Presenting a live 90-minute webinar with interactive Q&A Private Equity Fund Formation in 2012 Navigating Capital Raising Under a New Regulatory Landscape: Dodd Frank, JOBS Act, the Volcker Rule, and ILPA Revised Principles WEDNESDAY, SEPTEMBER 12, 2012 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Scott W. Naidech, Partner, Chadbourne & Parke, New York Adam D. Gale, Counsel, Chadbourne & Parke, New York L. Charles Bartz, Senior Advisor, Berchwood Partners, New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory and you are listening via your computer speakers, you may listen via the phone: dial 1-888-450-9970 and enter your PIN -when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.
FOR LIVE EVENT ONLY For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps: In the chat box, type (1) your company name and (2) the number of attendees at your location Click the SEND button beside the box
If you have not printed the conference materials for this program, please complete the following steps: Click on the + sign next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.
Strafford Webinar: Private Equity Fund Formation in 2012 Presentation by Scott Naidech, Chadbourne & Parke LLP Adam Gale, Chadbourne & Parke LLP L. Charles Bartz, BerchWood Partners
Goals of Presentation Describe significant changes impacting private equity fundraising in 2012 Describe recent market trends, including structural changes taking place in the market Summarize certain new regulations impacting private funds (including Dodd Frank, Volcker Rule and JOBS Act) Highlight changes in market terms, including ILPA changes and other market impacts 6
1. What do we mean by Private Funds? Any (i) blind pool vehicle (ii) invested by a sponsor (iii) who often receives a management fee and profit participation (known as a carried interest or performance fee) (iv) offered to qualified high net worth investors only For purposes of this presentation, Private Funds means Private Equity Funds. For example, Venture Capital Funds, Growth Equity Funds, Buyout Funds, Real Estate Funds, Distressed Debt Funds, Mezzanine Funds, etc., investing in illiquid securities 7
2. Key incentives for raising a Private Fund? Key Economic Incentives for Sponsor Raising a Fund: Access to private capital from alternative sources; Carried Interest and Management Fee Key Economic Incentives for a Limited Partner Investing in a Fund: Access to a diversified pool of investments in a targeted geographic region and/or industry being managed by a specified team of experts 8
Recent changes in key incentives Ten years ago, most fund negotiations focused on economics; five years ago governance; in 2012 back to economics Impacts on incentives altering the standard 2 and 20 model economy and fund size. Volume: currently over 1,800 Private Equity and Real Estate Funds looking to raise capital, seeking roughly $800 billion Total amount of probable commitments from this pool: only $250 billion/year. Conclusion: less than one-half of fundraises will successfully raise their target amounts. 9
Changes of key incentives Pressure on established managers too Private Equity International released the PEI 300 in May 2012: 1. TPG (Fort Worth, TX): raised $49.897 billion in capital for their Private Funds over the last five years 2. The Blackstone Group (New York): $49.638 billion 3. Kohlberg Kravis Roberts (New York): $47.689 billion 4. Goldman Sachs Principal Investment Area (New York): $43.469 billion 5. Apollo Global Management (New York): $34.710 billion 6. The Carlyle Group (Wash DC): $30.741 billion 7. CVC Capital Partners (London): $25.068 billion 8. Apax Partners (London): $21.035 billion 9. Bain Capital (Boston): $21.033 billion 10.Oaktree Capital Management (Los Angeles): $17.633 billion 10
Changes of key incentives Larger managers compete for the same capital (from government plan, pension plans, foreign institutions, sovereign wealth funds) Face same pressures, which increases LP leverage in negotiations Pace of investment slowed creating dry powder Management fees have provided greatest share of GP economics Fund sizes are being capped at lower amounts Greater competition for capital = lower fees and carry, greater LP controls, increased fundraising periods, higher customization Still, sponsors increase their negotiating leverage through certain key differentiators, including higher performance, strategy diversification, oversubscription, better terms 11
