ILPA-Private-Equity-Principles-version-2 PDF
ILPA-Private-Equity-Principles-version-2 PDF
Governance 7
Team
Investment Strategy
Fiduciary Duty
Changes to the Fund
Responsibilities of the LPAC
Transparency 11
Management and Other Fees
Capital Calls and Distribution Notices
Disclosure Related to the General Partner
Risk Management
Financial Information
LP Information
Appendix A 13
Limited Partner Advisory Committee
Appendix B 16
Carry Clawback Best Practice Considerations
Appendix C 18
Financial Reporting
T
he Institutional Limited Partners Association
(“ILPA”) released the Private Equity Principles
We continue to believe three guiding principles form the
essence of an effective private equity partnership:
(the “Principles”) in September 2009 to encourage
discussion between Limited Partners (“LPs”) and 1. Alignment of Interest
General Partners (“GPs”) regarding fund partnerships.
These Principles were developed with the goal of 2. Governance
improving the private equity industry for the long-term
benefit of all its participants by outlining a number of 3. Transparency
key principles to further partnership between LPs and
GPs. Over the past year, ILPA has heard numerous The three guiding principles are elaborated upon further
success stories regarding improved communication in the following sections to introduce the revised
between LPs and GPs. To that end, the Principles preferred private equity terms and best practices for
are off to a great start in achieving the goals that Limited Partner Advisory Committees (“LPAC”).
were originally envisioned.
These preferred private equity terms and best practices
In order to make ongoing improvements to the may inform discussions between each GP and its
Principles, ILPA committed to solicit additional feedback respective LPs in the development of partnership
from both the LP and GP communities throughout agreements and in the management of funds. ILPA
2010. After reflecting on the extensive input from these does not seek the commitment of any LP or GP to any
discussions, the ILPA Best Practices Committee drafted specific terms. They should not be applied as a checklist,
a new version of the Principles. This release retains the as each partnership should be considered separately
key tenets of the first Principles release while increasing and holistically. We recognize that a single set of terms
their focus, clarity and practicality. cannot provide for the broad flexibility of market
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ILPA Private Equity Principles
circumstance and therefore we emphasize the importance Each section starts with a general discussion of the
of LPs and GPs working in concert to develop the same application of the three guiding principles and
set of expectations when entering into any particular continues with detail on specific aspects or points
partnership. We believe that careful consideration to each of emphasis. The detail should always be seen as
of these preferred private equity terms and best practices subordinate to the more general principles. The
will result in better investment returns and a more appendices are offered as “deeper dives” into specific
sustainable private equity industry. topics of broad relevance or great complexity. The
appendix on LPAC Best Practices is a completely
In line with the spirit of the Principles, we encourage redrafted version of the original Appendix A,
all LPs to be transparent in their consideration and reflecting considerable input from GPs. The appendix
application of these Principles. A list of organizations on Carry Clawback is new, and given the complexity
that endorse the ILPA Private Equity Principles is posted of this subject, it was deemed worthy of outlining
on the ILPA website (ilpa.org). suggestions for what we all hope will be a rare
contingency. Appendix C covers GP reporting
The remainder of the document comprises three sections best practices. “Standardized Reporting Templates”
on Alignment of Interest, Governance, and Transparency are being developed concurrently. Going forward,
and three appendices on LPAC Best Practices (Appendix ILPA will consider issuing further appendices to
A), Carry Clawback Best Practice Considerations address similar topics as industry best practices continue
(Appendix B) and Financial Reporting (Appendix C). to evolve. Suggestions for such consideration should be
submitted to the ILPA.
