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19.3 19.3 Document Transcript

  • SUBJECT TO CONTRACT 8 Januray 2010 Volume 4 Draft Management Agreement Dated [2010] (1) [THE FUND] (2) [FUND MANAGER] Management Agreement relating to [FUND] Eversheds LLP Tel 0845 497 9797 Eversheds House Fax 0845 497 8888 70 Great Bridgewater Street Int +44 161 831 8000 Manchester DX 14344 Manchester M1 5ES www.eversheds.com man_0021668747100 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 CONTENTS REF _NN174R H 1.............................................................................2 REF _NN175R H 2.............................................................................4 REF _NN176R H 3.............................................................................9 REF _NN177R H 4.............................................................................9 REF _NN178R H 5.............................................................................9 REF _NN179R H 6.............................................................................9 REF _NN180R H 7...........................................................................11 REF _NN181R H 8...........................................................................11 REF _NN182R H 9...........................................................................12 REF _NN183R H 10..........................................................................12 REF _NN184R H 11..........................................................................13 REF _NN185R H 12..........................................................................13 REF _NN186R H 13..........................................................................14 REF _NN187R H 14..........................................................................16 REF _NN188R H 15..........................................................................16 REF _NN189R H 16..........................................................................18 REF _NN190R H 17..........................................................................18 REF _NN191R H 18..........................................................................18 REF _NN192R H 19..........................................................................19 REF _NN193R H 20..........................................................................19 REF _NN194R H 21..........................................................................19 REF _NN195R H 22..........................................................................20 man_0021668747100 1 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 THIS AGREEMENT is dated 2010 BETWEEN: (1) [ ] L.P., a [limited partnership] established under the laws of England and Wales and registered under number [ ] whose principal place of business is at [ ] (the “Fund”) acting by way of its general partner [ ] (the “General Partner”), a limited company [(incorporated in England and Wales with company registration number [ ])] whose registered office is at [ ] ]; and (2) [FUND MANAGER], [INSERT DETAILS] whose registered office is at [ADDRESS] (the “Manager”). RECITALS (A) The Partnership wishes to appoint the Manager to act as the manager of the Partnership on the terms of this Agreement and the terms of the Limited Partnership Agreement relating to the management of the Partnership and the Manager has agreed to accept the appointment. (B) The Manager is authorised and regulated by the FSA (reference number [NUMBER]) with a permission under Part IV of the FSMA enabling the Manager to manage the Partnership as provided for in this Agreement. IT IS HEREBY AGREED as follows: 1. DEFINITIONS AND INTERPRETATION1 1.1 Definitions In this Agreement, unless the context otherwise requires, the following words and expressions have the meanings shown below: “Business Day” shall have the meaning given to it in Clause 19.3 below; “Capital in respect of each Partner, the amount shown as Contributions” contributed to the capital of the Partnership by such Partner which shall not include any capital which has been returned to such Partner; “COBS” the Conduct of Business Sourcebook which forms part of the FSA Rules as amended from time to time; “Custodian” a custodian or nominee appointed by or on behalf of the Partnership to hold all or any of the Partnership’s man_0021668747100 2 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 Investments and documents of title or certificates evidencing title on behalf of the Partnership as notified by the Partnership to the Manager or, as the case may be, by the Manager to the Partnership (and who, for the avoidance of doubt, may not be the Manager or an Associate of the Manager); “Fund” means the Partnership; “FSA” means the Financial Services Authority of 25 The North Colonnade, Canary Wharf, London E14 5HS or any applicable successor regulatory body; “FSA Rules” means the rules and guidance issued by the FSA from time to time and for the time being in force (as varied by any waivers or dispensations granted by the FSA and applicable to the Manager); “Investee Company” a body corporate which is the subject of an Investment; “Investment Policy” the investment policy of the Partnership as set out in the IOGs; “Investors” any person who subscribes to the Partnership; “ITT” Means the Invitation to Tender for