Fee envy Sponsor Each Fund pays a Carried Interest to the GP (or an affiliated entity) GP GP GP GP GP Investment Adviser Carry US Buyout Fund I US Buyout Fund II Asia Fund US Mezz Fund US Real Estate Fund Management Fees Each Fund pays a Management Fee to the Investment Adviser can result in large aggregate fees that alter incentives (from carried interest based to fee based); thus downward fee pressure 12
Zombies! Pressure on smaller and mid-sized managers to reduce fees and fundraise Given the reduction in commitments and increased pressure, it is possible that a significant portion of existing fund managers will cease to continue meaningful operations, becoming so-called zombie funds Governance provisions in some fund agreements may be inadequate to handle orderly liquidations/terminations/key Person events/removal events (fund agreements often infer that the team will remain in place to raise a subsequent fund) While the process may be clear, the cost of implementing may discourage a single LP from pursuing. There may be little or no economic incentive for the GP to initiate the process. 13
Fee anxiety Sponsor GP???? Investment Adviser Carry Fund I???? Management Fees For advisers with fewer funds under management, downward pressure on fees by the market means smaller budget, leaner staff, harder to pay consultants and advisors less overall fees to manage the team. 14
Results Overall result: increased LP leverage and lower capital commitments alter dynamics of negotiation longer fundraising periods greater investment strategy definition lower fees and carry greater LP participation in investment process co-investment rights deal-by-deal opt-outs and investment vetoes (some of these are covered later in presentation from a legal perspective) Classes of LPs : concern that larger LPs have leverage and can therefore negotiate better terms in side letters, or in separate parallel or co-investment funds 15
LP portfolio managers (like sponsors) face pressures too Because of the economic turmoil of the past four years, investors are unable to achieve adequate returns from more traditional portfolio allocations, e.g., publicly-traded strategies Lack of new contributions to trusts Uncertain performance of North American and European stocks Levels of distrust in Asian and Indian issuers and political environments Challenge: where to find new markets/or strategies for investment that can provide one or more: Current cash flow Stability in interim valuations Shorter investment horizons 16
2. Dodd-Frank Act Dodd-Frank Act, effective as of July 21, 2011: Eliminates the private investment adviser exemption (formerly 203(b)(3)) Requires registration unless an exemption is available under new 203(m) and the proposed rules thereunder Different rules apply depending on whether you manage any of the funds from the US, how much you have under management and amount of investments from US investors Venture capital exemption: Exemption for advisers who solely advise venture capital funds Real Estate Funds: No specific exemption for real estate ("RE") fund managers, but depending on what the RE fund invests in, and how the investments are structured, the rules may not apply. 17
Dodd Frank cont d Exempt reporting advisers: Exemption for advisers who solely advise private funds with assets under management in the US of less than $150mm In calculating assets under management, include both uncalled capital commitments and outstanding investments; must calculate on a gross basis (i.e., amounts borrowed are included) Even exempt managers still need to make an initial and annual update filings with the SEC will now be subject to record keeping and reporting requirements and be subject to SEC audit requirements Fund managers who are exempt from SEC registration still need to check the investment adviser registration requirements of the state of their principal office and place of business 18
Dodd Frank cont d Non-US Fund Managers: Foreign private advisers: Exemption for non-us advisers to private funds with small US client and investor bases (less than $25mm under management and less than 15 clients and investors in the US), and no place of business in the US No filing at all required if meet that exemption. Otherwise, should fit within the $150mm exemption, as long as not managing $150mm from an office in the US. Fund GPs: - Can rely on the Investment Manager s filing, if certain requirements are met 19