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ILPA Private Equity Principles
Alignment of Interest
A
lignment of interest between LPs and GPs is
best achieved when GPs’ wealth creation is
CARRY/WATERFALL
Waterfall Structure
primarily derived from carried interest and returns
generated from a substantial equity commitment to l A standard all-contributions-plus-preferred-
the fund, and when GPs receive a percentage of profits return-back-first model must be recognized
after LP return requirements are met. as a best practice
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ILPA Private Equity Principles
ALIGNMENT OF INTEREST
Calculation of Carried Interest l Management fees should take into account the
lower levels of expenses generally incident to the
l Alignment is improved when carried interest
formation of a follow-on fund, at the end of the
is calculated on the basis of net profits (not gross
investment period, or if a fund’s term is extended
profits) and on an after-tax basis (i.e. foreign or
other taxes imposed on the fund are not treated as
Expenses
distributions to the partners)
l The management fee should encompass all normal
l No carry should be taken on current income or operations of a GP to include, at a minimum,
recapitalizations until the full amount of invested overhead, staff compensation, travel, deal sourcing
capital is realized on the investment and other general administrative items as well as
interactions with LPs
Clawback
l The economic arrangement of the GP and its
l Clawbacks should be created so that when they
placement agents should be fully disclosed as
are required they are fully and timely repaid
part of the due diligence materials provided to
prospective limited partners. Placement agent fees
l Theclawback period must extend beyond the
are often required by law to be an expense borne
term of the fund, including liquidation and
entirely by the GP
any provision for LP giveback of distributions
TERM OF FUND
l Appendix B serves as a model given this is an
area of considerable complexity l Fund extensions should be permitted in 1 year
increments only and be approved by a majority
MANAGEMENT FEE AND EXPENSES of the LPAC or LPs
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ILPA Private Equity Principles
ALIGNMENT OF INTEREST
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ILPA Private Equity Principles
Governance
T
he vast majority of private equity funds are based
on long-term, illiquid structures where the GP
l LPsshould be notified of any changes to
personnel and immediately notified when
maintains sole investment discretion. LPs agree to such key-man provisions are tripped
structures based on their confidence in a defined set of
investment professionals and an understanding of the l Changesto key-man provisions should be
strategy and parameters for the investments. approved by a majority of the LPAC or LPs
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ILPA Private Equity Principles
GOVERNANCE
The role of the LPAC has been evolving in recent l New business initiatives of the firm
years in response to (i) the requirement for increased
transparency into the operations of the GP and the fund
(driven by increasing emphasis on LPs’ fiduciary duties);
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ILPA Private Equity Principles
GOVERNANCE
However, as indicated, the LPAC is not intended to serve properly prepared, and responsibly fulfill the duties of
as a representative or proxy for the broader base of LPs their role. LPAC members should be able to take into
and should not replace frequent, open communications account their own interest in voting on the LPAC and
between the GP and all LPs. should be appropriately indemnified.
Additionally, an effective LPAC depends on a high Additionally, GPs should disclose the identity of
degree of trust and commitment among the various certain LPs which they believe may have conflicts
parties. LPs serving on the LPAC and receiving sensitive of interest with other LPs in a fund. The GP is in a
information must keep such information confidential. position to determine if LP-LP conflicts may arise in
LPAC members should support the GP in taking selected situations, including but not limited to, (i) LPs
appropriate sanctions against any LP that breaches this participating in an investment “related” to the fund, such
confidentiality. as a separate managed account which invests alongside
the fund or a co-investment in one of the fund’s
LPs that accept a seat on the LPAC should commit portfolio companies, (ii) if an LP has an ownership
the necessary time and attention to the fund. LPAC in the GP or one of its affiliates, or vice-versa or
members should participate in all LPAC meetings, be (iii) if a LP has received preferential economic terms.
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ILPA Private Equity Principles
Transparency
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ILPA Private Equity Principles
TRANSPARENCY
GP annual reports should include portfolio l Annual Reports - Funds should provide
company and fund information on material risks and information consistent with the ILPA
how they are managed. These should include: Standardized Reporting1 for Portfolio Companies
and Fund information at the end of each year
l Concentration risk at fund level (within 90 days of year-end) to investors
l Foreign exchange risk at fund level l Quarterly Reports - Funds should provide
information consistent with the ILPA
l Leverage risk at fund and portfolio company levels Standardized Reporting for portfolio companies
and fund information at the end of each
l Realization
risk (i.e. change in exit environment) quarter (within 45 days of the end of the quarter)
at fund and portfolio company levels to investors
l Strategy
risk (i.e. change in, or divergence from, LP INFORMATION
investment strategy) at portfolio company level
l Alist of LPs, including contact information,
l Reputation risk at portfolio company level excluding those LPs that specifically request to be
excluded from the list
l Extra-financial
risks, including environmental,
social and corporate governance risks, at fund l Closing documents for the fund, including the
and portfolio company level final version of the partnership agreement and
side letters
l Moreimmediate reporting may be required
for material events l LPs receiving sensitive information as described
above must keep such information confidential.
