At the most basic level, a side letter is a separate written agreement between a fund manager or fund, on the one hand, and a particular limited partner, on the other hand, that supplements, clarifies, modifies or adds to the terms of the fund’s main governing documents as they apply to that one limited partner. The main governing document, to which all investors are bound, is usually a limited partnership agreement or limited liability company agreement. The side letter is “side” documentation because it sits alongside that main agreement.

Side letters are common in private equity and venture capital funds. They are not, in and of themselves, unusual or problematic. In many institutional funds, side letters are part of the ordinary closing process. They allow a manager to admit investors with different legal, tax, regulatory, fiduciary, political, reporting and internal policy needs without rewriting the entire limited partnership agreement for everyone.

That said, side letters can create complexity. A fund agreement is designed to set the common bargain for all investors. A side letter creates a special bargain for one investor. That special bargain may be entirely appropriate. It may be necessary to allow the investor to invest at all. It may be narrow, technical and harmless to the rest of the fund. But it can also create real economic, operational or legal consequences. A side letter can change, among other coverage areas, who receives information, who sits on the advisory committee, who receives co-investment opportunities, who may avoid certain investments, who gets special tax reporting, who has notice rights, who has enhanced transfer rights and who can pick up provisions granted to other investors through a most favored nation process.

For that reason, side letters are not merely fundraising documents. They are fund administration documents. They are compliance documents. They are operational documents. They are often reviewed repeatedly over the life of a fund, long after the fundraising process is over. A side letter that seems minor during a closing can become very important years later when the fund is making a sensitive investment, distributing public securities, engaging in a continuation fund transaction, dealing with sanctions, navigating a tax audit, preparing investor reporting or addressing a transfer request.

With that in mind, the goal of this primer is to explain how side letters work at a high level, what fund agreements often say about them, what most favored nation rights are and how they operate, and what types of provisions are commonly negotiated by institutional investors in private equity and venture capital funds.

Why side letters exist

Side letters exist because investors are not all the same.

A private equity fund may have public pension plans, sovereign wealth funds, insurance companies, banks, funds of funds, ERISA plans, endowments, foundations, family offices, taxable individuals, corporate strategic investors, non-US investors, government-related entities and feeder funds in the same investor base. A venture capital fund may have a similar mix, plus investors with particular sensitivity around CFIUS, China, sanctions, digital assets, in-kind distributions, portfolio company confidentiality, public disclosure statutes or co-investment allocations.

Those investors may all be willing to invest in the same fund on the same core economic terms. They may accept the same management fee, carried interest, investment period, fund term, waterfall, clawback and governance structure. But they may not be able to accept exactly the same collateral provisions.

For example, a sovereign wealth fund may need language preserving sovereign immunity and limiting the kinds of documents it must sign for a credit facility. A public pension plan may need pay-to-play representations, political contribution confirmations, disclosure accommodations, or confirmation that certain gifts and entertainment practices are consistent with its ethics rules. A tax-exempt US investor may need UBTI reporting or comfort around unrelated business taxable income. A non-US investor may need ECI, FIRPTA, Section 892 or withholding tax accommodations. A bank may need Bank Holding Company Act language. A foundation may need private foundation protections or restricted investment language. A fund of funds may need the right to share fund information with its underlying investors. A large investor may ask for an advisory committee seat. A foreign investor may need CFIUS-related information limitations so its participation in the fund does not create avoidable regulatory issues for the fund or its portfolio companies.

Without side letters, the manager would have two bad choices. It could put all of these special provisions in the main fund agreement, making the agreement longer, more complicated and full of investor-specific provisions irrelevant to most limited partners. Or it could refuse to accommodate legitimate investor needs, potentially losing important capital. Side letters solve this by allowing investor-specific tailoring while preserving a common fund agreement.

What side letters should not be

Side letters should not be used casually to rewrite the basic economics or governance of the fund in ways that undermine the common bargain.

That does not mean side letters can never address economic matters. They sometimes do. A large anchor investor may negotiate a reduced management fee. A strategic investor may negotiate a co-investment framework. An investor may receive a commitment right in the next successor fund. A placement fee provision may provide that a particular investor will not bear placement agent expenses associated with its own commitment. A co-investment side letter may state that direct co-investments will not bear management fee or carry. These are all economic in some sense.

But the more a side letter affects core economics, investment discretion, liquidity, transparency or governance, the more carefully the manager should consider whether the provision is appropriate, whether it must be disclosed, whether it triggers most favored nation rights, whether it disadvantages other investors and whether it should instead be addressed in the main fund agreement.

The most dangerous side letters are often not the ones with technical tax or regulatory accommodations. They are the ones that create hidden economic preferences, undisclosed liquidity advantages, special information flows, side arrangements affecting allocations or rights that cannot be administered consistently across the investor base. These are the provisions that can create fairness issues, regulatory risk and investor relations problems.

The LPA’s role in authorizing side letters

Most sophisticated fund agreements expressly contemplate side letters. This is important.

The fund agreement may state that the general partner is authorized to enter into side letters or similar agreements with one or more limited partners. It may further state that side letters may contain rights, preferences or privileges that are not granted to other limited partners. It may clarify that those rights will be binding on the fund and the general partner, even if they are inconsistent with the general provisions of the fund agreement as applied to the side letter recipient.

That authorization matters because the limited partnership agreement (LPA) otherwise represents the main agreement among the partners. If the manager is going to grant investor-specific rights, it should have authority to do so. Investors also want to know, when they subscribe, whether other investors may have rights outside the four corners of the LPA.

A fund agreement may take different approaches to authorizing side letters.

One approach is broad authorization. The LPA may simply permit the general partner to enter into side letters or similar agreements with any limited partner and may provide that those agreements can grant rights, benefits or accommodations that are not granted to other limited partners. This gives the manager maximum flexibility. It is often useful in a fund with a diverse investor base, where different limited partners may have different tax, regulatory, reporting or internal policy needs. But it also places more weight on disclosure, administration and fairness principles because investors will want to understand whether other investors are receiving rights that matter to the common bargain.

A second approach is authorization with limits. The LPA may permit side letters but only so long as they do not materially and adversely affect other limited partners, do not alter the fund’s basic economic terms, do not require the fund to act inconsistently with the LPA, and do not impose additional obligations on other limited partners. This approach still allows investor-specific accommodations, but it draws a boundary around the kinds of provisions that can be granted outside the main fund agreement. In practice, this is often where the hardest drafting questions arise. A provision giving one investor special tax reporting may be easy to characterize as investor-specific. A provision excusing one investor from an entire category of investments, giving one investor enhanced liquidity or changing how expenses are borne may require more careful analysis.

Separate from either of these approaches, the fund documents or individual side letters may include a “most favored nation” provision, often called an MFN. An MFN is not itself authorization to enter into side letters. It is an additional mechanism that may apply once side letters have been granted. At a high level, an MFN gives an investor the right, subject to the terms and limits of the MFN, to elect the benefit of certain more favorable side letter provisions granted to other investors. For example, an investor with a $50 million commitment may be permitted to elect provisions granted to investors with commitments of $50 million or less while being unable to elect provisions granted only to larger investors. MFNs are common in institutional funds because they allow the manager to accommodate particular investor needs while giving similarly situated investors a measure of protection against undisclosed preferential treatment.

MFNs, however, are almost always limited. Advisory committee seats, commitment-based fee arrangements, co-investment understandings, investor-specific transfer rights, public disclosure accommodations, sovereign immunity provisions and other rights tied to a particular investor’s status or contribution to the fund may be excluded or made available only to investors that are similarly situated. A well-drafted MFN will specify who is eligible, which provisions are excluded, whether related investors may aggregate commitments, whether the electing investor must assume associated obligations, and how and when elections must be made.

The important distinction is this: The LPA’s side letter authorization answers the question, “May the manager enter into side letters and with what limits?” The MFN answers a different question: “If the manager grants side letter rights to one investor, do other investors have a right to elect some or all of those rights?” Those concepts are related, but they are not substitutes for each other.

Another approach is to incorporate certain side letter accommodations directly into the LPA. For example, the LPA may itself permit the general partner to accommodate investors who do not want to receive in-kind securities or who need to be excluded from an investment for legal, regulatory, tax or internal policy reasons. In that case, the side letter may identify the investor’s particular restriction while the LPA supplies the mechanics. This can be a very useful structure because it avoids reinventing operational mechanics in dozens of separate side letters.

The key point is that the fund agreement should anticipate side letters. It should say that they are permitted. It should say how they interact with the LPA. It should preserve the manager’s ability to administer the fund. And it should avoid creating a world in which one investor’s side letter right accidentally changes the rights or obligations of everyone else.

“Prevails over the LPA” language

Side letters often provide that, as between the investor and the fund or general partner, the side letter controls in the event of a conflict with the LPA. That is a natural provision. Without it, the investor may worry that the side letter is merely precatory or that the LPA’s integration clause overrides it.

Managers should be careful with this language. A side letter can appropriately control as between the parties to that side letter. But it should not be drafted so broadly that it changes the rights of other investors or alters fund-level mechanics in a way the manager cannot administer. For example, a side letter may say that a particular investor will receive additional tax reporting. That is manageable. A side letter should be much more carefully considered if it purports to change the fund’s investment limitations, modify the waterfall, change the allocation of expenses among all partners or require the fund to avoid an entire category of investments for everyone. Those types of provisions are usually not acceptable for side letters, either by reason of contract, fiduciary duty or both.

A useful way to think about this is to distinguish between investor-specific accommodations and fund-wide restrictions. Investor-specific accommodations usually belong in side letters. Fund-wide restrictions usually belong in the LPA.

Most favored nation rights

An MFN is one of the most important side letter provisions.

At a high level, an MFN gives an investor the right to elect the benefit of certain more favorable provisions granted to other investors in their side letters. It is a mechanism for policing relative fairness. If Investor A negotiates a provision that is more favorable than Investor B’s rights, and Investor B has an MFN, Investor B may be able to elect that provision.

MFNs vary widely. They are not all the same.

The first issue is who gets the MFN. Some funds give MFNs to all investors. More often, MFN rights are granted only to investors above a specified commitment threshold or are tiered by commitment size. A $100 million investor may receive the right to elect provisions granted to any other investor with an equal or smaller commitment. A $25 million investor may receive the right to elect provisions granted to investors at or below $25 million but not provisions granted to larger investors. A small investor may receive no MFN at all.

The second issue is whether commitments are aggregated. Many institutional investors invest through multiple related entities. A fund-of-funds manager may have several client vehicles. A university may invest through multiple related entities. A pension system may invest through different accounts. A side letter may provide that related commitments are aggregated for purposes of MFN thresholds, advisory committee rights, co-investment rights or other provisions. Aggregation can be very important because it determines whether the investor is treated as a $5 million investor, a $25 million investor or a $100 million investor for side letter purposes.

The third issue is what provisions are electable. An MFN rarely means that every provision granted to every other investor is automatically available. There are usually exclusions. Advisory committee seats may be excluded because the fund cannot have unlimited LPAC (limited partner advisory committee) members. Co-investment rights may be excluded or limited because allocation depends on investment opportunity size, investor capability, regulatory fit and relationship factors. Fee discounts may be excluded if they were granted in exchange for a larger commitment or anchor support. Transfer rights may be excluded if they relate to a specific disclosed affiliate. Confidentiality and disclosure rights may be limited to investors with similar legal or regulatory needs. Sovereign immunity provisions are usually available only to sovereign or governmental investors. Public records accommodations are usually available only to investors actually subject to those laws.

The fourth issue is process. At the end of fundraising, the manager or counsel typically prepares an MFN disclosure package or election form. This may list side letter provisions granted to other investors, organized by provision heading and commitment threshold. Investors with MFN rights are given a period of time, often 30 days, to elect applicable provisions. Some provisions may be automatically incorporated. Others require the investor to initial or affirmatively elect them. Some may be designated as generally excluded unless the investor establishes the same special status as the original recipient.

The fifth issue is whether the electing investor must assume burdens as well as benefits. A well-drafted MFN should generally require an investor electing a provision to accept associated obligations. If a provision gives an investor special information rights only because the investor agrees to maintain enhanced confidentiality or bear additional costs, the electing investor should not be able to take the benefit without the burden.

MFNs can be administratively burdensome. They require careful tracking. A manager needs to know which investor has which side letter rights, which provisions were elected through MFN, which provisions were nonelectable and which obligations apply to each investor. In a large fund with many institutional investors, the side letter matrix can become a core fund administration document.

The regulatory backdrop

Side letters have received increased regulatory and market attention in recent years.

The SEC’s 2023 private fund adviser rules would have imposed significant new restrictions and disclosure obligations around preferential treatment, including side letter arrangements. Those rules were vacated by the US Court of Appeals for the Fifth Circuit in 2024 and are not in effect. That is important. The private fund market is not currently operating under those vacated preferential treatment rules.

But the broader point remains: Side letters are not invisible. The SEC and other regulators have long focused on undisclosed preferential treatment, conflicts, fees and expenses, investor reporting, valuation, allocation practices, and misleading disclosure. Even without the vacated rules, registered investment advisers remain subject to fiduciary duties, anti-fraud rules and disclosure obligations. Exempt reporting advisers also remain subject to anti-fraud principles. Investor expectations have also changed. Large institutional investors, consultants, auditors and internal compliance teams are more focused on side letter terms than they were a decade ago.

The result is a somewhat subtle current market point. The legal rule may be less prescriptive than it briefly appeared it might become under the SEC’s vacated rules, but the market expectation for discipline around side letters has increased. Managers should assume that side letter provisions may be reviewed by investors, regulators, auditors, lenders, fund administrators, secondary buyers and successor fund diligence teams. They should be drafted and administered accordingly.

Side letters in venture capital versus private equity

The same basic side letter concepts apply in private equity and venture capital, but market emphasis can differ.

In venture capital funds, side letters often focus heavily on tax reporting, confidentiality, public disclosure, advisory committee seats, co-investment interest, in-kind distribution mechanics, CFIUS sensitivity, sanctions, China-related matters, digital assets, restricted investments and information-sharing with underlying investors. Venture funds often hold minority positions in private companies, may distribute public securities after IPOs, may have many portfolio companies and may have global investor bases. These features drive many of the side letter requests.

In private equity funds, side letters often include many of the same categories, but there may be additional emphasis on fee and expense reporting, portfolio company fees, co-investment rights, LPAC governance, continuation fund conflicts, excuse rights, ESG reporting, subscription credit facilities, ERISA and plan asset issues, insurance, use of operating partners, and reporting around controlled portfolio companies. Buyout and growth equity funds may have fewer portfolio companies but greater control and more complex portfolio company fee, financing, governance and exit issues.

Neither market is simple. A venture fund with global investments, sovereign investors and digital asset exposure can have side letter issues as complex as a buyout fund. A private equity fund with a concentrated domestic investor base may have a relatively straightforward side letter process. The right approach depends less on whether the fund is “VC” or “PE” and more on the strategy, investor base, regulatory profile, fund size and willingness of the manager to create investor-specific obligations.

Categories of side letter provisions

Side letter provisions can be grouped into broad categories. The categories overlap, and a single provision may fit in more than one category. Still, categorizing them helps managers understand what investors are asking for and why.

1. MFN, aggregation and side letter administration

The first category consists of provisions governing the side letter process itself.

These include MFN rights, aggregation provisions, side letter applicability provisions, assignment provisions, amendments to side letters, confidentiality of side letters, and provisions stating whether the side letter applies to parallel funds, alternative vehicles, feeder funds, co-investment vehicles or successor structures.

Aggregation provisions are particularly common where a single institutional relationship invests through multiple entities. The investor may want all related commitments treated as a single commitment for purposes of MFN thresholds, advisory committee rights, co-investment interest or other benefits. Managers often agree where the relationship is genuinely integrated but should be careful to define the covered entities clearly.

Applicability provisions are also important. If an investor invests through a parallel fund or alternative investment vehicle instead of the main fund, it will usually want its side letter rights to apply mutatis mutandis to that vehicle. That is generally sensible, but the phrase “to the extent applicable” does real work. Not every right translates cleanly from a main fund to an alternative vehicle, particularly if the vehicle exists for tax, regulatory or structural reasons.

Assignment provisions address whether a side letter follows the investor’s interest upon transfer. Many side letters provide that the letter is not assignable without consent but will bind and benefit an affiliate transferee if the transfer is permitted under the LPA. This is usually reasonable, particularly for institutional investors that may reorganize holdings internally. Managers should avoid allowing side letter rights to travel freely to unrelated third-party buyers without review.

Side letter confidentiality provisions address who may see the side letter. This is a sensitive issue because MFN processes often require disclosure of side letter provisions to other investors, but investors may want their name, commitment amount or investor-specific details redacted. A practical compromise is to allow disclosure of the substantive provisions in an MFN package while redacting identifying information where appropriate.

2. Advisory committee rights and governance participation

The second category consists of LPAC and governance rights.

Large or strategic investors often ask for a seat on the advisory committee. Others may ask for observer rights. Some investors may ask for a list of LPAC members, copies of LPAC materials, reimbursement of LPAC expenses or notice of LPAC actions.

Advisory committee rights are often among the most sensitive MFN exclusions. A fund cannot give every MFN investor an LPAC seat. The LPAC must remain a workable body. Managers often reserve LPAC seats for large investors, anchor investors, investors with particular expertise or representative members of the investor base. Observer rights may be somewhat easier to grant, but even observers can create confidentiality, CFIUS, conflicts and administrative issues.

A well-drafted LPAC side letter provision should address who may serve, whether the representative must be a senior investment professional, whether the general partner has approval rights over replacements, whether the investor must remain non-defaulting, whether materials are confidential, whether the manager may exclude a member or observer from particular discussions, and whether expenses are reimbursed.

The exclusion right can be important. LPAC materials may include information that cannot be shared with a particular investor because of confidentiality obligations, conflicts, CFIUS concerns, material nonpublic information, portfolio company restrictions or competitive sensitivity. Managers should preserve the ability to withhold information where necessary while using that right carefully and not as a way to avoid appropriate governance.

3. Information, reporting, and books and records

The third category consists of information rights.

These provisions may require enhanced capital call notices, distribution notices, quarterly reports, annual reports, expense reports, tax estimates, capital account detail, fee and expense detail, portfolio company summaries, audit certifications, litigation notices, regulatory notices, cybersecurity notices, default notices, LPAC action summaries, or information needed for an investor’s internal reporting templates.

Information rights are among the most common side letter requests. Many institutional investors have internal systems requiring standardized data. Funds of funds may need information to report to their own investors. Public pensions may need information for board reporting. Endowments and foundations may need information for audit and valuation processes. Insurance companies and banks may need information for regulatory capital, accounting or risk reporting.

Managers should distinguish between ordinary fund-level reporting and bespoke reporting. It is usually easier to agree that an investor will receive the same regular reports provided to other limited partners or that capital call notices will include a general use-of-proceeds description. It is more burdensome to agree to bespoke templates, special certifications, investor-specific calculations or reporting within shorter time frames.

The manager should also preserve confidentiality carve outs. The fund may not always be able to provide portfolio company information, especially where doing so would violate confidentiality agreements, securities laws, CFIUS-related restrictions, material nonpublic information controls or portfolio company expectations. A side letter should not require the manager to disclose information it is legally or contractually prohibited from disclosing.

4. Confidentiality, FOIA and permitted disclosure

The fourth category consists of confidentiality and permitted disclosure provisions.

The LPA usually contains a confidentiality provision limiting what investors may do with fund information. Side letters often modify that provision for particular investors. The modifications can be narrow or broad.

A fund of funds may need to disclose fund information to its underlying investors. A sovereign entity may need to share information with governmental officials, auditors, ministries, legislative bodies or oversight committees. A public pension may be subject to public records laws. A regulated European fund may need to provide information to depositaries, administrators, auditors or regulators. A family office vehicle may need to share information with family members, trusts, advisors or affiliated investment entities. A university or foundation may need to share information with investment committees, trustees or consultants.

These requests are often legitimate. But they create real risk for the fund. Fund information may include confidential portfolio company information, private valuations, sensitive strategy, personal data, material nonpublic information, trade secrets and information subject to confidentiality agreements. If the investor is subject to public disclosure laws, the risk is not theoretical.

Good confidentiality side letters typically define permitted recipients, require those recipients to be informed of confidentiality obligations, require the investor to remain responsible for breaches, limit disclosure to need-to-know purposes, allow only fund-level information to be publicly disclosed and preserve the manager’s right to withhold particularly sensitive information. Public records accommodations often distinguish between fund-level information and portfolio company-level information. The former may include the name of the fund, commitment amount, contributions, distributions, NAV and IRR. The latter is usually far more sensitive.

Managers should resist broad formulations that allow unrestricted disclosure to all affiliates, all beneficial owners, all public authorities or all prospective investors. The better approach is to identify the categories of recipients and the categories of information with precision.

5. Tax reporting and protection

The fifth category consists of tax provisions, one of the largest side letter categories in practice.

Tax provisions may address UBTI, ECI, FIRPTA, PFICs, CFCs, Section 892, partnership audit rules, withholding, FATCA, CRS, AEOI, reportable transactions, listed transactions, foreign tax filings, tax refunds, tax estimates, tax assistance, tax withholding notices, foreign tax reporting forms and investor-specific filings in jurisdictions such as Germany, Australia, Canada, Luxembourg, Hong Kong, Singapore or the Cayman Islands.

The purpose of these provisions is usually not to give one investor a better economic bargain. It is to help that investor comply with its own tax regime or avoid a tax consequence that is inappropriate for its status. For example, a US tax-exempt investor may want UBTI reporting. A non-US investor may want comfort that the fund will use commercially reasonable efforts to avoid ECI. A sovereign investor may request Section 892 protections. A fund of funds may need CFC or PFIC information for its underlying US taxable investors. A German investor may need assistance with German tax filings. An Australian superannuation fund may need Australian tax reporting. A tax-exempt investor may want advance notice before withholding is treated as a loan or distribution.

Managers should be careful not to overpromise. A venture or private equity fund may not control portfolio companies. It may not be able to obtain PFIC or CFC information. It may not be able to prevent all withholding. It may not be able to avoid all foreign tax filings. It may not know in advance whether a portfolio company’s tax status will change. It may have obligations to other investors that limit what it can do for one investor.

For that reason, many tax side letter provisions use standards such as “commercially reasonable efforts,” “to the extent in the General Partner’s possession,” “to the extent reasonably available,” “upon request and at the investor’s expense,” and “subject to the General Partner’s obligations to the Partnership and the other Partners.” These qualifiers are not mere drafting hedges. They reflect operational reality.

Partnership audit provisions are also common. Investors may want assurance that partnership-level assessments will be handled so the investor bears only amounts attributable to its status or identity and not taxes attributable to other partners. Tax-exempt and non-US investors may also want the manager to avoid creating filing obligations where possible. These provisions can be complex and should be coordinated with the LPA’s partnership representative provisions.

6. Legal, regulatory, AML, sanctions and anti-corruption provisions

The sixth category consists of legal and regulatory compliance provisions.

These provisions often include anti-money laundering, sanctions, anti-corruption, FCPA, anti-terrorism, anti-bribery, anti-social forces, pay-to-play, political contribution, placement agent, regulatory compliance, litigation and representation provisions.

Public pensions often request pay-to-play and placement agent provisions. Sovereign investors often request sanctions, anti-corruption and regulatory compliance provisions. Japanese investors may request anti-social forces language. European institutional investors may request AML, sanctions and ESG-related confirmations. Large US institutional investors may request litigation representations, regulatory investigation notices or confirmation that the manager has not engaged in disqualifying conduct.

These provisions have become more important as sanctions and national security regimes have become more complex. Side letters for Asia-focused funds, China-related strategies, technology funds, digital asset funds and funds with sovereign investors may include detailed sanctions language addressing OFAC, Chinese military-industrial company restrictions, Hong Kong-related sanctions or other country-specific issues. Current geopolitical conditions make these provisions more than boilerplate.

Managers should again be careful about scope. A representation that the fund will comply with applicable law is different from a covenant that no portfolio company will ever become subject to sanctions. A manager may be able to represent as to its own knowledge after reasonable inquiry. It may not be able to guarantee facts about every portfolio company, founder, customer or supply chain. The drafting should distinguish between the manager, the fund, controlled vehicles, portfolio companies, affiliates, employees, principals and other investors.

7. CFIUS, outbound investment and national security sensitivities

The seventh category consists of national security and foreign investment provisions.

CFIUS-related side letter provisions often seek to ensure that a foreign investor’s participation in a fund does not give that investor rights that could create a covered investment or increase regulatory sensitivity. These provisions may limit the investor’s access to material nonpublic technical information, board or observer rights at portfolio companies, and involvement in substantive decision-making regarding critical technologies, critical infrastructure or sensitive personal data.

These provisions can be important in both venture capital and private equity. Venture funds often invest in emerging technology companies, including artificial intelligence, semiconductors, cybersecurity, defense-adjacent technologies, biotechnology, data infrastructure and other areas that may raise national security issues. Private equity funds may acquire or control businesses that hold sensitive data, operate critical infrastructure, supply government customers or develop controlled technologies.

The US outbound investment regime adds another layer for funds making investments involving China, Hong Kong or Macau in certain sensitive technology sectors. That regime is not exactly a side letter regime, but it affects side letter practice. If the fund makes investments that trigger national security restrictions or internal policy concerns, investors may ask for notices, representations, investment exclusions, information rights or transfer accommodations.

The fund agreement and side letters should be coordinated. If the LPA already states that limited partners will not receive rights causing the fund to become problematic under CFIUS, the side letter may simply acknowledge or tailor that framework. If a particular investor needs additional limitations, the side letter should specify them. Managers should avoid promising to share detailed technical information with one investor while simultaneously trying to preserve a passive fund exception or avoid sensitive information rights for another.

8. ESG, responsible investment and restricted investment provisions

The eighth category consists of ESG, responsible investment, prohibited investment and restricted business provisions.

These provisions vary significantly by investor. Some are high-level acknowledgements that the manager has adopted an ESG policy or will consider ESG factors as part of its investment process. Others are more specific, addressing prohibited investments in weapons, tobacco, cannabis, gambling, pornography, child labor, forced labor, thermal coal, controversial weapons, private prisons, predatory lending, animal testing, abortion-related businesses, or companies inconsistent with religious or mission-based guidelines.

Foundations, religiously affiliated investors, public pensions, sovereign wealth funds, European investors, Australian superannuation funds and development finance institutions are among the investors most likely to request these provisions. Some requests are driven by law. Others are driven by internal policy, mission alignment or public accountability.

The most important drafting question is whether the provision is a fund-wide restriction or an investor-specific accommodation.

A fund-wide restriction says the fund will not make certain investments. That belongs in the LPA if it is material to the strategy or applies to all investors. A side letter is not usually the right place to quietly change the fund’s investment mandate for everyone.

An investor-specific accommodation says that if the fund makes an investment that violates the investor’s policy, the investor may be excused from that investment, transferred out, receive notice or receive cash rather than in-kind securities. This can be appropriate, particularly if the LPA contains mechanics for excusing investors from specified investments. But it requires careful administration. The manager must know when the restriction is triggered, how capital calls are adjusted, how income and losses are allocated, how expenses are borne, and whether the excluded investor remains responsible for management fees and other fund expenses.

In practice, many managers prefer to avoid hard investor-specific investment exclusions unless the investor has a genuine legal, regulatory, tax or written internal policy need. A broad side letter right allowing an investor to opt out of investments it dislikes can undermine the blind pool nature of the fund.

9. Co-investment and secondary opportunity provisions

The ninth category consists of co-investment and secondary opportunity provisions.

Many investors ask to be considered for co-investment opportunities. Most managers are willing to acknowledge investor interest. That kind of provision is usually soft. It says the manager will consider the investor in good faith for available co-investments but does not guarantee allocation.

Harder co-investment rights are more sensitive. A right to participate pro rata in all co-investments, a right of first offer, a guaranteed allocation or a no-fee/no-carry co-investment commitment can materially affect the manager’s flexibility. Co-investment opportunities are often limited. They may be needed for strategic investors, investors with relevant sector expertise, investors who can move quickly, investors who can write large checks or investors who are not subject to regulatory restrictions. A manager may also need to allocate co-investments across multiple funds, parallel vehicles, separately managed accounts and strategic relationships.

Private equity funds may face more regular co-investment allocation questions because buyout and growth equity deals often require larger equity checks. Venture funds may offer co-investments less frequently but may do so for late-stage rounds, special purpose vehicles, opportunity vehicles, overflow allocations or strategic syndication.

Side letters may also address secondary opportunities. An investor may ask to be notified if another limited partner wants to sell its interest. This usually does not create a right of first refusal; it merely allows the investor to contact the selling LP. Managers should be careful about confidentiality, transfer restrictions, secondary process management and fairness to other potential buyers.

10. In-kind distributions and public securities

The 10th category consists of in-kind distribution provisions.

These provisions are especially important in venture capital, growth equity and technology-focused funds, where exits may produce public securities. They also matter in private equity funds that distribute public stock after IPOs, spinouts or public company sales.

Some investors do not want to receive securities in kind. They may lack custody arrangements. They may be prohibited from holding certain securities. They may face regulatory limitations on ownership. They may be unable to trade particular securities. They may be sensitive to insider status, material nonpublic information, sanctions, sector restrictions or public company reporting obligations.

A side letter may allow the investor to elect to have securities treated as “managed securities,” meaning the manager or an agent will sell the securities on the investor’s behalf and distribute cash proceeds. It may allow the investor to designate a brokerage account. It may allow the investor to decline digital assets. It may require advance notice of in-kind distributions. It may provide that the manager will use commercially reasonable efforts to vary the method of distribution to avoid a legal or regulatory problem.

These provisions must be drafted carefully. The manager should not guarantee any particular sale price or timing. Securities may be illiquid, subject to lockup, subject to volume limitations, subject to trading windows or otherwise difficult to sell. The investor should generally indemnify the fund and manager for carrying out investor-specific instructions, except for bad acts. Tax treatment should also be addressed because an investor may be treated as receiving securities even if the manager sells those securities as agent and remits cash.

In-kind distribution accommodations are a good example of where LPA-level authorization can help. If the LPA gives the general partner authority to allow some investors to receive cash while others receive securities, side letters can identify which investors have elected that treatment without needing to recreate the full mechanics each time.

11. Transfer, assignment and reorganization rights

The 11th category consists of transfer rights.

The LPA will usually restrict transfers of limited partnership interests. The manager must protect the fund from securities law issues, tax issues, Investment Company Act issues, ERISA issues, public trading concerns, regulatory issues, sanctions concerns and administrative burdens. Transfers, therefore, typically require general partner consent.

Side letters often soften that standard for transfers to affiliates, successor entities, related governmental agencies, managed accounts, feeder vehicles or entities under common control. This is particularly common for large institutions that may reorganize holdings, change trustees, move assets between accounts or invest through multiple vehicles.

Some investors also ask for transfer accommodations if a restricted investment, sanctions event, digital asset investment, commodity interest issue, ERISA issue, regulatory problem or tax problem arises. The side letter may state that the manager will not unreasonably withhold consent to a transfer if the investor can no longer hold the fund interest because of the relevant issue.

Managers should not give away transfer control too broadly. An affiliate transfer may be acceptable if the transferee is creditworthy, makes required representations, assumes all obligations, satisfies KYC requirements and does not create adverse consequences for the fund. A transfer to an unrelated third party is a different matter. It can affect the investor base, confidentiality, compliance, lender relationships and future fundraising.

Side letters may also address whether the side letter itself transfers with the interest. Often the answer is yes for permitted affiliate transfers and no for unrelated transfers unless the general partner agrees.

12. Subscription facility, borrowing and credit support provisions

The 12th category consists of borrowing and subscription facility provisions.

Subscription credit facilities are common in private equity and venture capital funds. They often require lenders to have rights against uncalled capital commitments, capital call proceeds, and sometimes investor-specific acknowledgements or delivery requirements. Certain investors may have limitations on what they can sign or what obligations they can assume. Sovereign investors, public pensions, banks, insurance companies, ERISA plans and governmental entities may have particular constraints.

Side letters may provide that an investor will not be required to provide a guarantee, pledge its interest, waive sovereign immunity, deliver financial statements, sign lender letters beyond specified documents or be liable beyond its capital commitment. Other provisions may confirm that capital contributions made directly to a lender count as capital contributions to the fund. Some provisions require advance notice of borrowing or limit the investor’s exposure to amounts not exceeding its commitment.

These provisions matter because subscription facilities are operationally central to many funds. A side letter that seems like a narrow investor accommodation can create lender diligence issues. Lenders often review side letters to identify investor exclusions, sovereign immunity limitations, excuse rights, transfer rights, confidentiality restrictions and limitations on capital call enforceability.

Managers should coordinate side letter borrowing provisions with fund finance counsel. The worst time to discover a problematic side letter is during a facility closing.

13. Placement agent, political contribution and public pension provisions

The 13th category consists of placement agent, political contribution and public pension provisions.

Public pension investors often require representations that no placement agent was used in connection with their investment or that any placement agent arrangements complied with applicable law and investor policy. They may require disclosure of placement fees, confirmation that the investor will not bear placement agent expenses or representations regarding political contributions.

These requests reflect the regulatory history around pay-to-play practices and placement agent scandals. Investment advisers are subject to SEC pay-to-play rules, and many public investors have their own rules. Even technical violations can create serious consequences for managers.

Managers should have strong internal controls around political contributions, placement agents and government investors. The side letter provision is only one piece of the compliance system. Before agreeing to a representation, the manager should confirm that it is true not only for the fund but also for the relevant covered associates, affiliates, placement agents and fundraising personnel.

14. Representations, litigation and status confirmations

The 14th category consists of representations and status confirmations.

Investors may ask the general partner to represent that the fund and general partner are duly formed, validly existing and authorized to enter into the fund documents. They may ask for confirmation that the LPA is enforceable. They may ask for litigation representations. They may ask whether the manager, principals or prior funds have been subject to fraud claims, regulatory sanctions, bankruptcy, criminal proceedings or material litigation. They may ask for confirmation of investment adviser status, exempt reporting adviser status, years of experience, assets under management, insurance coverage, cybersecurity safeguards, ESG policies or AML policies.

These provisions can be reasonable when they support an investor’s diligence or internal approval process. But managers should resist overly broad representations that extend beyond knowledge, cover remote affiliates, cover all portfolio companies or speak to matters that cannot be verified.

A common formulation is to make representations “to the knowledge of the General Partner” or “to the General Partner’s knowledge after reasonable inquiry.” That standard is often appropriate where the representation concerns litigation, investigations, sanctions, portfolio companies, affiliates or prior funds. For entity existence and authority, an unqualified representation may be more appropriate.

15. Power of attorney and document execution provisions

The 15th category consists of power of attorney and document execution provisions.

Fund agreements usually grant the general partner a power of attorney to sign certain documents on behalf of limited partners. This is necessary for fund administration. The general partner may need to file certificates, amend schedules, implement transfers, admit substitute partners, sign tax documents or take other actions contemplated by the LPA.

Some investors, particularly governmental entities, sovereign investors and regulated institutions, are uncomfortable with broad powers of attorney. They may request language clarifying that the power is ministerial, cannot be used to materially change economics, cannot be used to amend the LPA beyond authorized amendments and cannot be exercised in violation of law or investor policy.

These provisions are often manageable if they clarify rather than undermine the LPA. The manager needs enough authority to run the fund. The investor wants assurance that the power of attorney is not a blank check. A clear statement of ministerial scope can help both sides.

16. Alternative vehicles, parallel funds and structural accommodations

The 16th category consists of alternative vehicle and parallel fund provisions.

Funds often use alternative investment vehicles, blocker corporations, parallel funds, feeder funds, side-by-side funds or other special vehicles to address tax, regulatory, legal or investment structuring needs. Investors may request rights relating to these vehicles. They may want copies of governing documents, confirmation of limited liability, confirmation that side letter rights apply, assurance that they will not be required to participate without consent or the right not to participate in an AIV created primarily to extend the fund term.

These provisions are particularly common in cross-border funds, funds with tax-exempt or non-US investors, China-related funds, funds using Cayman or Delaware parallel structures, and funds investing through special purpose vehicles.

The manager should preserve flexibility. AIVs and parallel funds are often necessary to make investments efficiently. Requiring every investor’s consent before using an AIV can be impractical. On the other hand, if an AIV imposes materially different liability, tax, confidentiality or regulatory consequences on an investor, the investor may reasonably ask for protections.

17. Excuse, exclusion and withdrawal rights

The 17th category consists of excuse, exclusion and withdrawal rights.

These provisions allow an investor to be excused from an investment or released from future capital contributions if participation would violate law, regulation, tax rules or specified internal policies. In the LPA, these rights often appear for ERISA partners, private foundation partners, governmental plan partners and bank holding company partners. Side letters may identify specific investor policies or restricted investments that trigger the accommodation.

Excuse rights are powerful. They alter the investor’s participation in the blind pool. They can affect allocations, expenses, capital commitments, diversification, borrowing base calculations and the fund’s ability to complete investments. They can also create fairness issues if one investor is allowed to avoid investments that later perform poorly.

For that reason, managers often require a legal, regulatory, tax or written internal policy basis. They may require the investor to provide notice and supporting information. They may limit the right to specific pre-identified categories. They may preserve the investor’s responsibility for management fees and expenses. They may require the investor to transfer its interest rather than merely opt out of investments. The fund should have clear mechanics for reallocating the excluded investment among remaining partners.

18. Fees, expenses and economic clarifications

The 18th category consists of fee, expense and economic clarification provisions.

These may address management fee offsets, placement fee offsets, organizational expense summaries, partnership expense reporting, no allocation of certain returned amounts, co-investment fees, portfolio company fees, indemnification expenses, audit expenses, LPAC expenses or investor-specific costs.