fund management services issued on [ ]; “Limited Partnership the agreement dated on or around the date hereof Agreement” between (1) Holding Fund (2) Carried Interest Partner and (3) General Partner, relating to the Partnership, as amended from time to time in accordance with its terms; “Liquidation Agent” any liquidator appointed by the Manager from time to time, for the purposes of liquidating the Partnership; “Loans” in respect of each Investor, the aggregate amount of the loan (if any) advanced to the Partnership by such Investor; “Outputs and as set out in the Fund Structure in Appendix D of Results” Volume I of the ITT; “Partnership Assets” all of the assets of the Partnership (including any man_0021668747100 3 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 undrawn Loan Participations); “Partnership’s Bank accounts opened in the name of the Partnership as Accounts” specified in the Limited Partnership Agreement; “Quarter” each quarterly period from 1 January until 31 March, from 1 April until 30 June, from 1 July until 30 September and from1 October until 31 December; 1.2 In this Agreement references to managing the Partnership or acting as manager of the Partnership include references to operating and administering the Partnership and managing the business and assets of the Partnership. 1.3 In this Agreement the headings are for ease of reference only and shall not affect construction or interpretation. 1.4 In this Agreement references to Clauses (other than references to clauses in the Limited Partnership Agreement) and the Schedule are references to the Clauses of and the Schedule to this Agreement. 1.5 The Schedule shall be deemed to be incorporated in and form part of this Agreement. 1.6 In this Agreement words and expressions not defined in Clause 1.1 above which are defined in the Limited Partnership Agreement shall have the meaning set out in the Limited Partnership Agreement and terms which are not defined in Clause 1.1 or the Limited Partnership Agreement but which are defined in the FSMA or the FSA Rules shall have the same meanings as in the FSMA or the FSA Rules. 1.7 In this Agreement references to any statute include subordinate legislation made pursuant to it and references to any statutes, statutory instruments, rules or regulations should mean those statutes, statutory instruments, rules or regulations as from time to time modified, amended, substituted or replaced. 2. APPOINTMENT AND FUNCTIONS OF THE MANAGER2 2.1 The Partnership hereby appoints the Manager to be the manager of the Partnership with effect from the date of this Agreement with full power and authority (subject to the provisions of this Agreement and the provisions of the Limited Partnership Agreement) to act as manager of the Partnership man_0021668747100 4 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 and as such manager to manage the Partnership and the Partnership Assets to the total exclusion of any other person and the Manager hereby accepts such appointment and agrees to act as such manager and to exercise such powers and authorities and carry out such management duties and obligations as are ascribed to the Manager under this Agreement or as are ascribed to the manager of the Partnership under the Limited Partnership Agreement. 2.2 Without limitation to Clause 2.1, it is agreed that the Manager shall have full power and authority, on behalf of the Partnership subject always to any relevant restrictions and provisions of this Agreement and to any requirements of any funder of the Holding Fund and consistent with the Investment Policy and so as to bind the Partnership: 2.2.1 to manage the Partnership Assets, objectives and Outputs and Results set out in the Limited Partnership Agreement and in compliance with the Investment Policy; 2.2.2 to carry out the Investment Policy of the Partnership in accordance with the terms of the Limited Partnership Agreement and in doing so to evaluate and to negotiate investment opportunities, to require the Partnership (either on its own account or in a syndicate with other investors) to (or to agree to) subscribe for, purchase, acquire, sell, exchange or otherwise make or dispose of Investments for the account of the Partnership and enter into investment agreements; 2.2.3 to monitor the performance of and, where appropriate, to nominate directors or other officers for Investee Companies, to exercise all rights conferred upon the Partnership under the terms of any investment agreement or otherwise in respect of an Investee Company and to liaise with, consult, assist or procure assistance to be given to Investee Companies and generally to take any action the Manager considers appropriate for the protection of the Partnership Assets; 2.2.4 at the expense of the Manager to provide or procure the provision of office facilities and office and executive staff and office equipment to facilitate the carrying on of the business of the Partnership; man_0021668747100 5 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 2.2.5 to open accounts with banks, for and in the name of the Partnership in accordance with the Limited Partnership Agreement (and in such banks as specified by the Partnership on or before the date of this Agreement), maintain such accounts, give payment and other instructions (including instructions