Agreements should clearly state that LPs
may discuss the fund and its activities amongst
themselves. LPs should support the general
partner in taking appropriate sanctions against
any LP that breaches this confidentiality
1 Appendix C outlines current reporting best practices, however, as standardized reporting templates
(available on ilpa.org) continue to evolve, they are intended to encompass all reporting best practices
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ILPA Private Equity Principles
Appendix A: Limited Partner Advisory Committee
These best practices are offered to provide a model for l The LPAC should operate as a committee,
LPAC duties, its role in the partnership, and meeting not as a collection of individual members; to this
protocol. We recognize the differing constituencies end, GPs should seek to centralize important
of individual partnerships and acknowledge that one discussions within the advisory board context,
standard may not fit every situation. We believe that and not on a bilateral basis
LPs and GPs should explicitly establish the duties of the
LPAC through the LPA and mutually adopt preferred l Regularprovisions for an in camera session should
meeting protocol upon establishment of the LPAC. The be made so that LPs can speak, when appropriate,
role of the LPAC is not to directly govern, nor to audit, with a unified voice
but to provide a sounding board for guidance to the GP
and a voice for LPs when appropriate. LPAC Formation
During the formation of the LPAC, the GP should
Common objectives in relation to every board should
generally adhere to the following protocol:
include:
l TheGP should issue a formal invitation to those
l Facilitating
the performance of the responsibilities
LPs it has agreed to invite to serve on the LPAC.
of the advisory board (as defined in the LPA or
Such invitations should provide:
by mutual agreement), without undue burden to
the general partner
Information about the meeting schedule
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ILPA Private Equity Principles
APPENDIX A
l The LPAC should be made up of a small number LPAC Meeting Suggested Best Practices
of voting representatives of LPs, with larger funds
The GP and LPAC members in each fund will determine
having as many as a dozen members, representing
the best way to conduct the operations of the LPAC.
a diversified group of investors
The following best practices are suggested to aid in
developing a joint approach in line with the objectives
l Upon initial constitution of the LPAC, any
outlined above:
replacements of LPAC members should be
determined by the GP with any additional or
eliminated seats to be approved by mutual consent
Convening a Meeting:
of a majority of the LPAC and general partner
l LPAC meetings should be held in person
at least twice a year with an option to dial-in
l Astanding LPAC meeting agenda should be
telephonically
developed and a calendar established as far in
advance as possible. The meeting agenda and
l The GP is encouraged to convene the LPAC
calendar should be available to all LPs
more frequently to discuss time-sensitive matters
of importance (e.g. conflicts); in these cases,
l Clear voting thresholds and protocols should be
LPAC members should be flexible and responsive.
established, including requiring a quorum of
With the consent of the LPAC, certain matters
50% of LPAC members when votes are taken
may be handled by written consent
l LPAC members should receive no remuneration,
l Afterinitially consulting the GP, a minority of
but the partnership should reimburse their
three or more members using reasonable judgment
reasonable expenses in serving on the LPAC
and discretion should have the right to call for a
LPAC meeting
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ILPA Private Equity Principles
APPENDIX A
l With any request for consent or approval by l Each LPAC member should consider whether
a fund’s LPAC, the GP will use best efforts to they have any potential conflicts of interest prior
send each LPAC member background information to voting in all circumstances. LPAC members
on the matter at least 10 days in advance of should disclose actual conflicts to other LPAC
the meeting members during discussions at LPAC meetings
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ILPA Private Equity Principles
Appendix B: Carry Clawback Best Practice
Considerations
While fortunately rare, carry clawback situations Ensure GPs Backstop Themselves
represent one of the greatest challenges to the GP/LP
ILPA strongly recommends joint and several liability of
relationship. Appropriate processes and remedies should
individual GP members as a best practice as LPs contract
therefore be defined at the start of the fund, as alignment
with the GP as a whole rather than individual members.