Private equity investors have become especially focused on fees and expenses. Side letters may require enhanced reporting of management fees, offsets, portfolio company fees, affiliate service provider fees, operating partner costs, broken deal expenses, regulatory expenses and indemnification payments. Venture capital funds may see fewer portfolio company fee issues but still face management fee offset, placement fee, expense reporting and organizational expense requests.

Managers should be careful that side letter economic provisions do not create inconsistent treatment or hidden preferences. If a provision affects the economic burden of expenses among investors, it should be considered carefully under the LPA, MFN provisions and disclosure principles. Investor-specific costs are often appropriately borne by the requesting investor. Fund-wide costs should generally be borne consistently with the LPA.

19. Digital assets, commodity interests and emerging asset classes

The 19th category consists of digital asset and commodity interest provisions.

Venture capital funds – and, increasingly, some private equity and growth funds – may invest in digital assets, token rights, blockchain-related instruments or companies whose securities have token features. Investors may ask for diligence commitments, notice rights, transfer rights, custody representations, commodity interest confirmations or the right not to receive digital assets in kind.

These provisions have become more common because digital assets can raise issues involving securities law, commodities law, custody, valuation, tax, sanctions, cybersecurity and internal policy. Even investors comfortable with venture capital may not be comfortable holding tokens directly.

Managers should define the strategy clearly in the LPA. If digital assets are within the mandate, investors should know that. Side letters can address investor-specific handling but should not quietly change the fund’s investment strategy. If digital assets are not expected, the side letter may simply acknowledge that the fund does not expect to invest in or distribute digital assets while preserving flexibility if the strategy permits.

Commodity interest provisions are related. Investors may want confirmation that the fund does not intend to trade commodity interests or become a commodity pool. If digital assets are excluded from that definition for side letter purposes, that should be stated clearly and consistently with counsel’s regulatory analysis.

20. Use of name, logo and publicity

The 20th category consists of use-of-name and publicity provisions.

Investors often prohibit the manager from using their name or logo in marketing materials without consent. This is common for endowments, foundations, sovereign investors, public pensions, family offices and corporate investors. Some investors may allow use of their name in confidential fundraising materials. Others prohibit any use except as required by law or in fund records.

Managers should take these provisions seriously. Accidentally listing an investor in a pitch deck, website, press release or conference presentation can violate a side letter. The fund’s investor relations and marketing teams should have a clear list of name-use restrictions.

21. Sovereign immunity, jurisdiction and liability limitations

The 21st category consists of sovereign immunity, jurisdiction, governing law, jury waiver, venue and liability limitations.

Sovereign and governmental investors often require provisions stating that they do not waive sovereign immunity, do not consent to certain jurisdictions beyond specified limits, are not required to provide guarantees or indemnities beyond their authority, and are not liable beyond their capital commitment and returnable distributions. Public entities may have statutory restrictions on indemnification, jury waiver, venue or dispute resolution.

These provisions are often necessary for the investor to participate. But they must be coordinated with the fund’s need to enforce capital commitments, subscription facility obligations, confidentiality, transfer restrictions and other core duties. A manager should understand whether the provision is merely preserving existing law or actually limiting remedies.

Practical considerations for managers

Side letters are manageable if approached systematically. They become dangerous when treated as one-off fundraising concessions.

First, managers should decide early what side letter provisions are generally acceptable, what provisions are acceptable only for large investors, what provisions are acceptable only for investors with a specific legal or regulatory need, and what provisions are not acceptable. This avoids inconsistent answers during fundraising.

Second, managers should keep a side letter matrix. The matrix should identify each investor, commitment amount, side letter rights, MFN status, elected provisions, nonelectable provisions, reporting obligations, notice obligations, transfer rights, disclosure rights, in-kind distribution elections, restricted investment provisions and special tax provisions. This matrix should be maintained over the life of the fund, not merely during closing.

Third, managers should coordinate side letters with fund administration. The people who call capital, send notices, prepare reports, handle distributions, manage transfers, interact with lenders and respond to investor requests need to know what the side letters require. A side letter that sits in a closing binder but is not operationalized is a future problem.

Fourth, managers should avoid side letter promises that require real-time investment-level determinations unless they have a process for making those determinations. Restricted investment provisions, sanctions provisions, CFIUS provisions, digital asset provisions and tax reporting provisions often require ongoing monitoring.

Fifth, managers should be careful with MFN drafting. The MFN should state who is eligible, which provisions are excluded, how commitments are measured, whether related investors are aggregated, whether the electing investor must share the same regulatory or policy concern, whether burdens travel with benefits, and when elections must be made.

Sixth, managers should remember that side letters are relationship documents. Investors request them because they need comfort. Managers negotiate them because they need to preserve flexibility. The best side letters solve the investor’s problem without creating a new problem for the fund.

A practical example

Consider a $750 million private equity fund with a global investor base. One investor is a US public pension plan. One is a sovereign wealth fund. One is a US university endowment. One is a European insurance company. One is a fund of funds. One is a private foundation. One is a bank-affiliated investor. One is a family office.

The public pension plan may ask for pay-to-play representations, placement agent confirmations, public records accommodations, LPAC rights and political contribution language. The sovereign wealth fund may ask for sovereign immunity, Section 892, CFIUS limitations, sanctions language and restrictions on required credit facility documents. The university may ask for tax reporting, confidentiality, in-kind distribution mechanics and advisory committee rights. The European insurer may ask for Solvency II or other regulatory reporting, ESG language, AEOI, and tax assistance. The fund of funds may ask to share information with underlying investors and aggregate related commitments. The private foundation may ask for private foundation protections and restricted investment accommodations. The bank-affiliated investor may ask for Bank Holding Company Act provisions and nonvoting interest language. The family office may ask for confidentiality sharing with family members and affiliates.

It would not make sense to put all these investor-specific provisions in the LPA. It also would not make sense to refuse all of them. Side letters allow the manager to solve these problems in a targeted way.

Now consider a venture capital fund investing globally in artificial intelligence, biotechnology, fintech and digital infrastructure. The same side letter architecture might include additional emphasis on CFIUS, outbound investment, sanctions, digital assets, in-kind distributions, public securities, PFIC and CFC reporting, China-related restrictions, confidentiality, and strategic co-investments. The fund may hold many minority positions and may not control portfolio companies, so its obligations must be drafted with that limitation in mind. “Commercially reasonable efforts” and “to the extent reasonably available” may be essential.

Side letters as a fund life cycle issue

It is tempting to think of side letters as a fundraising issue. They are negotiated at closing, so it is natural to associate them with fundraising. But the real work comes later.

When the fund makes an investment, someone may need to check restricted investment provisions, CFIUS provisions, sanctions provisions, tax provisions and investor excuse rights. When the fund sends capital call notices, someone may need to include use-of-proceeds detail for certain investors. When the fund distributes public securities, someone may need to check in-kind distribution elections. When the fund prepares annual reports, someone may need to include special tax, fee, expense or portfolio information. When the fund enters a subscription facility, lender counsel may review side letters. When a limited partner requests a transfer, someone may need to know whether affiliate transfer rights apply. When the manager raises a successor fund, someone may need to know whether any investor has a successor fund commitment right. When a continuation fund is proposed, side letter confidentiality, reporting, LPAC and conflict provisions may become relevant.

A manager that administers side letters well can reduce friction and build trust. A manager that administers them poorly can create avoidable disputes, even where the underlying fund performs well.

What fund managers should keep in mind

Side letters are not inherently pro-investor or anti-manager. They are tools. Like most tools, they can be used well or poorly.

For investors, side letters provide a way to address real constraints that may not apply to the broader investor base. They allow regulated, tax-sensitive, public, sovereign, mission-driven and structurally complex investors to participate in blind pool funds without forcing every investor to live with their special rules.

For managers, side letters are a way to raise capital from sophisticated investors while preserving a common fund agreement. But they require discipline. A manager should understand what it has promised, who has the benefit of each promise, whether the promise is electable by others, how it will be administered and whether it creates obligations beyond the legal team.

In our experience, the best side letters have three characteristics.

First, they are precise. They identify the investor’s concern and solve it directly.

Second, they are administrable. The manager can comply with them without heroic effort or subjective guesswork.

Third, they preserve the fund’s core bargain. They do not quietly transform the strategy, economics, governance or risk allocation for everyone else.

The least successful side letters are the opposite. They are broad, vague, difficult to operationalize and negotiated in the rush of closing without enough attention to how the fund will actually live with them.

A side letter should not be viewed as a harmless accommodation simply because it is short. A two-sentence provision can create a significant obligation. Conversely, a long provision may be entirely appropriate if it carefully addresses a complex regulatory issue for one investor.

In the end, side letters are a normal, important part of private fund formation. They reflect the reality that private equity and venture capital funds raise capital from investors with different legal regimes, tax profiles, policies, reporting needs and institutional constraints. The art is to accommodate those differences without undermining the common investment program.

That is why managers should treat side letters as part of fund architecture, not as afterthoughts. Done well, they make the fund more investable. Done poorly, they make the fund harder to administer. The difference is not whether side letters exist. In institutional funds, they usually will. The difference is whether they are drafted, disclosed and administered with the same care as the LPA itself.

Sometimes the departure is orderly. A founder retires after a long transition. A senior partner moves into an advisory role. A partner steps back from day-to-day investing but remains helpful with limited partner (LP) relationships, portfolio company boards or fundraising. The firm has planned for the transition, the economics are clear, the messaging is ready, and everyone understands the next chapter.

Other times, the departure is more difficult.

A senior partner resigns abruptly. A founder is pushed out. A partner announces plans to launch a competing fund. A senior investment professional joins another platform. A group of employees may follow. LPs begin asking questions. Portfolio companies wonder who will remain on their boards. The firm worries about confidential information, pipeline, investor lists, track record, fundraising materials, internal economics and the market narrative. The departing partner worries about earned carry, reputation, title, continuing obligations, future work and whether the firm will try to restrict their next professional chapter.

A prior article discussed advance planning for senior partner retirement and succession. That article was about building the bridge before anyone needs to cross it. This article is about what to do when someone is crossing the bridge, especially if they may be carrying relationships, information, people or momentum toward a competing platform.

The practical point is simple: A senior partner departure is not only a personnel event. It is a franchise-management event.

The firm should not assume the departure is hostile. It should also not assume the departure is harmless. The best outcomes usually come when both sides understand the commercial reality. The firm needs continuity, confidentiality, LP confidence, portfolio company stability, employee retention and protection of the franchise. The departing partner needs economic clarity, reputational dignity, a fair understanding of continuing obligations and a workable path forward.

Those goals are not always inconsistent. But they need to be managed quickly, deliberately and with a clear understanding of both the legal documents and the human dynamics.

Disruption or renewal

A senior partner departure can become either a destabilizing event or a controlled transition.

If the departure is handled poorly, the continuing partners may fracture. The departing partner may become adversarial. LPs may sense turmoil. Employees may question the firm’s stability. Portfolio companies may wonder who is in charge. The market may start writing its own story. The departure may turn into litigation, a team lift-out, a competing fund launch, a fundraising problem or a long-running internal distraction.

If the departure is handled well, the firm can emerge stronger. The departing partner can move to a role or platform better suited to their next chapter. LPs can see continuity rather than confusion. Employees can understand who is leading the firm. Portfolio companies can receive uninterrupted support. The firm can preserve dignity while protecting the franchise.

This is not just a legal exercise. It is a strategic exercise.

The legal agreements matter enormously. They determine authority, economics, covenants, information rights, repurchase rights, removal mechanics and, therefore – more than anything else – the relative leverage of the firm and the departing partner. But the documents alone do not solve the problem. The firm also needs judgment, sequencing, communication and an understanding of what the departing partner is likely to do next.

A departure can become a fight over the past. It can also become a controlled transition into the future. The difference often depends on what happens in the first few days.

Not every departure is the same

The first step is to diagnose the departure type.

A senior partner who retires after a planned transition presents one set of issues. A senior partner who resigns to launch a competing fund presents another. Death or disability is different from resignation. Removal without cause is different from removal for cause. A founder dispute is different from a nonfounder partner leaving after a compensation disagreement. A partner leaving alone is different from a partner leaving with other members of the investment team.

Some departures are not really departures at all. A partner may move from full-time investment partner to advisory partner. A founder may remain associated with the firm but give up investment committee authority. A senior investment professional may reduce compensation and governance rights but continue to help with LP relationships or portfolio company boards. A problematic partner may be moved into a role that is less disruptive without being formally terminated.

The documents may use technical categories: resignation, retirement, withdrawal, conversion, removal, cause, permanent disability, death, advisory partner status, retired partner status, converted member status, forfeiture, repurchase, good leaver, bad leaver or similar concepts.

Those categories matter. But the practical categories matter, too. From a business perspective, the firm should quickly ask:

• Is the person leaving the industry, stepping back, joining another firm, launching a competing fund or still undecided?
• Is the departure cooperative or disputed?
• Is the departing partner trying to take employees, LPs, consultants or portfolio company relationships?
• Does the person have access to investor lists, pipeline, diligence, investment memos, valuation materials, portfolio company information, data rooms, fundraising materials or internal economics?
• Does the person sit on portfolio company boards?
• Does the person have signatory authority, investment committee voting rights, bank authority, management company authority or advisor representative status?
• Does the departure trigger LP notice, key person or advisory committee issues?
• Is there a current fundraise?
• Are industry reporters, bloggers, placement agents, consultants or LPs likely to hear about the departure quickly?

The contractual category into which the transition fits matters. A resignation, removal, retirement, cause event or competitive departure may have very different consequences under the documents. But in the first 24 to 72 hours, the more urgent question is usually the commercial risk profile: What needs to be stabilized, who needs to hear from the firm, what authority must be changed, and what information or relationships may be at risk?

Decide the goal before choosing the tactic

Before deciding how to act, the continuing partners need to decide what they are trying to achieve. That may sound obvious. In practice, however, it is often missed.

A firm may be angry, disappointed, surprised or embarrassed. A founder may have become difficult. A senior investor may have stopped performing. A partner may have been planning a competing fund in secret. A long-standing personal relationship may have broken down. In those moments, the temptation is to move directly to tactics: remove the person, cut off access, send a legal letter, call LPs, freeze economics, demand resignations or prepare litigation.

Sometimes immediate action is necessary. But the better first question is: What is the highest-priority goal? There are several possible goals:

• The firm may need immediate removal because the risk is severe. The person may have taken confidential information, threatened employees, disrupted investment decisions, created regulatory risk or become impossible to leave in authority even for another day.
• The firm may need removal but with the least possible market disruption. The goal may be to make the transition smooth, quiet and largely invisible to LPs and portfolio companies.
• The firm may want a gradual transition. The person may continue to serve on boards, support LP relationships, help with fundraising or remain on the website while moving to a different role.
• The firm may conclude that the best result is not removal but role change. The person may no longer be the right full-time investing partner but may still be useful as an advisor, portfolio resource, operating partner, sector specialist or senior ambassador.

Those different goals require different tactics.

A firm that needs immediate removal should not design a six-month transition that leaves the person in sensitive authority. A firm that wants an invisible transition should not create a public fight. A firm that needs the departing partner’s cooperation should not begin by humiliating the person. A firm that wants to avoid LP concern should not overexplain internal grievances to the market. The goal should drive the plan.

The highest-risk departure is a competitive departure

The most sensitive senior partner departure is usually not the quiet retirement or the negotiated transition. It is the partner who leaves to launch a competing fund or join a competing platform.

That situation can implicate almost every asset of the firm at once: LP relationships, prospective investors, investor lists, fundraising plans, pipeline, portfolio company information, employees, track record, name and mark, investment committee materials, portfolio board seats, confidential economics, and internal strategy.

Litigation, when it occurs, often grows out of that fact pattern. The dispute may be described as a fight over carry, removal, cause, forfeiture, title, buyout price or access to records. But underneath, the real issue is often whether the departing partner is trying to take pieces of the franchise to a competing platform.

That is why competitive departures require special attention.

A partner launching a new fund may say, accurately, that the partner has a right to continue a career. A firm may say, also accurately, that the partner does not have a right to take confidential information, solicit firm employees in violation of obligations, misuse investor lists, exploit pipeline developed at the firm, misappropriate track record, interfere with portfolio companies or confuse the market about who owns the existing strategy.

Both points can be true.

The goal is not to prevent all mobility. The goal is to protect the legitimate assets of the firm while allowing the departing person to move on within the bounds of applicable agreements and law.

Commercial containment usually comes first

In a sensitive departure, the firm should not begin by asking only what legal claims it may have. It should also ask what needs to be stabilized immediately.

Who needs to know? What should LPs hear? What should employees hear? What should portfolio companies hear? Who will cover active deals? Who will cover portfolio company boards? Who controls the departing partner’s email, files, pipeline and investor communications? Who is speaking for the firm? What message will be given before rumor fills the gap?

Contract enforcement matters. The documents matter enormously. But enforcement takes time. Some provisions may be more enforceable than others depending on jurisdiction, facts, remedy and public policy. The firm cannot wait for a legal process to unfold before communicating with LPs, employees and portfolio companies. Commercial containment usually comes first.

This does not mean legal rights should be ignored. Quite the opposite. The legal documents shape the containment strategy. Strong confidentiality provisions, return-of-property obligations, nonsolicitation covenants, nondisparagement provisions, forfeiture rights, repurchase rights, removal mechanics, information restrictions and governance provisions give the firm leverage. They help define the conversation. They may prevent the situation from escalating.

But the immediate question is often not: “What lawsuit can we file?” It is: “How do we keep the franchise stable while we decide what rights need to be enforced?” Good messaging and good strategy are central to that effort.

Investor messaging is usually the first priority

In many senior partner departures, investor communication is the most important containment issue.

The LP universe is smaller and more connected than managers sometimes appreciate. Institutional LPs talk to one another. Consultants talk. Placement agents talk. Funds of funds talk. Lawyers talk. Former colleagues talk. Industry reporters and blogs may hear partial versions. In a relationship-driven market, a vague or delayed message can create room for someone else to define the story.

If the firm does not define the story, the market may define it instead. This does not mean every departure requires a public announcement or a lengthy explanation. In many cases, less is more. But the firm should have a clear, consistent and truthful message for the investor base.

LPs will usually care about practical questions. Is the departing person leaving voluntarily or involuntarily? Is the person retiring, becoming an advisor, joining another firm or launching a competitor? Does the departure trigger a key person provision? Is the investment strategy changing? Who will manage the departing partner’s portfolio company responsibilities? Is the remaining investment committee intact? Are other team members leaving? Does the departure affect the current fundraise? Does it affect the fund’s ability to source, manage and exit investments? Who should LPs call with questions?

A firm does not need to answer every question in detail. It should answer enough to maintain confidence.

The departing partner also has an interest in the message. A scorched-earth communication can harm the individual’s reputation and increase the likelihood of dispute. A message that is too flattering may create confusion if the person is joining a competitor. A message that says too little may invite speculation.

A good departure message is usually accurate, controlled, restrained and practical. It should not sound defensive. It should not overshare. It should not create unnecessary admissions. It should not invite a point-by-point response from the departing partner. It should reassure investors that the firm remains stable and that responsibilities have been reassigned.

The message should be prepared before the rumor reaches the market.

Avoid public blame

One common mistake is to confuse control with public blame.

A firm may believe it is protecting itself by telling key LPs that the departing partner was a problem. The firm may think it is getting ahead of the story. It may tell investors that the person was a poor performer, disruptive, difficult, disloyal or no longer trusted. It may believe that this will prevent the departing partner from telling a different story. That approach can backfire.

A departing partner who feels publicly disgraced may have a powerful incentive to respond in kind. The person may tell LPs that the firm is unstable, unfair, badly managed, strategically confused or dependent on the departing partner’s investment judgment. If the person is launching or joining a competing fund, the person may use the dispute to explain why investors should follow.

That is usually not what the firm wants.

This does not mean the firm should be dishonest. It does not mean the firm should conceal material information where disclosure is required. It does not mean every message needs to be warm and ceremonial. But it does mean the firm should be careful about turning an internal departure into a public indictment.

The better message often focuses on continuity: The partner is transitioning, the firm is grateful for contributions where appropriate, responsibilities have been reassigned, the investment team remains intact, the fund documents are being followed, and the firm remains focused on the portfolio and its investors. Control is not the same as blame.

Leave an exit path

One of the most important practical lessons in senior partner departures is to leave the departing person an exit path.

This is not merely a matter of kindness. It is a franchise-protection tool.

A departing partner who has no dignified explanation, no economic clarity, no future path and no ability to save face may be more likely to fight. The person may disparage the firm, call LPs, threaten litigation, recruit employees, resist board transitions, withhold cooperation or create a competing narrative.

A departing partner who has a workable path may be more likely to cooperate.

The firm should therefore ask what the departing partner is trying to accomplish. Does the person want to retire? Launch a fund? Join another platform? Become a CEO? Work with nonprofits? Become an advisor? Preserve reputation? Maximize money? Keep using a track record? Avoid embarrassment? Remain on the website during a transition? Continue serving on selected boards? Tell the world that the transition was voluntary? The answer matters:

• If the person wants to launch a fund, the firm may need stricter rules about investor solicitation, employee solicitation, confidential information, track record use and market confusion. But the firm may also consider whether some narrow cooperation or neutral messaging makes the transition less threatening.
• If the person wants to retire or move into philanthropy, the firm may be able to design a graceful story around that path.
• If the person wants an operating role, the firm may support that narrative and reduce the need for conflict.
• If the person’s main concern is reputation, the firm may be able to obtain important protections by giving the person dignity.

In some cases, the firm may even decide that helping the person land elsewhere is in its interest. That does not mean subsidizing competition. It means recognizing that a person with a credible next step may be less likely to damage the platform while leaving it. A dignified exit path can be cheaper than a fight.

Psychology is part of the legal strategy

Senior partner departures involve legal entities and contracts, but they also involve human beings.

That sounds obvious, but it is often underestimated. The people involved may be sophisticated, wealthy, successful and experienced. They may have sat on boards, negotiated deals, run companies, raised billions of dollars and handled difficult business situations. It can still be traumatic to be told that one’s partners want a removal or transition.

The continuing partners should ask themselves how the departing partner is likely to react. Is this person likely to argue for hours over the history? Is the person likely to threaten immediate litigation? Is the person likely to call LPs? Is the person likely to try to recruit employees? Is the person likely to say very little and then quietly retain counsel? Is the person likely to become emotional? Is the person likely to try to negotiate on the spot? Is the person likely to focus on money, reputation, title, track record, board seats or the ability to launch the next platform?

The plan should reflect the person.

A one-size-fits-all script rarely works. A highly confrontational person may require a different meeting plan than a conflict-avoidant person. A founder with deep LP relationships may require different messaging than a partner whose role was mostly internal. A person who wants to launch a competing fund presents different risks than a person who wants to retire. This is not soft analysis. It is risk management.

Predicting the likely reaction helps determine who should deliver the message, where the meeting should occur, how much detail to provide, whether to present a term sheet, when to involve lawyers directly, whether system access should be changed before or after the meeting, when to communicate with LPs, and what concessions may produce cooperation. A good legal strategy accounts for psychology.

Map the documents before acting

Before making demands or commitments, the firm should map the relevant documents.

The applicable documents may include the management company operating agreement, general partner agreement, carry vehicle agreement, employment agreement, consulting agreement, admission agreement, profits interest grant, side letter, separation agreement, fund limited partnership agreement, fund side letters, portfolio company investor rights agreement, voting agreement, board consent, management rights letter, advisor compliance policies, code of ethics, employee handbook, loan documents, bank signature authority, vendor contracts and insurance policies. Some of these documents may cross multiple vintages, each requiring analysis at the vintage level.

Different documents may answer different questions.

One document may address removal from the management company and rights to management company profits. Another may address carried interest. Another may address franchise value. Another may address restrictive covenants. Another may address fund-level key person issues. Another may address portfolio company board designation rights. Another may address capital contributions or clawback.

The firm should not assume that removing someone from one role automatically removes the person from every role. The cleanest documents often align those roles, but in many real situations, they do not.

In reality, a person may cease being an employee but remain a member of a carry vehicle. A person may resign from the management company but remain on portfolio company boards. A person may lose voting rights but retain economic rights. A person may no longer have authority for future funds but still have obligations relating to existing funds. A person may lose internal access but still be entitled to tax information or economic reporting.

The departing partner should do the same analysis, understanding what rights survive, what obligations continue, what authority ends, and what can or cannot be done after departure.

This review can be tedious. In a mature firm, there may be many documents across multiple funds drafted over many years by different lawyers. The documents may be inconsistent. One fund may have one removal standard. Another may have a different standard. One carry vehicle may have strong forfeiture language. Another may be silent. One management company agreement may permit removal by majority vote. Another may require supermajority consent or even the consent of the person being removed.

The best case is that the documents give a clear path. The majority partners may have authority to remove the person, strip governance rights, trigger repurchase provisions, enforce covenants and manage the transition.

The worst case is discovering that the documents were drafted when everyone thought they would be friends forever. No one can be removed without consent. No one can be bought out. No one loses authority automatically. No one anticipated competition. No one controlled board designee rights. No one limited information rights. No one addressed track record use.

That discovery does not mean the firm has no options. But it does mean the matter is now much more about negotiation. Clarity reduces mistakes. It also reveals leverage.

The documents may give the right, but the transition agreement gives the result

Even when the documents give the firm a legal right to remove the partner, the firm should think carefully before using that right mechanically.

The governing agreements may say the majority partners can vote the person out without cause. They may allow immediate termination of management authority. They may provide that the person keeps only vested carry. They may terminate management company economics. They may impose continuing capital obligations. They may permit repurchase. They may give the firm strong contractual leverage.

The temptation may be to take the vote, deliver a short message and say goodbye.

In practice, many of the best outcomes come from a custom transition agreement that supersedes, supplements or implements the older documents.

Why?

Because the firm usually has business goals beyond technical removal. It may want the transition to be smooth. It may want the outside world to see continuity. It may want nondisparagement, an agreed-upon message, employee nonsolicitation, investor nonsolicitation, cooperation, return of property, releases, board transition, track record restrictions, confidentiality and a clear path for future conduct. It may want the departing partner to say the same thing to LPs that the firm is saying.

The departing partner also usually wants more than whatever the old documents provide. The person may want additional carry vesting, relief from future capital obligations, cash severance or consulting fees, a continued title, website presence, email support, administrative support, track record usage rights, mutual nondisparagement, mutual messaging, and time to transition.

A bespoke transition agreement can trade these items. That is often better than relying only on the default provisions of documents drafted years earlier for a different moment. The documents create leverage. The transition agreement creates the result.

The first conversation matters

The first conversation with the departing partner is often one of the most important moments in the process. It should be planned carefully:

• Who should be in the room? Often, the senior leader of the continuing partners should deliver the message, with at least one other partner present. The second person should often be someone with a good personal relationship with the departing partner or someone whose presence helps show the decision is not one person’s vendetta. The meeting should communicate that the decision has been made by the relevant group and should not become a debate among only two individuals.
• Where should the meeting occur? Often not in the middle of the firm’s office, where employees can see or hear an emotional reaction. A neutral setting may be better. The right answer depends on the facts, the relationship and the anticipated reaction.
• How much detail should be provided? Usually less than the continuing partners may be tempted to provide. The first meeting is rarely the right time to debate every historical grievance, performance concern, personality conflict or investment disagreement. The message should be clear that the decision has been made, but the tone should be respectful.
• Should the firm bring a full separation agreement to the first meeting? Often not. Handing over a long legal document can create the impression that the firm has been secretly planning for weeks and may cause the departing partner to focus immediately on legal defense. In many cases, it is better to explain the decision, express a desire to be supportive, say that the firm wants to work toward a constructive transition, and follow up with a short term sheet or proposal after the person has time to process the message.

The conversation should be brief, clear and humane.

A possible message may be: We have thought carefully about this and concluded that a change is necessary. The decision is not going to be reversed. We recognize this may be difficult. We value your talent and contributions. We want to support a smooth transition. We want this to work for you and for the firm. We will follow up with a proposal for how to handle the transition.

The exact words will depend on the situation. But the goal is usually the same: make the decision clear without turning the first meeting into a public trial.

Keep the business dialogue alive

Another common mistake is to turn the matter over entirely to lawyers after the first conversation.

Lawyers are important. They should review the documents, prepare the plan, help with talking points, advise on employment, fiduciary, fund, regulatory, tax and litigation issues, and draft the term sheet and transition agreement.

But the big business terms often move faster when the dialogue remains between the lead continuing partners and the departing partner, with lawyers behind the scenes.

If the matter immediately becomes lawyer-to-lawyer trench warfare, each lawyer may feel obligated to argue over every point, preserve every position and avoid saying yes until instructed. That can slow the process, increase cost, harden emotions and turn a business transition into a legal battle.

In many successful transitions, the businesspeople agree on the five or six major principles first. The lawyers then paper those principles carefully.

That does not mean the lawyers are absent. It means they are used in the right role.

The continuing partners and departing partner may be better positioned to resolve the core business questions: What will the message be, how long will the person remain on the website, what economics will continue, what track record language is acceptable, what investor contact is permitted, what board service will continue, what support will be provided, and what future path is acceptable?

Once those principles are aligned, the lawyers can turn them into enforceable documents.

Protect four assets: people, capital, information and authority

A practical way to manage a senior partner departure is to identify the four assets most likely to be affected: people, capital, information and authority.

• People include employees, junior investment professionals, operating partners, advisors, consultants and portfolio company executives. The firm should know whether the departing partner is trying to recruit anyone, whether any employee has expressed an intention to leave, and what covenants or obligations apply.
• Capital includes existing LP relationships, prospective investors, anchor investors, strategic relationships, co-investors, financing sources, consultants and placement agents. In a competitive departure, the departing partner may be seeking to raise capital for a new fund or join a platform that wants access to the same investor universe.
• Information includes investor lists, fundraising plans, pipeline, investment memos, valuation data, portfolio company information, board materials, deal files, investment committee materials, track record, performance attribution, side letters, fund documents, management company economics, internal compensation and strategy documents.
• Authority includes investment committee votes, manager or managing member status, signatory authority, portfolio company board seats, observer rights, bank authority, advisor registration status, email and domain access, vendor access, data room access, customer relationship management (CRM) software access, and authority to communicate on behalf of the firm.

The firm should quickly map each category.

What does the departing partner have? What should the departing partner keep? What should be returned, revoked, transitioned or limited? What legal process is required? What communication is needed? What should be documented?

This exercise is not only defensive. It also helps the departing partner. The cleaner the map, the easier it is to separate legitimate ongoing rights from firm property and firm authority.

Employees hear the message, too

Investor messaging is critical, but internal messaging is also important.

Employees will often know something before the official message is delivered. They may see calendar changes, system access changes, closed-door meetings, portfolio company communications or unusual behavior. In a small investment firm, people infer quickly.

If the firm does not communicate internally, employees may fill the gap with speculation. That can create anxiety, distraction and internal contagion. In the most sensitive cases, employees may be considering whether to follow the departing partner.

The internal message should be consistent with the investor message but may include more operational detail. Employees need to know who is managing active deals, who is covering boards, who approves communications, what information should or should not be shared, whether the departing partner still has a role, and who to call if contacted by the departing partner, investors, reporters or portfolio companies.

The firm should also be careful not to overreact. Employees will watch how the firm treats the departing partner. If the firm appears vindictive, arbitrary or chaotic, that may create more concern than the departure itself. The best internal messaging is calm, clear and disciplined.

Firm view versus individual view

Senior partner departure planning often exposes a tension that existed long before the departure.

There is a firm point of view and an individual point of view.

From the firm’s point of view, the documents should protect the organization. That means confidentiality, return-of-property obligations, nonsolicitation provisions where enforceable, nondisparagement obligations, cooperation covenants, information limitations, cause and forfeiture concepts, authority termination, transfer restrictions, and mechanisms to remove a person from governance when the person is no longer aligned with the firm.

From the individual partner’s point of view, those same provisions can feel threatening. A younger founder or newer manager may look at protective provisions and think: “That could be used against me.” That reaction is understandable.

At the beginning, a firm often feels like a group of individuals more than an institution. Each founder imagines being the person whose rights need protection. Each partner may negotiate from the perspective of personal downside protection.

But after a firm has lived through a difficult departure, the perspective often changes. The partners begin to understand that protective provisions are not only potential weapons against an individual. They are also tools to protect the organization when personal alignment breaks down.

A firm with highly individual-sided documents may be only one bad departure away from wishing it had more institutional documents.

The mature question is not only whether a provision could someday be used against me. It is also whether the firm can survive a bad departure if the provision is not there.

Documents create leverage even when litigation is not the goal

Not every protective covenant is enforced. Not every breach becomes litigation. In many cases, litigation is not the desired outcome.

Still, legal leverage matters.

Strong documents can define the conversation. They can make the departing partner take obligations seriously. They can give the firm a basis to demand return of property, preservation of evidence, nonsolicitation of employees, protection of confidential information, orderly resignation from governance roles, negotiated economic resolution and careful messaging.

If the documents are weak, vague or overly individual-sided, the firm may be forced to rely on persuasion at the moment when persuasion is least reliable.

This is especially true in competitive departures. A departing partner who knows that the firm has credible rights may be more likely to negotiate. A departing partner who believes the documents contain no meaningful restrictions may be more aggressive.

The goal is not to sue reflexively. The goal is to have enough leverage to protect the franchise and reach a contained resolution.

Portfolio company boards and designee control

Portfolio company board issues are usually secondary to investor messaging, but they can become urgent in a competitive departure.

In the live departure, the firm should quickly determine who controls each relevant board or observer seat. Does the designation right belong to the fund, the general partner, the manager or an affiliate? Or was the seat granted personally to the departing partner? Does the applicable voting agreement, investor rights agreement, side letter, board consent or management rights letter allow the firm to remove and replace the designee? Is the departing partner obligated to resign when requested? What approvals or notices are needed?

The firm should not discover during a contested departure that the board seat was personal to the departing partner.

If the departing partner is joining a competitor, launching a fund or otherwise becoming adverse to the firm, the firm may need to transition board coverage quickly. That transition should be handled carefully. A director may have personal fiduciary duties. The portfolio company’s documents and applicable law matter. But from the fund’s perspective, the practical goal is clear: preserve continuity of coverage, protect confidential information, avoid conflicts and maintain the fund’s relationship with the company.

The planning lesson is equally clear, but it belongs after the live situation is resolved: Firms generally prefer board and observer rights that belong to the fund or manager and permit prompt substitution of the individual representative.

Economic triage

Departures often become disputes because economics are unclear.

The firm should quickly identify the relevant economic buckets, including rights to carried interest, capital interest and associated commitments, management company revenue streams and excess profits, and – potentially in some structures – other revenue streams. In general, though, the same four-bucket taxonomy used in transition planning remains useful: existing fund carry, future fund carry, management company profits and franchise value.

Existing fund carry may be vested, unvested, accelerated, frozen, forfeited or subject to continued service. Future fund carry may disappear entirely or continue if the person has advisory partner rights. Management company profits may stop, continue for a tail period or be replaced by a fixed payment. Franchise value rights may continue, vest, dilute, be repurchased or simply be forfeited.

The firm should avoid making casual statements before reviewing the documents. A statement like “you will keep your economics” or “you lose everything” may be inaccurate or create leverage. The departing partner should likewise avoid assuming that economics are either fully protected or fully forfeited.

Economic clarity is often the path to commercial containment. If the departing partner believes the firm is trying to strip earned economics unfairly, the person may become more aggressive. If the firm believes the departing partner is trying to retain economics while competing unfairly, the firm may become more aggressive. A clear economic map can reduce escalation.

Repurchase rights as live leverage

Buyout and repurchase rights – including of vested positions to provide a full separation – are often the most powerful firm rights in a difficult departure. In a live situation, however, the first question is not how the documents should have been drafted but what rights actually exist.

Does the firm have a right to repurchase the departing partner’s management company interest, carried interest, capital interest or franchise value interest? Is the repurchase automatic or optional? Is it triggered by resignation, removal, cause, competition, cessation of service or some other event? Who has the right to exercise it? What price applies? Can payment be made over time? Are there offsets for clawback, indemnity, loans, tax advances or capital contribution obligations? Does the departing partner retain information or audit rights pending payment?

Those questions should be answered before the firm makes broad statements about what the departing partner will keep or lose.

A repurchase right can give the firm important leverage. It may allow the firm to simplify ownership, reduce future information rights, avoid having an adverse former partner inside the management company and create a cleaner separation. It may also give the departing partner a path to liquidity and finality.

But exercising the right is not always the first move. In some situations, immediate exercise may be appropriate. In others, the repurchase right is better used as part of a negotiated transition agreement. The parties may trade price, timing, payment terms, releases, nondisparagement, cooperation, track record usage, investor communication limits and board transition obligations.

The key point is that a repurchase right is not only an economic provision. In the middle of a departure, it is a separation tool and source of leverage. Used carefully, it can help produce finality. Used mechanically or aggressively, it can become the center of the dispute.

Information and systems control

Information control is one of the most immediate practical issues in a sensitive departure.

The firm should know what systems the departing partner can access: email, shared drives, CRM, investor databases, pipeline tools, portfolio company reporting portals, board portals, data rooms, financial systems, personal devices, messaging platforms, cloud storage, compliance systems and document repositories.

The firm should also know what information the person has already taken or downloaded. In the highest-risk situations, the firm may need forensic review, preservation steps and careful coordination with counsel.

The goal is not to overreact to every departure. A routine retirement does not require a crisis response. But in a competitive departure, information access should be reviewed quickly.

Investor lists, pipeline, fundraising materials, investment memos, valuation information, LP side letters, portfolio company information and internal economics can be among the firm’s most sensitive assets. If those materials move to a competing platform, the harm can be difficult to unwind.

The departing partner also needs clarity. The person should know what can be kept, what must be returned, what can be used, what cannot be used, and what information may be needed for tax, accounting, personal records or continuing board duties.

Return-of-property obligations should not be treated as boilerplate. They are often central to avoiding later litigation.

