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While investors commonly seek an acknowledgement in a side letter that they are interested in co-investment opportunities (or a similar election right), the range of alternative investment structures currently in vogue introduces new side letter concerns, particularly in relation to strategy and allocation issues (for example strategy caps and successor fund provisions). Dec. 16, 2015) (the ESG Capital Partners Case), the court found that a side letter agreement issued to a limited partner investor in a Delaware . 107 0 obj <>/Metadata 16 0 R/ViewerPreferences 161 0 R>> endobj 109 0 obj <>/ExtGState<>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI]>>/MediaBox[0 0 612 792]/Contents 110 0 R/Group<>/Tabs/S/StructParents 0/CropBox[ 0 0 612 792]/Rotate 0>> endobj 110 0 obj <>stream Law portal; A side letter or side agreement or side letter arrangement is an agreement that is not part of the underlying or primary contract or agreement, and which some or all parties to the contract use to reach agreement on issues the primary contract does not cover or for which they require clarification, or to amend the primary contract. A standard Model Limited Partnership Agreement ("LPA") has been a persistent need in the private equity asset class given the cost, time and complexity of negotiating the terms of investment. side letters. back to such Shareholder (or to another Permitted Transferee of such Shareholder) any Purchased Securities or Option Shares he, she or it owns if such Permitted Transferee ceases to be a Permitted Transferee of such Shareholder prior to the end of Purchased Securities pursuant to the Purchase Agreement. Put). 2) Conversely, certain rights generally should not be included in a side letter, notably those that would create a new class of interests from a local law perspective or restrict the fund as a whole (such as tighter investment restrictions than those described in the funds constituting documentation). Key person terms are common in the closed-ended fund context (where a key person event is likely to trigger the suspension of the investment period). A recurring theme in private equity fund investing is the use of 'side letters' between individual limited partners and the general partner of the fund. %PDF-1.5 % The need for consistency between side letter terms (including any MFN rights granted) becomes particularly apparent when conducting this exercise. or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH THE DEALINGS OF ANY PARTY HERETO IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER Managers negotiating side letters on behalf of a fund should ensure that a transfer right provides them with sufficient comfort with respect to the identity and nature of the transferee (this is particularly the case where the fund has a credit facility and does not want to jeopardise its borrowing base) and that appropriate customer due diligence information will be provided in connection with any transfer. entitled to an additional payment from the Company (or its designee, as applicable) in an amount equal to the product of (A)the respective number of shares of Common Stock repurchased by the Company or its designee from such Shareholder upon the agreement as between the general partner and an investor. (v) Cost means (I)with respect to any Purchased Securities, the Purchase Price and (II) (ii) No failure or delay by any party in exercising any right, power securities of the Company on such date) of the aggregate fees and expenses that would reasonably be expected to be incurred by the Company and its Subsidiaries in connection with a Change of Control. There are three versions of the post-money safe intended for use by US companies, plus an optional side letter. (e) Closing. the limited partners of a venture, private equity or hedge fund . nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and permitted assigns, any rights under this Agreement. endstream endobj (ii) Call Securities means (I)in the event Slaines employment is terminated by Side letters may provide the ability for an investor to elect to receive the benefit of side letter provisions the fund has entered into with other investors. Investor will execute a side letter that will serve, separate and . (e) Survival. Side letter. The Company or any Shareholder may file an original counterpart or a copy of this Section4(i) with any court as written evidence of the consent of the Companys or such Whether it is appropriate to grant such requests should be considered on a case by case basis. The more acute the conflict or significant the potential impact on other investors, the more detailed and extensive the disclosure should be. e4 Ju.PRG-:'M|Fx+Ml/y@[j:#msSt6-YTXj./Bx^ x]o6}=ZF%Q{z9CI|Glc8DY dcKM5_.!wWgJn$)&YU'WwEruHd*wyrvoy&&>p\jnsLr!USZ/qg~x$ok eV/]jMYYedyp LX'('A h-$!RTY Rather than a privately negotiated side letter process . LPAs are multilateral agreements among the General Partner, the Fund and the limited partners. minimum statutory withholding requirements, and (ii)the applicable Shareholder and/or his or its Permitted Transferees, as applicable, shall, simultaneously therewith, transfer and deliver such Call Securities or Put Securities, as applicable, Side letters are frequently used to enter into legal agreements between private funds and investors. An investor in a PE fund will often indicate (commonly in the subscription agreement or a side letter entered into with the fund) whether it is interested in co-investment opportunities. Letter Agreement - Artemis America Partnership, Apollo Investment Fund LP and Samsonite Corp. (Jul 13, 1999) Lock-Up Agreement - Sirius Satellite Radio Inc., Apollo Management LP, Blackstone Group LP, Space Systems/Loral Inc. and Lehman Commercial Paper Inc. (Oct 17, 2002) Managers managing open-ended funds can simplify monitoring and compliance by keeping a clear record of when an investor has redeemed (such that the side letter is no longer relevant). "Preferential terms do not necessarily benefit the fund or other investors that are not party to the side letter agreement and, at times, . While side letter terms will vary from fund to fund, and from investor to investor within a given fund, side (i) co-investment rights, not tendered to the investor generally, usually the basis of the single member being the largest investor. AJC*P 4m@RA0aS# shall be null and void. The introductory recitals of AIFMD also require that any preferential treatment is disclosed in the AIFs rules or instruments of incorporation this can be achieved through broad disclosure in the private placement memorandum or partnership agreement (although some managers prefer to include more tailored terms to ensure investors are not provided with too much of a 'shopping list'). (i) Waiver of Jury Requests for management rights letters are fairly common in today's market and do not impose significant burdens on . A side letter is a document that is ancillary to another contract. Certain investors will require side letters, providing them with additional . BOTH SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. provisions, side letters can never override the provisions of an offshore fund's memorandum and articles of association. If Slaines employment with the Company shall be terminated for any reason, the Company shall have the right, but not the obligation, by one or more written notices to the Shareholders (each, a Call Notice) delivered on or {slal!