in respect of payments referred to in this Clause 2.2.5) to banks or custodians in respect of such account and to pay into such accounts Capital Contributions, Loans made by Investors, investment income or other sums arising from or on the disposal of Investments and any other income of the Partnership; 2.2.6 to enter into, make and perform such contracts, agreements and other undertakings, on behalf of the Partnership in connection with Investments or proposed Investments and to do all such other acts as it may deem necessary and advisable for or as may be incidental to the conduct of the business of the Partnership; 2.2.7 to disburse out of the funds of the Partnership; (a) stamp duty payable by the Partnership on making any Investment; (b) professional fees, commissions and expenses payable by the Partnership in connection with the realisation of Investments to the extent not recoverable from Investee Companies; and (c) such other fees and expenses as the Holding Fund shall agree in writing are payable by the Partnership. 2.2.8 to grant and make payments in respect of indemnities in accordance with Clause 12; 2.2.9 to commence or defend litigation that pertains to the Partnership or to any of the Partnership Assets; 2.2.10 to maintain the Partnership’s records and books of account (such books of account to be maintained in Pounds Sterling) at the Partnership’s principal place of business in accordance with the requirements of the Limited Partnership Agreement and in accordance with the requirements of any funder to the Partnership and to allow any Partner and its representatives and funders man_0021668747100 6 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 access to such records and books of account at any time for the purpose of inspecting the same; 2.2.11 to make Distributions (as defined in the Limited Partnership Agreement) to the Partners in accordance with the terms of this Agreement; 2.2.12 to carry out periodic valuations of the Partnership Assets and to furnish such valuations to the Partners quarterly; 2.2.13 to engage such attorneys, agents, lawyers, accountants or other advisers and custodians as it may deem necessary or advisable in relation to the affairs of the Partnership (including making the initial appointment of the Auditors) and including, without limitation, any Associate of the Manager to perform all or any of the activities set forth in this Clause 2 PROVIDED THAT the remuneration and expenses of any such persons shall be paid by the Manager unless payable by the Partnership under clause 2.2.7c and save that when payments are made to any Associate they shall be on demonstrably an arms length basis and after the Associate has won the arrangement in an openly competitive procurement process; 2.2.14 to register and publish all such notices, statements or other instruments as may be required pursuant to the Act to be registered and published in relation to the establishment of the Partnership and in relation to any changes occurring in relation to the Partnership as specified in section 9 and 10 of the Act; 2.2.15 generally to communicate with the Partners and to report to the Partners at such times as it shall think fit and when requested by the Partners so to do and to represent the Partnership in all things; 2.2.16 pending the application of moneys drawn down pursuant to the Limited Partnership Agreement in making Investments to place amounts drawn down or realised (as the case may be) in such deposit accounts with such bank as selected by the Holding Fund from time to time at the time of purchase issued by banks which are rated “A-” or as the Manager may agree with the Holding Fund from time to time; man_0021668747100 7 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 2.2.17 to act as custodian of all securities, stocks, shares, debentures and other marketable instruments delivered to or held by it for the Partnership or to delegate such custodian function in accordance with Clause 2.2.13; 2.2.18 to effect such insurances as may be appropriate or desirable for the purposes of the Partnership or as required by the Holding Fund; 2.2.19 subject to the terms of the Limited Partnership Agreement, to act as Liquidation Agent of the Partnership; and 2.2.20 to do all or any other acts as are required of the Manager by this Agreement and the Limited Partnership Agreement or as are necessary or desirable in the opinion of the Manager and the Partnership in furtherance of the business of the Partnership, Investment Policies, foregoing powers and consistent with the terms of this Agreement. 2.3 The Manager shall have regard to such methods of evaluation and comparison, such as a meaningful benchmark, as the parties shall agree from time to time. [DRAFTING NOTE: Bidders to provide suggested method of evaluation.] 2.4 Subject to the provisions of the IOGs, the Manager may exercise or refrain from exercising any voting rights and other rights which may attach to or otherwise exist in respect of the Investments and will deal with all issues involving takeovers, offers, capital reorganisations and the exercise of conversion and subscription rights, in each case as the Manager, at its discretion, considers appropriate. 