Restrictive covenants and their limits

Restrictive covenants are important, but they are not magic.

Confidentiality obligations, employee nonsolicits, investor nonsolicits, nondisparagement provisions, noncompetes, cooperation obligations and similar covenants can be important tools in a senior partner departure. They may give the firm leverage and define conduct expectations. They may also be difficult to enforce in some jurisdictions or under some facts.

Managers should be realistic. Some covenants may be enforceable. Some may be narrowed. Some may be unenforceable in a particular jurisdiction. Some may be more useful as leverage than as litigation claims. Some may require careful drafting to avoid overbreadth. Some may be affected by employment law, public policy, state law, federal regulation or the person’s role.

That uncertainty does not mean covenants are useless. It means they should be read carefully, assessed realistically and used thoughtfully.

A firm may not ultimately seek an injunction to enforce every provision. But a well-drafted covenant can still shape behavior, support negotiations, define confidentiality expectations, deter employee solicitation, protect investor relationships and justify remedial action if the departing partner crosses a line.

From the individual perspective, the covenants should be understandable and proportionate. A departing partner should be able to know what is prohibited and what is permitted. Overly broad restrictions can create unnecessary conflict and may be less enforceable.

The best covenants protect the firm’s legitimate interests without trying to prevent all future professional activity.

Nonsolicits require particular care

Employee and investor nonsolicits are often central in competitive departures.

Employee nonsolicits may be relatively straightforward as a business objective. The firm does not want a departing partner to recruit the investment team, investor relations team, finance team, operating team or other employees away from the platform. The details matter: who is covered, how long the covenant lasts, whether passive responses are permitted, whether general solicitations are excluded and what law applies.

Investor nonsolicits are often more complicated. A senior partner may have long-standing personal relationships with certain LPs. Some investors may have originally committed because of that person. Some may be friends. Some may have relationships that predate the firm. It may be unrealistic, and sometimes commercially counterproductive, to say that the departing partner cannot speak with those investors at all.

A more tailored approach may be needed.

The agreement may distinguish between investors the departing partner brought to the firm and investors the firm originated. It may distinguish existing LPs from prospects. It may restrict solicitation for a defined period but permit ordinary personal contact. It may prohibit use of confidential investor lists while allowing the person to pursue relationships independently known to the person. It may require that communications not disparage the firm or confuse the market.

The right answer is highly fact specific. But the issue should not be left vague.

In a competitive departure, investor solicitation is often where the legal, commercial and reputational stakes converge.

Track record, attribution and market confusion

Track record issues can be especially sensitive.

A departing partner may want to describe prior investments, portfolio company roles, board service, investment performance and professional history. The firm may be concerned that the departing partner will imply ownership of the firm’s track record, use performance information without permission, disclose confidential information or create confusion about whether the new platform is connected to the old one.

Both sides need care. The firm should have clear policies and agreements governing use of track record, name, mark, case studies, portfolio company logos, performance data and attribution. The departing partner should avoid implying that a fund-level track record belongs personally to the individual unless that is accurate and permitted. The firm should not unreasonably erase legitimate professional history.

This is often a messaging problem as much as a legal problem.

A well-crafted separation arrangement can address what the departing partner may say about prior role, title, investments, boards and experience. It can also address what the firm may say about the person’s departure. That can reduce market confusion and reputational harm.

LP notice, key person and advisory committee issues

A senior partner departure may trigger fund-level obligations.

The fund documents may require notice to LPs, key person suspension, advisory committee consultation, LP consent, removal or replacement of key persons, investment period suspension, or other actions. Side letters may contain additional notice or consultation obligations. Some LPs may have negotiated special rights if particular individuals leave.

The firm should review these obligations early.

Even if a formal key person event is not triggered, the firm may decide that proactive communication is commercially appropriate. Conversely, the firm should avoid overcommunicating in a way that creates concern where the documents do not require action and the business impact is limited.

This is another reason to coordinate legal analysis with investor relations strategy. The legal question may be: “Are we required to give notice?” The commercial question may be: “What will important LPs expect to hear and when?” Both questions matter.

What the transition agreement usually covers

A transition agreement should be tailored to the facts, but several terms recur.

From the firm’s perspective, the agreement often addresses nondisparagement, agreed-upon messaging, employee nonsolicitation, investor nonsolicitation, confidentiality, return of property, cooperation, resignation from roles, portfolio board transition, release of claims, information access, track record restrictions, title usage, website treatment, economics and future conduct.

From the departing partner’s perspective, the agreement often addresses mutual nondisparagement, mutual messaging, earned economics, additional carry vesting, treatment of unvested carry, relief from future capital contribution obligations, severance or consulting fees, continued title, website presence, email or administrative support during transition, track record usage rights, board service, tax reporting, release from future obligations where appropriate, and reputational protection.

The release of claims is often important. If the departing partner is receiving benefits beyond strict contractual entitlement, the firm will usually want a release of existing claims. The departing partner may also want releases, waivers or confirmations from the firm.

The agreement should also address what happens if the transition fails. If the departing partner violates covenants, disparages the firm, solicits employees, misuses confidential information or refuses to cooperate, what benefits stop? If the firm disparages the departing partner or fails to provide agreed-upon economics, what remedies exist?

The agreement should not be longer than needed. But it should be clear enough to prevent the next dispute.

Litigation, negotiation or containment

Not every difficult departure should become litigation.

Litigation can be necessary where the departing partner has taken confidential information, solicited employees or investors in violation of obligations, misused firm assets, refused to return property, interfered with portfolio companies, or made false statements that threaten the franchise.

But litigation also has costs. It can distract the firm, alarm LPs, become public, expose internal documents, damage reputations and harden positions. Sometimes the better answer is a firm but contained negotiation.

The decision should be strategic, not emotional. The firm should ask: What harm are we trying to prevent? Is there evidence? What remedy do we need? Will a demand letter help or escalate? Will litigation protect the franchise or damage it? Is there a business resolution that gives the firm what it needs? Can economics be used to secure cooperation? Are there immediate injunction issues? What message will litigation send to LPs, employees and the market?

The departing partner should ask similar questions. Is the dispute worth the cost? Are the economics clear? Is the desired future activity actually prohibited? Is there a way to obtain consent or clarify boundaries? Will public conflict harm the new platform? Can a negotiated resolution preserve reputation and economics?

Sometimes the answer is to fight. Sometimes the answer is to settle. Often the answer is to contain.

After the departure: lessons for future documents

Every difficult departure teaches document lessons.

A firm that has been through a bad departure often drafts differently afterward. It may tighten confidentiality provisions, clarify return-of-property obligations, strengthen board designee controls, add buyout rights, refine cause definitions, improve forfeiture provisions, limit information rights for converted members, create clearer removal mechanics, address track record use, add nondisparagement language, revise LP communication protocols, and better define good leaver and bad leaver outcomes.

That is not because the firm has become hostile to partners. It is because the firm has become more institutional.

Younger firms often resist these provisions because the founders are thinking about their own individual downside. Mature firms understand that the organization needs protection from the possibility that any individual, including a founder, may later become adverse.

The documents should not assume betrayal. But they should be able to handle it.

Conclusion

Senior partner departures are inevitable in private equity and venture capital firms. They do not all need to become crises.

But they should be managed as franchise events, not merely personnel events. A senior investment professional may carry LP relationships, portfolio influence, investment judgment, confidential information, team loyalty, track record credibility and market reputation. When that person leaves, the firm needs a plan.

The best plan combines commercial containment with legal leverage. Investor messaging matters. Employee confidence matters. Portfolio company continuity matters. Information control matters. Economic clarity matters. Documents matter.

The firm should protect itself without acting vindictively. The departing partner should protect legitimate rights without trying to take the firm’s franchise. Both sides should understand that the market is watching, even when no public announcement has been made.

The best outcomes usually preserve three things: dignity, continuity and institutional longevity.

Dignity matters because the departing partner is a person, not merely a problem to solve. Continuity matters because LPs, employees and portfolio companies need to know the firm remains stable. Institutional longevity matters because a private fund firm should not be so fragile that one partner departure can destabilize the platform.

The prior article was about building the bridge. This article is about crossing it safely.

In the best cases, a senior partner departure becomes a transition. In the worst cases, it becomes a fight over the firm’s future. The difference often depends on preparation, judgment, documentation and the ability to control the first few days before the market writes the story for everyone.

Sometimes the question is asked directly. A founder is approaching retirement age. A senior partner wants to step back from full-time investment activity. A next-generation partner wants to understand whether there is a real path to ownership. A firm is considering a general partner (GP) stakes transaction, management company recapitalization or other monetization event. A younger partner is asking why so much future economics continue to sit with people who are no longer doing the day-to-day work. A senior partner is asking why decades of brand building, fundraising and franchise creation are not being respected.

Other times the question is not asked until too late. A senior person announces a departure. A next-generation team begins exploring a spinout. A founder feels pushed aside. A limited partner (LP) asks who really runs the firm. A key person provision becomes relevant. A potential GP stakes investor asks what happens when the founders are gone. A management company agreement is opened for the first time in years, and the partners discover that it does not really answer the question everyone now cares about.

This article is about advance planning. It is not primarily about how to handle a contested departure after relationships have already broken down. That is a related but different topic. The focus here is how private fund managers can think about partner transition before the moment of stress arrives.

The core point is simple: Senior partner transition planning is a risk-mitigation and balance exercise. It should protect the people who built the firm, create a credible path for the people who will carry it forward and avoid making departure economically more rational than staying.

That balance is not easy.

Founders and senior partners often did take the early risk. They raised the first fund, built the LP relationships, created the investment strategy, hired the team, developed the brand, absorbed the early uncertainty and made the firm worth joining. It is understandable that they may expect continued respect, economics and recognition when they step back.

At the same time, a private equity or venture capital firm cannot tell its next generation that they are the future while allocating too much of the future economics to people who are no longer building it. If the active team does not have enough carry, enough management company economics, enough governance authority and enough ownership of the future, the firm may unintentionally teach its best people that the rational decision is to leave.

The best transition structures honor the past without over-mortgaging the future.

Why this is not on every manager’s radar

Elaborate senior partner transition planning is still a minority practice.

Many private equity and venture capital firms do not need a detailed retirement architecture at formation. A new venture firm started by three people in their 30s is usually focused on raising Fund I, finding deals, building a track record, paying salaries, satisfying LP diligence and surviving long enough to raise Fund II. A detailed founder retirement package, future fund advisory partner carry formula, management company franchise value waterfall and GP stakes transaction allocation may feel remote.

That is often appropriate.

The issue becomes more important as a firm matures. The more assets under management (AUM) the firm manages, the more funds it has raised, the more employees it has hired, the more partners it has admitted, the more products it has launched and the more valuable its brand becomes, the more age diversity it has among senior professionals – and the more important transition planning becomes.

A firm with one flagship fund and three founders all at the same career stage may not need a complex structure. A firm with multiple vintages, multiple strategies, founders in their 60s, senior partners in their 40s, rising principals in their 30s, a real management company, institutional LPs, meaningful excess management fees, GP commitments, co-investment programs and possible GP stakes interest is different.

At that point, transition planning is not a luxury. It is part of institutional design.

The question is no longer only: “What happens when someone leaves?”

The better question is: “Is this firm designed to survive and thrive beyond the people who founded it?”

The fund ends; the firm does not

A private fund is usually built around a finite life. It has an investment period, a harvest period, extension mechanics and an eventual wind-up. The fund may last 10, 12, 15 or more years, but it is still a vintage-specific vehicle.

The firm is different.

The management company, advisory business, brand, investment team, operating platform, LP relationships, portfolio company relationships, track record, data, systems, processes and culture are intended, in the best cases, to outlast any one fund. They are also intended to outlast any one partner.

That distinction matters because many private fund lawyers and managers spend enormous time negotiating the fund agreement but less time on the upper-tier documents that govern the firm itself. The fund agreement governs the relationship between the manager and the LPs. The management company, GP, carry vehicle and related internal agreements govern the relationship among the people who own and operate the firm.

Senior partner transition planning mostly lives in those upper-tier documents.

Those documents determine who owns management company profits, who receives carried interest, who controls the investment committee, who can admit new partners, who can remove partners, what happens on retirement, what happens on death or disability, who owns the name, who receives value if the firm sells a stake and whether the next generation has a real path to economics and control.

The fund agreement may tell LPs what happens if key persons leave. The upper-tier documents tell the partners whether the firm can manage that transition without internal rupture.

VC and PE have often started from different instincts

Venture capital and private equity have historically approached this topic somewhat differently.

Many venture capital firms, particularly older Silicon Valley-style partnerships, often developed with a strong legacy instinct. The founders built something, became financially successful, raised multiple funds, developed a brand and then, in some cases, viewed succession as a way to preserve the name and platform for the next generation. The question was often less “How do I monetize every last dollar of firm value?” and more “How does this firm survive with my name, values and investment culture intact?”

That model can be admirable. It can also be under-documented.

Private equity has often approached the issue with a more explicit economic orientation. PE firms are in the business of buying, improving, selling and monetizing businesses. It is not surprising that many PE professionals look at a management company and see an asset with measurable value. They may be more inclined to ask who owns that value, how it can be sold, whether a founder should be bought out, whether management company equity should vest, how a GP stakes deal should be allocated and whether a retiring partner should retain or lose future economics.

That model can be disciplined. It can also be too extractive if not balanced carefully.  These instincts are beginning to converge.

Large venture firms now manage enormous pools of capital, often across multiple products, geographies and strategies. They may have large teams, meaningful management company profits, recognizable brands, institutional LP bases and real enterprise value. At the same time, many private equity firms increasingly understand that culture, continuity, talent retention and founder transition are not soft issues. They are central to franchise value.

The point is not that VC should become PE or that PE should become VC. The point is that mature private fund firms need to think deliberately about the economic and governance architecture of transition.

GP stakes and franchise value have changed the conversation

For many years, private fund managers thought primarily about annual management fee profits and carried interest. The management company paid salaries and bonuses, covered overhead and distributed excess profits to its owners. The GP or carry vehicle received carried interest. If everyone did well, the partners made substantial money from fund economics.

Increasingly, managers also think about the enterprise value of the firm itself.

That can happen in several ways. A firm may sell a minority stake in the management company or GP economics to a GP stakes investor. It may admit a strategic investor. It may merge with another asset manager. It may sell a piece of its fee stream or carry stream. It may recapitalize. In rare cases, it may go public. It may create a holding company intended to own the brand, management company interests, GP interests and future products.

These transactions are still not the norm for most private equity and venture capital managers. Most firms will never sell a GP stake or complete a public company-style monetization. But the visibility of these transactions has changed how managers think. Once the industry sees that management companies can be valued, financed, sold or partially monetized, partners naturally ask whether their own firm has value beyond annual compensation and fund carry.

That question affects transition planning.

If the firm has franchise value, who owns it? The founders? The current partners? Everyone who holds management company equity? Only active partners? Retired partners too? New partners after vesting? A holding company? A founder family vehicle? The firm itself?

There is no universal answer. But failing to answer the question is itself an answer, and often a dangerous one.

The spinout risk

The largest practical risk in poor transition planning is often not that retiring founders are treated too generously or too harshly in isolation. The largest practical risk is that the economics and governance become so unbalanced that the firm’s best current and next-generation partners conclude they are better off leaving.

Private equity and venture capital firms are often smaller businesses than their AUM might suggest. They may manage billions of dollars, but the investment franchise may depend on a relatively small number of people. A firm may have a few senior partners, several rising partners, a modest investment team, a chief financial officer, a chief operating officer, investor relations personnel, legal and compliance support, and an administrative staff. It is not a 10,000-person institution with a fully developed promotion ladder, deep HR infrastructure, broad public-company governance and decades of internal precedent.

That makes succession failure unusually dangerous.

A 45-year-old superstar investment partner with 20 years of runway may be able to raise a new fund, attract colleagues, preserve enough LP goodwill, win deals and build a competing platform. Sometimes spinouts happen because of ego. Sometimes they happen because of investment strategy disagreements, risk tolerance, sector focus, geography, personality conflict or performance disputes. But one of the most common accelerants is bad succession planning.

If senior people retain too much of the future economics, if founders keep too much control after stepping back, if next-generation partners do not see a credible path to ownership, or if the firm’s documents effectively make the next generation permanent renters of a house someone else owns, the cost-benefit analysis can shift.

A firm across the street may offer more carry. A spinout may offer founder economics. A new platform may offer control. A competing firm may offer a real ownership path.

At that point, the legacy economics intended to protect the firm may begin to weaken it.

The opposite risk exists too. A firm can under-protect founders or senior partners in a way that feels disrespectful, destabilizing or unfair. A founder who built the firm should not wake up one day to discover that the next generation can strip away all economics, remove the founder from all recognition and use the brand without honoring the founder’s contribution.

But in many firms, senior people have more power when the documents are written. They are often the term setters. That means they need to be especially careful not to over-design the system in their own favor. If they do, the firm may look stable on paper while quietly increasing the probability that its best future leaders leave.

The goal is balance.

The three constituencies

A useful way to think about senior partner transition planning is to identify three constituencies.

First, there are the founders and senior partners. They may want respect, economics, dignity, legacy, continued recognition, protection from abrupt value loss, and sometimes participation in future funds or franchise value. They may have built the LP base, originated the strategy, created the track record and carried the firm through difficult periods. Their interests are real.

Second, there are the current and next-generation partners. They need a meaningful path to economics, authority, carry, management company profits, franchise value and control. They are the people who will source the next deals, sit on the next boards, hire the next team, raise the next fund and preserve the brand. Their interests are not merely aspirational. They are the firm’s future.

Third, there is the firm itself. The firm needs continuity, LP confidence, portfolio company stability, employee retention, brand protection, orderly governance, avoidance of litigation and a credible story that the institution can survive beyond any one person.

Good documents balance all three.

Bad documents often over-serve one constituency. They may enrich founders but drive out future leaders. They may empower the next generation but humiliate founders. They may maximize short-term economics but damage LP confidence. They may preserve legal control but create cultural resentment.

The best structures do not treat transition as a single retirement payment. They treat it as a governance system.

Separate the economic buckets

One of the most useful ways to reduce tension is to separate the economic buckets.

Existing fund carry, future fund carry, management company profits and franchise value are related, but they are not the same asset. A good transition plan does not need to treat each bucket identically. In fact, it usually should not.

Existing fund carry rewards value that has already been created or is already in process. Future fund carry is the incentive pool for the team that will create the next generation of value. Management company profits are operating economics from the ongoing business. Franchise value is the value of the firm itself if the firm sells a stake, admits a GP stakes investor, completes a recapitalization, goes public, sells substantially all of its assets, merges into another platform or otherwise monetizes the management company or brand.

Different firms allocate these buckets differently.

A founder may have a strong claim to existing fund carry. That founder helped raise the fund, source the investments, build the team, serve on boards and create the value. The main questions may be whether the carry is vested, whether vesting continues after approved retirement, whether vesting accelerates on death or disability, and what misconduct causes forfeiture.

The same founder may have a more limited claim to future fund carry if the founder is no longer contributing materially to the future fund. Future fund carry is not only a retirement benefit; it is the current team’s incentive currency.

Management company profits may be different again. Those profits are often tied to current operations, current salaries, current overhead, current fundraising, current team management and current business development. A retired partner may receive a short tail, a declining percentage or no continuing share, depending on the firm’s philosophy.

Franchise value may be the hardest category. If a firm sells a GP stake, recapitalizes the management company or otherwise monetizes the brand, there may be a strong argument that founders who built the franchise should participate. But there may also be a strong argument that current partners who maintain the franchise and create the future value should receive the lion’s share.

The first mistake is treating all of these buckets as one undifferentiated pool.

The better approach is to ask, bucket by bucket: What is this economics designed to reward, who is creating the value, who is bearing the burden, and what outcome will best preserve the firm?

Does the next generation buy in?

There is another threshold question that should be addressed before getting too far into the economic buckets: When a next-generation partner is admitted to the management company, does that partner pay?

In most professional services firms, such as law firms, the answer is yes. A new equity partner makes a capital contribution or buys into the firm. The payment may be funded with personal cash, a bank loan, a firm-arranged partner capital loan, seller financing, bonus offsets or some combination. The payment may support firm working capital, reduce bank debt, create capital account parity or provide liquidity to senior partners who are being bought down or bought out.

In private equity and venture capital firms, the answer is less uniform.

Some firms require a true buy-in. A senior hire or promoted partner may purchase an interest in the management company at an agreed valuation. If the admission is tied to a specific senior partner reducing or selling an interest, the economics may look like a one-for-one transition: the younger partner pays, and the selling or retiring partner receives the purchase price. That model is easiest to understand when there is a direct transfer. One person is selling part of the house; another person is buying it.

Other firms do not require a cash purchase price. They treat admission as part of compensation and long-term retention. The new partner receives a profits interest, management company interest, franchise value interest or other economic participation because the firm wants that person to stay and build future value. Existing owners are diluted, but they are not paid for the dilution. The theory is that the new partner’s future contribution will make the firm more valuable for everyone.

That distinction matters.

A cash buy-in can validate that the interest has real value and can provide liquidity to senior partners. It can also create discipline. A person who writes a check or borrows money to buy into a firm may feel more like an owner.

But a buy-in can also create friction. A younger partner may already be taking compensation risk, making GP commitments, participating in clawback obligations and committing a career to the platform. If the price is too high, the buy-in may feel less like ownership and more like paying tribute to a prior generation. That can be especially problematic if the economics being purchased are not sufficiently durable, liquid or controllable.

The destination of the cash matters too.

If the payment goes to a retiring founder or senior partner in exchange for a direct transfer of interests, the payment is part of that person’s monetization. If the payment goes to the firm, it may become working capital. That may be appropriate if the firm maintains retained earnings or capital accounts in a way similar to many professional services firms. But not all PE and VC firms operate that way. Some management companies effectively bonus out or distribute most excess profits each year and do not maintain significant retained earnings. In those firms, a “capital contribution” may feel economically different from a purchase price, and the documents should be clear whether the amount stays in the firm, is later distributable, supports capital accounts or is effectively passed through to existing owners.

There are several common models:

• No buy-in/compensatory grant. The new partner receives an interest without paying a purchase price. Existing owners are diluted. This model is often used where the firm views admission as a retention and succession tool and wants to preserve the next generation’s incentive to stay.
• Capital contribution to the firm. The new partner contributes capital to the management company. The money remains on the firm balance sheet and supports operations, working capital, technology, hiring, GP commitments or other firm needs. This is closer to a professional services capital account model.
• Purchase from existing owners. The new partner buys interests from one or more existing owners, often senior partners or founders. The purchase price is paid to the selling owners. This is the cleanest monetization model when the transaction is a true substitution of ownership.
• Firm redemption and reissuance. The firm repurchases a retiring partner’s interest and issues a new interest to the incoming partner. The economics may resemble a purchase from the retiring partner, but the firm sits in the middle. This can be useful administratively, but it raises the same questions: How is the repurchase funded, who bears the cost, and what happens if the firm does not have retained capital?
• Seller financing or firm financing. The incoming partner may pay over time, either through a note to the selling partner, note to the firm, offsets against future distributions, bonus reductions or other arrangements. This can make admission more affordable, but it requires careful attention to default, forfeiture, tax, employment and departure consequences.
• Bank-financed buy-in. Some banks and specialty lenders provide partner capital loans or similar facilities designed to finance professional services partner buy-ins, GP commitments or related sponsor obligations. That can make a cash buy-in practical without requiring the partner to write a large personal check at admission. It also introduces lender underwriting, collateral, repayment and personal-liability considerations.

The right answer is situational.

A large PE firm with meaningful management company profits, enterprise value and a culture of economic monetization may be more comfortable requiring a meaningful buy-in. A venture firm trying to retain younger investment talent may decide that requiring a large cash payment is counterproductive. A mature multigenerational firm may use a hybrid: no purchase price for future carry, a modest capital contribution for management company working capital and a separate mechanism for franchise value or GP stakes proceeds.

The most important point is that the admission structure should reinforce the succession plan.

If the goal is to keep the next generation, the buy-in should not make staying financially unattractive. If the goal is to provide senior founders with liquidity, the payment source should be clear. If the goal is to capitalize the firm, the money should actually stay in the firm. If the goal is to transfer ownership from one generation to the next, the documents should say whose interest is being reduced, who is being paid and what happens if the incoming partner later leaves.

A buy-in is not just a financing question. It is a succession signal.

Existing fund carry

Existing fund carry is usually the easiest category to understand.

If a partner helped create value in an existing fund, the partner usually expects to keep some or all of the carried interest already earned or vested. The more difficult questions are about vesting, continuation, acceleration and forfeiture.

Some firms provide that carry vests over time and stops vesting when the partner retires or leaves. Some continue vesting if the partner provides transition services, serves on portfolio company boards, helps with follow-on decisions or remains available to support the fund. Some accelerate vesting on death, disability or approved retirement. Some provide more favorable treatment for founders than for later-admitted partners. Some distinguish voluntary retirement, involuntary termination without cause, removal for cause and competitive departure.

There is no single right answer.

A venture partner who led a company from seed to exit may feel a strong claim to carry even after stepping back. A buyout partner who left during the investment period may be in a different position. A founder who raised and built several funds may be treated differently from a later partner who joined after the platform was already mature. A partner who retires cooperatively may be treated differently from a partner who leaves to compete.

The important point is to define the consequences before the departure happens.

If the documents do not specify what happens to existing fund carry on retirement, death, disability, removal without cause, resignation, cause, competition or failure to cooperate, the firm may end up negotiating under emotional and economic pressure. That is rarely the best moment to design a fair system.

Future fund carry

Future fund carry is the most sensitive bucket.

Every point of future fund carry allocated to a retired founder, advisory partner, anchor investor, placement agent, strategic relationship, seed investor or other similar party is a point that is not available to the active team. Each allocation may be justified. Together, they can materially impair the economics available to the people building the current fund.

This is especially important because future carry can be reduced in many ways.

A firm may give carry breaks or economics to anchor LPs to create fundraising momentum. It may give economics to a placement agent. It may allocate carry to retired founders or advisory partners. It may need to recruit a new senior partner. It may need to promote principals. It may reserve carry for future hires. It may have legacy arrangements from prior restructurings. It may have strategic relationships or seed capital arrangements. It may have co-founder protections.

Each may make sense in isolation. But the active team experiences the aggregate burden.

The current team needs the lion’s share of the current carry. That is not a matter of generosity or ingratitude – it is how private fund firms compete for talent.

A firm that allocates too much future fund carry to people who are no longer meaningfully contributing may find that its best current partners are being asked to build a future they do not sufficiently own. A competing firm may offer more. A spinout may offer preferred founder economics even at lower overall AUM. A new fund may let the team start with a clean carry pool.

That does not mean retired founders should never receive future carry. In some firms, a limited future carry tail is a rational way to honor founders, preserve LP confidence, support fundraising, compensate ongoing advisory value or create a graceful transition. Some structures provide a declining share over one or two successor funds. Some provide a percentage of a full partner share. Some provide a small fixed share. Some provide founder-specific treatment. Some provide no future carry but more management company or franchise value economics.

The key is calibration.

A retired founder receiving a modest, time-limited participation in the next fund may be manageable. A retired founder receiving a large continuing share across many future vintages may be much harder to justify if it leaves the active team with less carry than competing platforms.

Future carry is not just a benefit for the person stepping back. It is an economic load on the people staying.

Management company profits

Management company profits raise different issues.

Management company profits usually come from management fees and other ordinary operating income after salaries, bonuses, rent, travel, legal, accounting, compliance, technology, benefits and other overhead. In some firms, these profits are modest because the management fee is largely used to run the firm. In other firms, especially large or mature firms, excess management fee profits can be substantial.

Some firms treat management company profits as current compensation for active partners. When a partner retires, resigns or is removed, the partner’s right to future management company profits drops to zero, sometimes immediately.

Other firms provide a tail. A retiring founder or senior partner may receive a declining share of management company profits for one or two years, or a fixed annual consulting or advocacy fee, or continued participation during a transition period. The theory is that the partner built the business, may still support fundraising or LP relationships, may remain associated with the brand and should transition with dignity.

The same balance applies.

If retired partners keep too much management company profit, active partners may feel they are paying a continuing tax to people no longer running the business. If retired partners lose everything immediately, the structure may feel harsh, especially for founders who built the operating platform.

The right answer often depends on firm maturity, profitability, founder contribution, continued services and the need to fund current operations. A management company that barely covers salaries and overhead may not have room for generous retirement tails. A highly profitable management company with a founder whose name remains central to fundraising may choose differently.

The documents should also be clear about what counts as management company profit. Does it include only management fees? Transaction fees? Monitoring fees? Consulting fees? Administrative fees? Revenue from affiliated products? Reimbursements? Interest income? Income from separately managed accounts? New strategies? Related-party service arrangements?

If retired partners share in a pool, the pool needs to be defined.

Franchise and strategic transaction value

Franchise value is different from annual profits.

A firm may distribute annual management company profits every year. But if the firm sells a minority stake, sells a majority stake, merges, recapitalizes, admits a GP stakes investor, sells a revenue stream, sells substantially all assets, licenses the brand or goes public, the resulting value may be far larger and conceptually different.

This is the value of the firm as an enterprise.

Some documents call this franchise value. Some call it strategic transaction proceeds. Some refer to capital transaction value, ownership percentage interests, sale proceeds or similar concepts. The label matters less than the concept.

The key question is who participates if the firm monetizes the management company, GP economics, brand or platform.

Founders often feel a strong claim to this value because they created the franchise. Current partners feel a strong claim because they maintain and grow it. Next-generation partners may feel that if they are expected to build the future value, they should participate meaningfully in any sale. Retired partners may argue that the brand being sold was built during their active tenure. New partners may argue that paying too much to legacy holders reduces the incentive to stay.

Again, there is no universal answer.

Some firms give founders a continuing franchise value interest even after retirement. Some cause franchise value interests to vest over time. Some provide for dilution as new partners are admitted. Some distinguish founders from later partners. Some reduce franchise value rights after departure. Some repurchase rights. Some give retired partners only economics and no governance. Some provide special treatment for death or disability. Some have no meaningful franchise value concept at all.

What matters is that the issue be addressed deliberately.

If a GP stakes investor appears, it is too late to have the first thoughtful conversation about who owns the sale value of the firm. By then, the economics may be too large, the emotions too high and the incentives too conflicted.

Founder versus non-founder treatment

Founder treatment is often different from non-founder treatment.

That is not inherently wrong. Founders often created the platform. They took the early risk. They may have gone years without market compensation. They raised the first capital when there was no track record. They may have personally guaranteed obligations, funded deficits, recruited the original team and built the brand.

It is reasonable for founders to receive some recognition for that.

But founder protection can go too far.

A founder who keeps too much future carry, too much management company profit, too much control or too much franchise value after stepping back may unintentionally prevent the next generation from feeling like true owners. The firm may preserve the founder’s economics while losing the team needed to preserve the founder’s legacy.

The best structures usually do both things. They protect founders enough to be fair and respectful, while creating a real path for the next generation to own, govern and economically benefit from the firm’s future.

This often means distinguishing among types of rights.

A retired founder may keep vested existing fund carry. The founder may receive a modest tail in future funds. The founder may receive a defined share of franchise value. The founder may keep a title, office, website listing, health insurance access or advisory role. But the founder may lose investment committee votes, signatory authority, hiring authority, control over future strategy and rights to block ordinary operations.

Economics can survive retirement without control surviving in the same way.

That distinction is often central to making the transition work.

Advisory partner and retired partner structures

Many firms use titles such as advisory partner, retired partner, senior advisor, special partner, founder emeritus or similar formulations.

These titles can mean very different things.

In one firm, an advisory partner may have meaningful economics in the next fund, attend meetings, remain on portfolio boards, speak at annual meetings, support fundraising and help transition LP relationships. In another firm, an advisory partner may have no formal economics and simply remain affiliated with the brand. In another, the title may be a dignified way to say that the person is no longer an active investment partner.

The documents should define the role.

Important questions include:

• Does the advisory partner receive existing fund carry?
• Does carry continue to vest?
• Does the advisory partner receive future fund carry? If so, for how many funds and at what percentage?
• Does the advisory partner share in management company profits?
• Does the advisory partner share in franchise value?
• Does the advisory partner have voting rights?
• Can the advisory partner serve on investment committee?
• Can the advisory partner sign documents?
• Can the advisory partner bind the firm?
• Can the advisory partner serve on portfolio company boards?
• Can the advisory partner attend internal meetings?
• Can the advisory partner attend annual LP meetings?
• Can the advisory partner use the title publicly?
• Can the firm remove the title?

The role should also be tied to obligations.

An advisory partner may be required to support the firm, cooperate in litigation or regulatory matters, assist with LP transition, maintain confidentiality, avoid disparagement, comply with policies, refrain from competing, avoid soliciting employees or investors and return firm property.

A title without rights may be cosmetic. A title without limits may be dangerous. A well-designed advisory partner role can be a useful bridge between full-time leadership and complete separation.

Control should usually move faster than economics

One practical principle is that control often should move faster than economics.

A founder may keep economics for a period of time after stepping back. But if the founder is no longer active, the next generation usually needs real authority to manage the firm. LPs need to know who is accountable. Employees need to know who makes decisions. Portfolio companies need to know who is responsible. The investment committee needs to function. The management company needs to hire, fire, budget, raise funds, allocate carry, form new products and manage conflicts.

A retired partner with too much control can create paralysis.

This does not mean retired founders must have no rights. They may have consent rights protecting their retained economics. They may have information rights needed to verify distributions. They may have rights against amendments that disproportionately harm them. They may have approval rights over use of their name in narrow circumstances. They may have founder-specific protections negotiated at the time of transition.

But ordinary business control should usually sit with the active team.

A firm cannot credibly transition if the people responsible for the future do not control the future.

Brand, name and track record

The firm’s name and mark should not be an afterthought.

In some firms, the brand is tied to a founder’s name. In others, it is a created name. In either case, the brand may have significant value. LPs recognize it. Founders are associated with it. Portfolio companies rely on it. Employees join because of it. GP stakes investors may underwrite it. The next generation may need to use it to raise future funds.

The documents should address who owns the name, who can use it and what happens after a founder retires or leaves.

Can the firm continue using the founder’s name after the founder retires? Can a departing founder use the name for a new firm? Can a retired partner describe themself as founder, advisory partner or former managing partner? Can the firm remove the retired partner from the website? Can the retired partner use the track record? Can a spinout refer to prior investments? Can a family trust or estate hold interests associated with the name? What happens if the founder becomes adverse to the firm?

These questions can feel personal, but they are also commercial.

Brand rights, track record rights and title rights are part of the transition architecture. They can support a graceful transition or become weapons in a dispute.

Death, disability and family transfers

Retirement planning should also address death, disability and family ownership.

These events are uncomfortable to discuss, but private fund firms often have concentrated ownership among individuals. If a founder dies or becomes disabled, the firm needs to know what happens to governance, economics, voting rights, carried interest, management company profits, capital obligations, clawback obligations and information rights.

Many documents allow estate planning transfers to family trusts or other family vehicles. That is often sensible. But the transferee should usually receive economic rights only, not management rights, unless the firm affirmatively agrees otherwise. A spouse, estate, trust or former spouse should not accidentally become a voting partner in an investment management firm.

Divorce also matters. A partner’s economic interest may be valuable marital property. The firm should think in advance about whether a former spouse can receive only economics, whether information rights are limited, whether buyout rights exist and whether governance rights remain with the service provider.

Again, the goal is not to be harsh. The goal is to keep control of an investment management firm in the hands of the people actually managing it.

Restrictive covenants and forfeiture

Transition benefits should usually be tied to behavior.

A retired founder or senior partner may receive carry, management company profit participation, advisory fees, office access, website listing, title rights, future fund participation or franchise value rights. The firm is not providing those benefits only out of affection; it is often paying for alignment, cooperation, stability and protection of the franchise.

The documents should therefore consider what happens if the person competes, solicits employees, solicits LPs, disparages the firm, misuses confidential information, violates policies, refuses to cooperate in litigation or regulatory matters, interferes with portfolio companies or otherwise harms the firm.

Some benefits may be forfeited. Some may be suspended. Some may be repurchased. Some may survive because they are viewed as earned property. The answer may differ by bucket.

For example, fully vested existing fund carry may be harder to forfeit absent serious misconduct. Future fund carry or advisory fees may be more clearly conditioned on ongoing compliance. Office access and title rights may be easier to terminate. Franchise value rights may be negotiated separately.

The important point is to avoid vague leverage. If the firm believes certain conduct should cause forfeiture or reduction, the documents should say so. If a retired partner believes certain economics should be protected absent true cause, the documents should say that too.

Good leaver and bad leaver concepts are common because the reason for departure matters.

Approved retirement is different from resignation to compete. Death is different from cause. Disability is different from misconduct. Removal without cause is different from removal for cause. A thoughtful document does not treat all departures the same.

Continued service

Some transition structures condition benefits on continued service.

That service can take many forms. A retiring partner may continue serving on portfolio company boards. The partner may help with follow-on financings or exits. The partner may support LP relationships. The partner may participate in annual meetings. The partner may assist with fundraising transition. The partner may mentor junior investment professionals. The partner may be available for consultation. The partner may help with litigation, regulatory inquiries or historical matters.

Continued service can be useful, but it should be realistic.

A retired partner should not be described as having full-time obligations if the commercial expectation is occasional support. Conversely, if the retired partner receives substantial future fund economics, the firm may reasonably expect meaningful availability and cooperation.

The service obligation should match the economics.

A modest advisory fee may justify availability for consultation. A substantial future carry tail may justify more meaningful engagement. A title with no economics may justify very little formal obligation.

Clarity helps both sides. It prevents the firm from feeling disappointed and the retired partner from feeling trapped.

Role of LPs

LPs care about transition even when they are not parties to the upper-tier documents.