3. Volcker Rule The Volcker Rule generally prohibits banking entities, including affiliates of banks, from engaging in, sponsoring or investing in private equity funds (and hedge funds), but the Rule is subject to a number of exceptions. Volcker Rule also prohibits a bank from engaging in "proprietary trading," but those are less relevant to funds. Rule does not go into effect until July 21, 2014, and we are waiting for final rules to be promulgated. Grandfather Provision: Regulators may, upon application by any banking entity, extend the period (i) for up to 5 years (until 2019) (ii) to the "extent necessary to fulfill a contractual obligation that was in effect on May 1, 2010 if fund is an illiquid fund. 20
Volcker Rule (Con t) The 3% Exception to the General Prohibition: A banking entity may acquire or retain an ownership interest in a covered fund if, among other things, it: (i) owns not more than 3% of the total ownership interests in any single fund; and (ii) invests an aggregate amount not exceeding 3% of the banking entity's Tier 1 capital (i.e., the bank's regulatory capital) in covered funds as a whole. Seed Investment Exception: There is an exception to the 3% rule to allow the banking entity to make a seed investment in a fund (in which case it can own 100% of the fund) - provided that within one year of the covered fund's establishment, the banking entity must reduce its ownership to no more than 3% of the total ownership interests in the covered fund. 21
Volcker Rule (con t) Potential Alternative for Bank Investments: Although a bank cannot invest at all in a private fund it does not sponsor (other than under the Grandfather Provision), a bank could make a co-investment alongside a private fund directly into an operating company. Co-investment could not be made pursuant to a co-investment fund, as that fund investment would violate the Volcker Rule. There would be no violation, however, if there was a direct investment, and the bank could enter into a separate advisory agreement with the fund manager whereby the bank agrees to pay fees to the fund manager for advising the bank on the coinvestment. 22
4. JOBS Act Under current rules, private equity funds may not engage in any general solicitation or advertising when raising a fund. JOBS Act eliminates this prohibition, provided that: - everyone who ends up investing in the fund is an accredited investor - the fund takes reasonable steps to verify that all of the investors are accredited investors, and - fund relies on Rule 506 JOBS Act does not become effective until SEC issues final rules. On August 29, 2012, SEC issued proposed rules, and final rules are expected in October. Until then, prohibitions on general solicitation and advertising still apply. 23
JOBS Act (Con t) SEC s Proposed Rules SEC s proposed rules leave up to the fund to determine what steps are reasonable to verify accredited investor status But SEC s release suggests that some due diligence is expected beyond just relying on a representation from the investor. Notably, the proposed rules did not place any further restrictions, as some had feared would be the case. Effect of Lifting of Prohibition Funds can freely advertise and market No need to restrict website access (but note non-us laws) Fund managers can speak more freely to press and conferences Freely use social media No need to number PPMs 24
JOBS Act (Con t) Potential Pitfalls For smaller fund managers who are relying on certain state exemptions from registering as an investment adviser, restrictions on public advertising might still apply For fund managers who engage in commodities trading, CFTC registration exemptions might also have restrictions Will need to be careful about what is stated in publicly available materials For registered advisers, need to keep records of all publicly available materials 25
5. Recent Structures and Changes in Legal Terms Institutional Limited Partners Association (ILPA) Download ILPA Principals from www.ilpa.org Private Equity Principles 1.0 published in Sept 09 Private Equity Principles 2.0 published in Jan 2011 Goals: to establish best practices regarding fund partnerships between GPs and LPs Three guiding principles: Alignment of Interests Governance Transparency 26
ILPA: a pretty good outline of issues and considerations ILPA: Outlines Key Principles and Concepts, along with reporting templates Economics: carried interest calculation and waterfall structures (deal-by-deal vs. aggregate-return waterfall structures and considerations) Management fee considerations, along with GP Expenses and Fee Income offsets Clawbacks: Principles 2.0 contains detailed Appendix on Carry Clawback Best Practices (e.g., considerations such as a guarantee or escrow; clarification that the GP clawback is net of taxes paid; other considerations based on the waterfall structure) Governance: Key Man events considerations Investment Strategy considerations Conflicts of interest, fiduciary duties and LP Advisory Committee (Appendix A) 27