2.5 The Manager shall provide its services to the Partnership hereunder on the basis that the Partnership is a per se professional client for the purposes of the FSA Rules. The Partnership may request that it be opted down to the status of “Retail Client” (as defined in the FSA Rules), in which case it would benefit, if the request were granted, from the higher level of protection afforded to that category of client but that such categorisation would not necessarily make the Partnership an eligible complainant for the purposes of the Financial Ombudsman Service (as defined by the FSA) or an eligible claimant under the Financial Services Compensation Scheme (as defined by the FSA). It is not the Manager’s current policy to accept such requests. man_0021668747100 8 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 2.6 The Partnership shall provide the Manager with any relevant information reasonably requested by the Manager to enable the Manager to comply with its obligations under the FSA Rules, including, but not limited to, the rules on suitability 3. LIMITED PARTNERSHIP AGREEMENT3 The terms of and provisions of the Limited Partnership Agreement relating to the rights, authorities, powers, duties and obligations of the Manager are hereby incorporated by reference. In the event that any of the provisions of this Agreement relating to the rights, authorities, powers, duties and obligations of the Manager conflict with the Limited Partnership Agreement, the terms of the Limited Partnership Agreement shall prevail. 4. MANAGER’S POWER TO DELEGATE4 Without prejudice to the provisions of the Limited Partnership Agreement in respect of Key Investment Executives and subject always to the Manager obtaining prior Consent, the Manager may in the execution and exercise of all or any of its rights, authorities, powers, duties and obligations under this Agreement act by a member, responsible officer or employee for the time being of the Manager and may also delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons all or any of the rights, authorities, powers, duties and obligations vested in the Manager by this Agreement and such delegation may be made upon such terms and conditions and subject to such regulations including power to sub- delegate as agreed by Consent, provided that, the Manager shall remain liable for the performance of its obligations by any such delegate. 5. NON EXCLUSIVITY5 The provisions of Clause 17 (Investment Opportunities) of the Limited Partnership Agreement shall be deemed to be incorporated herein insofar as they apply or relate to the Manager or any of its Associates or their advisers and shall be binding on the Partnership and the Manager accordingly. 6. PARTNERSHIP ASSETS6 6.1 The Manager shall not use the Partnership’s money in the course of its business or hold the Partnership’s money, which shall be held in the Partnership’s Bank Accounts in accordance with the Limited Partnership Agreement (which for the avoidance of doubt may not be outside the United Kingdom) or, in the client accounts of solicitors acting for the Partnership. man_0021668747100 9 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 The Manager will ensure that any cheques or bankers drafts for income or other distributions payable to the Partnership or for moneys in payment for Investments disposed of or repaid for the account of the Partnership (or in payment for any other sum payable to the Partnership) which are received by the Manager are paid as soon as practicable direct to the Partnership’s Bank Account without passing through any account in the name of the Manager. 6.2 The Manager is hereby mandated by the Partnership to operate the Partnership’s Bank Accounts in accordance with the Limited Partnership Agreement. 6.3 The Manager shall be responsible for the appointment and remuneration of the Custodian which shall act as custodian of the Investments, which shall be segregated from the Manager’s own investments in accordance with the applicable FSA Rules unless the Partnership has agreed to the appointment of another Custodian. 6.4 The Manager shall not be the registered holder of the Partnership’s registered Investments. Subject to Clause 6.5, all Investments made for the account of the Partnership will (where capable of registration) be registered in the name of a nominee company (acting as nominee of the Partnership) controlled by the Custodian and (where not capable of registration) will be held by the Custodian. All certificates and other documents or evidence of title to Investments in registered form will be held by the Custodian. 6.5 Upon execution of an agreement for the acquisition of any Investment (or presentation by the Manager of a draft of such agreement or of appropriate contract notes or provisional or renouncable allotment letters, loan agreements and other legal documentation relevant to the making of an Investment, for any Investment by the Partnership), cheques or bankers drafts will be drawn by or to the order of the Partnership in respect of such Investment and (on completion of such agreement or settlement of such transaction) delivered to the persons respectively entitled thereto. For the avoidance of doubt, no cheques or bankers drafts issued in connection with completion of any agreement, settlement of any transaction or payment of any distribution by the Partnership shall be drawn or endorsed in favour of the Manager. 