Institutional LPs underwrite people. They want to know who is sourcing deals, who is making investment decisions, who is serving on boards, who controls the firm, who owns the economics, who is staying, who is leaving and whether the next generation is motivated.

A firm that handles transition well can tell a credible story. The founder is stepping back in an orderly way. Existing funds are covered. Portfolio company boards are transitioned. The next generation has real economics and authority. The founder remains available where helpful. The firm’s brand and strategy are intact. The economics are aligned.

A firm that handles transition poorly may create LP concern. The founder appears to retain too much control. The next generation appears under-incentivized. A key partner may spin out. The economics may be unclear. Future carry may be overburdened. The firm may appear dependent on someone who is no longer fully active.

LPs do not necessarily need to see every internal formula. But they do need confidence that the firm’s human capital and economic incentives are coherent.

For firms raising institutional capital, transition planning is part of fundraising credibility.

Role of GP stakes investors

GP stakes investors care even more.

A GP stakes investor is not only underwriting a fund; it is underwriting a durable management company or economic stream. That investor will want to know whether the firm can continue raising funds, retaining talent, generating management fees, producing carry and protecting the brand after founders retire.

That makes succession planning central to valuation.

A firm with founder-dependent economics, unclear governance, no next-generation ownership path, no defined franchise value allocation and no retirement mechanics may be harder to underwrite. A firm with thoughtful transition documents may be more attractive because the buyer can see how economics, control and continuity work.

A GP stakes transaction can also create internal tension.

If proceeds are allocated mostly to founders, next-generation partners may feel they are being asked to build a firm that others sold. If proceeds exclude founders entirely, founders may feel that the platform they created is being monetized without them. If the transaction imposes debt, distribution preferences, revenue sharing or other obligations, the current team may feel the future has been burdened.

This is why franchise value should be addressed before a transaction is on the table.

Situational design

There is no single market answer for transition planning.

A founder-led venture firm with two funds, a small team and no excess management fee profits should not necessarily copy the documents of a multibillion-dollar private equity platform with several products and a GP stakes investor. A mature growth equity firm with multiple generations of partners should not rely on the informal norms of an emerging manager. A buyout firm with significant management company profitability may need a different structure from a venture firm where most economics are in carry. A solo-founder firm may need a different approach from a firm with equal co-founders.

The right structure depends on several factors:

• The age and role of the founders.
• The number and seniority of next-generation partners.
• AUM and management fee profitability.
• The number of fund vintages and products.
• Whether the firm has meaningful franchise value.
• Whether the firm may pursue a GP stakes or similar transaction.
• Whether the founder’s name is part of the brand.
• How carry is allocated.
• Whether the firm has excess management company profits.
• Whether there are existing anchor LP, placement agent, strategic investor or seed economics.
• Whether the firm has a history of spinout risk.
• Whether the firm’s LPs expect institutional succession planning.
• How much future ownership is needed to retain and motivate the active team.

The best documents are not necessarily the most elaborate. They are the ones that fit the firm.

Practical drafting and planning points

Several practical points deserve attention:

• Address transition before the moment of departure. It is much easier to design a balanced system when no one is already leaving.
• Separate the economic buckets. Existing fund carry, future fund carry, management company profits and franchise value should be analyzed separately.
• Protect the current team’s future carry pool. Future carry is the incentive currency for the people building the next fund. The firm should be careful not to overload it with legacy obligations.
• Recognize founder contribution without freezing the next generation out of ownership. Founder protection and next-generation empowerment should both be design goals.
• Move control to the active team. Retired partners may retain economics or protective rights, but ordinary operating control should generally sit with the people responsible for the future.
• Define advisory partner or retired partner status carefully. Title, economics, duties, authority, benefits, information rights and termination rights should be clear.
• Decide whether future fund carry is a reward for past service, compensation for ongoing advisory value, a fundraising support tool, a legacy benefit or some combination. The answer affects size and duration.
• Define management company profits carefully. If retired partners share in profits, the pool should be understandable and administrable.
• Address franchise value before a GP stakes or similar transaction appears. Waiting until there is real money on the table increases conflict.
• Protect the name, mark and track record. Brand and attribution rights are part of the transition architecture.
• Address death, disability, divorce and estate planning transfers. Economic rights may transfer, but management rights usually should not transfer automatically.
• Condition transition benefits on appropriate behavior. Confidentiality, nondisparagement, nonsolicitation, cooperation and compliance obligations matter.
• To the extent permissible under the applicable laws applying to the firm, distinguish good leaver and bad leaver scenarios. Approved retirement should not be treated the same as competitive departure or cause.
• Make the structure explainable to LPs. The transition story should support confidence in the firm.
• Test the economics from the next generation’s perspective. The active team must still see staying as more attractive than leaving.

Conclusion

Senior partner transition planning is not just a retirement issue.

It is a statement about what kind of firm the partners are trying to build. Is the firm a founder practice that will end when the founders are done? Is it a partnership designed to last across several generations? Is it an institutional platform with monetizable enterprise value? Is it something in between?

Different firms will answer those questions differently. A small emerging venture firm may appropriately keep the documents simple. A large private equity platform may need a detailed retirement, governance and franchise value architecture. A mature venture firm with large AUM and multiple generations of partners may increasingly look more like an institutional asset manager than an informal founder partnership.

The legal documents should reflect the commercial reality.

The risk of poor planning is not only an awkward retirement conversation. It is loss of next-generation talent, founder resentment, LP concern, portfolio company uncertainty, internal litigation, brand confusion and preventable spinouts.

The best systems are balanced. They respect the people who built the firm, motivate the people who will build the future and protect the franchise as a whole.

In private equity and venture capital, the firm’s most valuable asset is often not any single document, fund or management company interest. It is the continuing alignment of talented people around a shared platform.

Senior partner transition planning is one way to preserve that alignment before it is tested.

Private equity and venture capital funds are blind pools. Investors commit capital before they know exactly which investments will be made, which portfolio companies will succeed, which exits will occur, which conflicts will arise, or how long the portfolio will take to liquidate. They give the manager discretion because they are underwriting the manager’s judgment. But they do not give money and then disappear for 10 or 12 years.

Reporting is the other half of the blind pool bargain.

Through reporting, investors monitor the fund without managing it. They receive information needed to evaluate performance, prepare their own financial statements, report to boards or beneficiaries, satisfy tax and regulatory obligations, monitor unfunded commitments, understand distributions, evaluate re-up decisions, and assess the manager’s stewardship of the capital.

At the same time, reporting is not unlimited. A private fund manager must protect portfolio company confidentiality, material nonpublic information, sensitive technical information, cybersecurity information, trade secrets, personal data, side letter confidentiality, investor privacy and the fund’s ability to operate without turning every limited partner into a shadow manager.

Valuation sits at the center of this system. Reported values affect net asset value, capital accounts, performance reporting, investor financial statements, secondary transfers, continuation funds, in-kind distributions, carried interest calculations, clawback analysis and investor trust. Valuation is therefore not merely a back-office exercise. It is one of the most important recurring judgments a manager makes.

This primer discusses the principal categories of reporting, valuation and information rights in mainstream private equity and venture capital funds. Special situations, such as registered funds, retail vehicles, separately managed accounts, continuation funds, co-investment vehicles and single-investor structures, may use different reporting arrangements. But the basic concepts described here are common across much of the institutional private fund market.

The basic categories of fund reporting

Fund reporting can be grouped into several broad categories:

• Regular quarterly financial reporting. This includes quarterly reports, capital account statements, statements of contributions and distributions, net asset value information, schedules of investments, unfunded commitment information, management fee and expense information, and portfolio company summaries.

• Annual reporting. This usually includes annual audited financial statements, annual tax reporting, sometimes a more developed annual letter or report, and often an annual investor meeting. Annual meetings are not merely social events. They are a significant reporting and relationship-management mechanism. They give the manager an opportunity to discuss the portfolio, market environment, realized and unrealized performance, strategy, team developments, conflicts, exits, fundraising cadence and lessons from the year.

• Tax and regulatory reporting. This may include Schedule K-1s, tax estimates, state and local tax information, passive foreign investment companies (PFIC) and controlled foreign corporation (CFC) information, unrelated business taxable income (UBTI) and effectively connected income (ECI) information, qualified small business stock (QSBS) information, withholding information, partnership audit notices, Foreign Account Tax Compliance Act (FATCA), Common Reporting Standard (CRS), Automatic Exchange of Information (AEOI) and investor-specific foreign tax reporting.

• Governance reporting. This includes limited partner advisory committee (LPAC) materials, consent requests, notices of conflicts, key person notices, amendment notices, litigation or regulatory notices, valuation process information and information relating to continuation funds or GP-led transactions.

• Investor-specific reporting. Side letters may require public records accommodations, fee and expense templates, audit certifications, ESG reporting, cybersecurity notices, portfolio company information, tax assistance, distribution notices, information-sharing rights for fund of funds, or special reporting for regulated investors.

• Ad hoc reporting. This may include notices about capital calls, distributions, in-kind securities, public company shares, material portfolio events, cybersecurity incidents, sanctions issues, transfers, defaults, withdrawals, investment exclusions, continuation fund elections, or other events that require timely investor communication.

These categories overlap. A quarterly report may include financial, narrative, valuation, tax and governance information. An annual meeting may be both a reporting event and a marketing event. A side letter may turn ordinary reporting into an investor-specific obligation. The important point is that reporting is not one thing. It is a system.

Quarterly financial reports

Most private equity and venture capital funds provide quarterly reports. The fund agreement will usually specify the timing and principal contents, although the level of detail varies significantly by manager, strategy and investor base.

A quarterly report often includes a balance sheet or statement of assets and liabilities, a schedule of investments, cost and fair value information, capital account information, capital contributed, distributions, unfunded commitments, management fees, partnership expenses and portfolio company updates. It may also include gross and net performance metrics, investment-by-investment performance, realized and unrealized gain or loss, reserves, recycling activity and commentary on significant events.

But quarterly reports are often more than financial statements. Many managers include a narrative letter. That narrative may describe portfolio company developments, new investments, exits, valuation changes, market trends, industry conditions, financing markets, exit markets, regulatory developments, team developments, and the manager’s broader view of the opportunity set.

The amount and quality of narrative reporting varies greatly by sponsor. Some managers provide relatively sparse reports focused on financial information. Others produce thoughtful letters that read almost like institutional research or a state-of-the-market memorandum. In venture capital, a manager may discuss founder sentiment, AI infrastructure, biotech financing, defense technology, initial public offering (IPO) windows, secondary markets, down rounds or the availability of follow-on capital. In private equity, a manager may discuss leverage markets, purchase price multiples, add-on activity, sector performance, margin pressure, labor costs, exit timing or continuation fund activity.

These narrative reports matter. They are reporting documents, but they are also brand-building documents. They show investors how the manager thinks. They reinforce the manager’s strategy. They explain performance in context. They help investors brief their own committees. They may shape re-up decisions years later. A manager that writes clearly, candidly and thoughtfully can build significant institutional trust through its reporting cadence. Investors often form opinions over time about “must read” reports from certain relationships.

Managers should therefore treat quarterly reporting as part of the investment product, not merely as a compliance requirement. Accuracy is essential. But so are clarity, consistency and judgment – not to mention creativity and insight.

Annual reports, audited financial statements and annual meetings

Annual reporting usually includes audited financial statements and annual tax reporting. In many funds, the limited partnership agreement (LPA) requires audited financial statements to be delivered within a specified period after fiscal year-end, often 90, 120 or 180 days depending on the fund and market.

Annual reporting deadlines should be understood in that context. Although fund agreements often refer to delivery within a specified number of days, the manager does not always control every input needed to meet that deadline. This is especially true in venture capital, where the fund usually holds minority positions and must wait for portfolio companies to provide their own financial and operating information before the manager can complete fund-level reporting. The process is often a lowest-common-denominator exercise: one delayed company can delay the final report. Private equity managers with control positions may have more ability to obtain information quickly, but even there, a single noncontrol investment, complex portfolio company audit, delayed valuation input, or late third-party report can create timing pressure. The same is true of accountants and auditors. If the manager receives the final critical portfolio company data on day 88, it may not be realistic to expect audited fund financials by day 90. For this reason, reporting deadlines are often drafted or understood as being subject to commercially reasonable efforts or similar practical limitations, even though managers should still push hard to deliver reporting as promptly and consistently as possible.

Meanwhile, annual audits are usually required in institutional private equity and venture capital funds. For Securities and Exchange Commission (SEC)-registered investment advisers, this is not merely a market convention. Where the adviser has custody of a pooled investment vehicle’s assets, which is almost always the case because an affiliate of the adviser typically serves as the general partner (GP) of the vehicle, the adviser will often rely on the custody rule’s audit exception, under which annual audited financial statements are delivered to fund investors in lieu of undergoing a surprise examination for that pooled vehicle. The technical requirements matter, including the qualifications of the auditor and the timing and recipients of delivery. Managers should consult regulatory counsel to confirm the applicable requirements for their particular structure.

For exempt reporting advisers, and for managers that are not SEC-registered, the same regulatory requirement may not apply. Even so, annual audits remain common in mainstream venture capital and private equity funds because investors expect them. The audit provides discipline. It requires the fund’s financial statements to be prepared under the applicable accounting standards, reviewed by an independent auditor, and presented consistently. It gives investors comfort that the fund’s books, capital accounts, valuation process, expenses and financial presentation have gone through a formal process.

There are exceptions. A very small fund, for example a $20 million venture fund managed by an exempt reporting adviser or a manager regulated only at the state level, may decide that an annual audit is cost-prohibitive and not legally required. Some investors will accept that, particularly in very small or friends-and-family style funds. Many institutional investors will not. As a fund becomes more institutional, annual audits become harder to avoid as a market matter even where not strictly required by regulation.

There may also be long-tail exceptions. A fund in year 13, 14 or 15 may have only one or two remaining illiquid minority positions and little activity other than waiting for a final exit. If annual audits are not required for regulatory reasons and investors agree, the manager may suspend annual audits during this tail period and instead might in some cases conduct a final liquidation audit or multiyear audit covering the late-tail years. This can be a practical way to put a small fund into a kind of suspension mode while waiting out the final non-control investment. The approach should be authorized by the fund documents or approved by the required investors or LPAC, and the manager should be careful not to assume that an audit can be suspended if the adviser is relying on the audit exception for regulatory compliance.

An audit is not a guarantee of investment success. It is also not a guarantee that every valuation will ultimately prove correct. Private company valuation involves judgment. But the audit is an important governance tool and a standard feature of institutional private funds.

Annual reports, like quarterly reports, usually also include narrative content. Some managers use the annual report as a more comprehensive version of the quarterly letter. They may provide year-in-review commentary, portfolio construction analysis, realized and unrealized performance summaries, market observations, sector commentary, team updates and strategic reflections. These materials can become important brand documents. A strong annual letter can help a manager build a reputation for clarity, candor and insight. A weak or opaque annual report can have the opposite effect.

Annual meetings are another form of reporting. Many fund agreements require or contemplate an annual meeting, and many institutional investors expect one. The annual meeting gives the manager an opportunity to present the portfolio, discuss the market, introduce team members, highlight portfolio company CEOs, explain valuation and exit expectations, and answer investor questions. It also gives investors an opportunity to observe the manager’s culture, depth, discipline and command of the portfolio.

In venture capital, annual meetings can be especially important because portfolio companies may be young, illiquid and difficult to evaluate from financial statements alone. Hearing from founders or seeing the manager’s sector thesis can be valuable. In private equity, annual meetings may focus more heavily on company-level performance, earnings before interest, tax, depreciation and amortization (EBITDA) growth, leverage, add-on acquisitions, operational initiatives, exits and valuation.

Annual meetings are also marketing events, even when they are technically reporting events. Existing investors are prospective re-up investors. Consultants and fund of funds may influence future capital. The way a manager explains its portfolio and market view can shape its brand for years.

Managers should remember, however, that annual meeting materials are still fund communications. They should be accurate, consistent with the fund’s records, mindful of confidentiality and securities law issues, and coordinated with the manager’s broader compliance obligations.

Capital account statements and commitment tracking

A capital account is a running financial record that tracks each investor’s economic stake in a fund, therefore, capital account statements and commitment tracking are fundamental.

Investors need to know how much capital they have contributed, how much has been distributed, how much remains unfunded, how much may be recallable, what their capital account balance is, how income and loss have been allocated, and how fees and expenses have affected their position.

This sounds mechanical, but it is the foundation of fund administration. Capital accounts interact with capital calls, equalization, recycling, recallable distributions, tax allocations, carried interest, clawbacks, defaults, transfers, withdrawals, side letter exclusions and liquidation. Errors in capital account records can create real economic consequences.

Commitment tracking is also important for investor liquidity management. Institutional investors need to forecast future capital calls. They need to know how much unfunded commitment remains. They need to understand whether distributions may be recalled. They need to model pacing and liquidity across many funds.

In venture capital, commitment tracking can be especially complicated because of follow-on reserves, recycling, long fund lives, special vehicles (SPVs), public securities distributions and long-tail positions. In private equity, commitment tracking may involve larger transaction calls, subscription credit facilities, add-on acquisitions, recycling, co-investments and continuation fund processes.

A professional fund administrator can be very helpful in this area. But the manager remains responsible for understanding and administering the fund’s obligations.

Fee and expense reporting

Investors increasingly request more detailed information about fees and expenses.

This may include management fees, fund expenses, administrator expenses, organizational expenses, legal fees, audit fees, tax expenses, broken-deal expenses, insurance, LP meeting expenses, related-party charges, portfolio company fees, co-investment vehicle expenses and expenses allocated among parallel funds or other vehicles.

Fee and expense reporting is not merely about accounting. It helps investors understand the drag on net returns and whether expenses are being allocated consistently with the fund documents. It also helps investors satisfy their own internal reporting, audit and governance obligations.

Large institutional investors may request reporting in standardized templates. Some investors may ask for annual expense summaries, audit certifications, management fee calculations, organizational expense cap information, administrator expense detail or related-party expense disclosure. Side letters may make these requests contractual obligations.

Managers should be careful not to promise reporting they cannot produce. If a particular template requires data the manager does not track, the manager should understand that before agreeing. Reporting systems, administrator capabilities and side letter obligations should be aligned.

Tax reporting

Tax reporting is one of the most important and most sensitive categories of investor reporting. Funds are typically classified as partnerships for federal and state income tax purposes. It is the investors, and not the fund, who bear the income tax obligations of their investments.

For US partnerships, investors typically receive Schedule K-1s and related tax information. Some investors may need tax estimates before final Schedule K-1s are available, which are often delivered after the regular tax reporting deadline. Investors should expect to file federal and state tax reporting extensions to incorporate the information from their K-1s into their tax returns. Some need state and local tax information. Some need withholding information. Some need information relating to partnership audit rules. Tax-exempt investors may request UBTI information. Non-US investors may request ECI information. US taxable investors investing through funds with non-US portfolio companies may request PFIC or CFC information. Sovereign investors may request Section 892-related information. Other investors may need foreign tax reporting assistance.

The challenge is that the manager may not always have all the information an investor wants. A venture fund may hold minority positions in private companies and may not be able to obtain PFIC or CFC information. A private equity fund may control more information, but may still face local law, confidentiality or timing limitations. A global fund may have investments in jurisdictions with tax reporting rules that are difficult to anticipate when the fund is formed.

For that reason, tax reporting provisions often use standards such as “commercially reasonable efforts,” “to the extent reasonably available,” “to the extent in the possession of the general partner” and “at the requesting investor’s expense.” These are not merely drafting hedges. They reflect the practical limits of what a manager can obtain and provide.

Managers should take tax reporting seriously. Late or incomplete tax information can create significant investor frustration. At the same time, managers should avoid overpromising. Tax reporting obligations should be coordinated with the fund’s administrator, tax preparers, side letters and expected investment strategy.

Valuation: Why it matters

Valuation is one of the most important recurring judgments in a private fund.

Reported values affect quarterly and annual reporting, net asset value, capital accounts, performance metrics, investor financial statements, management fee calculations in some funds, secondary transfers, in-kind distributions, continuation fund processes, clawback analysis, later-closing equalization and investor confidence.

Valuation is also one of the areas where investors know the manager has judgment. Private company securities are not traded on a public exchange. There may be no current market price. The last financing round may be stale. The company may have raised a structured round. The capital structure may include multiple classes of preferred stock, liquidation preferences, warrants, simple agreements for future equity (SAFEs), convertible notes or other instruments. Public comparables may be imperfect. Company projections may change. Exit markets may open or close.

For this reason, fund agreements typically give the general partner valuation authority, subject to the LPA, accounting standards, audit process, valuation policy and sometimes LPAC involvement for conflicts or approvals. Some managers use internal valuation committees. Some use third-party valuation firms. Some use independent valuation support for particular assets or events.

Investors do not expect valuation to be clairvoyant. They do expect consistency, reasonable methodology, appropriate documentation and candor.

Venture capital valuation issues

Venture capital valuation has its own challenges.

Venture funds often hold many minority positions in private companies. The fund may not control the company. It may not receive full financial statements. It may not have board access. It may hold preferred stock, common stock, SAFEs, convertible notes, warrants, token rights, secondary shares or public securities subject to lock-up. The company may have raised a recent financing round, but the terms of that round may include structure, seniority, liquidation preferences or investor rights that affect value.

Last round price is useful, but it is not always dispositive. A new financing at a higher valuation may support an upward mark. But if the round is small, insider-led, highly structured or not representative of the fund’s security, the valuation analysis may be more complicated. A flat round may not mean value is unchanged if the company’s risk profile has changed. A bridge financing may signal distress or simply timing. A down round may reset value but may also include pay-to-play, recapitalization or seniority terms that affect different holders differently.

Venture funds also face long-tail valuation issues. Some portfolio companies fail quickly. Others remain private for many years. Some become public but remain subject to lock-up, trading windows, volume limits or thin trading. Some companies pivot. Some have no revenue for years and then experience a rapid valuation inflection. Some sectors, such as artificial intelligence, biotechnology, defense technology and digital infrastructure, can experience very rapid changes in market sentiment.

Managers should be candid about valuation uncertainty. A valuation mark is not a promise. It is a good-faith estimate based on available information, methodology and judgment.

Private equity valuation issues

Private equity valuation can be more formal, but it is not necessarily easier.

Private equity funds may hold fewer portfolio companies, but the investments may be larger, more complex and more dependent on operating performance, leverage, market multiples and exit assumptions. Valuation may involve EBITDA multiples, discounted cash flow analysis, public company comparables, precedent transactions, debt levels, add-on acquisition performance, margin trends, customer concentration, working capital, and management forecasts.

Control investments can provide more information than minority venture positions. A buyout fund may have access to detailed financial statements, budgets, board materials and management forecasts. That information can improve valuation quality, but it also requires judgment. Projections can be optimistic. Comparable company multiples can move. Debt markets can tighten. Exit timing can change. Add-on acquisitions can create integration risk. A company may perform well operationally but still suffer valuation compression because market multiples decline.

Growth equity funds can sit between venture and buyout. They may hold minority positions in private companies with meaningful revenue and financial data, but without control. They may face valuation issues similar to both venture and private equity.

Continuation funds and GP-led secondaries can make valuation even more sensitive. If one fund managed by the sponsor sells an asset to another vehicle managed by the same sponsor, valuation is no longer just a reporting matter. It is a conflict matter. The process may require LPAC approval, independent valuation, third-party pricing, fairness opinions or other protections.

Valuation governance and LPAC role

The LPAC is not usually the fund’s valuation committee.

Ordinary-course valuation is typically the responsibility of the general partner or manager, subject to the valuation policy, accounting standards and audit process. Investors do not generally want to value every asset, and managers do not want LPs managing the fund through valuation approvals.

That said, the LPAC may play a role in special situations. If valuation is connected to a conflict, such as a cross-fund sale, continuation fund, in-kind distribution to some but not all investors, related-party transaction, GP removal, clawback analysis or other sensitive matter, LPAC review or approval may be appropriate or required.

The distinction is important. LPAC approval should not be used to outsource ordinary manager judgment. It should be used where the fund documents or fiduciary analysis call for a conflict-clearing process.

Managers should also document valuation decisions. In most quarters, the documentation may be straightforward. In difficult quarters, it may be critical. If a valuation is later questioned, the manager will want to show the information considered, the methodology used, the reason for any change, and consistency with prior practice.

Portfolio company information and confidentiality limits

Investors often ask for more portfolio company information than the manager can safely provide.

There are many reasons. Portfolio companies may have confidentiality agreements. Financial information may be competitively sensitive. Technical information may be proprietary. Customer information may be sensitive. Information may include material nonpublic information. Disclosure may violate securities laws, privacy laws, Committee on Foreign Investment in the US (CFIUS)-related limitations, export-control rules, data security obligations or company policy. The manager may not have the information at all, especially in a minority investment.

This is not evasive. It is part of responsible fund management.

A venture manager may have a strong relationship with a founder but still may not be permitted to share detailed company financials with every limited partner. A private equity manager may control a company but still need to protect competitively sensitive information. A growth equity manager may hold board information subject to confidentiality. A fund with public securities may need to avoid disclosing material nonpublic information.

Fund agreements and side letters usually preserve the manager’s ability to withhold information where disclosure would violate law or contract, harm the fund or portfolio company, reveal trade secrets, disclose sensitive information, or be inconsistent with the best interests of the fund. Managers should use these limitations thoughtfully, not reflexively. But investors should understand why they exist.

Material nonpublic information and public securities

Material nonpublic information (MNPI) can become an issue when a fund holds public securities or receives information about companies that may become public.

Venture and growth funds may distribute public securities after IPOs, direct listings or public company acquisitions. Private equity funds may hold public stock after IPO exits, spin-offs or public company transactions. During these periods, the manager may have information that could affect trading restrictions for the fund, its personnel or investors.

Investors, in general, do not want to receive MNPI. Some institutional investors have trading desks, public equity portfolios, restricted list procedures and compliance systems that make MNPI receipt burdensome. Others may be legally or operationally restricted from receiving certain information.

Managers may therefore limit the information provided in reports, LPAC materials or investor calls. They may describe developments at a higher level. They may provide information only after it is public. They may ask investors to agree to confidentiality or trading restrictions if more detailed information is provided. They may exclude certain investors from particular discussions.

This is another example of the broader principle: good reporting does not mean maximum disclosure. It means appropriate disclosure.

CFIUS, outbound investment and sensitive information

National security regulation has made information rights more complicated.

CFIUS analysis can be affected by the rights of foreign investors in a fund, including access to material nonpublic technical information, board or observer rights, involvement in substantive decision-making, access to sensitive personal data and participation in LPAC discussions involving sensitive portfolio companies.

As a result, some investors may receive less information than other investors. A foreign investor may agree not to receive certain technical information. The manager may exclude that investor from particular LPAC materials or discussions. The side letter may limit access to information about critical technologies, critical infrastructure, sensitive personal data or national security-sensitive businesses.

The US outbound investment regime adds another layer for certain China-related technology investments. Funds investing in semiconductors, quantum information technologies, AI or other sensitive areas may need to think carefully about who receives what information, what notices are provided and how side letter rights are administered.

These issues are especially relevant for venture and growth funds investing in artificial intelligence, semiconductors, cybersecurity, defense technology, biotechnology, data infrastructure and other sensitive sectors. They also matter for private equity funds acquiring businesses with government customers, export-controlled technology, sensitive data or critical infrastructure exposure.

The practical point is that information rights can themselves have regulatory consequences.

Books and records rights

Most fund agreements give limited partners some right to inspect books and records. These rights are usually subject to limits.

The manager may restrict access if disclosure would violate law, breach a confidentiality obligation, reveal trade secrets, harm the fund or a portfolio company, disclose sensitive information, create regulatory issues, or be used for an improper purpose. The LPA may require reasonable notice, limit inspection to normal business hours, require confidentiality undertakings, or allow the manager to provide summaries or electronic access rather than physical inspection.

Side letters may modify books and records rights. Some investors may request electronic copies. Some may request additional access for auditors, consultants or regulators. Some may request access to records needed for their own financial reporting or tax compliance.

Managers should be reasonable, but careful. Books and records rights should not become a back door to portfolio company confidential information, competitor-sensitive data, MNPI, privileged communications or materials belonging to another investor.

LPAC materials and governance information

LPAC members often receive more information than ordinary limited partners because they are being asked to perform a governance function.

They may receive materials relating to conflicts, affiliate transactions, valuation issues, continuation funds, amendments, extensions, related-party expenses, key person matters, investment restrictions, recycling exceptions, or other matters requiring LPAC review or consent.

Those materials are confidential. LPAC members and observers should not treat them as ordinary investor updates. They may include sensitive information about the fund, manager, portfolio companies, other investors or proposed transactions.

The manager should also preserve the ability to withhold materials from a particular LPAC member or observer where appropriate. A member may be conflicted. A member may be restricted from receiving MNPI. A foreign investor may be restricted from receiving sensitive technical information. A portfolio company may prohibit disclosure to certain investors. A regulatory or confidentiality concern may require exclusion from a particular discussion.

This does not mean the manager can casually exclude LPAC members from important governance matters. It means the LPAC process needs enough flexibility to handle real-world conflicts, confidentiality and regulatory limitations.

Public records, Freedom of Information Act and governmental investors

Public pensions and governmental investors may be subject to public records laws. That creates special issues for fund reporting.

A public investor may be required to disclose certain information if requested by a member of the public, journalist, competitor or other person. The scope of required disclosure depends on the applicable law. Some public records laws protect confidential commercial or financial information. Others may require disclosure of fund-level information such as fund name, commitment amount, contributions, distributions, net asset value, internal rates of return (IRR), fees and expenses.

Managers are particularly sensitive about portfolio company information. Disclosure of private company financials, valuations, technical information, customer information or strategy can harm the fund and the portfolio company. Public disclosure can also violate confidentiality obligations and damage the manager’s reputation with founders, sellers and other counterparties.

Side letters with public investors often address this by identifying what may be disclosed, what should be treated as confidential, what notice the investor must give before responding to a public records request, and how the manager may seek confidential treatment or object to disclosure. This is an area where precision matters. A manager should know which investors are subject to public records laws and what information they may be required to disclose.

Fund of funds, consultants and permitted disclosure

Many investors need to share fund information with others.

A fund of funds may need to report to its underlying investors. A public pension may need to report to its board or consultants. A university endowment may need to share information with trustees, auditors or investment committees. A family office may need to share information with family members, trusts or affiliated entities. A regulated investor may need to provide information to regulators, custodians, depositaries or auditors.

These requests are often legitimate. But they need boundaries.

Permitted recipients should be defined. The information should be used only for appropriate purposes. Recipients should be subject to confidentiality obligations or professional duties. The investor should remain responsible for breaches. Public disclosure should be limited. Portfolio company information should be handled with particular care.

The manager should avoid broad language allowing unrestricted disclosure to all affiliates, all beneficial owners or all underlying investors without confidentiality controls. The fact that an investor has reporting obligations of its own does not mean fund information can be freely redistributed.

ESG, DEI, cybersecurity and other specialized reporting

Specialized reporting requests have increased over time.

Some investors request ESG reporting, responsible investment reporting, DEI metrics, climate information, cybersecurity questionnaires, information security notices, breach notices, compliance certifications or policy updates. These requests may be driven by law, internal policy, public accountability, consultant templates or institutional practice.

Managers may be willing to provide some of this information, but they should be careful about scope. A manager should not agree to annual reporting on metrics it does not track. It should not promise portfolio company data it cannot obtain. It should not agree to standards that do not fit the fund’s strategy. It should not commit to bespoke reporting that its team or administrator cannot deliver.

This is particularly relevant for venture capital managers with minority positions. A VC manager may not be able to require portfolio companies to provide ESG, DEI, emissions or cybersecurity metrics. A private equity manager with control positions may have more ability to obtain information, but still needs systems and policies to do so.

As with tax reporting, careful qualifiers are often appropriate: commercially reasonable efforts, information in the manager’s possession, information reasonably available, and investor expense reimbursement for bespoke requests.

Distribution notices and in-kind distribution information

Distribution reporting is another important category.

Investors need to understand what is being distributed, when, in what form, and with what tax or operational information. A cash distribution is usually straightforward. In-kind distributions can be more complicated.

A venture or growth fund may distribute public securities after an IPO, direct listing or public company acquisition. The distribution notice may need to include the issuer, security type, number of shares, valuation, tax basis information if available, transfer agent or brokerage instructions, lock-up restrictions, trading limitations and timing. Some investors may have side letter rights to receive cash in lieu of securities, or to have the manager sell securities on their behalf as “managed securities.”

Digital assets add another layer. Some investors may not be able or willing to receive tokens or other digital assets. Custody, valuation, transfer, tax and regulatory issues can be significant. If digital assets are within the fund’s strategy or may be received incidentally, reporting and distribution mechanics should be addressed before the issue arises.

Reporting systems, administrators and side letter matrices

Reporting obligations should not live only in closing binders.

A manager needs systems. It needs a reporting calendar. It needs a valuation calendar. It needs a tax reporting tracker. It needs a side letter matrix. It needs to know which investors receive which reports, which investors are subject to public records laws, which investors have special tax requests, which investors may not receive certain information, which investors have distribution notice rights, which investors require ESG or cybersecurity reporting, and which investors may share information with consultants or underlying investors.

The fund administrator can help, but the manager must own the process. Administrators can generate reports, capital accounts, notices and data. They may track side letter obligations if engaged to do so. But they will not know the manager’s judgment calls unless the manager makes them.

The larger and more institutional the investor base, the more important this becomes. A fund with ten family office investors may be able to manage reporting relatively informally. A fund with public pensions, sovereign investors, fund-of-funds, insurance companies, ERISA plans, non-US investors, tax-exempt investors and side letters needs a professional reporting system.

Practical differences between private equity and venture capital

The reporting issues differ between private equity and venture capital.

Venture capital funds often have more portfolio companies, more minority positions, less control over portfolio company information, more valuation volatility, more public securities distributions, more long-tail illiquidity, more emerging technology sensitivity, and more difficulty obtaining detailed tax information from portfolio companies. They may also face more CFIUS, outbound investment, digital asset, AI, biotechnology, defense technology, cybersecurity and data-related information issues.

Private equity funds often have fewer portfolio companies, more control or influence, more detailed company-level financial information, more leverage reporting, more operating metrics, more formal valuation models, more portfolio company fee and expense reporting, and more continuation fund or GP-led secondary valuation issues. Their reports may include EBITDA, revenue growth, margin trends, debt metrics, add-on activity, exit timing and operating plan updates.

But the common principle is the same. Investors want timely, accurate and useful information. Managers need to provide that information while protecting confidentiality, preserving investment discretion and maintaining an administrable reporting process.

Practical drafting and administration considerations

Several drafting and administration points arising from matters discussed in this article deserve careful attention:

• Define regular reporting clearly. The LPA should specify the timing and basic content of quarterly and annual reports.
• Require annual audited financial statements unless there is a specific reason not to do so. Institutional investors will generally expect an audit.
• Recognize annual meetings as part of the reporting architecture. If the fund expects to hold annual meetings, the documents (including, express expensing authority) and budget should support that.
• Preserve confidentiality carve-outs. The manager should be able to withhold information where disclosure would violate law, breach confidentiality, harm the fund or portfolio company, reveal trade secrets, disclose MNPI or create regulatory issues.
• Address valuation authority and methodology. The manager should have clear valuation authority, but should follow a consistent policy and document significant judgments.
• Address tax reporting realistically. Do not promise information the manager may not be able to obtain.
• Allocate investor-specific reporting costs where appropriate. If one investor requests bespoke reporting, certifications or tax assistance, it may be appropriate for that investor to bear incremental costs.
• Coordinate books and records rights with confidentiality obligations.
• Identify public records investors and establish notice and objection procedures.
• Address LPAC materials and exclusion rights.
• Track side letter reporting obligations. A side letter matrix should be a live operational document.
• Coordinate reporting with the fund administrator, auditor, tax preparer, legal counsel and investor relations team.
• Treat narrative reporting as a strategic communication. Quarterly letters, annual reports and annual meetings are not merely required disclosures. They are part of the manager’s brand.

Conclusion

Reporting is not the opposite of manager discretion. It is what makes manager discretion sustainable in a blind pool.

Investors do not need to manage the fund to be well informed. Managers do not need to disclose everything to be transparent. The art is building a reporting system that gives investors the information they reasonably need, protects the fund and portfolio companies, and can actually be administered over a long fund life.

The best reporting is accurate, timely, thoughtful and disciplined. It tells investors what happened, what the manager believes matters, how the portfolio is developing, how values are being determined, what risks are emerging, and how the manager is thinking about the market. It also respects limits: confidentiality, MNPI, national security, tax complexity, portfolio company sensitivity and operational capacity.

For new managers, reporting should not be an afterthought. It should be part of platform design. A manager that builds good reporting systems early will find it easier to raise capital, manage side letters, satisfy institutional investors, support audits, handle valuations, respond to diligence and maintain trust when markets become difficult.

For established managers, reporting is part of brand. A clear quarterly letter, a thoughtful annual report and a well-run annual meeting can do more than satisfy the LPA. They can reinforce the manager’s identity, show judgment, demonstrate discipline and strengthen long-term investor relationships.

In private equity and venture capital, investors ultimately underwrite people. Reporting is one of the principal ways those people show how they think. Done well, it is not merely compliance. It is a core part of the manager’s relationship with its investors.

Historically, that question was often framed primarily as a tax, securities law, domicile or investor preference question. Should the fund be Delaware or Cayman? Should there be a parallel fund? Should there be a blocker? Should certain investors come through a feeder? Will non-US investors receive US tax reporting? Will US tax-exempt investors have unrelated business taxable income (UBTI) concerns? Will there be treaty, withholding, passive foreign investment company (PFIC), controlled foreign corporation (CFC) or other tax issues?

Those questions still matter. They have not gone away.