but not a checklist! Transparency Fee disclosures ILPA standardized templates Capital call and distribution notices Annual and quarterly reports Appendix C covers additional considerations on reporting Not a laundry list of must-haves ILPA: our terms are not to be applied as a checklist ; each partnership should be considered separately and holistically Goal is to provide terms and principles to be considered and that will result in better investment returns and a more sustainable private equity industry Generally, considered more pro-lp and not the market standard ; the ILPA terms continue to be discussed, debated and augmented 28
Other hot items: Bespoke Funds Co-investment Vehicles Pro Rata vs. GP Discretion Fee and Carry reductions Governance and Disclosure LP Agreement Side Letters PPM Special Vehicles for select investors Private Equity Fund Managed Accounts: Teachers Retirement System (KKR and Apollo) How are investments allocated; sharing of expenses; other governance and disclosure issues Benefits/detriments: concerns regarding alignment of interests and new classes of LP with different incentives 29
Other hot items: Bespoke Fees Fees and Fee options Fee Options Bain Fund XI: offers fee options to investors Benefits/detriments New trend? General trend: Downward fee pressure in all directions (carry, fund level fees, portfolio fee income) while Regulations increase compliance costs LP seek to reduce overall blended fee rates and increase IRRs 30
Other trends For smaller fund managers, fewer, smaller funds = lower management fees = overall budget concerns and constraints For LPs, lower fees = alignment of interests and higher IRR Alignment of Interests Deal-by-deal vs. aggregate-return waterfall Fee offsets and portfolio company fee income 31
Hot areas for investments Hot Sectors Healthcare Technology Energy & infrastructure Hot Geographies LatAm Energy and Infrastructure Brazil; Peru; Chile; Colombia Turkey and MENA Africa 32
Other key terms Key Man New funds Established funds Removal Events For Cause/other than for Cause Mechanics and Voting Clawbacks Reporting ILPA forcing standardization Pipeline Disclosure Securities concerns 33
6. Public investments in alternative asset managers Larger asset managers have over the last few years gone public The Blackstone Group (NYSE: BX) Kohlberg Kravis Roberts & Co. (NYSE: KKR) Apollo Global Management (NYSE: APO) Oaktree Capital Group (NYSE: OAK) The Carlyle Group (NASDAQ: CG) An investment in these shares may (or may not) relate to an investment in their managed funds, carried interest, management fees, portfolio fee income, or other revenue streams Public filings provide a wealth of information on the detail and scope of their operations and aspirations 34
Scott W. Naidech: Scott is a Partner at Chadbourne & Parke LLP. He represents domestic and international sponsors (with a particular focus on Latin America and other emerging markets) in the structuring, establishment and operation of their private equity funds. He has formed buyout, growth capital, real estate, energy, infrastructure, mezzanine and venture capital funds, among others, ranging in size from $50 million to over $16 billion of committed capital. He also advises clients on leveraged buyouts, acquisitions, recapitalizations and divestitures, and general corporate matters. He was recently recognized in the 2013 edition of Best Lawyers in America for his work in private funds law. He can be reached at snaidech@chadbourne.com. Adam Gale: Adam is a Senior Counsel at Chadbourne & Parke LLP. He provides regulatory and compliance advice to hedge funds, private equity funds, broker-dealers, banks and registered investment companies. He also forms and structures private funds and registered funds. He is the head of firm's hedge fund practice group, and also represents both well-established and start-up entities. He can be reached at agale@chadbourne.com. 35
L. Charles Bartz: Charlie is a Senior Advisor at Berchwood Partners, a global placement agent dedicated to raising capital for alternative asset managers. He has 30 years of experience in institutional investments, both as a plan sponsor and as a placement agent. He has focused on alternative investments over the last 15 years, working with a broad range of domestic and international investment strategies and products, including private equity/buyouts, venture capital, mezzanine, distressed debt, infrastructure, hedge funds, and real estate. He can be reached at lcb@berchwoodpartners.com. 36