6.6 Records will be maintained separately identifying Investments from those of other persons. man_0021668747100 10 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 6.7 The Manager shall perform counts and reconciliations and keep records as required by the applicable FSA Rules. 6.8 Neither the Manager nor any Custodian appointed by it may hold a lien or security interest over Investments, save that a Custodian, which is not an Associate of the Manager, may have a lien or security interest or right of retention or sale over any Investment in respect of any charge relating to the administration or safe custody of the Investments. 7. REMUNERATION7 7.1 The Manager confirms that it has agreed with the General Partner that, as remuneration for its services in acting as manager of the Partnership, the Manager shall be entitled to be paid by the General Partner such fee as may from time to time be agreed between the General Partner and the Manager not exceeding the General Partner’s Share. Such fee shall be remitted by the General Partner, into such account as the Manager shall specify to the General Partner, only when it has received its General Partner’s Share from the Partnership. The Manager shall have no claim against or recourse to the Partnership for the Manager’s remuneration. [DRAFTING NOTE: Fund Manager to make proposals in relation to its remuneration in accordance with the invitation to tender documents.] 7.2 The Manager will claim dividends, interest payments and other entitlements accruing to the Partnership and shall arrange for these to be paid into the Partnership’s Bank Account. 7.3 Subject to the provisions of the Limited Partnership Agreement, the Manager and its Associates shall be entitled to charge, accept and retain for their own account all transaction fees monitoring fees and non-executive directors fees. 8. OBLIGATIONS OF THE MANAGER8 8.1 The Partnership hereby agrees that, although the Manager will take investment decisions and may act as the Partnership’s agent hereunder, the only duties or obligations the Manager owes to the Partnership are those set out in this Agreement (including provisions of the Limited Partnership Agreement applied by this Agreement) or arising under the FSMA and the FSA Rules and that the Manager does not owe the Partnership any other or further duties or obligations (whether arising from the fact that the Manager is acting as the Partnership’s fiduciary or otherwise). man_0021668747100 11 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 8.2 The Partnership hereby agrees that any acknowledgement, agreement, consent or waiver given by it in this Agreement (including the Schedule) in relation to any duty or obligation the Manager might otherwise owe to the Partnership shall (subject to the FSA Rules) be valid, effective and comprehensive even though the acknowledgement, agreement, consent or waiver (or the disclosure to which it relates) is general only and not specific to the particular transaction concerned. 9. DEALING9 9.1 In accordance with COBS 18.5.4 best execution does not apply to the Partnership. 9.2 The Manager may, subject to compliance with all applicable provisions of the Limited Partnership Agreement but without specific authority from the Partnership, deal collectively as agent for the Partnership and also as agent for other customers or its Associates. 9.3 Subject to the applicable requirements of the FSA Rules and the Limited Partnership Agreement, the Manager may aggregate transactions for the Partnership under the Idle Funds Investment Policy with those of other clients and of its Associates and will allocate such transactions on a fair and reasonable basis. The Partnership acknowledges that the effect of aggregation may work to its disadvantage in relation to a particular order. 9.4 The provisions of Clause 17 of the Limited Partnership Agreement shall apply in relation to all transactions by the Manager on behalf of the Partnership other than transactions in accordance with the Idle Funds Investment Policy. 10. CONFIRMATIONS AND PERIODIC STATEMENTS10 10.1 The Manager shall comply with the provisions of Clause 8 of the Limited Partnership Agreement regarding the preparation and provision of accounts, reports, valuations and other information. 10.2 The Manager will provide periodic statements to the Partnership setting out the value and composition of the Partnership Assets every three months 10.3 The Manager will not provide information about executed transactions on a transaction-by-transaction basis unless required to do so pursuant to the Limited Partnership Agreement, or any other agreements to which the Holding Fund is bound. man_0021668747100 12 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 11. INSTRUCTIONS11 11.1 Any specific instructions, directions or other communications by or on behalf of the Partnership to the Manager or to the Partnership by the Manager are to be given to or by any member or employee of the Manager and may be either oral or in writing under the hand of a person from time to time authorised by the Partnership or the Manager, as the case may be. The Manager shall accept and comply with any instructions or other communications from the Partnership which are within the terms of this Agreement, but shall not be required to acknowledge the same. 11.2 The Partnership is willing for and expressly requests real time communications initiated by any member or employee of the Manager or any delegate or agent or the Manager. 