#/:dVpRb|$vbHIbO X! If any provision of this Agreement The main source for these ground rules are the Company's Shareholders Agreement or Investor Rights Agreement (each of which we refer to in this article as the Shareholders Agreement).The Company's organizational documents, and any confidentiality agreements and side letters with shareholders, may also contain applicable requirements or . While side letters can be helpful in securing key investments, it is imperative to fully understand their legal implications. Obligations of Transferees. Period, with respect to the Shareholders and their respective Permitted Transferees, shall be deemed to have expired, as of any date, with respect to an aggregate number of Shares held by the Shareholders and their respective Permitted Transferees WHEREAS, the Shareholders, on the one hand, and Warburg Pincus Since a typical private equity fund raises capital over a period of time with multiple closings, a side letter is a convenient way to address the specific concerns of an investor. Transferee will be treated as a Shareholder for purposes of Sections 2, 3 and 4 of this Agreement, as applicable, with the same rights, benefits and obligations hereunder as Shareholder; provided that, prior to the effectiveness of such Slaine, an individual (Slaine), and (collectively, theand together with Slaine, theShareholders). PEI Staff. 7. to obtain required governmental or other approvals), and (II) in the event that an Objection Notice has been timely delivered with respect to the Call Notice or Put Pricing Notice, as applicable, ten (10)days after the determination of the In ESG Capital Partners II, LP v.Passport Special Opportunities Master Fund, L.P. C.A. shall be deemed to be the Put/Call Price with respect to such Call or Put, as applicable, and shall be final and binding on the parties. Download this easily editable template through formats like MS Word and Mac Pages. NOW, THEREFORE, in consideration of the foregoing, Similarly, Limited [] . A side letter is a side agreement between the company and the investor made at the time the investor invests in the SAFE. An MFN right allows an investor to elect to receive the side letter provisions negotiated by other investors.3However, MFN provisions can be drafted in a number of ways, meaning that what the investor may actually be entitled to elect to receive can vary widely. [2] My letter addresses what appears to be one of the most profound . September 13, 2011. A blanket consent is therefore not advisable. 1 March 2023. The SEC recently published a proposed rule (the "Proposal") that would impose unprecedented mandatory disclosure obligations and various other forms of intervention in the private funds industry. When you invest in a mutual fund . 121 0 obj <]>>stream Author: Dan Brecher. A number of private equity funds and hedge funds are structured as limited partnerships that are governed by the terms of a limited partnership agreement (an 'LPA'). No Shareholder shall assign These side letter requests can come in many guises, including requests to vary the frequency, format and content of reporting. Non-Interference Agreement. While these are just a handful of the most important provisions commonly found in a side letter agreement, GPs are often dealing with thousands of individual obligations, to . Private Equity and Hedge Funds. <>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> . 2 0 obj <> endobj 4 0 obj <>stream A subscription agreement can also be used to sell stock in a privately owned business. endobj (i) This While it is tempting to immediately move on to the next project after a closed-ended funds final closing, it is important to ensure the MFN exercise is handled immediately in order to avoid any technical breaches. Except as expressly provided in this Agreement (including Section3, which shall be for the benefit of the Company, Silver Lake, Warburg Pincus and their respective Affiliates), order or other equitable relief to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction in the United States or any state thereof, in addition to any shall be cumulative and not exclusive of any rights or remedies provided by law. xc```b`` B@1XJYJ9 WX i 022s :/602[8a This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors, assigns, heirs and representatives. General Partners ("GPs") have an interest in reducing the length of side letter agreements, providing fundraising certainty, and lowering their fund formation costs. Enter to open, tab to navigate, enter to select, Practical Law Standard Document w-016-5805, https://content.next.westlaw.com/practical-law/document/Iba4bc2fcb68611e8a5b3e3d9e23d7429/Side-Letter-to-Limited-Partnership-Agreement?viewType=FullText&transitionType=Default&contextData=(sc.Default), Side Letter to Limited Partnership Agreement. between a private equity fund (a "Fund") and an investor (an "Investor") are generally contained in the constituent documents of the Fund, often a limited partnership agreement (an "LPA"), which sets forth the rights and obligations of the general partner and each . Parties to a side letter negotiation should seek advice on the particular transaction in light of their circumstances. Size: A4, US. 2 0 obj This letter agreement will confirm the agreement between us and you ("you" or the "Investor"), effective as of the . A sample side letter to a limited partnership agreement (LPA) that can be used by a limited partner investing in a private equity fund that is structured as a limited partnership. SAFEs solve two problems: (1) nobody knows what an early-stage . VENTURE CAPITAL & PRIVATE EQUITY FUNDS DESKBOOK SERIES . (xi) Material Breach Event means Slaines material breach of the c'5HJ~L;x}=u! (a) Most Favored Nation. In this key features document, we briefly highlight some considerations relevant to the use of side letter arrangements in Irish ILPs. Accordingly, any rule of law, or any legal decision that 1 0 obj Canadian private equity and venture capital funds are often structured as limited partnerships which are governed by limited partnership agreements (LPA). Use of Side Letters. This is typically achieved through an election form and can take some time to coordinate if a significant number of side letters are involved and/or if a complex set of carve outs apply. We very much appreciate your support and trust. Exercise Date or (III) if a Material Breach Event has occurred prior to the Put/Call Closing Date, the Material Breach Price. respect to such Call Securities as determined in good faith by the Board. 3) In some circumstances an MFN is included in the funds constituting documentation rather than being agreed separately by side letter.