issuer to RAIZERS leads to a conflict of interest situation.
b) In relations between RAIZERS' employees and the Issuer
A conflict of interest may arise in the following situations:
- The employee(s) responsible for the design and implementation of the Transaction holds, directly or through an intermediary, securities, whether listed or unlisted, of the Issuer prior to the opening of the Transaction.
- The employee(s) responsible for the design and implementation of the Transaction have a non-economic relationship (e.g. family) with the Issuer.
- The employee(s) responsible for the design and implementation of the Transaction receive(s) direct remuneration and/or gifts from the Issuer of the relevant securities.
c) Within RAIZERS itself
A conflict of interest may arise in the following situations:
- When one RAIZERS entity intervenes for the benefit of a second RAIZERS entity (e.g. when RAIZERS TRANSACTIONS intervenes to sell goods financed in participatory financing by RAIZERS SAS), to the detriment of the interests of Customers (Investors or Buyers). More specifically, RAIZERS has identified two potential conflicts of interest that may arise between RAIZERS SAS and RAIZERS TRANSACTIONS:
- RAIZERS SAS discloses confidential information to RAIZERS TRANSACTIONS about projects under analysis (before public launch). E.g.: a developer wishes to obtain participatory financing from RAIZERS SAS to acquire a plot of land for which the promise to sell is in the process of being signed. RAIZERS SAS informs RAIZERS TRANSACTIONS, which contacts one of its clients to conclude the sale before the developer who contacted RAIZERS SAS.
- RAIZERS TRANSACTIONS favors a RAIZERS SAS customer in a transaction. Ex: RAIZERS TRANSACTIONS receives two purchase offers for a property, one from a RAIZERS SAS customer and the other from an external customer. RAIZERS TRANSACTIONS decides to submit the offer from the RAIZERS SAS client to its client, to the detriment of its duty to advise.
It is specified that if there were to be an exchange of information between RAIZERS SAS and RAIZERS TRANSACTIONS, this could only take place after the file has been made public and is fully financed.
By means of this procedure, RAIZERS intends to prevent and deal with any preferential treatment that may occur and any privileged access to information.
- When a RAIZERS entity intervenes for the benefit of the "CAPITALIUM Real Estate Fund by RAIZERS S.C.A." fund (or vice versa), a Luxembourg alternative investment fund subject to the amended law on alternative investment fund managers and established in the form of a limited partnership with shares. (or vice versa), a Luxembourg alternative investment fund subject to the amended law of July 12, 2013 relating to alternative investment fund managers and established in the form of a société en commandite par actions. It is specified that this fund is managed by RAIZERS AM S.à.r.l., a limited liability company under Luxembourg law, itself owned by Raizers SA (Switzerland). The management of potential conflicts of interest that may exist between the fund and certain RAIZERS entities is detailed in article 18 of the fund's prospectus, appended to the present procedure(Appendix 1). In addition to the publications that RAIZERS undertakes to make on its website, it should be noted that the fund's participation in certain transactions presented by RAIZERS SAS is systematically communicated and mentioned in the actual presentation of the transaction made on the platform.
d) In relations between Customers
RAIZERS has identified a number of potential conflicts of interest between two of its customers:
- Between two "Customers" (as this term is defined in the "Definitions" section on page 3). For example, when two project owners are competing for RAIZERS funding at the same time.
- Between two Client Investors. For example, a Client Investor who is a legal entity invests in a project financed by RAIZERS in which he or she has an interest (holding shares in the company financed, or in an associated company, links between the managers of the investing legal entity and those of the project owner, etc.).
- PREVENTION SYSTEM
By signing the Company's code of conduct, the Company and its employees undertake to direct all their actions in the interests of their Customers (Investors or Buyers).
All Company employees are bound by an obligation of confidentiality, which applies at all times in the performance of their duties.
Furthermore, the Company and its employees shall refrain from :
- Receive any remuneration, directly or indirectly, unrelated to the Company's business or the normal performance of the duties of RAIZERS employees;
- Have an employee analyze an offer (or participate, in any way whatsoever, in such analysis) if the employee holds securities of the Issuer and/or if the employee has a non-financial relationship with the Issuer.
- Sign an exclusive sales mandate with a developer who has an outstanding loan issued through the RAIZERS platform.
Finally, RAIZERS undertakes to train all its staff in the present Procedure. A training session on the management of conflicts of interest will take place annually and will be given by Maxime PALLAIN, Managing Director of RAIZERS SAS, duly authorized and mandated for this purpose.
- TRANSPARENCY ON POTENTIAL CONFLICTS
- The Company undertakes to disclose to all its Customers the general nature and sources of conflicts of interest, as well as the measures taken to mitigate them.
These communications will be made on the Site and will include information enabling the Customer to make an informed decision about the service in the context of which the conflict of interest has arisen.
- During the subscription process, the Company informs its customers, via the "Regulatory Information Sheet", of the identity of Issuers with whom it has a relationship of a similar nature.