12. LIABILITY AND INDEMNITIES12 12.1 Except as provided in this Clause 12 or as provided in FSA Rules (including as regards the Manager accepting the same level of responsibility for a nominee company controlled by the Manager or an affiliated company of the Manager as for itself) and provided that the Manager is not in breach of its duties in selecting and supervising the Custodian, the Manager does not accept responsibility for any loss of Investments or default by the Custodian or any of its sub-custodians or nominees, which shall be at the Partnership’s risk. 12.2 Nothing in this Agreement shall exclude or restrict any duty or liability the Manager may have to the Partnership under the regulatory system (as defined in the glossary to the FSA Rules) and which may not be restricted or excluded thereunder. 12.3 The Manager shall be entitled to be indemnified out of the Partnership Assets (as defined in the Limited Partnership Agreement) against any liabilities, costs or expenses (including reasonable legal fees) incurred in its capacity as the Manager provided that: 12.3.1 this indemnity shall not extend to any liability incurred other than in carrying out the powers and duties of the Manager pursuant to this Agreement; and 12.3.2 the Manager shall not be so indemnified with respect to any matter resulting from its fraud, wilful default or negligence or any material breach of the provisions of this Agreement any breach of the man_0021668747100 13 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 Investment Policy, or any material breach of any applicable provisions of FSMA or the FSA Handbook in its conduct in relation to the Partnership and/or the Partnership Assets. 12.4 The Manager shall be required at all times throughout the term of its appointment to take out and maintain in force with a reputable insurer of good financial standing professional indemnity insurance with a minimum level of indemnity of £2,000,000 per occurrence and £10,000,000 in aggregate (“Required Insurance”). The Manager shall be required to provide to the Holding Fund on request: 12.4.1 copies of the policy relating to the Required Insurance or such other information as the Holding Fund may request to enable it to verify that the Required Insurance is in place; 12.4.2 evidence that the premiums payable under the Required Insurance have been paid and that the Required Insurance is in full force and effect; and 12.4.3 evidence that the interests of the Holding Fund are noted on the Required Insurance in form and substance satisfactory to the Holding Fund. 12.5 In addition to the provisions of Clause 12.4, the Manager shall be required have in place such insurance policies as are normal for an investment management company operating in the venture capital industry with a reputable insurance company covering, without limitation, all the obligations to be imposed upon the Manager under this Agreement and shall provide details of such insurance to the Partnership when requested to do so. The Manager shall be required to undertake not to do or permit anything to be done which may render any policy or policies of insurance void or voidable. 12.6 The Manager shall be required to inform the Partnership (by way of notice in writing delivered to the Partnership) as soon as it shall become aware of any event or occurrence likely to give rise to the requirement for an indemnity out of the Partnership Assets (as defined in the Limited Partnership Agreement) as provided for under the provisions of this Clause 12. 13. TERM13 13.1 Either party may terminate this Agreement by written notice to the other, and such termination will take effect immediately on receipt of the notice or, as the case may be, on such later date as may be specified therein, provided man_0021668747100 14 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 that the Manager shall not be entitled to terminate this Agreement while the Carried Interest Partner (where the Carried Interest Partner is an Associate of the Manager) is a Member of the Partnership. 13.2 This Agreement and the appointment of the Manager shall (unless in the case of Clause 13.2.2 the Limited Partnership Agreement agree otherwise) terminate forthwith on the happening of any of the following events: 13.2.1 where the Carried Interest Partner is an Associate of the Manager, on the Carried Interest Partner ceasing for any reason to be a Member of the Partnership; 13.2.2 the termination of the Partnership; or 13.2.3 the Manager ceasing for any reason to be authorised under the FSMA. 13.3 Termination of this Agreement (for whatever cause): 13.3.1 shall not in any way affect any accrued rights or liabilities of the parties or provisions of this Agreement intended to survive termination, including, without limitation, the provisions of Clauses 12 and 14; and 13.3.2 shall be without prejudice to transactions already initiated for which there is a binding agreement in force and transactions in progress shall be completed directly between the Partnership and the counterparty. 