But for global venture capital and private equity funds, especially funds investing across the US and China in technology-adjacent sectors, the question has become broader. Managers now need to think not only about where the fund is formed, but also about where the capital comes from, who controls the fund, what sectors the fund will invest in, what information investors will receive, what rights investors will have and whether the fund structure can adapt as regulatory rules change.

The practical point is simple, even if the underlying rules are complex: In today’s environment, global fund structuring is increasingly about routing capital, control, information and governance in a way that matches the regulatory profile of the fund’s strategy.

That does not mean global investing is impossible. It does not mean funds should avoid every sensitive sector. It does not mean managers should abandon US-China strategies, global technology strategies, life sciences strategies or multicountry venture strategies. It does mean that managers should be more deliberate at the time the fund is formed and launch with more agility to react in a needed way, and on a reasonable timeframe, as the years unfold.

In that way, fund documents need to anticipate the regulatory architecture the manager may need later. A manager should not be discovering, after signing a term sheet for a sensitive investment, that the fund cannot create the right parallel vehicle, exclude the right investors, make capital calls by regulatory sleeve, limit information rights, form an alternative investment vehicle (AIV) quickly, use a power of attorney to implement a pre-agreed structure or keep the wrong investors out of the wrong governance process.

In complex global strategies, capital, control, information and governance all need to tell the same story.

Start with the strategy

The first question is what the fund is trying to invest in.

A global fund investing in ordinary consumer products, furniture, apparel, restaurants, local services or basic nonsensitive manufacturing presents a very different profile from a fund investing in semiconductors, quantum computing, AI, advanced computing, cybersecurity, defense-adjacent technologies, critical infrastructure, sensitive data businesses or other sectors that governments increasingly view through a national security lens.

There is also a large middle category.

Life sciences, biotechnology, healthcare technology, AI-enabled drug discovery, clinical trial platforms, robotics, fintech, logistics, data-enabled consumer businesses and other technology-adjacent sectors may not always sit at the center of current regulatory focus. But they may still raise meaningful issues depending on the facts. A life sciences company may use AI to identify drug targets. A healthcare business may hold large amounts of personal information. A robotics company may have applications that look commercial in one context and sensitive in another. A data company may appear benign until one understands what data it holds, who its customers are and how the data could be used.

Managers should therefore think about investment strategy as a spectrum.

At one end are strategies that are highly unlikely to raise significant national security or outbound investment concerns. At the other end are strategies where regulatory structuring should be central from the beginning. In the middle are strategies that may look ordinary in some deals and sensitive in others.

The middle category is often where mistakes happen.

A manager may say, “We are not a semiconductor fund.” That may be true. But if the fund expects to invest in AI-enabled biotechnology, data-heavy healthcare platforms, robotics, cybersecurity, advanced computing infrastructure or companies with meaningful US-China technology exposure, the manager should not assume the fund is outside the relevant regimes. The answer will depend on the facts.

There is also a timing point. A closed-end private fund is not making all of its investments on the day it holds its first closing. It may invest over four, five or six years and manage its portfolio for 10, 12, 15 or more years. Regulatory focus can change during that period. Sectors that are not the focus of today’s rules may become the focus of tomorrow’s rules. A fund formed today should not be drafted only for the first deal in the pipeline.

The fund documents should be built with enough flexibility to respond to a changing regulatory environment.

Investor identity matters

The second question is who the investors are.

For global funds, this is no longer just a subscription document detail. Investor identity can affect whether particular investments are possible, whether particular investors need to be excluded, whether parallel vehicles are needed, whether information must be limited, whether side letter assurances are required and whether the fund can make certain investments without creating regulatory problems for its investors.

For US outbound investment purposes, US person investors may care deeply about whether their capital is used for certain China-related investments in sensitive sectors. Even if the fund itself is organized outside the US, a US person investing indirectly through that fund may have a legal issue if the fund makes investments that fall within the outbound investment rules and the US investor does not fit within an exception or receive an appropriate contractual assurance.

That is a critical fund formation point. The fund’s later investment activity can create a problem for the limited partner (LP).

For Committee on Foreign Investment in the United Stated (CFIUS) purposes, foreign investors can matter when a fund invests into US businesses, particularly US businesses involving sensitive technology, infrastructure or data. The analysis is not simply whether there is a foreign LP somewhere in the fund structure. Many US venture and private equity funds have foreign LPs. The practical questions are who the foreign LPs are, how much they own, whether they are related to each other, whether they are sovereign or state-linked, what rights they have, what information they receive, whether they sit on the Limited Partner Advisory Committee (LPAC), whether they can influence fund decisions and whether the fund structure keeps the fund passive for the relevant regulatory purposes.

Investor identity also matters as a matter of perception. Some rules are formally country-specific; others are not. For example, the US outbound investment regime identifies countries of concern. CFIUS is not framed in the same way for every part of its analysis, but CFIUS is an interagency US government national security process. It is not realistic to think investor identity, country sensitivity, sovereign status, strategic status or geopolitical context never affects how facts are viewed internally at the agency. In practice, those items certainly do.

The legal test may not always name a particular country. The practical risk analysis often still cares very much about which country, which investor, which sector and which rights are involved.

Control matters too

The third question is where control sits.

This is one of the most important distinctions in this area. Managers need to think separately about equity and control.

Equity asks whose money is being invested, who holds the economic interest and who is exposed to the investment.

Control asks who makes the investment decision, who controls the fund, who controls the manager, who sits on the investment committee, who has approval rights, who receives sensitive information, who can influence portfolio company decisions and who participates in governance.

Different rules care about these concepts differently.

Some rules focus heavily on capital flows and economic exposure. Others focus heavily on control, rights, information and decision-making. A fund may have foreign capital but US control. It may have US capital but non-US control. It may be organized in one jurisdiction but managed from another. It may have a non-US general partner (GP) but US investment professionals. It may have US persons participating in decisions for a non-US vehicle. It may have foreign LPs with only passive economics, or foreign LPs with significant approval or information rights.

There is another important definitional point. CFIUS and the US outbound investment rules do not use identical concepts of who is a US person. For example, US green card holders may be treated differently under the two regimes. A manager should not assume that a person who is treated as a US person for one regime is treated the same way for the other. These definitions need to be checked under the specific rules being applied.

These facts matter.

A manager should not assume that a Cayman fund is “non-US” for all relevant purposes merely because it is organized in Cayman. Nor should a manager assume that a Delaware fund is necessarily treated as US-controlled for every national security purpose if the economics and governance are effectively controlled by a foreign investor. Nor should a non-US manager assume that US person investment committee members can participate freely in sensitive China-related investment decisions merely because the vehicle is offshore.

The analysis often starts with a simple discipline: Identify the capital, control and information rights. Then see whether they match the regulatory posture the fund is trying to achieve.

CFIUS and ‘US person for CFIUS purposes’

For investments into US businesses, CFIUS is often the primary US national security regime managers need to consider.

At a high level, CFIUS reviews certain foreign investments in US businesses that may raise national security concerns. Historically, many people thought about CFIUS primarily in the context of foreign acquisitions of US defense contractors or other obviously sensitive businesses. That is no longer sufficient. CFIUS can be relevant to noncontrol investments in certain US businesses involving critical technology, critical infrastructure or sensitive personal data.

For private funds, one key question is whether the investor is a US person or a foreign person for CFIUS purposes.

The last words matter: for CFIUS purposes.

We are not asking whether the fund is “US” for tax purposes, securities law purposes, immigration purposes, branding purposes, office location purposes or ordinary commercial purposes. We are asking how the fund is treated under the CFIUS rules. This is particularly important because a green card holder is not treated the same as a US citizen for all CFIUS purposes, while the US outbound investment rules may treat green card holders as US persons. The definitions are not interchangeable.

There are several ways a fund structure may raise foreign person issues for CFIUS purposes.

• First, the fund may be foreign at the fund level. If the fund is organized outside the US and controlled by non-US persons, the starting point may be straightforward.
• Second, the fund may be foreign-controlled because the manager, GP, investment committee or other control persons are foreign persons. The fund’s domicile alone is not the whole answer. Control matters.
• Third, and often less discussed, a US-organized fund with US manager personnel may still raise foreign person issues if one or more foreign LPs effectively control the fund. This is a real issue, even if it is not always analyzed carefully.

The third point is often overlooked in articles about this topic. Consider a simple example. A Delaware fund has a US GP and US personnel, but a highly sensitive foreign strategic investor is the sole LP. It would be difficult to assume CFIUS would ignore that fact simply because the entity is a Delaware limited partnership and the nominal manager is US. A sole LP may have statutory rights, contractual rights, amendment rights, consent rights, removal rights, economic leverage or other powers under the limited partnership agreement. If the rule could be avoided merely by placing a sensitive foreign investor behind a US fund shell, the regime would be too easy to end-run.

Now consider a different case. A Delaware fund has several unrelated foreign LPs, none of whom owns a controlling position, none of whom can veto material decisions, none of whom has special information rights, and none of whom can control the GP, investment decisions or portfolio company rights. That is a very different fact pattern.

The practical lesson is not that foreign LPs are always a problem. The lesson is that foreign LP control is a problem, and it is sometimes underanalyzed.

A foreign LP is not the same thing as foreign LP control. But foreign LP control is real.

Passive economics versus covered rights

If a foreign or global fund wants to invest in a US business that may be sensitive for CFIUS purposes, the fund may sometimes have a choice. It can try to structure itself as a US-controlled vehicle, or it can invest in a more passive posture.

The passive posture can be useful, but it must be truly passive.

In ordinary venture capital practice, investors often expect a package of rights. These may include board seats, board observer rights, regular management updates, detailed information rights, technology updates, pro rata rights, consultation rights, consent rights and access to founders. Those rights may be commercially normal in many venture deals.

In a CFIUS-sensitive investment by a foreign or global fund, some of those rights may be exactly the problem.

The safer posture is generally limited to ordinary economic rights, basic tax reporting and high-level financial reporting. The investor should not receive a board seat, observer right, director nomination right, access to material nonpublic technical information, detailed technology roadmaps, engineering materials, source code, cybersecurity information, sensitive personal data, critical infrastructure information, or involvement in substantive decisions about sensitive technology, infrastructure or data.

This can be commercially awkward. Venture capital investors often want to help. They want access. They want to support the founder. They want to know what is happening. They want to be in the room.

But in a CFIUS-sensitive passive investment, being in the room may be the problem.

That does not mean the fund can receive no information. A fund needs ordinary financial information for valuation, audit, tax, reporting and administration. The distinction is between basic financial information and technical or operational information that creates sensitivity. A revenue number is not the same thing as an engineering roadmap. Audited financial statements are not the same thing as a board deck. A high-level business description is not the same thing as material nonpublic technical information.

In this context, passive should mean passive.

That may work if US sensitive investments are only a small portion of a global fund’s strategy. The fund may be willing to participate economically in those companies without the full venture capital rights package. It may not work if the fund’s core strategy is to lead US sensitive technology rounds and provide hands-on strategic support. In that case, the manager may need a different architecture, such as a genuinely US-controlled vehicle, rather than relying on passive rights.

Sometimes the answer is not a different vehicle. Sometimes the answer is a different investment posture.

OISP and US capital into China-related sensitive technologies

The US outbound investment regime raises a different kind of issue.

For purposes of this article, the details are less important than the practical fund formation point. The outbound rules focus on certain US person investments into China-related covered sectors, including areas such as semiconductors, quantum information technologies and AI. The regime distinguishes among prohibited transactions, notifiable transactions and transactions outside the covered categories.

The key point for fund managers is that US persons can have issues not only when they invest directly, but also when they invest indirectly through funds.

If a US investor commits capital to a Cayman, Singapore or other non-US fund that may invest into China-related covered sectors, the fund’s later investment activity can create a problem for that US investor. The investor may need to fit within an exception, receive a contractual assurance that its capital will not be used for certain investments or choose a vehicle that does not participate in certain categories of transactions.

Here again, definitions matter. The US outbound investment rules may treat US green card holders as US persons even though CFIUS may not treat them the same way for CFIUS purposes. Managers should not use one regime’s definition as a shortcut for the other.

That makes the Outbound Investment Security Program (OISP) a fund formation issue, a side letter issue, a parallel fund issue and an administrative issue. It is not merely a regulatory footnote for the investment team.

The US LP may say, in substance: “I can invest in your global fund, but I cannot be in a vehicle that will use my capital for prohibited transactions, and I may or may not be comfortable with notifiable transactions.”

Different investors may answer that question differently.

Some US institutional investors may be willing to participate in notifiable transactions, especially if they believe the return opportunity is significant, and the notice process is manageable. Others may want no exposure to notifiable or prohibited categories. Some non-US investors, including investors from jurisdictions closely aligned with the US, may voluntarily choose the more conservative vehicle even if the rule does not technically require them to do so. Their concern may be reputational, policy-driven, relationship-driven or simply a desire not to be close to the line.

This means a global manager cannot always solve OISP with one on/off switch. The structure may need multiple regulatory buckets.

Why excuse rights may not be enough

Historically, many legal, tax, regulatory and investor-specific issues in private funds were handled through excuse or exclusion rights. If a particular investor could not participate in a particular investment, the manager could excuse that investor from the investment. The rest of the fund would proceed.

Those rights still matter. They should still be included in fund documents. They may be very useful as rules evolve over time.

But in the current outbound investment environment, excuse rights may not always be enough.

Consider a non-US fund that intends to make China-related investments in sectors that may be prohibited for US persons. One might ask: Why not put all investors into one fund and simply excuse the US investors from those deals?

For many large US investors, that may feel too close to the sun. The rules are new, enforcement history is limited, the penalties can be significant, and the investor may not want to be in the same legal vehicle that is making the investments, even if the investor is technically excused from them. The cleaner answer may be a separate parallel fund that does not make those investments at all.

That distinction is very important.

Excuse rights are helpful, but they are not always sufficient. In the most sensitive settings, investors may want a different vehicle, not merely an excuse from a deal.

Parallel funds as regulatory routing tools

Parallel funds are not new. Fund managers have long used parallel funds for tax, regulatory, Employee Retirement Income Security Act (ERISA), treaty, domicile, currency, investor preference and administrative reasons.

What is changing is that parallel funds are increasingly being used as regulatory routing tools.

A global manager may have one parallel fund for investors that can participate in all global investments. It may have another parallel fund for investors that cannot participate in OISP-prohibited China-related investments. It may have another for investors that do not want exposure to notifiable transactions. It may have a separate RMB fund for local China investments. It may have a Delaware or US-controlled structure for certain US investments. It may use AIVs for particular investments. It may need to separate investors based on US person status, non-US status, China sensitivity, sovereign status, currency, local filing requirements or risk tolerance.

In simple fund structures, this may sound excessive. In complex global venture structures, it is increasingly where the action is.

Some global capital systems now involve four, five or six parallel vehicles or sleeves. That is not because managers enjoy complexity; it is because the capital, control and regulatory issues do not line up neatly in one vehicle.

The challenge is to make the structure flexible without making it unbounded. LPs need to know the ground rules when they commit. The manager needs enough authority to move quickly when a sensitive opportunity appears. The structure needs to be administrable by the manager, counsel, tax advisors, fund administrator and finance team.

The flexibility should be negotiated at formation. The execution often happens later.

Build the routing system before you need it

In complex global strategies, the fund documents should usually authorize the manager to create additional parallel funds, AIVs, feeder vehicles, sleeves or similar structures after closing.

Ideally, that authority is built into the limited partner agreement (LPA) and related documents at inception, often supported by powers of attorney. The goal is not to let the manager rewrite the bargain later. The goal is to agree on the ground rules in advance so the manager can implement the structure quickly when a deal requires it.

This is critical because sensitive investment opportunities often move quickly. The target company, co-investors, sellers, regulators and other parties will not necessarily wait while the manager goes back to every LP for real-time approval of complicated new documents. If the fund structure requires investor-by-investor consent each time a parallel vehicle is needed, the fund may lose the deal.

The documents should therefore consider authorizing the manager to:

• Create additional parallel funds, AIVs or similar vehicles after closing.
• Admit some or all investors to those vehicles.
• Allocate investments among vehicles.
• Transfer or allocate investments among parallel funds where appropriate.
• Make a particular investment only through selected vehicles.
• Classify investors by regulatory category or risk-tolerance bucket.
• Allow investors to make later elections where the issue is primarily an investor-specific risk tolerance question.
• Make capital calls only to the applicable vehicles or investors.
• Exclude investors or vehicles from particular investments.
• Withhold information where disclosure would create legal, regulatory, confidentiality, national security or portfolio company issues.
• Use powers of attorney to implement pre-agreed mechanics.
• Require investors to provide and update status information.

The art is in the ground rules.

LPs should understand how economics, expenses, follow-ons, recycling, defaults, capital calls, reporting and governance will work across the vehicles. The manager should not have unlimited discretion to move economics around in a way that changes the bargain; but the manager should have enough pre-agreed discretion to route capital properly when the regulatory facts require it.

A structure that is theoretically elegant but cannot be executed quickly is not a good structure.

Side letters are supporting tools, not the whole structure

Side letters remain important in this area. They may be used to obtain investor status information, provide investor-specific assurances, document OISP-related contractual assurances, limit information rights, address CFIUS concerns, create reporting exceptions, provide excuse rights or reflect an investor’s election into a particular regulatory bucket.

But side letters are not a substitute for the main fund architecture.

A side letter is bilateral. It can accommodate a particular investor. It should not be used to rewrite the entire fund’s investment program for everyone. A manager generally should not try to solve a fund-wide regulatory routing issue by promising one LP in a side letter that the entire fund will not make a category of investments, if that is inconsistent with the main fund documents, the expectations of other investors or the common bargain.

If the strategy requires one vehicle that can make a category of investments and another vehicle that cannot, that structure should usually be built into the fund architecture. The side letter can support the structure, but it should not be the structure.

This is especially important because the most sensitive issues may need to be administered across the full life of the fund. A promise that cannot be operationally tracked is dangerous. A side letter restriction that the deal team, finance team, administrator and investment committee do not understand may create more risk than it solves.

Information rights are usually curtailed

In complex global capital structures, information rights are usually more limited, not more robust.

This may surprise some investors – it should not.

If the structure is designed to keep certain investors passive, keep certain US persons out of certain non-US investment decisions, or avoid giving foreign investors rights that create CFIUS concern, the manager should not simultaneously give those investors extensive portfolio company information rights.

In practice, LPs in private funds generally do not receive material nonpublic technical information, board materials, export-controlled information, cybersecurity architecture, customer-level personal data or investment committee materials. That is especially true in sensitive global structures.

The more realistic issue is enhanced information. Strategic investors, corporate investors, funds of funds, large institutions or heavily negotiated investors may ask for portfolio company updates, operating data, technical descriptions, valuation support, co-investment materials, pipeline information or other information beyond ordinary fund reporting. In a complex regulatory structure, those rights may need to be limited.

The information package should match the regulatory posture.

A passive investor structure can be weakened if the investor receives information that makes it look less passive. A foreign LP that is supposed to be passive for CFIUS purposes should not receive detailed technical information about US sensitive portfolio companies. A US person that is not supposed to participate in a China-related sensitive investment should not receive materials that make it look like that person is involved in the decision.

The documents should preserve the manager’s ability to withhold or limit information where disclosure would create legal, regulatory, national security, sanctions, export control, data, confidentiality, material nonpublic information or portfolio company issues.

This should not be viewed as evasive; it is responsible administration.

LPACs may need to follow the capital

LPAC rights create a related issue.

Historically, managers often thought of the LPAC as a fund-level body. It received information, reviewed conflicts, approved waivers, considered valuation issues, approved affiliate transactions, reviewed fund term extensions and addressed other governance matters for the fund as a whole.

In a simple fund, that model works.

In a complex global capital structure, a single all-purpose LPAC may not work for every matter.

If one parallel fund is permitted to participate in an OISP-sensitive China-related investment and another parallel fund is specifically designed not to participate in those investments, the LPAC members associated with the nonparticipating fund may not be the right people to receive information or provide approvals for that investment. In some cases, involving them could undermine the regulatory architecture.

For example, assume a parallel fund exists specifically so US person investors do not participate in OISP-prohibited investments. If a different parallel fund is making one of those investments, and the manager needs an approval related to that deal, such as a single-investment-limit override, a conflict approval or another governance matter, it may be inappropriate for US person LPAC members from the nonparticipating vehicle to review and approve that matter.

This is why we are increasingly seeing sub-LPACs, vehicle-specific LPACs or deal-specific governance processes in complex global fund structures. That was much less common historically but is becoming more relevant because the governance structure needs to match the investment structure.

If the capital is separated, the governance may need to be separated too.

A structure that separates capital but leaves all approval rights, information rights and LPAC processes pooled together may not solve the problem it was designed to solve.

A practical global venture example

Consider a global venture manager based primarily in Singapore. The senior team includes several Singapore nationals and one PRC national. The manager has a strong reputation and access to capital from US institutional investors, Asian sovereign investors, China-related investors resident outside China with dollar capital and RMB investors inside China. The manager wants to invest globally, including in US technology companies and China-related technology companies. Some of those investments may involve AI, semiconductors, life sciences, data or other sensitive sectors.

A single fund may not be enough.

One parallel fund might participate in all global deals for investors that do not have OISP concerns. Another parallel fund might participate in all deals except OISP-prohibited China-related investments. A third might avoid both prohibited and notifiable China-related investments for investors with a more conservative risk tolerance. Some US investors may be comfortable with notifiable transactions; others may not. Some non-US investors may voluntarily elect the more conservative path because of their own institutional, policy or relationship concerns.

The same manager might also have an RMB fund inside China for local RMB investments in companies intended for local listing paths. That brings a different set of China local law, currency, regulatory, listing and historical dollar/RMB fund issues. Those issues have not disappeared merely because US inbound and outbound regimes have become more prominent.

The hardest piece may be US sensitive investments.

If the Singapore-led platform has a genuinely US-controlled affiliate or vehicle, perhaps under a brand license or carefully structured economic sharing arrangement, that may open a path for a US person fund for CFIUS purposes. But the control needs to be real. It cannot be a label. If the investment decisions are still being made by non-US persons, the structure may not accomplish what it is intended to accomplish.

If the platform does not have a genuinely US-controlled vehicle, it may still be able to invest in certain US sensitive companies, but only in a passive posture. That may mean no board seat, no observer right, no material nonpublic technical information, no special access to sensitive information and no substantive decision-making rights. The fund may receive ordinary economic rights, tax reporting and basic financial statements, but not the rights a venture investor might ordinarily seek.

That may be acceptable if US sensitive deals are a small portion of the strategy. It may be inadequate if the manager’s core investment thesis requires active involvement in US sensitive technology companies.

This example illustrates the broader point. The right structure depends on the strategy, the investors, the control persons, the target sectors and the manager’s willingness to adjust investment posture.

China and RMB capital still matter

Although this article focuses heavily on US inbound and outbound rules, managers should not forget that China-side issues still matter.

A fund investing into China-related companies may need to consider China foreign investment access rules, negative lists, security review, data rules, sector regulation, currency controls, local approvals, local listing paths, RMB funds, dollar funds, offshore holding structures and the long history of structuring issues between offshore capital and onshore China opportunities.

Similarly, PRC investors, RMB capital, China-based managers, PRC nationals and China technology moving offshore may raise their own issues. A manager with both dollar capital and RMB capital may be running parallel systems that are not merely tax or currency variants. They may have different investor bases, different investment paths, different regulatory requirements and different exit strategies.

The practical point is not that every global fund needs to become a China law treatise. The point is that US regulatory regimes are only part of the picture. A manager deploying capital globally needs to understand both sides of the capital flow.

Administration is where the structure succeeds or fails

Sophisticated fund structures can fail in administration.

It is one thing for the LPA to authorize parallel funds, AIVs, sleeves, investor exclusions, information limitations and sub-LPACs. It is another thing for the manager to operate that structure correctly for a decade.

The manager needs systems to classify investors. It needs to know which investors are US persons, which investors have OISP restrictions, which investors have elected into conservative buckets, which investors are foreign persons for relevant purposes, which investors are sovereign or state-linked, and which investors have side letter rights affecting information, reporting, excuse or participation.

The manager also needs to classify deals. Before signing a term sheet, the investment team should know whether the target may raise CFIUS issues, OISP issues, sanctions issues, export control issues, data issues, China local law issues or other regulatory concerns. The team should know which vehicle can invest, which investors can participate, which LPAC or sub-LPAC process applies, what information can be shared and whether regulatory counsel should be involved before the deal moves forward.

Capital calls need to match the structure. If one parallel fund participates and another does not, the capital call notices, equalization, expense allocations, follow-on reserves, recycling, financial statements and reporting need to reflect that.

Information flows need to match the structure. Investor relations should not send technical information to an investor that should not receive it. LPAC materials should not go to the wrong group. Side letter reporting should not override regulatory restrictions.

Governance needs to match the structure. The right LPAC or sub-LPAC should approve the right matter. US persons should not participate in decisions they should not be involved in. Foreign LPs should not receive influence or information that undercuts the fund’s position.

The administrator, finance team, deal team, investor relations team and counsel all need to understand the operating model.

In complex global structures, capital routing, control routing, information routing and governance routing are all part of the same system.

Practical drafting and administration points

Several drafting and administration points deserve careful attention:

• Identify the strategy’s sensitivity spectrum at formation. A fund investing in ordinary consumer businesses may need less regulatory architecture than a fund investing in AI, semiconductors, quantum, life sciences, cybersecurity, data or other sensitive sectors.
• Distinguish equity from control. Whose capital is exposed and who controls the decision are different questions. Both matter.
• Analyze whether the fund is a US person for CFIUS purposes, not merely whether it is organized in the US or has US personnel.
• Remember that CFIUS and OISP do not use identical US person concepts. Green card holders may be treated differently under the two regimes.
• Do not ignore foreign LP control. A foreign LP is not the same thing as foreign LP control, but foreign LP control is real.
• Recognize that OISP can create issues for US LPs investing indirectly through a non-US fund. The fund’s investment activity may create consequences for the investor.
• Do not assume excuse rights will solve every problem. In sensitive OISP structures, a separate parallel vehicle may be more appropriate than participation in the same fund with an excuse.
• Build parallel fund, AIV and sleeve authority into the documents at inception. The manager may need to move quickly when a sensitive deal appears.
• Use powers of attorney carefully but effectively. The documents should establish the ground rules at formation and allow implementation later without real-time investor consent where appropriate.
• Make side letters administrable. Side letters can support the structure, but they should not be used as a substitute for fund-wide architecture.
• Preserve the right to withhold information where disclosure would create legal, regulatory, national security, confidentiality, data, export control, sanctions or portfolio company concerns.
• Be careful with LPAC rights. In complex structures, sub-LPACs or vehicle-specific LPACs may be needed.
• If relying on a passive posture for a CFIUS-sensitive US investment, make the posture truly passive. Ordinary economics and basic financial reporting are one thing. Board seats, observer rights, technical information and substantive decision-making rights are very different.
• Coordinate portfolio company documents with the fund structure. Rights can appear in investor rights agreements, voting agreements, side letters, management rights letters and observer letters, not only in the purchase agreement.
• Require investors to provide and update information needed to classify them for regulatory purposes.
• Involve regulatory counsel before signing term sheets for sensitive investments, not after the commercial deal is already set.

Conclusion

Global private funds can still raise global capital and deploy capital globally. But in complex regulatory times, managers need more deliberate architecture.

For many global venture capital and private equity managers, the key question is no longer simply whether the fund is Delaware or Cayman, whether investors receive a K-1 or whether the fund has authority to form an AIV. The question is how capital, control, information and governance move through the structure.

A fund with US investors investing into China-related sensitive sectors may need one answer. A fund with foreign investors investing into US sensitive businesses may need another. A global platform investing across the US, China, Singapore and other markets may need several answers at once.

The best structures are not necessarily the simplest structures. They are the structures that let the manager keep investing without giving the wrong investor the wrong exposure, the wrong person the wrong control right, the wrong LPAC the wrong approval role, or the wrong recipient the wrong information.

This is not a reason to avoid global investing. It is a reason to structure it carefully.

In complex global fund formation, the documents should not merely describe the fund. They should create the routing system the manager will need to operate the fund responsibly over time.

Those are important questions. But they are not the only questions.

A private equity (PE) or venture capital (VC) fund structure usually has an “upper tier.” Above the fund sit the entities through which the sponsor owns its carried interest, receives management fees, employs personnel, pays expenses, signs contracts, owns intellectual property (IP), governs internal decision-making, and deals with departures. For a new manager, those entities can seem like legal plumbing. They are not. They are the architecture of the management business.

This article is about that upper tier.

At a high level, two entities matter most: the GP and the management company. The GP is usually tied to a specific fund vintage. If a sponsor forms Fund II, it might also form Fund II GP, LLC. That GP will generally exist alongside Fund II for the life of that fund. It usually receives the carried interest from Fund II. It may make or coordinate the GP’s capital commitment to Fund II. It exercises the GP’s rights under the limited partnership agreement (LPA). When Fund II finally liquidates after 10, 12, 15 (or more) years, the related GP entity will also eventually wind down.

The management company is different. The management company is what we often think of as the hundred-year entity. It is the durable operating business. It does not disappear when Fund I winds down or Fund II liquidates. It is where the firm usually places the long-term platform such as:

• Employment relationships
• Benefits arrangements
• Office leases
• IP
• Technology systems
• Insurance policies
• Vendor contracts
• Investor relations function
• Compliance infrastructure
• The institutional memory of the manager

This distinction is fundamental. The fund agreement governs the bargain between the fund manager and the limited partners (LPs). The GP and management company agreements govern the bargain among the people building the manager.

Managers who focus only on the fund documents can miss this point. A beautifully drafted fund partnership agreement will not answer all of the internal questions that matter to the sponsor. Who owns the carried interest? Who funds the GP commitment? Who receives excess management fees? Who controls the GP? What happens if a founder leaves? What happens if a junior investment professional is promoted? Who owns the firm name, website, track record materials, investment memos, customer relationship management (CRM) tools, data room, domain names and other IP? Who signs the employment agreements and the office lease? Who bears clawback risk internally if a team member doesn’t pay?

Those questions are answered above the fund.

The fund entity versus the sponsor entities

The fund is where investors commit capital. It is usually the entity that makes portfolio investments, holds assets, receives exit proceeds, calls capital, makes distributions and provides reporting to investors.

The GP is the entity that controls the fund. In a typical limited partnership structure, the GP has authority to manage the fund, enter into transactions on behalf of the fund, call capital, make investments and exercise the rights of the fund. The GP usually does not have employees itself, and uses the team employed by the management company for day-to-day responsibilities (dispatching capital call notices, etc.), but the GP remains central to the fund’s legal architecture.

The management company is the operating company. It is usually the entity that receives management fees, employs the team, pays salaries and bonuses, enters into leases and vendor arrangements, maintains technology and systems, coordinates fundraising, supervises investor relations, and provides services to one or more funds.

In simple first-time structures, the same people may own all of these entities in the same percentages. In more developed structures, the economics may differ. A founder may have a larger share of management company profits than carried interest in a particular fund. A junior partner may have carry in Fund III but no ownership in the management company or Fund I and II. A chief financial officer (CFO) may receive carried interest or an employee profit-sharing bonus but not voting control. A retired partner may retain vested carry in an older fund’s GP but no longer participate in the management company.

The entities need to be coordinated, but they are not the same.

The GP as the fund-vintage entity

The GP is almost universally formed to act solely for a particular fund vintage. A manager raising Fund I forms Fund I GP. When it later raises Fund II, it will form Fund II GP. Each GP holds the right to carried interest for its corresponding fund and usually makes or coordinates the sponsor’s capital commitment to that fund.

This vintage-specific structure has practical advantages. Fund-level economics are easier to track. Carried interest from a particular fund is shared through the GP or carry vehicle associated with that fund. Capital obligations for that fund can be allocated among the people responsible for funding that vintage’s GP commitment. Clawback obligations and restoration rights can be tied to the recipients of that fund’s carry. When the fund finally winds down, the related GP can also wind down, subject of course to continuing tax, clawback, indemnity, recordkeeping or other tail obligations.

Importantly, using distinct entities for each vintage “ring fences” liability on the most valuable income stream: carried interest. If there is a liability event (lawsuit, judgment, etc.) impacting Fund I GP, if properly structured and operated, the assets of Fund II GP should be protected from collection for Fund I GP’s liabilities.

The GP agreement usually addresses several core topics:

• How carried interest is shared
• How the GP commitment is funded
• Who shares in the GP’s capital interest?
• What happens to carried interest when someone leaves?
• Whether carried interest vests over time
• What happens to forfeited carry?
• Whether the GP has a complete buyout right for difficult departures
• Who controls the GP?
• What voting thresholds apply to ordinary and extraordinary matters?
• How clawback obligations are shared internally

These are not merely legal mechanics. They are the sponsor’s internal economic and governance bargain.

The management company as the hundred-year entity

The management company is different because it is not usually tied to a single fund.

A fund has a finite life. Even a long-duration venture or PE fund usually has an initial term, extension periods and a liquidation period. It may remain alive for longer than expected, but it is not designed to exist forever.

The management company is the continuing business. It is where the sponsor builds the platform that can manage Fund I, Fund II, Fund III, co-investment vehicles, special vehicles (SPVs), continuation funds, opportunity funds, growth funds, parallel funds and other products over time.

The management company usually receives the management fees from the funds it handles. It then pays the costs of running the business. Those costs can include salaries, bonuses, payroll taxes, benefits, rent, insurance, travel, technology, compliance, fund administration support, finance personnel, investor relations, marketing, legal bills, accounting support, cybersecurity, software, data subscriptions, website expenses, recruiting, and other ordinary operating costs.

The management company usually owns or controls the long-term assets of the firm. That may include the firm name, logo, domain names, website, marketing materials, investment memos, CRM tools, databases, track record materials, diligence files, policies, templates, presentation decks, and related IP. These particular assets should generally not live in a fund-vintage GP that may eventually wind down.

This is why we sometimes refer to the management company as the hundred-year entity. It is the vehicle through which the firm becomes an institution rather than a single fund.

Why management fees usually flow to the management company

Management fees are typically the operating budget for the manager. For that reason, they are usually paid to the management company. This may be provided directly in the fund agreements, or (in many cases) the management company becomes the designee payee of the GP by contract. That contract is often called a “management services agreement” or similar. At its core is a simple bargain : the management company – being the only entity with actual employees – will provide fund administrative services (e.g., portfolio sourcing, preparation of annual reports, etc.) in exchange for the fee. Most often the bargain stops there, inasmuch as there is not a delegation of legal authority in favor of the management company as so legally, the GP continues to make decisions for itself and the fund – the most important being investment and divestment determinations.

The above fits the economics. The GP receives carried interest, which is intended to reward investment performance. The management company receives management fees, which are intended to pay for the people, systems and infrastructure needed to manage the fund. If the management fees exceed the management company’s expenses, the residual profit is often referred to as excess management fees.

Excess management fees are not the same thing as carried interest.

Carried interest is performance economics. It is tied to fund profits. It may not be realized for many years, if ever. Excess management fees are operating profits of the management company. They may exist if management fee revenue exceeds the cost of running the platform. Some firms distribute excess management fees to management company owners as income distributions tied to equity. Some use them to make year-end payroll bonuses. There is not a material distinction between those methods – they both get income to owners. Some managers reinvest profits in the platform. Some retain profits as working capital. Some do a combination of some or all of the preceding.

The sharing of excess management fees may or may not match the sharing of carried interest. In some firms, the same founders own the management company and the carried interest in the same percentages. In others, the management company ownership is narrower, more founder-weighted or otherwise different from fund-vintage carry sharing. This can be entirely appropriate if the parties understand the distinction.

The important drafting point is that the flow of money should match the intended business model. If management fees are intended to support the long-term platform, the management company should be structured to receive them, spend them, account for them and allocate any excess consistently with the sponsor’s internal agreement.

The three main economic streams above the fund

A sponsor should usually separate three economic streams: carried interest, capital interest and management company economics.

They are related, but they are not identical.

Carried interest

Carried interest is the sponsor’s disproportionate (usually 20%) share of fund profits. In many PE and VC funds, it is the most important long-term upside for founders and senior investment professionals. It is usually shared through the GP or a carry vehicle associated with the GP.

Carried interest is typically allocated among founders and senior investment professionals, but it may also be shared with CFOs, operating partners, venture partners, platform professionals, junior investment professionals or others. Some firms also use direct carried interest grants. Others use employee profit-sharing pools or bonus arrangements for more junior personnel. How far “down” the ranks carried interest is shared varies by platform and is a critical distinguishing factor for the firm in terms of culture, attraction and retention of talent, and so forth.

The key takeaway is that carried interest represents fund-vintage economics. A person may have a certain percentage of carry in Fund I, a different percentage in Fund II, and no carry in a later fund if that person leaves before the later fund is formed.

Capital interest

Capital interest is different. It refers to the GP’s own cash investment in the fund.

LPs generally expect the sponsor to have meaningful capital at risk. Many funds provide for a GP commitment, typically in the range of 1% to 2% of fund commitments, although the amount can be lower or higher depending on the manager, strategy, investor base and fund size.

Someone must fund that commitment. The members of the GP, or related persons, usually make capital commitments to the GP so that the GP can in turn make its commitment to the fund. Those who fund the commitment generally share in the investment return on that capital.

Capital interest sharing percentages may be the same as carried interest percentages (often referred to as a “lockstep” model), but they do not have to be. One person might have 20% of the carry but fund only 10% of the GP commitment. Another person might have 10% of the carry but fund 30% of the GP commitment.

Firms differ in how they think about this. Some view the GP commitment as a burden that should be shared in proportion to carry. Others recognize that more senior partners may have more personal wealth and may be better able to fund a larger share. Still others view the right to invest through the GP as a valuable opportunity or perk, and may allocate more of that opportunity to senior members.

The right answer depends on the firm.