Thus, the description of the fees invoiced to the customer is followed by the following paragraph: "You may obtain a detailed description of the services provided to the issuer of the securities being considered for subscription and the related fees on request from the following address: RAIZERS SAS - 16 rue Fourcroy - 75017 Paris".
- In addition, the Company, its managers and employees, inform all users of the Platform at all times, in a complete, accurate and comprehensible manner, of the existence, nature and amount of any remuneration, commission or other benefit it may receive.
- Lastly, the payment by a third party of any remuneration or the granting by a third party of any non-monetary benefit as a result of a recommendation emanating from the Company is permitted only if its purpose is to improve the quality of the advisory service provided to the Customer and does not interfere with the Company's obligation to act in the Customer's best interests.
- Projects contributed by RAIZERS TRANSACTIONS
RAIZERS TRANSACTIONS may contribute financing projects to RAIZERS SAS. However, this contribution may not represent more than twenty percent (20%) of the total number of projects financed by the platform over one year.
- Co-investment rules
Shareholders (individuals and/or legal entities), managers and employees of RAIZERS may invest alongside investors on the platform, under the same conditions (price and duration). However, these investments must not represent more than twenty percent (20%) of the initial fundraising amount of the project in which the shareholders (individuals and/or legal entities), managers and employees of RAIZERS wish to invest.
* * *
This Procedure shall come into force on the date of signature by the representatives of RAIZERS.
This procedure will be reviewed annually and signed by all RAIZERS employees on its anniversary date.
Amandine NAUDIN, RAIZERS' Legal Director, has been appointed as the person in charge of the Procedure.
Extract from the prospectus of the "CAPITALIUM Real Estate Fund by RAIZERS S.C.A." fund.
"18. CONFLICTS OF INTEREST
The General Partner shall ensure that conflicts of interest will be identified and managed in accordance with this Memorandum and Luxembourg Law.
THE GENERAL PARTNER WILL ALWAYS ENSURE THAT ALL HIS DECISIONS ARE ALWAYS TAKEN IN THE BEST INTEREST OF THE SHAREHOLDERS.
18.1 RAIZERS Group Activities
RAIZERS Group may continue the fund-raising activities and actively engage in transactions on behalf of other real estate projects who may involve the same operations as those in which the Company invests.
RAIZERS Group may also invest up to a maximum of fifteen percent (15%) per issuer ("Issuer" being the person issuing funds) or related companies to such Issuer in which the Company invests.
RAIZERS Group and its affiliates will perceive a remuneration from the Issuer(s) between two percent (2%) and up to a maximum of ten percent (10%) calculated on the real estate investment projects carried out by the Group.
RAIZERS Group and all its affiliates have the right to set up additional real estate investment funds, establish other investment relationships and engage in other activities, even if those activities may compete with the Company's activities. Those activities shall not be considered as giving rise to a conflict of interest.
18.2 Interested Parties
The Managers, the Service Providers, directors, officers, relatives and employees (the "Interested Parties") may, subject to the terms of this Memorandum, engage in and will continue to engage in activities which may conflict with the interests of the Shareholders, the Company and/or any investment(s). Except as otherwise expressly indicated, nothing contained herein or in the Articles will restrict the activities and operations of the Interested Parties. From time to time the Interested Parties may have multiple advisory, transactional and financial and other interests in, and transactions with, the Company and its assets, and therefore may be subject to various conflicts of interest in their relationships with the Company, the Service Providers and investments owned by the Group.
Each of the Interested Parties has or may have existing and potential relationships with a significant number of corporations and institutions and individuals. In providing services to their clients or acting for their institutions or organizations and acting for the Company, Interested Parties may face conflicts of interest with respect to activities recommended to or performed for such clients or for their institutions or organizations, on the one hand, and the Company, the Investors or the entities in which the Company invests, on the other hand. In addition, these client relationships may present conflicts of interest in determining whether or not to offer certain investment opportunities to the Company, subject at all times to the terms of this Memorandum.
In particular, Interested Parties may, subject to the terms of this Memorandum, invest for their own account and may also act as investment banker, economic adviser, investment advisor or manager and/or in another capacity on behalf of or for third parties that invest, in investments (including assets in competition to those of the Company) and may engage in, advise or possess an interest in other business ventures with persons competing with the investments or with the Company for investment opportunities in the relevant sector. No guarantees can be given that any owners of investments who seek advice from or retain an Interested Party in another capacity will provide any investment opportunities for the Company. Such relationships could influence Interested Parties to take actions, or forbear from taking actions, which will raise conflict of interests. An Interested Party may give advice, and take action, with respect to any of its clients or proprietary accounts that may differ from the advice given or may involve a different timing or nature from action taken, by the Company. An Interested Party may give advice and provide recommendations to Persons competing with the Company and/or any investments that are contrary to the interests of the Company and/or any investments. A conflict of interests may arise where the Company is presented with (i) an investment proposal involving an investment owned (in whole or in part), directly or indirectly, by any Interested Party or an Investor or any of their respective Affiliates, or (ii) any disposition of assets to any Interested Party or an Investor of the Company or any of their respective Affiliates."