13.4 Upon termination of this Agreement for whatever reason the Manager shall if so requested by the Partnership: 13.4.1 return to the Partnership all papers, documents and other property belonging to the Partnership or relating to the Partnership or Partnership Assets which it has in its possession or under its control (provided that the Manager may take and retain copies of any documents that it reasonably believes it is required to retain in order to comply with any regulatory requirements applying to it) and the Partnership shall return to the Manager any papers, documents and other property belonging to the Manager which it has in its possession or under its control; and man_0021668747100 15 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 13.4.2 procure, so far as it is reasonably able, that any person appointed as a director of any Investee Company or to any other position in any such Investee Company and who is representing the Partnership shall resign without compensation for loss of office from all such offices and positions held by them in any such Investee Company. If the Manager fails to do so within 28 days of being requested to do so, the Partnership is hereby irrevocably authorised to appoint some other person in its name and on its behalf to execute any documents and to do all things to effect such resignations. 13.5 The insolvency, dissolution, liquidation, receivership or administration of the Holding Fund or the Carried Interest Partner shall not operate to terminate this Agreement. 13.6 In accordance with the Limited Partnership Agreement the Holding Fund may at any time on not less than 3 months notice (or by shorter notice in any case where the Manager is unable to continue as the manager of the Partnership or the Partnership is otherwise entitled to terminate this Agreement) by Consent require the Partnership to appoint another investment manager as investment manager of the Partnership. 14. CONFIDENTIALITY14 The Manager shall at all times keep confidential and not disclose or use (except for the purposes of this Agreement and the Limited Partnership Agreement) confidential information about the Partnership, its partners, the Partnership Assets or Investee Companies. However, the Manager may disclose such information if it has become known to the public other than as a result of a breach of this Clause 14 or if the Manager is requested or required to do so by the FSA or any other regulatory authority or agency or by or under any law or court, or in connection with the marketing of the Partnership or any further fund by the Manager. The Manager may also disclose such information to any Associate, delegate or agent of the Manager and its or their directors, partners, members, officers and employees where the Manager deems disclosure to be necessary or desirable for providing its services under this Agreement. 15. CONFLICTS OF INTEREST15 15.1 The Manager shall maintain and operate effective organisational and administrative arrangements with a view to taking all reasonable steps to man_0021668747100 16 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 prevent conflicts of interest from constituting or giving rise to actual or potential damage to the interests of the Partnership. 15.2 In accordance with the FSA Rules, the Manager has a written conflicts of interest policy which sets out the types of actual or potential conflicts of interest affecting the Manager’s business and provides details of how these conflicts are managed. 15.3 If a conflict of interest arises and the Manager’s conflicts of interest policy is not sufficient to ensure with reasonable confidence that risks of damage to the interests of the Partnership will be prevented in relation to that conflict, the Manager shall provide specific details of such conflicts of interest to the Partnership in a separate document as soon as reasonably practicable. 15.4 The Partnership requests that the Manager shall, in each case of which it is aware that a proposed transaction by the Partnership presents an actual or potential conflict of interest between the interests of the Manager, its Associates or their other clients and the interests of the Partnership, disclose the same to the Holding Fund. 15.5 Where a transaction is effected by the Manager and there is a potential conflict of interest with the Manager’s duty to the Partnership of which the individuals responsible for the performance of the Manager’s services to the Partnership under this Agreement are aware then the Manager will use its best endeavours to ensure that the terms of the relevant transaction are no less favourable to the Partnership than if the conflict had not existed. 15.6 Subject to Clauses 15.1 to 15.5 and to all applicable provisions of the Limited Partnership Agreement: 15.6.1 the Manager has the right (without prior reference to the Partnership) to effect transactions on arms-length terms with or for the Partnership in respect of which the Manager has directly or indirectly a Material Interest (save for an interest arising solely from the mere participation of the Manager as agent for the Partnership); and 15.6.2 providing always that the Manager takes reasonable steps to ensure fair treatment for the Partnership, the Manager may, without prior reference to the Partnership, cause the Partnership to enter into agreements or transactions in which the Manager or any Associate or a fund or other client managed or advised by the Manager or any Associate ("other client") has, directly or man_0021668747100 17 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 indirectly, a Material Interest which may involve a conflict with the Manager's duties to the Partnership, the general nature of such interest being that the Manager or an Associate or other client is acting as counterparty in that transaction or agreement. 