Management company economics

The third stream is management company economics. This includes excess management fees and any other revenue or residual profit of the management company.

In many structures, this is the most important economics for the day-to-day business. Carried interest may be more valuable over the long term, but management company economics pay the bills now. They support hiring, retention, infrastructure and growth.

Management company economics may be shared among founders or owners of the management company. They may be used to fund bonuses or profit-sharing programs. They may be reinvested. They may be distributed. The sharing may be lockstep with carry, or it may be different.

For example, a founder-heavy management company may reflect that the founders built the platform, signed leases, funded operating losses, guaranteed obligations or created the firm’s brand. They took risk. A broader carry-sharing arrangement may reflect the contributions of the investment team to a particular fund vintage.

Again, the point is not that one model is right. The point is that the model should be intentional.

Sharing carried interest internally

The simplest and most common approach is to assign carried interest among the team at inception in fixed percentages.

For example, the founders and senior investment professionals may agree that 100% of the carried interest will be shared among them in specified percentages. If someone leaves, that person keeps the vested portion of carry and forfeits the unvested portion. The forfeited portion is then reallocated under the rules of the GP agreement.

This model is common because it is simple. It also reflects a practical view: if a person performs better or worse than expected, the firm can adjust that person’s carry in the next fund vintage. In a more serious case, the firm can remove the person, which usually causes forfeiture of unvested carry. The current fund’s carry schedule does not have to become a year-by-year performance compensation system.

Some firms, however, want more flexibility inside the current vintage. They may want to reward deal sourcing, portfolio work, fundraising contributions, leadership, mentoring, operational projects or other contributions in a more real-time way. Those firms may consider more complex models.

Deal-by-deal sharing

Deal-by-deal carry sharing sounds attractive. If one partner sources and manages a successful investment, why not allocate more carry from that investment to that partner?

The difficulty is that most PE and VC funds do not pay carried interest at the fund level on a pure deal-by-deal basis. Most funds – by custom and demand of LPs – calculate carry on a whole-fund basis and are subject to clawback. Even in a fund with a deal-by-deal or American-style waterfall, the carry is usually still subject to fund-level limits, clawback and valuation issues.

This creates a problem for internal deal-by-deal sharing. A particular investment may be highly successful, but if the fund as a whole breaks even or loses money, there may be no carried interest to share. Or a person may receive carry attributed internally to a successful deal and later be required to return it because the fund has an overall clawback. If the fund calculates carry net of expenses, two similarly successful deals can also produce different internal carry outcomes depending on timing and expense allocation.

For these reasons, deal-by-deal sharing inside a GP can be complicated. Where used, firms often allocate only a portion of total carry, perhaps 10% to 25% of the overall carry pool, to a deal-by-deal component. The firm may schedule the deal team’s percentages when the investment is made, or it may wait until exit and then allocate the deal-related pool based on contribution.

The latter approach is often more flexible, but requires judgment and can create its own disputes. The former approach is more predictable, but it may not reflect how work actually unfolds over the life of an investment.

Managers considering deal-by-deal internal sharing should understand the complexity before adopting it. It is often less simple than it sounds.

Annual investment professional profit-sharing pools

Some firms use an annual investment professional profit-sharing pool instead of true deal-by-deal carry.

Under this approach, a percentage of total carried interest is held back for annual allocation among investment professionals. The amount might again be 10% to 25% of the overall carry pool, though the number varies. Each year, after the fund’s net carry-related activity for that year is known, the managers allocate that year’s pool among the investment team based on contribution. Tax laws allow for this to be done in the following year through the March 15 partnership tax filing deadline, as long as profits are shared among the then-current partners or members of the carried interest sharing entity.

This is not technically deal-by-deal. It is annual and net. If the year includes two profitable exits, one loss, expenses and other fund-level items, the pool reflects the net carry economics for the year. The managers can then decide who contributed most meaningfully to that year’s results.

The benefit is that this model aligns more closely with the fund’s accounting and tax architecture than pure deal-by-deal sharing. It also allows the firm to reward a broader range of contributions (and more) in real-time. A person may have helped source a deal, save a struggling portfolio company, lead a financing, build a sector thesis, support fundraising, mentor junior professionals, or handle an important internal project. The annual pool can recognize those contributions without pretending that the fund’s economics are pure deal-by-deal economics.

This model is more complicated than fixed percentages, but it can be useful for firms that want a more dynamic compensation system.

Employee profit-sharing pools

Some firms also reserve a small portion of carry economics for lower-level personnel or broader employees. The key distinguishing factor compared to annual profit sharing pools is that employee pools are taxed as ordinary income, not capital gains. But payments can be made to a broader group without consideration of accredited investor status, equity ownership of the payor entity and so forth.

This is usually a modest pool, often in the range of 1% to 5% of total carry, though structures vary. Some firms use the pool for investment associates, finance personnel, platform team members or other employees who do not hold direct carried interest. Others use it more selectively.

There are practical reasons not to give every employee a direct interest in the GP. Securities law, tax, administration, confidentiality, member rights and the small dollar size of individual awards may all weigh against direct ownership. In many cases, the pool is held by a placeholder entity, often the management company, and amounts are paid as cash employment bonuses if and when distributable carried interest becomes available.

This also means the plan may operate more like a bonus plan than a vested carried interest grant. A person may need to be employed at the time of distribution to receive payment. There may be no long-term vesting. The payments will be subject to payroll withholding and ordinary employment tax treatment.

More formal phantom carry plans exist, but they are less common and require more careful drafting.

Carry reserves

New managers often ask whether they can “reserve” carried interest for future hires.

The commercial reason is obvious. A first-time manager may not know the final team at closing. It may expect to hire additional investment professionals if the fund reaches a certain size. It may want to show that a portion of carry is available for future team members.

The technical answer is more complicated. For tax and accounting purposes, income and loss associated with the carry must be allocated to someone. Federal tax laws mandate that in the situation. A reserve cannot simply sit in the air. Someone must be treated as holding the interest until it is awarded.

The usual workaround is to show a reserved amount on the carry schedule, but provide that until the reserved amount is awarded, it is treated for tax purposes as held by the existing carry recipients (often proportionately). When the reserve is later awarded, the existing recipients are diluted.

Economically, this is similar to giving everyone their full share at closing subject to later dilution. But it may be more transparent and psychologically easier because the reserved percentage is visible from the start. Existing team members know that a portion is intended for future hires.

GP capital commitments

The GP commitment is a separate topic from carry sharing.

In almost all institutional PE and VC funds, the GP or sponsor group makes an investment in the fund. Investors expect the manager to have capital at risk alongside them. The amount varies, but 1% to 2% of fund commitments is a common reference point, with many variations depending on manager size, strategy, fund size and investor expectations.

The GP agreement must decide who funds that obligation.

Sometimes the answer is lockstep with carry. If a person has 20% of the carry, that person funds 20% of the GP commitment and receives 20% of the returns on the GP’s capital interest. This is simple and has an intuitive fairness.

But lockstep is not required. A senior founder may fund a larger portion because the founder has greater personal resources. A junior partner may receive meaningful carry but fund a smaller share of the capital commitment. A noninvestment professional may receive carry but not be expected to fund the GP commitment. A founder may view the right to invest more as a benefit of seniority.

The important point is to separate the two questions:

• Who receives carry?
• Who funds the GP commitment and receives the return on that capital?

They are related questions, but not the same question.

Departures, vesting and forfeiture

Upper-tier documents matter most when people leave.

At the beginning of a new firm, everyone may expect harmony. The founders are excited. The investment team is aligned. The fundraise is underway. No one wants to discuss departures, termination, vesting disputes or difficult separations.

But funds last a long time. A ten-year fund may easily remain alive for 14 or 15 years, including extensions and liquidation. People leave. Founders disagree. Investment professionals spin out. Partners retire. Employees join competitors. Someone may be terminated. Someone may become disabled or die. Someone may become adverse to the firm.

The documents need to work when that happens.

The most common carried interest departure model is that a departing person keeps the vested portion of carried interest and forfeits the unvested portion. The change usually only applies prospectively. In other words, carry allocated before departure remains allocated as it was. The departing person’s future share is reduced to the vested percentage of the original entitlement.

For example, let’s assume that a person has 10% of total carry and leaves when 50% vested. This person’s carry entitlement is reduced to 5% going forward. Carry allocated before departure at the 10% rate is generally not reallocated retroactively. The person forfeits the unvested 5% prospectively. In some models, though, the 5% may be applied retroactively. This is almost never done by requiring the return of prior carried interest. That is viewed as being rather draconian. In these minority retroactive models, a common approach is to provide 0% allocation after departure until such time, if any, as the payee is brought to 5% in the aggregate on a from-inception basis.

Vesting schedules vary, but there has been a movement in recent years toward longer vesting. Some years ago, it was more common for carry to vest fully by the end of the investment period – say by the end of year five. That is less common today and often not advisable. If a fund may last 14 or 15 years, full vesting by year five does not reflect the full work required to manage, support and harvest the portfolio.

A common approach is monthly vesting that reaches 60% or 70% by the end of the investment period and 100% by the end of the fund’s scheduled term. Another approach is straight-line monthly vesting to 100% by the scheduled end of the fund term. Monthly vesting is generally preferable to large annual cliffs because it reduces artificial departure incentives.

Some firms add special features. They may give initial vesting credit for fundraising work. They may include a 12- to 24-month cliff so that short-term departures receive no vested carry. They may provide additional vesting credit for death or disability. They may distinguish between good leavers and bad leavers, with bad leavers suffering a reduction to vested carry. In many locations, such bad leaver provisions may be difficult to enforce. Counsel should be consulted.

Those features should be used carefully. They can solve real problems, but they also add complexity and can create difficult judgment calls.

What happens to forfeited carry?

If a person forfeits unvested carry, the agreement should say what happens to it.

There are several common approaches. The managers may decide at the time of departure. The forfeited carry may automatically reallocate pro rata to all remaining carry holders. It may reallocate only to senior managers. It may reallocate under a default rule unless the managers decide otherwise.

The best approach depends on the firm’s culture and governance. A fixed rule provides predictability. Manager discretion provides flexibility. A hybrid can do both.

What the agreement should not do is leave forfeited economics floating. If carry is forfeited, someone must know who receives it, when and under what authority.

Departures and GP capital commitments

Departures also raise capital commitment issues.

The GP’s commitment to the fund is fixed at the fund level. If the GP has committed $10 million to the fund, the fund does not care that one member of the GP has left. The commitment still must be funded.

The internal question is whether the departed person remains responsible for that person’s share of the unfunded GP commitment.

Firms are divided on this issue.

One view is that the capital commitment is a binding obligation. If a person agreed to fund a share of the GP commitment, that person should remain responsible even after departure. This avoids forcing the remaining partners to fund more than they expected.

The other view is that the right to invest through the GP is a benefit of continued participation in the firm. If a person leaves, especially if the person is no longer helping manage the fund, that person may be relieved of the unfunded portion. The remaining partners then assume that unfunded amount and receive the corresponding capital interest.

For example, let’s assume that a person has a $1 million internal capital commitment and has funded $500,000 at the time of departure. Under one model, this person remains obligated to fund the remaining $500,000. Under another model, this particular person’s commitment is reduced to the $500,000 already funded, and the remaining $500,000 is assumed by other members.

Neither answer is universally right. It depends on whether the firm views the GP investment as a burden, a perk or both.

Company interest on departure

Management company or company economics are usually treated differently from carried interest.

In many sponsor arrangements, a departing person’s right to future company profits or excess management fees is reduced to zero upon departure. This makes sense because management company economics are tied to the ongoing operating business. If a person is no longer part of the operating business, the firm may not want that person to continue sharing in future management company profits. There may be monetization payments in limited cases, more often situationally (e.g., on disability) and more often in PE compared to VC.

This is one reason it is important to separate carried interest from management company economics. A departed person may retain vested carry in a particular fund because that person helped create value in that vintage. But that does not necessarily mean the person should continue sharing in future excess management fees from the ongoing platform.

Complete buyout rights

Some firms want the ability to go further than ordinary vesting and forfeiture. They want a right to force a complete separation from a departed person.

We sometimes refer to this as a complete buyout right.

The issue arises because a departed person who retains a residual interest in the GP may remain intertwined with the firm for many years. That person may have tax reporting rights, information rights, books and records rights, inspection rights and other baseline rights as a member. That may be manageable if the departure is amicable. It may be very uncomfortable if the person has joined a competitor, spun out to start a competitive fund, threatened litigation or become adverse to the firm.

Managers who have lived through a difficult departure often understand the issue immediately. A person can be gone operationally but still be present legally and economically. The firm may be required to provide tax information, respond to information requests, maintain records and remain connected to someone who is no longer aligned with the organization.

A complete buyout right gives the GP or related entity an option, not an obligation, to repurchase all or part of the departed person’s residual interest. It usually applies after vesting has been calculated. The repurchase price is often company-favorable and may not give credit for unrealized built-in gain that might later generate carried interest.

This is a strong provision. It is not used by every firm. It is more company-favorable and less departee-favorable than ordinary vesting. It should be considered thoughtfully.

In our experience, new groups sometimes resist these provisions because they cannot imagine a future dispute. Everyone is aligned at formation. The fundraise is exciting. The idea of a hostile departure feels remote. Later, after a firm has experienced a difficult departure, the same managers may ask why they did not include a clean separation mechanism at the beginning.

That does not mean every firm needs a complete buyout right. Some firms operate for decades with harmonious relationships and never need one. But managers should at least understand the issue before deciding.

Voting and control

The GP controls the fund. As a result, voting and control at the GP level are not merely internal housekeeping.

The right voting structure depends heavily on the number of decision-makers.

If there is one voting person, the structure is simple. That person controls the GP. If additional voting persons are admitted later, the agreement can be amended or reconsidered.

If there are two voting persons, the structure is harder. Many two-person firms choose unanimous approval as the general rule. That may feel fair, but it creates deadlock risk. If both people must approve every material action and they disagree, the firm can become stuck. For that reason, two-person firms should consider deadlock-breaking mechanisms carefully. As an example, sometimes the limited partner advisory committee (LPAC) of the most recently raised flagship fund may be permitted to break a two-person team’s management deadlock after some passage of time.

If there are three or more voting persons, the general rule is often majority in number, such as two of three or three of five. Some firms use ownership percentages. Some use founder consent. Some use investment committee approval for investments and a different standard for other matters.

There are often special voting rules for extraordinary matters. These may include:

• Admitting new economic members
• Admitting new voting managers
• Removing a manager or member
• Approving investments or exits
• Approving budgets
• Changing compensation
• Issuing additional carry
• Entering into related-party transactions
• Amending governing documents
• Selling or merging the management company
• Approving a successor fund
• Settling disputes
• Exercising a complete buyout right

The practical point is simple: design the voting structure for the day people disagree, not only for the day they sign the agreement. A governance structure that works only in perfect harmony is not much of a governance structure.

Coordinating the GP and management company agreements

The GP agreement and management company agreement should be coordinated.

Carry may live in the GP. Employment relationships may live in the management company. Management fees may flow to the management company. The GP commitment may be funded through the GP. IP may be owned by the management company. Restrictive covenants may be in employment agreements, management company agreements, GP agreements or separate documents. Clawback restoration obligations may need to apply to people who receive carry even after they leave employment.

If these documents are not coordinated, gaps can appear.

A person might leave employment but retain vested carry. Does that person still owe confidentiality obligations? Does that person still have clawback restoration obligations? Does that person have access to books and records? Can that person use the firm’s name or track record? Can that person solicit employees or investors? Can the firm buy out the residual interest? Who decides?

Similarly, a person might own part of the management company but not have carry in a future fund. Or a person might have carry in a fund but no management company ownership. Or a founder might retain management company ownership after stepping back from day-to-day investing. These arrangements can be appropriate, but they should be clear.

The management company should generally own the long-term business assets. The fund-vintage GP should generally not be the owner of the firm’s brand, website, IP, employment relationships or office lease unless there is a specific reason. Those assets belong in the entity intended to survive across fund vintages.

Emerging managers versus established managers

Emerging managers and established managers often approach upper-tier structuring differently.

Emerging managers are often focused on getting the first fund raised. They may under-document internal arrangements. They may assume that the founding team will remain aligned. They may not know who will be hired later. They may have limited liquidity for the GP commitment. They may want a carry reserve. They may avoid discussing departures because the conversation feels uncomfortable.

That is understandable, but it can be a mistake. The first fund’s upper-tier documents can have consequences for a decade or more. A small ambiguity at formation can become a large dispute after value has been created.

Established managers often have more refined structures. They may have separate GP entities for multiple vintages, a durable management company, established vesting schedules, internal carry plans, profit-sharing programs, buyout rights, clawback restoration agreements, succession plans and more detailed voting provisions. Many of those features exist because the firm has learned from experience.

This is a recurring pattern. Fund I managers often believe everything will remain harmonious. Fund II, III and IV managers have often seen enough departures, promotions, performance differences, fundraising pressures, succession issues and interpersonal strain to appreciate the value of more complete documents.

The right structure should match the stage of the firm. A first-time fund should not necessarily adopt every feature of a mature global PE platform. But it should not ignore the issues either.

Practical drafting considerations

Several practical points are worth emphasizing:

• Decide which entity receives management fees and which entity receives carried interest. In many structures, management fees flow to the management company and carried interest flows through the GP.
• Treat the management company as the long-term operating business. Employment, leases, benefits, IP, systems, insurance and platform contracts usually belong there.
• Treat fund-vintage GPs as tied to particular funds unless there is a reason to do otherwise. This helps separate carry, clawback and capital commitment economics by fund.
• Separate carried interest, capital interest and management company economics. They may be shared in the same percentages, but they do not have to be.
• Make GP capital funding obligations clear. The GP commitment requires real money. Managers should decide who funds it, whether funding is lockstep with carry and what happens when someone leaves.
• Use vesting schedules that reflect actual fund duration. A fund may last far longer than its investment period.
• State what happens to forfeited carry. Do not leave forfeited economics unallocated.
• Consider whether a complete buyout right is appropriate. It is not for every firm, but managers should understand why it exists.
• Coordinate departure provisions across GP, management company, employment, restrictive covenant and carry grant documents.
• Address clawback restoration obligations internally. If someone receives carry, the obligation to restore amounts needed for fund-level clawbacks should follow the economics.
• Design voting rules for disagreement. Deadlock and removal provisions are uncomfortable to discuss, but they matter.
• Avoid placing long-term firm assets in a fund-vintage GP. The firm’s name, brand, website, records, systems and IP usually belong in the management company.
• Revisit the structure as the platform matures. A structure that works for a first-time fund may need to evolve by Fund II, III or IV.

Conclusion

The fund agreement governs the bargain with investors. The GP and management company agreements govern the bargain among the people building the manager.

Both matter.

A manager can have a well-drafted fund agreement and still have serious internal problems if the upper-tier documents are unclear, incomplete or unrealistic. The fund documents may say exactly how carry is calculated, when capital can be called, what governance rights investors have and how expenses are allocated. But they may not answer who inside the sponsor receives the carry, who funds the GP commitment, who controls the GP, who owns excess management fees, what happens when someone leaves or who owns the long-term assets of the firm.

The best upper-tier structures are clear about economics, practical about control, candid about departures and designed for the full life of the platform. A fund may last 10 or 15 years. A management company may last much longer. The documents should be built with that horizon in mind.

For new managers, the lesson is straightforward: do not only form the fund. Build the firm.

With that in mind, at a high level, there are several things to consider when structuring carried interest:

• What is the baseline percentage rate of gains that will apply as investment gains are allocated to the capital accounts of the general partners (GPs) and limited partners (LPs)? Is it 20% or a different percentage rate?
• How will the amount of investment gains be calculated when applying that percentage rate?
• Does the fund have a preferred return, and if so, how does the GP catch up (if at all) after that preferred return is satisfied?
• Does the fund have a performance hurdle that can increase the carried interest percentage from the baseline rate to a premium rate, and similarly, is there a catch-up?
• Sharing of gains into capital accounts aside, at what point will the fund manager be permitted to take distributions of cash or securities distributions constituting carried interest?
• If distributions are made to the GP or carried interest recipients in excess of the agreed amount, will there be a return obligation, commonly called a “clawback”?
• How should the fund agreement address the tax allocation rules applicable to carried interest (such as the general three-year holding period requirement for long term capital gain treatment and phantom taxable income)?

These questions are related, but they are not the same. A fund can have 20% carry with a European waterfall, no preferred return and a back-end clawback. Another fund can have 20% carry, an 8% preferred return, a 100% GP catch-up, deal-by-deal distributions, interim clawbacks and an escrow. Another fund can have premium carried interest that increases from 20% to 25% or 30% if the fund achieves specified return thresholds. Each structure allocates economics, timing, risk and tax consequences differently.

A note on terminology

Before turning to the market terms, it is worth pausing on terminology. In casual conversation, terms like “preferred return,” “hurdle,” “catch-up” and “premium carry” are sometimes used loosely or even interchangeably. That can create confusion, because they refer to different concepts. In this post, we will use the terms in the following way.

A preferred return is a minimum baseline return that the fund must generate for investors before any carried interest is payable to the GP. In many private equity funds, the preferred return is expressed as an annual percentage return, often historically around 8%, calculated on contributed capital or a similar base. The concept is that investors receive a threshold return before the GP participates in profits through carried interest.

Preferred returns are much more common in private equity than in venture capital. The reason is not merely historical convention. Private equity funds often invest in more mature businesses with revenue, profitability, cash flow, leverage capacity and more modelable exit assumptions. In that model, LPs often expect some return over a baseline or risk-free capital rate before the GP earns carry. Put differently, if a manager is investing in mature, revenue-generating companies and cannot underwrite to a minimum return, investors may reasonably ask why carry should be paid.

Venture capital, especially early-stage venture capital, is different. Early-stage venture-backed companies may not have profitability. They may not have revenue. In many cases, they may still be proving product-market fit, building a management team, developing a market or trying to create a category. The same kind of cash-flow modeling that may be relevant in a buyout or growth equity investment is often not available. For that reason, early-stage venture funds have generally not had preferred returns. Instead, they more commonly provide that investors receive a return of contributed capital before the GP takes carried interest distributions.

A hurdle, as we use the term in this post, is different. A hurdle is a superior investment return threshold that must be satisfied before carried interest increases above the baseline rate. For example, a fund may provide for 20% carried interest generally, but 25% carried interest if the fund returns more than 2.5x contributed capital, and 30% carried interest if the fund returns more than 3x contributed capital. That 2.5x or 3x threshold is not a preferred return in the sense described above; it is a performance hurdle for premium carry.

A catch-up is the mechanism used to move the economics to the agreed sharing ratio after a preferred return or hurdle has been satisfied. Catch-ups can be full and immediate, meaning the GP receives 100% of the next profits until the negotiated sharing ratio is reached, or they can be tapered, meaning the GP receives a higher-than-normal but less-than-100% share of the next profits until the same economic result is achieved. Catch-ups can apply after a preferred return, after a premium carry hurdle or both.

These distinctions matter. Two funds can each be described as having “20% carry,” but the economic result may be very different depending on whether there is a preferred return, whether premium carry is available above a hurdle, whether there is a catch-up and whether the catch-up is immediate or tapered.

The carry percentage

As to the percentage rate of gains that will apply, it remains widely accepted that the starting point is 20%. That is true across much of the private equity and venture capital market.

It is rare for a mainstream private equity or venture capital fund to assess a carried interest rate lower than 20%, though in some cases the rate may be higher. The surrounding economics may differ, because many private equity funds include a preferred return before carried interest is paid, while many early-stage venture capital funds do not. But the baseline carried interest percentage itself generally starts from the same market reference point: 20%.

Some exceptionally well-performing funds with superior investment track records or similar pedigree attributes assess flat headline rates of 25%, 30% or, in a few outlier cases in the industry, something higher. We call this “flat premium carry.” Flat premium carry exists in both private equity and venture capital, but in our experience, it is more commonly discussed in the venture capital market, particularly for highly sought-after managers with exceptional prior fund performance, very strong access to competitive investment opportunities or a differentiated strategy that investors believe is capacity constrained.

Flat premium carry is not, however, the main direction of travel for new fund negotiations. Many managers that have flat premium carry have had that term for a long time and are largely replicating an existing economic bargain with their investor base. From time to time, a new manager or a manager raising an early fund may obtain flat premium carry, but that is quite uncommon in today’s market. By contrast, the incidence of earned premium carry has been expanding.

Where there is potential for carried interest above 20%, the more common market approach is often “earned premium carry,” meaning that the higher carry percentage applies only if investment gains warrant it. This can be a useful compromise. It allows a manager to receive enhanced economics if the fund substantially outperforms, while giving investors comfort that the enhanced economics are paid only after investors receive the benefit of that outperformance.

LPs may not merely accept this structure; in some cases, they may affirmatively appreciate it. Earned premium carry can create alignment. The manager is rewarded for exceptional performance, but only if investors first receive exceptional results. Flat premium carry does not work the same way. A flat 25% or 30% carry rate gives the manager enhanced economics from the first dollar of profit, whether the fund modestly outperforms, dramatically outperforms or merely clears the basic return-of-capital threshold. Earned premium carry, by contrast, asks the manager to earn the enhanced economics through actual fund performance.

In Cooley’s 2026 survey of private fund terms, 34% of funds reviewed had some form of premium carry. That does not mean premium carry is the default. It is not. But it does mean that premium carry is a meaningful and recurring part of current fund terms, particularly for managers with strong performance, strong investor demand or a strategy where investors are willing to share more of the upside if the fund substantially outperforms.

In an earned premium carry model, investment gains are often measured by reference to cash-on-cash return thresholds, such as 2x, 2.5x or 3x contributed capital. In a minority of cases, the calculation may use thresholds based on internal rate of return (IRR) or a combination of IRR and multiple-of-capital thresholds. Cash-on-cash tests are often simpler and more intuitive in venture capital, where fund returns can be highly nonlinear and driven by a small number of large winners. IRR-based tests are more common in some private equity contexts, where investment timing, leverage, distributions and current yield may be more central to the investor’s underwriting. That said, some private equity funds with premium carry hurdles use cash-on-cash multiple thresholds as well, particularly where the parties want a simpler test that is less sensitive to interim timing and calculation conventions.

The higher carried interest rate may apply only prospectively after the relevant condition is satisfied. For example, the manager may receive 20% carry until the fund reaches a specified return threshold and then 25% carry on gains above that threshold. More commonly, however, the higher rate applies on a retroactive basis through a catch-up to the fund manager. In that model, once the condition is satisfied, the manager may receive 100% of the next gains until it has received the higher percentage of gains on a from-inception basis. Sometimes the catch-up is softened by providing that, instead of receiving 100% of the next gains, the manager receives a lesser but still elevated percentage, such as 50% of the next gains, until the intended sharing ratio is achieved.

Sometimes there may be multiple tiers. For example, a fund might provide that the manager receives 20% of gains until investors have received a 2x cash-on-cash return, 25% of gains once the fund has achieved a 2x return, and 30% of gains once the fund has achieved a 3x return, with catch-ups applying at each tier. In these models, the precise drafting matters a great deal. The agreement needs to specify whether the test is based on contributed capital, aggregate commitments, realized proceeds, unrealized value, net or gross proceeds, expenses, recycling, or reserves, and the timing of measurement.

Cash-on-cash measurements are often based on contributed capital rather than committed capital. This means that as more capital is drawn, a manager that previously satisfied a 2x condition may no longer be in that position. Where this is the case, the manager will usually have to defer the collection of incremental carried interest until the applicable condition is again satisfied.

Preferred returns

The preferred return is one of the more important areas where private equity and venture capital often diverge.

In many private equity funds, particularly buyout, growth equity and other strategies involving more mature portfolio companies, investors expect a preferred return before the GP receives carried interest. The classic formulation is an annual preferred return, often around 8%, followed by a GP catch-up and then the agreed sharing ratio, often 80/20. The exact number and calculation vary by strategy, manager leverage, investor base and market conditions, but the concept is familiar: Investors receive a minimum return on contributed capital before the GP begins to participate meaningfully in profits.

In early-stage venture capital, preferred returns are much less common. There are historical and practical reasons for this. Venture capital funds often have long J-curves, little or no current yield, unpredictable exit timing and returns that may be driven by a small number of very large outcomes. A preferred return can become more of an accounting hurdle than meaningful investor protection in that setting, and it can create pressure against the long-duration nature of venture investing. For that reason, mainstream early-stage venture capital funds often use a return-of-contributed-capital-before-carry model rather than an annual preferred return.

That said, the line is not absolute. Later-stage venture, growth equity and hybrid venture-growth funds may include preferred return concepts more frequently than seed or early-stage venture funds. Similarly, some private equity funds, especially funds with very strong demand or specialized strategies, may deviate from the classic preferred return formulation. The appropriate answer depends on strategy, investor expectations and the overall economic bargain.

Where a preferred return exists, the catch-up mechanics are important. A 100% GP catch-up means that after investors receive their preferred return, the GP receives all or nearly all of the next distributions until the GP has caught up to the agreed carried interest percentage. This is common and often understood by investors. But it can be surprising if not explained clearly, because there may be a period in which distributions go disproportionately to the GP even though the headline carry rate is 20%. That is not a deviation from the 20% carry rate; it is the mechanism by which the waterfall gets to the negotiated sharing ratio after the preferred return has been paid.

What gains are subject to carry?

The second general issue in structuring carried interest is determining the amount of investment gains used when applying the agreed carry percentage.

There are two general approaches. In some funds, the carried interest percentage is applied against total investment gains in the portfolio net of total investment losses, without taking into account fund expenses. In other funds, fund expenses, in addition to investment losses, are debited against total investment gains in determining the relevant amount against which carried interest is assessed.

Consider a simple example, ignoring the GP commitment. Assume a $100 million fund invests $80 million and spends $20 million on management fees and other expenses. Assume the $80 million of investment doubles and becomes $160 million. The fund has $80 million of gross investment gain. In a gross carry model, the GP receives 20% of the $80 million of gross investment gain, or $16 million. In a net carry model, the $20 million of fees and expenses is subtracted from the $80 million of gross investment gain, resulting in $60 million of net gain. The GP then receives 20% of $60 million, or $12 million.

Each model is associated with numerous funds in the marketplace. Neither model is exclusive. The first model is more favorable to the manager because carry is calculated on investment performance without reducing the base for fund expenses. The second model is more favorable to investors because expenses reduce the pool of profits on which carry is paid. The commercial answer may depend on the overall fee level, fund size, expense load, organizational expense cap, expected investment strategy and whether expenses are expected to be unusually high.

This issue can be more significant in smaller funds, funds with meaningful broken-deal expenses, funds investing internationally, funds with significant regulatory or tax structuring costs, or funds that expect to use parallel vehicles, alternative investment vehicles or blockers. In a very large fund with ordinary expenses, the difference may be less central to the economic deal. In a smaller or more complex fund, it can matter materially.

Timing of carry distributions: European and American waterfalls

The next issue is when the fund manager can take cash or securities distributions representing carried interest. This is commonly described by reference to the fund’s “waterfall,” meaning the sequence in which distributions are made among LPs and the GP.

Two terms are commonly used in this context. A European waterfall, also called a whole-fund waterfall, generally means that the fund must first return contributed capital before the GP may start to receive carried interest distributions. An American waterfall, also called a deal-by-deal waterfall, generally means that the GP may receive carried interest after a realized investment if certain conditions are satisfied (occasionally measured by examining the carrying value of the remaining portfolio against its cost basis, though there are other methods), even if the fund has not yet returned all contributed capital across the whole portfolio.

The difference is mostly about timing and overdistribution risk. A European waterfall delays carry distributions until the fund has more clearly produced whole-fund profits. An American waterfall may allow earlier carry distributions, but creates a greater possibility that the GP receives carry on early winners before later investments underperform or fail.

It is important to distinguish the accrual of carried interest to the GP’s carried interest capital account from the right to receive distributions. The allocation of profits to the GP on an accounting basis begins at inception of the fund’s life (which is necessary, because if deferred there is a risk there will not be sufficient allocable gain to fill up the GP’s capital account to agreed levels later). But the right to take cash or securities out of the fund on a distributions basis is effectively always delayed until some condition is satisfied.

Consider a $100 million fund that draws $5 million for its first investment and sells that investment relatively quickly for $25 million. If the fund has a 20% carried interest rate, there is $4 million of carry on the $20 million gain. But the early winner does not mean the fund will ultimately return all contributed capital or generate whole-fund profits. If the fund later draws the remaining $95 million and the later investments perform poorly, the manager may have received more than it was entitled to retain on a whole-fund basis.

That is the core overdistribution risk. Since carried interest is usually assessed on a whole-fund basis, investors – and many managers, especially those who have lived through the pain of asking a team to return carry distributions they may have already spent – may want to defer carry distributions until there is greater confidence that the carry will not become an overdistribution.

The most prevalent method of delay is a European waterfall. In the same example, assume that by the time the $25 million in exit proceeds are received, the fund has called $30 million of capital for other investments and expenses. In a European waterfall model, no carried interest distribution is permitted yet, because the $25 million is not sufficient to return the $30 million contributed.

This approach is very common in the market. In Cooley’s 2026 survey of private fund terms, approximately 90% of funds reviewed used a European waterfall. The remaining funds used some form of deal-by-deal or American-style waterfall. The prevalence of European waterfalls is especially notable in venture capital, but whole-fund distribution protections are also common in many private equity funds.

If the fund instead uses an American waterfall, the manager may be permitted to receive carried interest on the realized investment if the applicable deal-level test is satisfied. Deal-by-deal waterfalls are more common in parts of the private equity market than in early-stage venture capital, although they are not unknown in venture and are often modified by safeguards, which may include net asset value (NAV) tests, escrow arrangements, interim clawbacks, reserves or other mechanisms. For example, a fund might permit carried interest distributions on a realized deal only if, after giving effect to the proposed distribution, the remaining portfolio has a value of at least 125% of cost, or if the fund would not be in a hypothetical clawback position based on the then-current value of remaining assets.

The important point is that venture capital funds, because they often make many investments over a long period and may experience a small number of highly material winners, commonly use whole-fund distribution protections. Private equity funds, particularly buyout and growth equity funds, may be more likely to negotiate deal-by-deal distribution models, but with more robust clawback and security architecture. Neither model is inherently right or wrong. The question is whether the timing of carry distributions matches the strategy, investor expectations and overdistribution risk.

Tax distributions and phantom income

In the US and some other tax regimes, the carried interest recipients may be taxed not on cash distributions, but on allocations of taxable income or gain. This is sometimes referred to as “phantom income” and creates a practical problem. A manager may be allocated taxable income before the manager is permitted to take regular carried interest distributions under the waterfall.

Most fund agreements address this issue through tax distributions. A tax distribution provision permits distributions to the GP or carried interest recipients in an amount intended to help pay taxes on taxable income or gain allocated to them, even if regular carried interest distributions are otherwise delayed.

Tax distributions are usually advances against future amounts that the manager would otherwise be entitled to receive. They are not intended to give the manager more economics, but rather, are used to avoid a cash flow mismatch between tax liability and distribution timing.

The details matter. Fund agreements need to determine the assumed tax rate, whether state and local taxes are included, whether the rate is based on the highest marginal rate applicable to an individual in a specified jurisdiction, whether prior losses or deductions are taken into account, whether tax distributions are grossed up and how tax distributions are treated for clawback purposes. The rate may be expressed as a flat rate agreed on at inception (35 – 45% is common), or language may be used to describe it with reference to the highest marginal rates, as they may change over time.

Tax distributions can become especially important in a period of early realizations, securities distributions, recycling, taxable stock-for-stock transactions or carried interest waiver planning under Section 1061. They should not be treated as boilerplate.

The three-year carried interest rule under Section 1061

The most important tax development since the original carried interest primer is the now-familiar three-year holding period rule under Section 1061.

Before the Tax Cuts and Jobs Act (TCJA), both carried interest holders and capital interest holders generally could receive long-term capital gain treatment on gains from the sale of capital assets held for more than one year. The TCJA added Section 1061, effective for taxable years beginning after December 31, 2017. Section 1061 generally recharacterizes certain net long-term capital gains allocated with respect to an applicable partnership interest as short-term capital gains, unless the relevant capital asset has been held for more than three years. The IRS describes the rule as requiring that a capital asset be held for more than three years for gain allocated with respect to certain carried interests to avoid recharacterization as short-term capital gain.

Short-term capital gain is generally taxed to individuals at ordinary income rates. As a result, for US individual carry recipients, the difference can be significant. Long-term capital gain may be taxed at preferential rates, while short-term capital gain may be taxed at ordinary rates, potentially as high as 37% federally, plus the 3.8% net investment income tax where applicable.

The Treasury Department and IRS issued final regulations under Section 1061 in January 2021. The final regulations provide detailed rules on applicable partnership interests, applicable trades or businesses, holding periods, capital interest exceptions, transfers and reporting. The current rule was not changed by the 2025 tax legislation commonly referred to as the One Big Beautiful Bill Act; Cooley’s 2025 tax alert notes that the final legislation did not change the tax treatment of carried interest, although Congress had considered proposals to further limit long-term capital gains treatment.

For many private equity and venture capital funds, the three-year rule will not affect most carried interest gains. A substantial portion of private fund investments are held longer than three years. In venture capital, especially early-stage venture capital, the typical successful portfolio company is often held well beyond three years. In private equity, many buyout and growth equity investments are also held for periods exceeding three years.

But the issue is real.

It may sound somewhat counterintuitive, particularly to managers accustomed to long fund lives and multiyear holding periods, but in the current fast-paced deal environment we are seeing a not insignificant number of successful exits inside three years. In some cases, those exits are excellent business outcomes. The problem is not commercial. The problem is tax. A highly successful realization can produce an unexpectedly bad carried interest tax result if the relevant holding period is three years or less.