between GP and LP will usually be at a low point when
In cases where joint and several liability is not provided,
they occur. The following “building blocks” should be
a potential substitution would be a creditworthy
considered with regard to clawbacks:
guarantee of the entire clawback repayment by any of:
Seek to Avoid Clawback Situations
l a substantial parent company; OR
l Bestapproach is all capital back waterfalls
(“European style”) as this will minimize excess l an individual GP member; OR
carry distributions
l a subset of GP members
l If deal-by-deal carry, then
However, in general, repayment obligations should
NAV coverage test (generally at least 125%) to directly track the carry distributions. An escrow account
ensure sufficient “margin of error” on valuations (generally of at least 30%) may also provide an effective
mechanism for clawback guarantee.
Interim clawbacks should apply, triggered both
at defined intervals and upon specific events LPs should have robust enforcement powers, including
(e.g., key-man, insufficient NAV coverage) direct ability to enforce the clawback against individual
GPs. Actual and potential GP clawback liabilities should
be disclosed to all LPs annually along with a plan to
address as additional disclosure in the audited financial
statements.
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ILPA Private Equity Principles
APPENDIX B
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ILPA Private Equity Principles
Appendix C: Financial Reporting
l Annual Reports - Funds should provide the Management letter describing the activities of
following information at the end of each year the fund directed to the LPAC but distributed
(within 90 days of year-end) to investors: to all investors;
Audited financial statements (including a clean Political contributions made by placement agents,
opinion letter from auditors and a statement from the manager or any associated individuals to trustees
the auditor detailing other work performed for or elected officials on investor boards.
the fund);
l Quarterly Reports - Funds should provide
Internal Rate of Return (“IRR”) calculations the following information at the end of each
prepared by the fund manager (that clearly quarter (within 45 days of the end of the quarter)
set forth the methodology for determining to investors:
the IRR);
Unaudited quarterly profit and loss statements
Schedule of aggregate carried interest received; also showing year-to-date results;
Breakdown of fees received by the manager Schedule showing changes from the prior quarter;
as management fees, from portfolio companies
or otherwise; Schedule of fund-level leverage, including
commitments and outstanding balances on
Breakdown of partnership expenses; subscription financing lines or any other credit
facilities of the fund;
Certification by an auditor that allocations,
distributions and fees were effected consistent Information on material changes in investments
with the governing documentation of the fund; and expenses;
Summary of all capital calls and distribution notices; Management comments about changes during
the quarter;
Schedule of fund-level leverage, including
commitments and outstanding balances on If valuations have changed quarter-to-quarter,
subscription financing lines or any other an explanation of such changes;
credit facilities of the fund;
A schedule of expenses of the general partner
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ILPA Private Equity Principles
APPENDIX C
l Portfolio Company Reports - A fund should • Revenue (Debt terms and maturity);
provide quarterly a report on each portfolio
company with the following information: • EBITDA;
A discussion by the fund manager of recent key l Capital Call and Distribution Notices –
events in respect of the portfolio company; A standardized reporting template has been developed
by ILPA and is available at ilpa.org
Selected financial information (quarterly and
annually) regarding the portfolio company Under development – standardized reporting
including: templates to cover annual and quarterly reporting
as well as supporting financial schedules
• Valuation (along with a discussion of the
methodology of valuation;
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ILPA Private Equity Principles
About the ILPA
T
he Institutional Limited Partners Association (ILPA) is a member-led not-for-profit
association committed to serving limited partner investors in the global private equity
industry. ILPA’s mission is to provide a forum for facilitating value-added communication,
enhancing education in the asset class and promoting research and standards in the private
equity industry.
ILPA has grown substantially since its inception in the early 1990s to include more
than 240 member organizations from around the globe. While membership is comprised
exclusively of limited partners, the variety of member institutions makes the ILPA a
dynamic organization representing a diverse range of interests.
The ILPA membership is united by a common goal: to enhance the professional interests of
its affiliates, and ultimately, to enable them to achieve strong portfolio performance. ILPA
member organizations collectively manage approximately $1 trillion of private equity assets.
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ILPA Private Equity Principles
For more information on the ILPA
visit ilpa.org or call (416) 941-9393