16. COMPLAINTS16 16.1 Any complaint regarding the manner in which this Agreement is being effected should be sent to the Manager at [ADDRESS] marked for the attention of [NAME/POSITION]. 16.2 Any complaint about the performance of the Manager under this Agreement should be directed, in the first instance, to the chairman of the board for the time being of the Manager. A copy of the Manager’s complaint handling procedures is available on request. The Partnership, being a per se professional client, does not have a right of complaint to the Financial Ombudsman Service. 17. FINANCIAL SERVICES COMPENSATION SCHEME17 The FSA has established The Financial Services Compensation Scheme (the “Scheme”) which, subject to certain exceptions, provides for limited compensation in respect of liabilities incurred by a firm authorised by the FSA, such as the Manager, where that firm is in default. Only an eligible claimant has the right to claim under the Scheme. The Partnership is not an eligible claimant. 18. ASSIGNMENT, VARIATION AND THIRD PARTIES18 18.1 Neither party may, without the prior written consent of the other, assign, transfer, charge, subcontract or delegate (except as provided in Clause 4) or deal in any other manner with this Agreement or any of its rights or obligations under it PROVIDED THAT the Holding Fund may assign, transfer or charge its interest under this Agreement as required by any of its funders. 18.2 This Agreement may be amended in whole or in part by Consent save that amendments affecting rights accrued by the Carried Interest Partner (where the Carried Interest Partner is an Associate of the Manager) and/or the Manager (as the case may be) shall require the written consent of the Carried Interest Partner and/or the Manager (as the case may be). Any variations to the Limited Partnership Agreement from time to time shall be incorporated into this Agreement to the extent that such variations apply to the exercise of powers and authorities and management duties and man_0021668747100 18 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 obligations ascribed to the manager of the Partnership under the Limited Partnership Agreement. 18.3 The parties hereby agree that such amendments shall be made to this Agreement as the Manager believes necessary to comply with the FSA Rules or any applicable legislation or regulation. 18.4 Except as otherwise stated herein, nothing in this Agreement confers any rights on any person (other than the parties hereto) pursuant to the Contracts (Rights of Third Parties) Act 1999. The parties may rescind or vary this Agreement without the consent of any other person on whom this Agreement may confer rights. No such other person may, without the prior written consent of the Manager, assign, transfer, charge or deal in any other manner with their rights under this Agreement. 19. NOTICES19 19.1 Any notice to be served in connection with this Agreement shall be in writing (which, for the avoidance of doubt, shall include facsimile transmission) and any notice or other communication under or in connection with this Agreement shall be delivered to the registered office for the time being of the relevant party marked “For the Urgent Attention of [NAME]” in the case of the Partnership and “For the urgent attention of [NAME]” in the case of the Manager. 19.2 Each such notice or communication shall be deemed to have been given or made upon acknowledgement of receipt by the relevant party. 19.3 In this Clause “Business Day” shall mean any day other than Saturday, Sunday or any other day which is a public holiday in the place at or to which the notice or correspondence is left or despatched. 20. COUNTERPARTS20 This Agreement may be executed in any number of counterparts, each of which shall constitute an original and when taken together shall constitute one and the same agreement. 21. PROPER LAW AND JURISDICTION21 This Agreement and the rights, obligations and relationships of the parties hereto under this Agreement shall be governed by and construed in accordance with the laws of England and the parties irrevocably agree that man_0021668747100 19 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 the courts of England shall have exclusive jurisdiction to settle any claim or disputes which may arise out of or in connection with this Agreement. 22. DEED22 It is the intention of the parties that this document be entered into as a deed. man_0021668747100 20 19 January 2010 brownsaa
  • SUBJECT TO CONTRACT 8 January 2010 IN WITNESS whereof this Agreement has been executed as a deed by or on behalf of the parties hereto the day and year first above written EXECUTED as a Deed by ) [THE FUND] ) acting by [the General Partner] ) ………………………….. Member ………………………….. Member EXECUTED as a Deed by ) [FUND MANAGER] ) acting by [TBC] ) ………………………….. Member ………………………….. Member man_0021668747100 19 January 2010 brownsaa