In venture capital, a short holding period can arise in late-stage investments, top-up funds, opportunity funds, SPVs, pre-initial public offering (IPO) investments, secondary purchases, bridge rounds before a sale, or simply a company that exits unusually quickly. In private equity, the issue can arise in fast buy-and-build strategies, continuation transactions, recapitalizations, add-on acquisitions, partial exits, minority growth investments, secondaries, structured transactions and investments sold more quickly than expected.

The issue can also arise because of transaction structure. For example, a fund may hold stock in a private company for more than three years, but then exchange that stock in a taxable or partially taxable transaction for stock of a public acquirer, or for securities whose holding period is measured from the time of the transaction. If the fund later sells those new securities before the relevant holding period is satisfied, the manager may have a less favorable Section 1061 result than expected. These rules are technical, and managers should involve tax counsel before assuming that the original investment holding period carries through all transaction structures.

Carried interest waiver provisions

In response to Section 1061, many private equity and venture capital fund agreements now include a voluntary carried interest waiver mechanism.

The basic idea is that, at the time of a realization event that would generate gain on an investment held for more than one year but not more than three years, the GP may elect to waive its right to receive the carried interest allocation or corresponding distribution attributable to that gain. In exchange, the GP receives a right to a dollar-for-dollar catch-up from future eligible gains, typically gains from investments held for more than three years.

The one-year point is important. If an investment is sold after one year but before three years, the LPs generally may have long-term capital gain, while the carried interest recipients may have short-term capital gain by reason of Section 1061. In that circumstance, a properly drafted waiver provision can be helpful to the GP without disadvantaging LPs. If the GP waives the carried interest allocation or distribution, LPs may receive more of the current realization proceeds earlier than they otherwise would have received them. That can be favorable to LPs from a timing and IRR perspective. A carried interest waiver also reduces the risk of the GP finding itself in a clawback situation.

By contrast, gains from investments held for one year or less are different. Everyone has short-term capital gain on a sub-one-year sale. A waiver of that gain by the GP should not be used to shift unfavorable tax character to LPs. For that reason, the Section 1061 waiver provisions we typically see are generally focused on the two-to-three-year fact pattern: long-term capital gain for LPs, but short-term capital gain for the carried interest recipients because of Section 1061.

In ideal circumstances, the waiver can put the manager in a similar economic position while avoiding the unfavorable tax result of having carried interest from a three-year-or-fewer gain taxed at ordinary income rates. If the waiver works as intended, the manager gives up the problematic gain and later receives an equivalent amount of carry from better-character gain.

The real-time nature of the election is important.

A fund manager does not make the decision in the abstract at the time the fund is formed. The manager makes the decision prior to an actual exit, with actual facts. That allows the manager to assess the remaining portfolio, the stage of the fund, the likelihood of future gains, the amount of the waived carry, the remaining term, the expected exit pipeline and the risk that the catch-up will never be achieved.

For example, assume investment #1 in a 10-year venture fund exits after two years at a large gain. The fund still has 20 other portfolio companies, a long remaining fund life and significant apparent unrealized upside. In that case, the manager may feel reasonably comfortable waiving the carry attributable to the early exit, because there is a credible possibility that future eligible gains will allow the manager to catch up.

The opposite case is different. If a late-life cycle fund sells one of its last remaining investments before the three-year holding period is satisfied, and there are few remaining assets with meaningful appreciation potential, a waiver may be economically unattractive. The tax benefit may be outweighed by the risk that the manager will never recover the waived carry.

This is why the provision is usually drafted as an option, not a requirement. It gives the GP flexibility to make the decision based on facts existing at the time of the exit.

These waiver provisions should be drafted carefully. The catch-up generally needs to be funded from future appreciation, not from amounts that would otherwise belong to investors without corresponding economic risk to the manager. In addition, carried interest waivers cannot be made after an exit and, in fact, the earlier the waiver is made before a disposition, the more likely the carried interest waiver will survive IRS scrutiny. The provision also typically should be designed so investors are not disadvantaged. From a commercial fairness perspective, managers generally should not be able to waive ordinary income, interest income or gain from investments held for one year or less in a way that shifts unfavorable tax character to taxable investors. The structure also involves tax risk. These waiver structures have not been blessed by Treasury or the IRS and may be subject to challenge or future legislative change.

In practice, however, this architecture has become common enough that many institutional investors are familiar with it. Investors often accept the concept with relatively little pushback if the waiver is voluntary, the manager bears real economic risk of nonrecovery, the catch-up is limited to appropriate future gains, and the provision is not expected to disadvantage LPs. For many LPs, the provision is understandable: The manager is trying to avoid a tax penalty that uniquely affects carried interest, while the LPs are not being asked to give up economics and may receive current proceeds more quickly.

Securities distributions and public stock

Carried interest is not always distributed in cash. Private equity and venture capital funds may distribute public securities or other marketable securities. This is especially common in venture capital after an IPO or public company acquisition, but it also can arise in private equity exits and continuation fund transactions.

Securities distributions create several issues.

First, the fund agreement needs to specify how securities are valued for waterfall purposes. Is value determined by a trailing average, a closing price, a volume-weighted average price (VWAP), the price used for in-kind distribution accounting or another method? What happens if the security is thinly traded, subject to lock-up, subject to volume limitations or not freely transferable?

Second, securities distributions can affect clawback risk. A manager may receive securities at a stated value, but the securities may later decline before they are sold. If the fund later has a clawback, the manager may owe cash, even though the distributed securities have declined in value.

Third, Section 1061 can continue to matter. The final carried interest regulations include rules addressing distributed property and holding periods, and tax counsel should analyze whether the carried interest recipient must continue to hold distributed property to satisfy the three-year requirement.

For these reasons, securities distributions should be coordinated among the waterfall, tax distribution provisions, valuation provisions, clawback provisions, securities law restrictions, insider trading policy and tax advice.

Clawbacks

The final core issue is whether a return obligation, called a clawback, will exist if the GP or carried interest recipients receive more than they are ultimately entitled to retain.

Most private equity and venture capital funds have some form of clawback. The clawback is the backstop that protects investors if carry distributions made earlier in the fund’s life prove, with hindsight, to have been too large.

The basic pattern that creates a clawback is usually the same: early winners, later losers.

Consider again a $100 million fund that ultimately will invest $80 million and spend $20 million on management fees and other expenses. Assume the fund first calls $50 million, uses $10 million for expenses and makes four $10 million investments. The first investment is sold for $90 million. That is an $80 million gain on that investment. Depending on the waterfall, that may be enough to return all $50 million of contributed capital and pay carried interest to the GP. But assume the fund later calls the remaining $50 million, uses $10 million for expenses, invests the remaining $40 million and every other investment goes to zero. The fund has called $100 million in total and distributed only $90 million in total. The fund has not, on a whole-fund basis, returned all contributed capital. If the GP previously received carry on the early winner, it received more than it was ultimately entitled to retain. That is the clawback fact pattern.

In venture capital funds using a European waterfall, the clawback is often assessed once, at liquidation. Interim clawbacks are less common, because the whole-fund waterfall itself substantially reduces overdistribution risk. There is still a statistical possibility of a clawback at liquidation, particularly where the fund has early winners and later losers, but the risk is generally lower than in a deal-by-deal distribution model.

In private equity funds using deal-by-deal carry, clawback mechanics are often more central to the economic bargain. Because the manager may receive carried interest before the entire fund has played out, investors may require more detailed protections. These can include interim clawbacks, escrow of a portion of carry distributions, net worth covenants, guarantees from carry recipients, after-tax clawback limitations, restoration obligations and periodic testing.

One important issue is whether the clawback is before or after tax. Managers generally resist an obligation to return amounts that have already been paid to tax authorities. Investors, for their part, want meaningful protection against overdistribution. Many agreements solve this by providing an after-tax clawback, sometimes with assumptions about tax rates and tax benefits. The drafting can become technical, especially when carry recipients are located in different jurisdictions or subject to different tax rates.

Another issue is credit support. If the clawback arises at liquidation, the fund and GP may have little or no remaining assets. The actual economic source of repayment may be the individual carry recipients. Historically, some agreements used escrows to secure future clawback obligations. Today, escrows are less common in many venture capital funds, though they may appear in certain private equity arrangements. More commonly, the issue is addressed through undertakings or guarantees by the carried interest recipients, sometimes in the fund agreement and sometimes in a separate clawback guaranty.

Managers should pay close attention to how carry is shared internally. A fund agreement may impose a clawback on the GP, but the economic recipients of carry may include partners, employees, former employees, retired partners, estate planning vehicles and other participants. If those recipients have received carry distributions but are not obligated to return their share of any clawback, the GP or remaining principals can be left bearing disproportionate risk. This is an internal governance issue as much as a fund agreement issue.

Practical market observations

For most mainstream private equity and venture capital funds, 20% carry remains the central market reference point. Departures from that baseline are possible, but they should be understood as part of the overall economic package.

In venture capital, premium carry is more common than in many private equity strategies, particularly for managers with very strong realized track records, highly competitive access or brand-driven fundraising leverage. Earned premium carry is more common in current negotiations than flat premium carry for new funds, and it is often easier for LPs to accept because the enhanced economics are tied to enhanced investor returns. Early-stage venture funds often do not include preferred returns and use European waterfalls. Section 1061 waiver provisions are common and particularly relevant for late-stage, opportunity, top-up and SPV investments that may exit inside three years.

In private equity, the headline carry rate also is often 20%, but preferred returns, GP catch-ups, deal-by-deal waterfalls, interim clawbacks, escrows and more detailed clawback security may be more common depending on strategy. Premium carry exists, but investors often evaluate it against the presence or absence of a preferred return, the amount of GP commitment, the manager’s track record, the breadth of the platform and the expected risk-adjusted return profile.

Across both markets, the same basic principle applies. Carried interest is not just a percentage. A 20% carry rate can be economically different depending on whether there is a preferred return, whether expenses reduce the carry base, whether the waterfall is European or American, whether tax distributions are broad or narrow, whether carry can be distributed in securities, whether Section 1061 waiver language is included, and whether the clawback is meaningful.

Conclusion

Carried interest is both an economic term and a behavioral term. It determines how profits are shared, but it also shapes incentives, retention, tax planning, investor alignment and long-term firm culture.

Managers should not treat these provisions as boilerplate. A venture fund with many early investments and long-duration upside may require different carry mechanics than a buyout fund with fewer control investments, leverage and more predictable exit timing. A first-time fund may require different investor protections than a heavily oversubscribed successor fund. A fund that expects late-stage investments, quick exits or continuation transactions should pay particular attention to Section 1061 waiver mechanics.

As is the case with management fees, carried interest is a core compensatory matter in the private equity and venture capital industry. In many cases, it is the most important one. Fund managers will do well to pay attention to market norms – not because every fund needs to look the same, but because investors and managers both benefit from a structure that is understandable, aligned, tax-aware and durable over the life of the fund. Sophisticated investors generally want managers to be strongly motivated to build and harvest value. Managers, for their part, should want carry terms that reward performance without creating avoidable investor friction, tax inefficiency or future disputes.

The answer is, in many cases, Delaware or the Cayman Islands. For managers seeking reputable institutional capital across the United States, Europe, Asia, Latin America, the Middle East and elsewhere, those two jurisdictions continue to be the most familiar and commonly accepted fund domiciles for many private equity and venture capital strategies.

But the analysis has become more nuanced in recent times.

Cayman funds are now subject to a more developed private funds regulatory regime than was the case historically. US national security regulation has become more important for funds investing in sensitive technologies, critical infrastructure, data-rich businesses or China-related opportunities. The US Corporate Transparency Act, which for a period was expected to create broad beneficial ownership reporting obligations for US entities, was narrowed substantially by the Financial Crimes Enforcement Network (FinCEN) March 2025 interim final rule, so that US-formed entities are currently exempt, and only certain foreign entities registered to do business in a US jurisdiction remain within the federal beneficial ownership information (BOI) reporting regime. The US outbound investment regime is now a live consideration for some cross-border technology strategies. European fundraising sometimes points managers toward Luxembourg or Ireland. Singapore, Mauritius and other jurisdictions may be relevant where a fund has a particular geographic strategy or tax treaty rationale. And yet, for many managers raising institutional private equity or venture capital funds with a meaningful US nexus, the practical question often remains the same: Should the main fund be Delaware, Cayman or some combination of the two?

This article is intended as a primer. It is not a substitute for a structuring discussion with legal and tax counsel, and it necessarily simplifies a number of issues that can become highly technical. But it should help identify the principal commercial, cost, regulatory and tax considerations that usually drive the domicile decision.

The short list is still usually Delaware versus Cayman

A fund’s domicile should follow its actual facts. A manager raising primarily from US taxable and US tax-exempt investors and investing mainly in US portfolio companies will often find Delaware to be the simplest and most efficient answer. A manager raising substantial non-US capital, investing globally or seeking to accommodate non-US investors that prefer not to receive US tax reporting may have stronger reasons to consider Cayman.

There are, however, situations where a more localized jurisdictional analysis is appropriate. A manager raising primarily from family offices in Southeast Asia may reasonably consider a Singapore structure. A manager investing substantially in India may need to consider Mauritius, Singapore or other treaty-oriented structures, recognizing that India treaty planning has become more complex and fact-dependent in recent years. For example, India-focused private equity and venture capital funds have historically considered Mauritius and Singapore structures for capital gains and other tax treaty reasons, although recent Indian tax developments, including the Supreme Court of India’s 2026 Tiger Global decision, underscore that treaty access cannot be assumed merely because a holding vehicle is organized in a treaty jurisdiction. A manager with a strategy involving European institutional capital may consider Luxembourg or Ireland, particularly where access to the EU marketing passport or an EU onshore fund product is commercially important. A manager investing in particular categories of income-producing assets, credit, infrastructure, real estate, royalty streams or natural resources may find that the analysis differs from the typical early-stage venture analysis.

Those situations should not be ignored. They are often the point of the structuring exercise. A domicile that is unnecessary or overly complicated for a generalist US venture fund may be essential for a fund investing into a particular country or asset class. If there is a specific tax treaty, regulatory, marketing, currency-control, local licensing or investor eligibility issue, that specific issue may override the usual Delaware versus Cayman analysis.

For many private equity and venture capital funds, however, Delaware and Cayman remain the most common starting points. The main decision is often Delaware versus Cayman, sometimes with parallel funds, feeders, blockers or alternative investment vehicles used to solve specific investor or investment issues.

A note for managers outside the United States

Although much of this article focuses on funds with a US nexus, the analysis is not limited to US-based managers.

We regularly see managers located outside the United States – including managers in Asia, Latin America, Europe and the Middle East – consider Delaware and Cayman structures. The right answer for those managers depends on a more global set of facts: where the manager and investment team are located, where the investors are located, where the portfolio companies are located, whether US taxable or US tax-exempt investors are expected, whether the strategy involves US portfolio investments, whether local licensing or marketing rules apply, and whether tax treaty access is relevant.

For a manager based in Singapore, Abu Dhabi, London, São Paulo, Mexico City, Hong Kong, Tokyo, Beijing, Mumbai or elsewhere, Delaware and Cayman may still be highly relevant. Cayman may be attractive as a neutral international fund domicile familiar to global investors. Delaware may be appropriate where the fund expects significant US investors, US portfolio investments or US tax reporting in any event.

The important point is that a non-US manager should not assume that “offshore” automatically means Cayman, nor should a US-based manager assume Delaware and move forward. The fund’s structure should be designed around the manager’s actual fundraising market, investment mandate and operating footprint.

Commercial issues

Commercially, reputable institutional investors globally are generally familiar with both Delaware and Cayman funds. A sophisticated investor is unlikely to be surprised by either choice. As a general matter, investors that regularly invest in private equity and venture capital funds will have seen Delaware limited partnerships, Cayman exempted limited partnerships, Cayman feeder funds, Cayman parallel funds and hybrid structures.

That does not mean the choice is commercially irrelevant.

Some non-US investors view Delaware as putting them too close to the US tax and reporting system. This may be true even where, as a technical matter, the investor’s US tax filing obligations would be driven by the character of the fund’s income rather than by the mere receipt of a Schedule K-1. Investor perception matters. Some investors simply do not want to invest directly into a US partnership unless there is a strong reason to do so.

Conversely, some investors continue to have a perception concern with Cayman. In some markets, particularly some European markets, Cayman is still viewed by certain investment committees, public institutions, corporate investors or family offices as carrying reputational baggage because it is an offshore jurisdiction. That concern is often more about optics, internal policy or political sensitivity than about the actual legal or regulatory quality of the jurisdiction. The Cayman Islands’ regulatory infrastructure for private funds, anti-money laundering/know your customer (AML/KYC), Foreign Account Tax Compliance Act (FATCA) and Common Reporting Standard (CRS) reporting is far more developed than the casual “tax haven” label suggests – and frankly more so than Delaware. The Cayman Islands also is not currently on the EU list of noncooperative jurisdictions for tax purposes; the Council of the European Union’s February 2026 list includes 10 jurisdictions, and Cayman is not among them. Still, some institutions, government-related investors, development finance institutions, pension plans, corporate strategic investors or regulated financial institutions may have internal policies or reputational sensitivities that make a Cayman fund more difficult.

This is the first practical point: The domicile decision should not be made in the abstract. Managers should map the likely investor base. If the fund is expected to be raised mostly from US individuals, US family offices, US funds of funds, US endowments, US foundations and other US institutions, Delaware may be the default. If the fund is expected to include substantial non-US investors, particularly investors that are sensitive to US tax forms or US partnership reporting, Cayman may deserve stronger consideration. If the fund expects material capital from Europe, Asia, Latin America or the Middle East, the manager should ask not merely whether those investors can invest in Delaware or Cayman, but whether a different structure would materially reduce friction with anchor investors or local regulatory expectations. If a small number of important investors have strong preferences, the fund structure may need to accommodate them through a feeder, parallel fund, blocker or alternative investment vehicle.

The second practical point is that true commercial “deal breakers” are less common than managers sometimes fear. A strong manager with meaningful demand can usually raise capital through either Delaware or Cayman. The choice more often affects friction, disclosure, investor comfort, tax administration and future flexibility than whether the fund can be raised at all.

Administrative, cost and adviser regulatory issues

Cayman is usually more expensive and administratively more involved than Delaware at the fund-vehicle level. That remains true, more so today than it was before the Cayman Private Funds Act regime became part of the standard operating environment in recent years.

A Delaware limited partnership is familiar, relatively quick to form, inexpensive to maintain, and deeply embedded in US private equity and venture capital practice. The legal documentation, tax reporting, subscription process, banking process and fund administration ecosystem are all well developed. For a smaller or first-time manager with a largely US investor base, simplicity and cost can matter a great deal.

That does not mean, however, that choosing a Delaware fund means being unregulated. For many managers, the more important US regulatory question is not the domicile of the fund vehicle, but the status of the investment adviser. A manager with a US office, US personnel, US investors or US-directed investment activity may need to analyze whether the manager must register as an investment adviser, may rely on an exemption from registration or must file as an exempt reporting adviser.

This adviser-status analysis is separate from, and often more important than, the Delaware versus Cayman fund domicile question. A US-based manager may need to register with the Securities and Exchange Commission (SEC) or state authorities, or file as an exempt reporting adviser, whether the fund is a Delaware limited partnership or a Cayman exempted limited partnership. A non-US manager may also need to consider US adviser rules if it has US clients or investors, US private fund assets, a US place of business or meaningful US fundraising activity. For example, the SEC’s private fund adviser exemption has different conditions for US and non-US advisers, including a less-than-$150 million private fund assets under management test in the relevant circumstances.

While a Cayman exempted limited partnership benefits from a very sophisticated legal and service provider ecosystem, a Cayman fund will generally require more procedural work at the fund-vehicle level. A Cayman private fund typically must register with the Cayman Islands Monetary Authority, with some exemptions available, and where applicable the Private Funds Act requires an application within 21 days after acceptance of capital commitments and prohibits accepting capital contributions for investment purposes until registration is complete. Cayman private funds also are subject to operating requirements relating to audit, valuation, safekeeping of fund assets, title verification and cash monitoring. The 2025 revision of the Cayman Private Funds Act requires at least annual valuation, sets out who may perform valuation functions and includes safekeeping/title verification and cash monitoring requirements.

These requirements are manageable. Most institutional-quality Cayman private equity and venture capital funds handle them without great difficulty. But they are real requirements, and they add cost, time and a compliance process. By contrast, a Delaware fund will generally be simpler at the fund-vehicle level. That said, as noted above, the manager will still need to consider adviser registration, exempt reporting adviser filings, Form ADV updates and state notice filings. Other requirements, such as those relating to the custody rule, pay-to-play rule, marketing rule, and books and records rule, may also be applicable if the manager is registered or otherwise within the US regulatory perimeter.

As a rough practical matter, Cayman should not be chosen merely because it sounds more “international,” and Delaware should not be chosen merely because it sounds less regulated. If the investor base, investment strategy and tax analysis do not support Cayman, the additional fund-level process may not be worth it. On the other hand, where Cayman solves real investor, tax or cross-border structuring issues, the incremental cost is usually not determinative for an institutional fund. In either case, the manager should analyze both layers: the regulation of the fund vehicle and the regulation of the adviser.

Other regulatory issues

Regulatory considerations rarely start as the primary driver of the domicile decision for a plain-vanilla private equity or venture capital fund. Tax and investor considerations usually do more work. But regulatory considerations have become more important, especially for managers investing in sensitive technologies, regulated industries, critical infrastructure, data-rich businesses, financial services, digital assets, defense-related companies or China-related opportunities.

CFIUS and US national security review

For funds investing in US businesses, particularly businesses involving critical technology, sensitive personal data, infrastructure, defense, AI, semiconductors, quantum technologies, telecommunications, aerospace, biotechnology or other sensitive sectors, Committee on Foreign Investment in the United States (CFIUS) analysis should be part of the structuring discussion.

The domicile of the fund is not the only relevant fact. CFIUS analysis can turn on control, governance rights, information rights, board or observer rights, foreign person status, limited partner rights, the nature of the portfolio company’s business and other facts. A Cayman fund with significant US management may present a different analysis than a Cayman fund managed and controlled outside the United States. A Delaware fund with substantial non-US investors may still raise CFIUS questions depending on the rights granted and the facts of a particular investment.

The “principal place of business” concept is relevant in this area. The CFIUS regulations define principal place of business, for an investment fund, by reference to where the fund’s activities are primarily directed, controlled or coordinated by or on behalf of the general partner, managing member or equivalent. The list of CFIUS-excepted foreign states currently includes Australia, Canada, New Zealand and the United Kingdom, but for this purpose the United Kingdom does not include British Overseas Territories or Crown Dependencies. This matters because Cayman is a British Overseas Territory, not the United Kingdom, for purposes of that exception.

The practical point is not that every sensitive technology fund must be Delaware. That would be too simplistic. The point is that a manager expecting to invest in sensitive US businesses should not treat domicile as a tax-only question. The fund’s structure, governance rights, investor base, side letter rights and investment strategy should be reviewed together.

US outbound investment rules

There is now also a US outbound investment regime. The Treasury Department’s final outbound investment rule became effective on January 2, 2025, and applies to certain US person investments involving covered persons of a country of concern in specified technology areas: semiconductors and microelectronics, quantum information technologies and AI. The country of concern identified in the program is the People’s Republic of China, including Hong Kong and Macau.

For private equity and venture capital managers, this can matter in at least two ways.

First, a US manager investing directly or indirectly in China-related companies in covered technology sectors may have prohibited transaction or notification issues. Second, US investors investing as limited partners in non-US pooled investment funds may have their own issues if the non-US fund is likely to invest in covered China-related technology companies. The final rule includes an exception for certain limited partner investments of not more than $2 million, aggregated across related investment and co-investment vehicles, or where the US limited partner obtains a binding contractual assurance that its capital will not be used for transactions that would be prohibited or notifiable if engaged in by a US person.

This is not primarily a Delaware versus Cayman rule. It is a US person and covered transaction rule. But it can affect fund structuring, side letter requests, excuse rights, investor diligence, parallel fund arrangements and the design of China or China-adjacent investment programs. A US manager should not assume that forming a Cayman fund moves the issue outside the US regulatory perimeter.

AML, KYC and beneficial ownership

Cayman funds have long required a meaningful AML/KYC process. Cayman funds also typically have FATCA and CRS classification, diligence and reporting obligations.

The US side has also evolved. When the Corporate Transparency Act was first implemented, many US-formed private funds, general partner entities, management companies and related vehicles had to analyze whether they were reporting companies or qualified for exemptions. That analysis changed significantly in March 2025, when FinCEN issued an interim final rule narrowing the BOI reporting regime so that US-formed entities are currently exempt, and only certain foreign entities registered to do business in a US jurisdiction remain subject to BOI reporting.

Separately, FinCEN adopted an investment adviser AML rule, but later postponed the effective date from January 1, 2026, to January 1, 2028, while indicating that it intends to revisit the substance of the rule. Managers should be careful here because the investment adviser AML landscape remains dynamic. Even where a manager is not yet subject to a comprehensive US AML program requirement, institutional investor expectations, bank onboarding, sanctions screening, Cayman requirements and best practices may effectively require a robust AML/KYC process.

The practical lesson is that Cayman is not the “lighter” compliance choice from an AML/KYC perspective. In many cases, it is the more formalized one. Delaware may be simpler at the fund-vehicle level, but managers should expect investor diligence, sanctions screening and bank compliance requirements regardless of domicile.

Tax issues

Tax remains the heart of most domicile decisions.

The following issues are not an exhaustive list, and the analysis can change materially based on the investor base, the manager’s location, the investment strategy, the expected investment geography, the possibility of US effectively connected income, the likelihood of non-US portfolio company investments, treaty planning, blocker structures, co-investment structures, and future continuation or secondary transactions. But the following issues are the ones most often discussed at the beginning of a Delaware versus Cayman analysis.

Issues of highest importance

Requirement for the fund to file a US tax return

A Delaware limited partnership generally files a US partnership tax return on IRS Form 1065 and issues Schedule K-1s to its partners. IRS guidance describes Form 1065 as the form used to report the income of every domestic partnership and every foreign partnership doing business in the United States or receiving income from US sources.

A Cayman exempted limited partnership is a foreign partnership for US tax purposes. Whether it must file a US partnership return depends on the presence of US source income, effectively connected income or other filing triggers. In practice, some Cayman private equity and venture capital funds file US partnership returns and issue US tax reporting to US investors, while others may not file where the tax analysis supports that position.

This can matter greatly to non-US investors. Some non-US investors do not want to receive a US Schedule K-1. They may view it as creating administrative friction or as evidence of unwanted proximity to the US tax system. That perception may persist even where the technical US tax filing analysis is more nuanced. Cayman can be helpful for those investors because, in some structures, US tax reporting may be limited to US taxpayer partners rather than sent to all partners.

This is one of the most common reasons managers consider Cayman.

Withholding documentation the fund must provide to third parties

A Delaware limited partnership is a US entity for US withholding documentation purposes and generally provides a Form W-9 to banks, brokers, portfolio companies, paying agents and other counterparties.

A Cayman partnership is a foreign flow-through entity for US withholding documentation purposes and generally provides a Form W-8IMY. The IRS describes Form W-8IMY as the certificate used by a foreign intermediary, foreign flow-through entity or certain US branches for US withholding and reporting. In many cases, the Form W-8IMY process requires attaching or maintaining underlying withholding documentation for partners and providing a withholding statement.

This difference should not be minimized. It can create awkward disclosure issues when a fund invests into another fund, receives certain US-source payments or interacts with counterparties that insist on complete withholding documentation. A Delaware fund may provide a Form W-9. A Cayman fund may be asked to provide a Form W-8IMY package that reveals more about its investor base than the manager would prefer.

Some Cayman funds resist providing detailed second-layer information. That may be understandable as a business matter, but it should be done only after understanding the withholding and documentation risk. In some cases, the administrative privacy gained by using Cayman at the investor reporting level can be offset by additional disclosure requests in the withholding chain.

Treaty benefits and local tax treatment

Domicile can affect the availability of treaty benefits or the local tax treatment of investments in certain countries. Some countries historically have applied less favorable tax treatment to investors from jurisdictions they view as tax havens or low-tax jurisdictions. Cayman may appear on particular country lists even where it is not on the EU noncooperative jurisdictions list. Delaware, Luxembourg, Ireland, Singapore, Mauritius or another jurisdiction may be better for a particular investment strategy depending on the target country and the treaty network.

For a classic US-focused private equity or venture capital fund, this may not matter much. For a fund investing meaningfully in India, Brazil, China, Southeast Asia, Europe, Africa or other non-US markets, it can matter a great deal. In those cases, the answer may not be simply “Delaware or Cayman.” The answer may involve a main fund, treaty-eligible holding vehicles, alternative investment vehicles, blockers or parallel funds.

India is a useful example. Many India-focused funds have historically considered Mauritius or Singapore structures because of treaty access and investor familiarity. That does not mean Mauritius or Singapore is always the right answer, and recent Indian tax developments have made the analysis more fact specific. The point is broader: A particular country strategy may create a particular tax or regulatory reason to use a jurisdiction that would not otherwise be the default choice.

Managers should be cautious about over-engineering this issue. A treaty structure that solves a theoretical future investment problem can be expensive, slow and unnecessary if the fund ultimately makes only a small number of relevant investments. But managers with a clear geographic investment mandate should address treaty and local tax issues early because retrofitting structure after signing a term sheet can be difficult or impossible.

Issues of lesser but still real importance

Requirement for the fund to act as a withholding agent

A Delaware partnership generally acts as a withholding agent with respect to certain US-source withholdable payments. A Cayman partnership may have different withholding documentation and withholding agent considerations depending on the income and structure.

For many early-stage venture funds, this issue is not usually determinative because venture funds typically do not earn large amounts of US-source interest, dividends or other income subject to withholding. The analysis may be more important for private equity, growth equity, credit, real estate, infrastructure, revenue-interest, royalty or structured equity strategies. A fund that expects current income, dividend recapitalizations, debt instruments, royalties, token income or other nonstandard income streams should consider withholding issues more carefully.

Impact on US taxation of non-US limited partners

The choice between Delaware and Cayman does not, by itself, determine whether a non-US limited partner has a US tax filing obligation. The more important question is whether the fund earns income effectively connected with a US trade or business, or other income that triggers US tax filing or withholding obligations.

Most private equity and venture capital fund agreements with non-US investors contain covenants or operating provisions designed to avoid generating effectively connected income for non-US investors absent consent, excuse mechanics or an appropriate blocker. Those provisions matter in both Delaware and Cayman funds.

In other words, Cayman may reduce certain reporting friction, but it is not a magic shield against US tax consequences. Delaware may create more visible US tax reporting, but it does not necessarily create substantive US tax filing obligations and/or income tax liabilities for non-US investors unless the fund’s income or activities do so.

PFIC issues

Many non-US early-stage companies can be passive foreign investment companies (PFICs) for US tax purposes. US taxpayers investing in PFICs may need information to make a qualified electing fund (QEF) election and satisfy related reporting obligations.

A Delaware fund, as a US partnership, is generally positioned differently from a Cayman fund for these purposes. In broad terms, a Delaware fund may make or facilitate QEF elections at the fund level, while US partners in a Cayman fund may need to make elections at the partner level. Under proposed rules that are not yet in effect, US partners in a US partnership would need to make a QEF election at the partner level, which would make the PFIC reporting rules between Delaware and Cayman funds similar. In either case, the manager will often need to identify potential PFICs and obtain sufficient information from portfolio companies to support US investor reporting.

As a practical matter, the domicile choice affects who bears the tax reporting mechanics (under current law). It does not eliminate the need for PFIC diligence if the fund invests in non-US companies and has US taxable investors.

CFC Issues

Controlled foreign corporation (CFC) issues have historically been a key reason some managers preferred Cayman for non-US investments or formed Cayman alternative investment vehicles alongside Delaware main funds.

The basic issue is that a Delaware fund is a US person for CFC determination purposes, while a Cayman fund is not. A Delaware fund’s ownership in a non-US portfolio company may therefore contribute to CFC status in ways that a Cayman fund’s ownership may not, though the ultimate tax consequences require a more detailed analysis of fund ownership, investor ownership, attribution rules, portfolio company ownership and the type of income earned by the portfolio company.

The 2017 Tax Cuts and Jobs Act and subsequent Treasury regulations changed the practical significance of some CFC planning. The old shorthand that Cayman “solves” CFC issues is no longer reliable. A Cayman fund is still less likely to cause a non-US portfolio company to be treated as a CFC, but managers should assume that a CFC analysis has become a technical issue requiring current tax advice rather than a simple domicile-based answer.

For venture funds investing only occasionally outside the United States, CFC considerations may be handled through alternative investment vehicles or investment-by-investment planning. For buyout, growth equity or other funds with a broad non-US investment mandate, CFC planning should be part of the initial structure discussion.

FATCA and CRS

A Delaware fund is not a foreign financial institution for FATCA purposes. It may have withholding and documentation obligations in certain contexts, but it does not register as a Cayman financial institution.

A Cayman fund, by contrast, will generally need to consider FATCA and CRS classification, registration, diligence and reporting. The IRS describes FATCA as generally requiring foreign financial institutions and certain other foreign entities to report on foreign assets held by US account holders or face withholding on withholdable payments. Cayman’s Department for International Tax Cooperation describes FATCA and CRS as part of the Cayman reporting framework for financial accounts and automatic exchange of information.

This is another reason Cayman can be more administratively involved than Delaware. Again, the requirement is manageable. Fund administrators and Cayman counsel are accustomed to it. But it is not costless.

What about Luxembourg, Ireland, Singapore, Mauritius and other jurisdictions?

Delaware and Cayman remain the usual short list for many private equity and venture capital funds with a US nexus, but other jurisdictions are increasingly part of the conversation.

Luxembourg is commonly considered where European institutional fundraising is central to the strategy. Luxembourg can be helpful for EU marketing, particularly where the manager wants an EU onshore product, but it brings a very different cost, regulatory and service provider profile than Delaware or Cayman.

Ireland has also become more relevant for private funds, including through the investment limited partnership. Ireland may be attractive for certain managers seeking an English-language, common law, EU onshore structure, but it is not usually the default for a US-connected private equity or venture capital manager unless EU capital or strategy considerations justify it.

Singapore is a serious fund domicile for managers with a meaningful Singapore or Southeast Asia nexus. Singapore may be especially relevant where the management team, investor base, investment strategy or tax planning has a meaningful Asia connection.

Mauritius remains relevant for certain Africa- and India-focused strategies, although India-related treaty planning has become more complex and should be analyzed carefully. Mauritius is often discussed as a fund domicile for managers deploying capital into Africa, India and other emerging markets, but the answer depends heavily on treaty access, substance, investor profile and the current tax position in the relevant investment jurisdiction.

Managers may also consider the Dubai International Financial Centre (DIFC), Abu Dhabi Global Market (ADGM), Jersey, Guernsey or other jurisdictions depending on investor base, manager location, regulatory permissions, tax analysis and market expectations. For some Middle East managers or managers raising heavily from Gulf investors, an ADGM or DIFC element may be commercially or regulatory relevant. For some European or UK-adjacent strategies, Channel Islands structures may be familiar to investors. For some Latin America strategies, the answer may turn on local tax, exchange-control or investor eligibility issues rather than on global fund market convention.

The practical point is that these jurisdictions are not “better” or “worse” in the abstract. They are tools. They solve particular problems. They also introduce cost, regulatory substance, service provider and timing issues. A manager should choose them because the fund’s facts support them, not because they appear more sophisticated.

Parallel funds, feeders and alternative investment vehicles

The domicile decision is not always binary.

A manager may form a Delaware main fund with a Cayman feeder for certain non-US or tax-sensitive investors. A manager may form parallel Delaware and Cayman funds that invest side by side. A manager may form a Cayman main fund with a Delaware alternative investment vehicle for particular US investments. A manager may use blockers for effectively connected income (ECI), unrelated business taxable income  (UBTI) or other tax-sensitive investments. A manager may use special-purpose vehicles or co-investment vehicles for particular investors or deals. A manager with a country-specific strategy may use one fund domicile for the main fund and a different jurisdiction for holding companies or investment vehicles where treaty or local tax considerations support that approach.

These structures can be highly effective. They can also add complexity.

Parallel funds require allocation mechanics, governance coordination, borrowing and collateral coordination, subscription facility analysis, tax allocations, expense sharing provisions, Employee Retirement Income Security Act (ERISA) and Venture Capital Operating Company (VCOC) analysis, regulatory analysis and careful disclosure. Feeders require attention to tax reporting, withholding documentation, investor rights and cash movement. Alternative investment vehicles (AIVs) require clear lasting power of attorney (LPA) authority and disciplined implementation.

A manager should not reflexively build a multi-vehicle structure to solve hypothetical issues. But where a small number of real issues would otherwise distort the entire domicile choice, a targeted feeder, parallel fund, blocker or AIV may be the right answer.

Practical decision framework

For many private equity and venture capital managers, the following questions will drive the analysis:

1. Where are the investors? A mostly US investor base points toward Delaware. A meaningfully non-US investor base may point toward Cayman or a feeder/parallel structure. A concentrated investor base in Europe, Asia, Latin America or the Middle East may point toward additional local or regional structuring considerations.
2. Where is the manager located? A US-based manager, Singapore-based manager, London-based manager and Abu Dhabi-based manager may all be able to use Delaware or Cayman, but the regulatory, tax and commercial analysis may differ materially.
3. What will the fund invest in? A US-focused software venture fund is different from a global deep-tech fund, China-related technology fund India fund, Latin America growth fund, crypto fund, credit fund, real estate fund, infrastructure fund or buyout fund investing in regulated industries.
4. Will the fund invest materially outside the United States? Non-US portfolio investments can raise treaty, PFIC, CFC, local tax, withholding, currency-control and reporting issues.
5. Is there a specific country or asset-class tax issue? If yes, that issue may override the usual Delaware versus Cayman analysis. India, Brazil, China, Southeast Asia, Europe, Africa and Latin America can each present structuring questions that should be considered before launch.
6. Will sensitive technology or national security issues be common? If yes, CFIUS, outbound investment rules, sanctions and export control-adjacent issues should be considered early.
7. Are there anchor investors with strong domicile preferences? One or two large investors can change the practical answer, particularly if they have internal restrictions on US partnerships, Cayman vehicles or offshore vehicles more generally.
8. How much complexity can the manager operationally absorb? First-time managers should be especially careful about creating structures that are technically elegant but operationally burdensome.
9. Is the incremental cost worth the benefit? Cayman, Luxembourg, Ireland, Singapore, Mauritius and other jurisdictions can all be excellent choices in the right situation. They are rarely the cheapest or simplest choices.

Conclusion

The answer to “Where should I form my fund?” is still usually found by working through commercial, cost, regulatory and tax considerations in that order, with tax often doing the most work.

Delaware remains the simplest and most familiar domicile for many US-connected private equity and venture capital funds, especially those raising primarily from US investors and investing primarily in US companies. Cayman remains a highly accepted and often very useful domicile for funds raising substantial non-US capital, investing globally or seeking to reduce certain US tax reporting friction for non-US investors. Luxembourg, Ireland, Singapore, Mauritius and other jurisdictions may be appropriate where the investor base, marketing strategy, management footprint, investment geography or treaty analysis points in that direction.

The most important advice is not to choose based on labels. Delaware is not always too US-centric. Cayman is not always too offshore. Cayman also should not be treated as suspect merely because it is an offshore jurisdiction; in many cases, investor concerns about Cayman are more about perception, internal policy or optics than about the actual legal or regulatory framework. Luxembourg, Ireland, Singapore and Mauritius are not automatically more sophisticated. Each jurisdiction solves some problems and creates others.

The right approach is to map the expected investor base, manager location, investment strategy, regulatory profile and tax posture before launch. Once those facts are clear, the domicile decision usually becomes much less mysterious.

Whether an AI policy is a formal regulatory requirement depends on your firm’s registration status. Rule 206(4)-7 under the Investment Advisers Act of 1940 requires registered investment advisers (RIAs) to maintain written compliance policies and procedures. That rule does not apply to exempt reporting advisers (ERAs), but that doesn’t mean an ERA should skip an AI policy. Investors are routinely asking about AI use, and much like a data privacy or business continuity policy, an AI policy is a risk management document.

Can you share some sample AI policies?

As firms begin responding to DDQs and anticipating exam requests, they may be asking around for sample AI policies. What they may be finding is that there isn’t a great off-the-shelf policy to make their own. Two patterns are worth flagging.

First, many sample AI policies can be described as an intention document – a policy that commits the firm to responsible AI use, ongoing supervision, appropriate training and disclosure to the extent deemed necessary, without describing what any of that actually looks like. While these types of policies may check the box for “having a policy,” they won’t help answer the follow-up questions from investors or examiners.

Second, even a more detailed sample policy may not be the right fit for your firm. The right AI policy is specific to how a firm actually uses AI, honest about where the human oversight layer sits and built to be updated as that use changes. A policy imported from a different type of firm, or drafted without reference to the firm’s actual tools and workflows, creates a document that doesn’t match operations. That mismatch itself is a risk.

What the policy should cover

1. Tool inventory and approval process. The policy should identify what AI tools the firm uses, who approved them and what process governs the adoption of new tools. This is harder than it sounds. AI is now embedded in tools that firms already use: document drafting platforms, email, transcription services and productivity suites. Employees are using AI today without having affirmatively adopted anything. A policy that only addresses tools the firm formally approved may miss most of actual AI use on day one. The inventory needs to capture the full picture, including AI functionality embedded in existing platforms.
   
   
2. Permitted and prohibited uses. The policy should specify what supervised persons can use approved tools for and what they cannot input into a given AI system. The answer depends in part on the tool. Enterprise versions of AI platforms typically include contractual protections that prohibit the vendor from using firm data to train the underlying model, making them more suitable for work involving sensitive information. Consumer versions of the same tools often lack those protections. The policy should draw that line clearly, address personal AI tool use on consumer platforms and not leave the distinction to individual judgment.
   
   
3. Human review requirements. Every AI-assisted output going to a client, investor or counterparty should be reviewed by a human before it goes out. The policy should describe what that review requires in practice, not just that it happens. The distinction between reading an output and reviewing it matters.
    
4. Disclosure accuracy. The policy should designate responsibility for ensuring that the firm’s disclosures accurately describe its AI use and for keeping them current as that use evolves. The person responsible for disclosure accuracy should be identified and the update cadence defined. The gap between how firms actually use AI and how their disclosures describe it may be the most widespread AI-related deficiency across the industry right now.
   
   
5. Vendor diligence. Before adopting a third-party AI tool, the policy should require meaningful diligence on confidentiality and data ownership provisions, the right to retrieve data on termination, and notification if the vendor materially changes the underlying model.
   
   
6. Recordkeeping. The policy should address which AI outputs constitute records and how they are retained. For RIAs, this analysis runs through Rule 204-2, which we addressed in a recent post on AI notetakers. ERAs are not subject to Rule 204-2, but the practical question is the same: What does the firm keep, and can it produce it when necessary?
   
   
7. Training and review. Employees should receive training on the AI policy when it is adopted and when it is materially updated. For RIAs, the annual compliance review under Rule 206(4)-7 should specifically assess the policy. But given how quickly AI tools and capabilities are evolving, firms should treat an annual review as the minimum, not the standard. ERAs should build the same practice into their operations, even without the formal rule requiring it.

A final word

The goal of a well-constructed AI policy is not to limit AI use; it is to enable it with confidence, allowing the firm to say “yes” to new tools, “yes” to AI-assisted workflows and “yes” to investor questions, without having to reconstruct the analysis under pressure. That is worth keeping in mind at a moment when the Securities and Exchange Commission itself is encouraging adoption and inviting firms to engage on how new technologies can come online while retaining investor protections. If you don’t have an AI policy yet, start with an honest account of how AI is being used at your firm. The guidelines above are a good place to go from there. As always, we are happy to assist.

SB 1319 would require California’s public investment funds – including CalPERS, CalSTRS and the state’s roughly 80 other public pension systems – to publicly disclose detailed data for alternative investments, including:

• Performance benchmarking for each alternative investment measured against a comparable public market index.
• Certain portfolio company-level information, including asset locations and workforce data.

The bill covers alternative investments broadly, including private equity, venture capital, hedge funds, private debt and real assets.

The disclosure obligations would run to the public pension funds as investors, not directly to fund managers. That said, the bill would effectively require California public pension investors to publicly disclose information that most fund governing documents currently restrict, including fund-level performance data and portfolio company information, creating direct tension with standard confidentiality provisions (which generally limit public disclosures for public pensions to fund-level data, not portfolio company data).

The bill’s ultimate form is not settled. To date, it has cleared two Senate policy committees without opposition votes, passing the Judiciary Committee on April 14 and the Labor, Public Employment and Retirement Committee on April 22. The bill, authored by Sen. Dave Cortese and joint-authored by Sen. Maria Elena Durazo, now heads to the Senate Appropriations Committee. The Appropriations suspense file hearing in late May will be the next significant procedural test. Further amendments are possible, and the portfolio company disclosure provisions, in particular, are likely targets for negotiation. Currently, SB 1319 is opposed by the California State Association of Counties, Rural County Representatives of California, State Association of County Retirement Systems and Urban Counties of California. Fund industry trade groups have not yet made public statements in respect of the bill.

Note: Rule 204-2 applies to registered advisers. Exempt reporting advisers are not subject to it, but the practical and policy questions raised by AI notetakers apply regardless of registration status. For a broader discussion of issues to consider when using AI notetakers, including consent and confidentiality considerations, see AI Note-Taking: Many Things to Ponder and How to (Appropriately) Use AI to Take Notes.

The framing problem

The wave of off-channel communications enforcement actions over the last several years under the prior administration conditioned firms to think about recordkeeping as a communications problem – who sent what, over what channel, and was it retained and supervised. That framework is not wrong, but it does not exhaust the analysis.

Rule 204-2 is broader. The term “record” sweeps in “transcribed information of any type, whether expressed in ordinary or machine language” – a formulation that has been on the books for decades and is remarkably technology-neutral. It was not written for AI, but it captures AI-generated notes, summaries and transcripts. A registered adviser using an AI notetaker is generating records within the meaning of the rule whether it realizes it or not.

What to do about it

The impracticality of assessing transcripts in real time points toward the same conclusion for every firm: Policy decisions need to be made in advance, at the category level. For some call types, the right answer may be that AI notetakers should not be used at all – calls with counsel, compliance committee meetings or any context where the firm would prefer not to hand a transcript to a regulator. For others, the calculus may favor use, with clear rules about what gets retained and in what form. Many firms will end up with a hybrid.

There is no off-the-shelf policy or checklist that will suit every firm. The task requires assessing the firm’s size, mix of activities, which provisions of Rule 204-2 are most relevant to how it actually operates and its appetite for examination risk. Additional questions, such as what form of AI output to retain, who reviews it and when, how to handle notice and consent obligations, how to manage vendor risk, and who owns the policy, need to be worked through as part of that process.

Firms should also resist the assumption that retaining everything is the conservative approach. It is not. Transcripts that are not required records give examiners more material to scrutinize without adding compliance credit. An examiner who obtains a transcript the firm was not required to keep can review it, scrutinize it and potentially use it against the firm. Under-retention carries a different risk: If a transcript was a required record, and it was deleted, the deletion may itself be the violation.

Why the analysis is harder than it looks

A meaningful strand of recent commentary concludes that if a transcript is not transmitted – if it stays within the platform and is never emailed, shared or forwarded – it likely is not a required record under Rule 204-2. That conclusion is a useful starting point, but it addresses only part of the problem. Transmission tells you whether you have a communications problem; it does not tell you whether you have a records problem elsewhere. Given the sweeping definition of a record under Rule 204-2, an untransmitted transcript can still be a required record under a separate provision of the rule.

Rule 204-2 enumerates a laundry list of records that must be kept, and the challenge is that the list is not only extensive but also taxing to apply. Consider the range of subject matter that might arise on a call where an AI notetaker is running:

• Written communications relating to investment advice, securities recommendations or transactions – paragraph (a)(7)
• Order memoranda identifying who recommended and who placed a trade –paragraph (a)(3)
• Code of ethics violations and any action taken in response – paragraph (a)(12)(ii)
• Access person requests to acquire initial public offering or limited offering securities, and the decisions and reasons supporting those approvals – paragraph (a)(13)(iii)
• Documentation describing the method used to compute assets under management (AUM) for Form ADV Part 2 purposes where it differs from the regulatory AUM calculation for Form ADV Part 1 – paragraph (a)(14)(ii)
• Documentation substantiating the reasonable basis for concluding that a testimonial, endorsement or third-party rating complies with the marketing rule –paragraph (a)(15)(ii)
• Records necessary to form the basis for or demonstrate the calculation of performance figures or rates of return – paragraph (a)(16)
• Records documenting the annual review of the firm’s compliance policies and procedures under Rule 206(4)-7 – paragraph (a)(17)(ii)

This list is not exhaustive. It merely illustrates how many ordinary activities of a firm – investment discussions, compliance meetings, marketing reviews, operational working sessions – correspond to something the rule specifically covers.

And for a transcript that does fall within the rule’s coverage, the analysis does not simplify. The next operative question is: Does this AI transcript represent the only or most complete record of something the rule requires to be documented? Five examples illustrate why that question is harder to answer than it sounds:

• Performance records, paragraph (a)(16): The rule requires records necessary to form the basis for or demonstrate the calculation of performance figures or rates of return. If judgment calls on treatment of partial periods, fee netting or recallable capital are made only in a working session and not documented elsewhere, the transcript may be the only record of that analysis. If spreadsheets, system outputs and a written methodology independently demonstrate the calculation, it probably is not.
• Annual review documentation, paragraph (a)(17)(ii): The rule requires records documenting the annual review of the firm’s compliance policies and procedures. For a large adviser with a formal written review report, an AI transcript probably supplements it but does not substitute for it. For a newly registered adviser where the chief compliance officer conducted the annual review on a single call with compliance counsel and nothing else documents what was reviewed, what issues were identified or what remediation was decided, the transcript may be the only record of what the rule requires.
• Marketing rule substantiation, paragraph (a)(15)(ii): The rule requires documentation substantiating the adviser’s reasonable basis conclusion that a testimonial, endorsement or third-party rating complies with the marketing rule. If that determination was made on a compliance review call and nothing else captured it, the transcript may be the record the rule requires.
• Code of ethics violations, paragraph (a)(12)(ii): The rule requires a record of any violation and any action taken in response. If a compliance committee discusses a violation and reaches a disciplinary outcome during a meeting where an AI notetaker is running, the transcript may be the only record of both, particularly where no separate HR or committee documentation system exists.
• Written communications, paragraph (a)(7): The rule requires retention of originals and copies of written communications relating to investment advice, securities recommendations or transactions. A transcript that is transmitted in that context – emailed to a client, shared with a counterparty or forwarded to a sub-adviser – crosses the line from internal record to written communication, and retention is required.

For in-house counsel and compliance personnel, these examples will land differently depending on how much work the firm has already done. Some will recognize a compliance program that already captures these records. Others will be confronting the question for the first time. Either way, the level of granularity the analysis demands makes one thing clear: Policy decisions need to be made at the category level, in advance, with a clear view of how the firm actually operates. Personnel will use these tools regardless. Shadow adoption without any governing framework is a worse outcome than a considered policy that acknowledges the tradeoffs.

Future of Rule 204-2

Securities and Exchange Commission Chair Paul Atkins has been openly critical of the prior off-channel communications enforcement program, describing aspects of it as not the way a regulator should act, and has signaled that SEC staff is considering updates to Rule 204-2. The analysis being done today is inherently interim, as the regulatory framework will likely look different in a couple of years.

That does not mean the current rule can be ignored. Examiners will ask whether firms have a policy, whether they know what they are retaining and whether their approach is principled. The time to develop that answer is before the exam, not during it.

Annual Form ADV amendments are in. For most registered advisers, the brochure is updated, the filing is done, and attention has already moved on. But your disclosure hasn’t stopped being read. Somewhere it is already being evaluated against a peer set. The question is whether you have done that analysis yourself.

(Note: This piece discusses Form ADV Part 2 benchmarking. Exempt reporting advisers that file only Part 1 may find the regulatory themes here relevant, but the benchmarking exercise will not be applicable to them.)

The blind spot

Most firms do not have a clear view of where their disclosures sit relative to the market. Outside counsel and compliance consultants may consider peer filings as part of the drafting process, but it is rarely structured as a systematic comparison across a defined peer set. Reviews tend to be episodic, triggered by an examination finding or a periodic refresh, rather than ongoing. As a result, even well-advised firms may not have a clear picture of how their disclosures align, in substance and specificity, with current market practice.

That gap matters more than it used to. What counts as adequate disclosure is not a fixed standard; it is being shaped, incrementally but continuously, by what peers are actually saying. A disclosure that read as complete two years ago may now look sparse by comparison, and one that reads as thorough in isolation can look quite different placed alongside a relevant peer set.

Disclosure as a comparable dataset

Unlike limited partnership agreements (LPAs) and private placement memorandums (PPMs), which are not generally available, Form ADV brochures are public. That makes them well suited for benchmarking. A structured comparison – breaking peer filings into comparable components and assessing both what is disclosed and how – makes it easier to identify which differences matter. Some reflect evolving regulatory focus; others reflect a broader market shift toward more specific and more current disclosure. With most registered advisers having just filed their annual amendments as part of the March cycle, the current moment offers a relatively clean, comparable dataset.

Where to focus the analysis

Certain areas are particularly worth examining when disclosures are reviewed this way.

• Post-commitment period fee mechanics are worth examining closely, particularly how management fee bases are constructed and reduced over time, including what is capitalized into invested capital and what operates to reduce the base.

• Arrangements involving operating partners, venture partners, value-add partners and similar roles warrant close attention. The Securities and Exchange Commission (SEC) has focused on whether these arrangements constitute expense shifting (i.e., whether costs that arguably should be borne by the adviser are instead being passed to the fund). A related question is how “market rate” is being established for these services, and whether the basis for that determination is transparent.

• Net asset value (NAV) credit facilities are an area where use and disclosure practice is still developing. For firms that use them, it is worth asking whether relevant disclosure addresses how these facilities differ from subscription lines and the distinct conflicts they present.

• Continuation vehicles and GP-led secondaries continue to be an area of SEC focus. Disclosures around the conflicts inherent in these transactions, including the adviser’s role in setting the valuation at which assets transfer, the potential for reset economics and any information asymmetry, are worth reviewing.

• Valuation-related conflicts are worth examining wherever advisers exercise discretion over determinations that affect their own economics. The Insight Venture enforcement action is a useful reference point. The SEC stated that the adviser had applied an impairment standard in a way that was narrower and more subjective than investors understood, and that the resulting conflict had not been adequately surfaced.

• AI disclosure is an emerging variable. Whether advisers are disclosing their use of AI in investment or operational processes is now an identified area of regulatory attention, and it is an area where market practice is still developing.

Note on methodology

Conducting this type of comparison well requires legal judgment, not just data. Some differences between peer disclosures are stylistic. Others go directly to how an adviser is describing core economic arrangements and conflicts of interest – and distinguishing between those two categories is where the analysis becomes meaningful.

It is also worth saying directly: Length is not a proxy for quality. Some of the most effective brochures are not necessarily the longer ones. A disclosure that describes the adviser’s actual business and conflicts with specificity and clarity is doing its job, whatever the page count. The goal of a benchmarking exercise is not to identify what is missing so it can be added; it is to understand whether what is there is accurate, current and sufficiently specific to be meaningful. That is a different exercise, and it sometimes concludes that a shorter, cleaner disclosure is doing its job better than a longer one.

The objective is not uniformity, and it is not comprehensiveness for its own sake. The value of the exercise is understanding clearly where and why your disclosures differ from market practice, and whether those differences reflect deliberate choices or gaps that only become visible in context. That is the view you do not get from your own brochure. It is also a good starting point for a conversation. We are glad to have it.

As described in greater detail in this Cooley alert, the HFIAA obligates directors and executive officers of FPIs to begin filing reports under Section 16(a) 90 days following the date of its enactment. As a result, effective March 18, 2026, such directors and officers will be required to file a Form 3 with the US Securities and Exchange Commission (SEC) reporting their ownership of the issuer’s equity securities.  Thereafter, these individuals will be required to file Form 4s within two business days to report changes in their ownership. Additionally, these filing obligations will equally apply to funds and other institutional investors that consider themselves to be “directors by deputization” for Section 16 purposes. 

The HFIAA’s expansion of the Section 16 reporting requirements does not extend to 10% stockholders of FPIs, unlike US domestic companies. However, investment funds whose investment professionals serve as directors of FPIs should be aware that the fund’s holdings and transactions may be required to be reported on the director’s Section 16 filings if the director is considered to “beneficially own” the fund’s securities.  Additionally, the HFIAA directs the SEC to undertake rulemaking to amend existing Section 16 rules to conform to HFIAA requirements. In the course of that rulemaking, it is possible the SEC could further extend the reach of Section 16 reporting to also include 10% stockholders of FPIs.

Importantly, by its terms, the HFIAA does not extend the short-swing profit liability provisions of Section 16(b) of the Exchange Act or the short-sale limitations of Section 16(c) of the Exchange Act to FPIs. However, it is possible that these provisions could be extended to FPIs through the SEC rulemaking required by the HFIAA.

Steps that funds and other institutional investors should take now

With the March 18, 2026, effective date roughly two months away, funds and other institutional investors whose investment professionals serve as directors of FPIs should begin to take proactive steps to comply with these requirements, including:

• Identifying any investment professionals serving as directors of FPIs in their portfolios.
• Confirming these individuals’ SEC filing credentials or applying for credentials on their behalf (note that this process can take up to two weeks or more).
• Ensuring that they understand Section 16 filing triggers and reporting obligations.
• Reviewing their compliance systems to confirm that they have appropriate controls to comply with these requirements.
• Conferring with their advisors to prepare and submit any required filings in a timely manner.

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Key insights from Mark Spoto

On capital concentrating in fewer, later-stage ‘category winners’: The surge in invested capital in Series D rounds and beyond even as deal counts fell is clearly attributable to the growth in artificial intelligence-related companies. Investors are pouring large amounts into a small number of companies perceived to be category winners. A similar dynamic is playing out in the national security and dual-use technology marketplaces.

On the persistence of protective deal terms like pay to play: Pay-to-play provisions remain persistent as companies that raised at high valuations return to market without sufficient progress. In these new rounds of financing, the pay-to-play features are often used to enforce alignment among investors. This trend has not hit the national security and dual-use markets as pervasively, and it will likely be another 6 to 12 months before it will be felt.

On the ‘barbell’ investment pattern: There is significant interest at the earlier stage and growth/later stage in the defense and national security tech market. Series B rounds tend to be the hardest rounds to raise because companies need to show real progress against a business plan. This kind of progress can be tough to demonstrate, as it can be harder to prove in slow-moving government markets.

Read full commentary from Mark Spoto

Schedule 13G

Funds – including their general partners and, in some cases, managing principals – that hold in excess of 5% of a class of public equity generally must file a Schedule 13G to publicly report their beneficial ownership of the portfolio company’s securities. In most instances, the initial filing is due within 45 days of the end of the quarter in which the fund’s ownership first exceeds 5%, including as a result of a portfolio company’s initial public offering (IPO). Additionally, any fund that has previously filed a Schedule 13G with respect to a portfolio company must file a quarterly amendment to its Schedule 13G within 45 days of quarter-end if there have been material changes in ownership since the most recent filing – including an “exit” filing if the fund’s ownership has declined below 5% of the outstanding class of stock.

Importantly, whether a fund is permitted to file a Schedule 13G for a particular investment, or is required to file the more onerous Schedule 13D, is often an important threshold question. Schedule 13D filings require far greater information, and these filings are due on a much more accelerated schedule, as compared to Schedule 13G filings. More information regarding Schedule 13D triggering events and filing deadlines is available in this October 2023 Cooley alert.

Form 13F

Investment advisers who exercise investment discretion over “Section 13(f) securities” – generally equity securities of public companies – are required to file quarterly reports with the SEC on Form 13F within 45 days of each quarter-end. Subject to certain exceptions, if your funds collectively owned in excess of $100 million of Section 13(f) securities as of the last day of any month during the 2025 calendar year, you’re obligated to file a Form 13F for the quarter ended December 31, 2025, which filing will be due February 17, 2026. In addition, the filing obligation continues for a minimum of an additional three consecutive calendar quarters (i.e., March 31, June 30 and September 30), with these filings due within 45 days of the relevant quarter-end. It is important to note that, even if you did not exceed the $100 million threshold as of December 31, 2025, the obligation to file a Form 13F for the quarter ended December 31, 2025 remains if the threshold was exceeded as of the last day of any single month in 2025.

Form 13H

Investment advisers who have previously filed a Form 13H to register as a “large trader” are required to file an annual update to the filing within 45 days of year-end. Large traders who have completed a full calendar year without exceeding any of the Form 13H triggering thresholds – measured across all portfolio companies – may be eligible to elect “inactive” status and thereby suspend certain ongoing large trader obligations. These triggering thresholds are daily trading of at least two million shares or $20 million in share value, or calendar-month trading of at least 20 million shares or $200 million in share value, in each case aggregating purchases and sales of the securities of all portfolio companies during the relevant day or month.

In addition to the annual filing requirement, large traders have a quarterly obligation to promptly amend the Form 13H following any quarter during which any of the information in their Form 13H materially changes.

Closing thoughts

As 2026 begins, funds should start to consider whether they will need to make any of the annual and quarterly filings under Section 13. The determination of whether you have a Schedule 13G, Form 13F or Form 13H filing obligation is often complex. As part of your assessment, consider contacting your fund/securities counsel to begin a Section 13 analysis, then prepare any required filings well in advance of the February 17, 2026 deadline.

Expanded scope of protected information

The definition of “customer information” under Regulation S-P is broadened to include any record containing nonpublic personal information about a customer of a covered institution. The definition includes “personally identifiable financial information” and more broadly encompasses “any list, description, or other grouping of consumers (and publicly available information pertaining to them) that is derived using” nonpublic personal information.

Regulation S-P applies to customer information regardless of whether the customer information relates to individuals with whom the covered institution itself has a relationship, arguably requiring notification to individuals if the covered institution is processing that information on behalf of another entity.

Incident response program

Covered institutions must implement a written incident response program in order to detect, respond to and recover from security incidents impacting customer information. At a minimum, the program must include written policies or procedures that help the covered institution to:

• Assess the nature and scope of an incident to determine whether there was any unauthorized access to or use of customer information.
• Contain and control the incident.
• Notify impacted individuals of the incident.

The incident response program should be commensurate to the covered institution’s size, operations and data processing activities.

Federal breach notification standard

The amendments establish a federal breach notification standard. Under Regulation
S-P, covered institutions must provide clear and conspicuous written notice to each affected individual whose sensitive customer information was – or is reasonably likely to have been – accessed or used without authorization. Regulation S-P defines sensitive customer information broadly as any customer information “the compromise of which could create a reasonably likely risk of substantial harm or inconvenience to an individual identified with the information,” unlike other data breach regulations, which define specific data elements that are considered to trigger notification obligations.

This notice must be provided as soon as practicable, but no later than 30 days after becoming aware of the incident, except under certain limited circumstances where the US attorney general determines that the notice poses a substantial risk to national security or public safety and notifies the SEC of such determination.

The notification to individuals must include:

• A description of the incident and the types of data involved.
• Recommended steps individuals can take to protect themselves (e.g., placing fraud alerts, obtaining credit reports).
• Resources from the Federal Trade Commission on protecting oneself from identity theft.
• More than one method for the customer to contact the covered institution.

One of the most notable provisions of Regulation S-P is the requirement to notify all individuals whose sensitive customer information resides on the covered institution’s system that was subject to unauthorized access, if the covered institution cannot determine which individuals’ sensitive information was subject to unauthorized access.

Notification is not required if the sensitive information was not subject to unauthorized access or use, or if the RIA determines after conducting a reasonable investigation that the sensitive customer information has not been and is not reasonably likely to be used in a way that would result in substantial harm or inconvenience to the customer.

Service provider oversight

Incident response programs must contain written policies and procedures that address due diligence and ongoing monitoring of service providers who have access to customer information.

These policies and procedures must require the service provider to:

• Take reasonable measures to protect against unauthorized access or use of customer information.
• Notify the RIA as soon as possible, and no later than 72 hours, after becoming aware of a breach involving customer information processed by the service provider.

RIAs may contract with service providers to send customer notices on their behalf, but the RIA remains ultimately responsible for ensuring timely and compliant notification.

Data disposal requirements

Under the amendments, covered institutions must have written policies and procedures addressing data disposal and take reasonable measures to securely dispose of customer information.

Recordkeeping requirements

Covered institutions must maintain written records documenting compliance with Regulation S-P. This includes:

• Policies and procedures implementing Regulation S-P’s requirements.
• Documentation of incidents and the covered institution’s incident response.
• Records of incident forensic investigations and the covered institution’s determinations regarding notification of individuals.
• Copies of any notices sent to individuals.
• Documentation related to service provider diligence and oversight.

These records must be retained for five years, with the first two years in an easily accessible format.

Annual privacy notice exception

The amendments codify the Gramm-Leach-Bliley Act (GLBA) exception to annual privacy notices. RIAs are exempt from delivering annual privacy notices if:

• They have not changed their data privacy and disclosure practices.
• They only share nonpublic personal information with nonaffiliates under an applicable exception.

What registered fund managers should do by December 3, 2025

For “large” registered fund managers, the practical implications are clear – and urgent. By the compliance deadline, managers should be prepared to:

• Demonstrate a fit-for-purpose incident response program.
• Implement breach notification workflows that meet the 30-day timeline and content requirements.
• Map and vet service providers and require service providers to notify covered institutions of data breaches within 72 hours.
• Apply expanded data disposal safeguards.
• Update recordkeeping practices.

Need help?

If you would like assistance operationalizing these requirements across policies, vendor oversight, templates and training, please reach out to your Cooley contact to be connected with our cyber/data/privacy practitioners.

Key insights from Lily Lyman

On promising workflow automation trends: “The blend between services and software is increasingly merging, as the focus moves toward delivering the ‘work’ or ‘outcome’ to a customer versus just the ‘software to support doing the work.’”

On supporting early-stage founders during key inflection points: “The combination of empathy, candor and a strong community backing them is what makes those moments navigable – and ultimately, transformative.”

On the rebound in life sciences deal activity: “We are particularly excited about new opportunities emerging at the intersection of AI and life sciences, where machine learning can dramatically compress drug discovery, clinical trials and manufacturing timelines. The companies that win here won’t just generate insights, they’ll rewire entire workflows, accelerating science itself.”

Read full commentary from Lily Lyman

While 401(k) and other defined contribution (DC) savings plans (as opposed to defined benefit pension plans) may eventually offer participants an opportunity to invest more widely in alternative assets – i.e., assets beyond the conventional mix of publicly traded mutual funds, stocks, bonds and collective investment trusts (CITs) that now dominate the investment mix of DC plans – any such change will not result solely from the executive order and likely will take considerable time to crystallize in any broad-based form. However, the order may serve as a robust catalyst for that process. This alert focuses particularly on what alternative asset sponsors like PE and VC funds should know now.

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(For a review of the securities laws exemptions discussed in this post, please see our previous post “Securities Laws Fundamentals for Venture Capital Fund Managers.”)

DEAL Act: Modernizing the definition of qualifying investments

The DEAL Act focuses on the definition of “qualifying investment,” which is central to the VC exemption. To rely on the VC exemption, a fund manager must ensure that each fund it manages invests at least 80% of its aggregate capital commitments in qualifying investments. Qualifying investments generally refer to equity securities (including securities convertible to equity) acquired directly from qualifying portfolio companies (at a high level, these typically refer to private operating companies). Securities acquired in a secondary transaction or investments in other venture capital funds are not qualifying investments and must therefore go in the “20% nonqualifying basket.”

The DEAL Act would make two key changes:

• Broader definition of qualifying investments: The definition of qualifying investments would be revised to include securities acquired in secondary transactions and investments in other venture capital funds.
• New portfolio composition requirement: At least 51% of a fund’s aggregate capital commitments would need to be equity securities acquired directly from qualifying portfolio companies, and no more than 49% could be invested in other venture capital funds or in securities acquired in secondary transactions.

Notably, the DEAL Act would not remove or replace the 20% nonqualifying basket. So, while secondaries and fund of funds investments would not fill up the nonqualifying basket, other nonqualifying investments such as crypto, debt and public company shares would still be limited to the 20% nonqualifying basket.

ICAN Act: Expanding the pool for venture capital funds

The ICAN Act proposes targeted amendments to Section 3(c)(1) of the Investment Company Act, which exempts private funds that have no more than 100 beneficial owners. (The other exemption that private funds commonly rely on is the 3(c)(7) exemption, which requires investors to be qualified purchasers (generally, individuals with $5 million in investments or entities with $25 million in investments)). While the 3(c)(1) exemption generally does not have a dollar cap, it does provide an option for venture capital funds to exceed the 100-beneficial-owner limit – allowing up to 250 beneficial owners – if they limit aggregate commitments to $12 million. Given the relatively low cap on aggregate commitments, however, most venture capital funds do not exceed the 100-beneficial-owner limit.

The ICAN Act would raise the thresholds in Section 3(c)(1) for venture capital funds:

• Increased investor limit: The maximum number of permitted beneficial owners would be raised from 250 to 500.
• Raised asset cap: The threshold for aggregate commitments would be raised from $12 million to $50 million.

Notably, the ICAN Act would not remove or replace the 100-beneficial-owner limit, meaning that a venture capital fund would be able to continue relying on the 3(c)(1) exemption without any cap on aggregate commitments by limiting the number of beneficial owners to 100.

Next steps

The DEAL Act and ICAN Act passed the House Financial Services Committee 50 to 2, indicating strong bipartisan support. If they pass the full House and Senate and are signed into law, the US Securities and Exchange Commission (SEC) will need to revise the VC exemption within 180 days to implement the DEAL Act. The amendments to the 3(c)(1) exemption will not require immediate rulemaking, although the ICAN Act does mandate that a study be conducted five years after enactment. This study would assess the impact of the new thresholds on the geographic and socioeconomic distribution of capital, the diversity of founders, and other key metrics. Based on the findings and public feedback, the SEC may further adjust the thresholds – potentially increasing the investor cap up to 750 or reducing it to no lower than 250 and raising the asset cap up to $100 million or reducing it to no lower than $10 million.

Takeaway

Venture capital fund managers could see some exciting changes in the future, although it is worth noting that prior versions of these changes were introduced by lawmakers as early as April 2023. A newfound momentum in the US Congress could see these bills through. If so, it would lead to greater flexibility for venture capital firms in their fundraising, portfolio construction and investments in a broader range of startups.

1. HR 4429 and HR 4431, respectively ↩︎

1. Carried interest
2. Pass-through entity taxes (PTET) and SALT deductions
3. Qualified small business stock (QSBS)
4. Interest deductibility
5. Section 899 ‘revenge tax’
6. Endowment tax
7. Cuts to tax benefits for green-energy projects
8. Miscellaneous itemized deductions for US individuals
9. Downward attribution rules for controlled foreign corporations (CFCs)

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The QSBS exclusion is an increasingly popular tax benefit for founders and investors in early-stage companies. Provided that certain holding period and other requirements are satisfied, the QSBS exclusion permits stockholders to exclude taxable gain from federal income tax, subject to the caps described below. The SFC bill would enhance these benefits and relax certain restrictions, making QSBS even more attractive for early-stage investors.

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This article discusses our firm’s experience with non-notified CFIUS inquiries since the beginning of the 2020 enforcement initiative, and reports the trends, outcomes and government practices we have observed in our matters.

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Impact to fund managers

A number of rules the SEC withdrew were proposed under the Investment Advisers Act of 1940. While exempt reporting advisers would have been spared much of the additional compliance obligations, registered investment advisers, on the other hand, would have faced substantial new burdens.

• Safeguarding client assets: The SEC had proposed new requirements for registered investment advisers regarding the custody and safeguarding of client assets, including updates to requirements under the existing custody rule.
• Cybersecurity risk management: The SEC had proposed a rule that would have required registered investment advisers to adopt cybersecurity policies and procedures, report incidents and maintain related records.
• ESG disclosures: The SEC had proposed disclosure requirements for investment advisers regarding their environmental, social and governance (ESG) investment practices.
• Outsourcing by investment advisers: The SEC had proposed a rule that prohibited registered investment advisers from outsourcing certain services or functions without meeting certain requirements related to diligence, monitoring and record retention.
• Conflicts of interest and predictive data analytics: The SEC had proposed a rule aimed at addressing how investment advisers use certain technologies (such as artificial intelligence, machine learning and data algorithms) in their interactions with investors.

What happens next?

The SEC did not provide detailed reasoning for the withdrawal. Instead, the SEC stated in its notice that the agency is withdrawing the rules because it no longer intends to issue final rules with respect to these proposals. Any future regulatory action in these areas will require a fresh start and a new round of notice-and-comment process. The notice of withdrawal was published on the SEC’s website on June 12, 2025, and will become effective once it is published in the Federal Register. The notice comes one day after the SEC extended the compliance date for the amended Form PF, which Atkins has directed the SEC staff to review, citing “serious concerns whether the government’s use of this data justifies the massive burdens it imposes.”

We note that while the withdrawal affords fund managers and other market participants a degree of short-term certainty under the current SEC, it also illustrates how swiftly the agency’s regulatory agenda can shift.

1. All but one of the rules were proposed under Gensler. ↩︎

Under current law, the federal deduction for certain state, local and foreign taxes is capped at $10,000 per year for taxpayers who itemize deductions. This cap is scheduled to expire for taxable years beginning after December 31, 2025. TOBBB would permanently extend the SALT cap but increase it to $40,000 per year starting in 2025 (i.e., for taxable years beginning after December 31, 2024). For taxpayers with modified adjusted gross income of more than $500,000 per year (as defined specially for this purpose), the allowable deduction is reduced (but not below $10,000) by 30% of the excess of the taxpayer’s modified adjusted gross income over $500,000. Starting in 2026, both the revised cap and modified adjusted gross income limit would increase by 1% each year until 2033 (after which they would stay at the 2033 levels going forward).

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As discussed in this December 2023 client alert, in November 2023, the US Tax Court held that state law limited partners are not per se entitled to the limited partner exception because the limited partner exception does not apply to a partner who is limited in name only. Instead, a functional analysis must be applied to determine whether the limited partner exception applies (the Soroban holding). The case subsequently went to trial to be determined on the facts.

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Key insights from Jeff Crowe

On what differentiates an outstanding venture capital investor: “They have a nose for where technology is going, build deep expertise in their areas of focus, grow their personal networks continuously, and exhibit deep curiosity and a ton of hustle.”

On the role of venture capital firms in the next decade: “The rise of AI means that companies must move faster, and the increase in global volatility requires them to be more nimble as they build distribution networks, supply chains and development teams that cross borders. With their own global experience across hundreds of portfolio companies and networks of executives and advisors, venture firms can help portfolio companies do both – move faster and be more nimble.”

On key trends from this quarter’s VC data: “Without positive exits, venture investors are focusing more on supporting existing portfolio companies, exploring secondary sales to create liquidity and managing expectations with LPs. Investors have less time and less appetite to make new investments – at least until the exit landscape improves and restores their confidence.”

Read full commentary from Jeff Crowe

A little more than two years ago, in January 2023, SEC staff issued an FAQ stating its view that displaying the gross return of one investment (e.g., a case study), or a group of investments from a private fund, is an example of extracted performance under the Marketing Rule, and that registered investment advisers (RIAs) were not permitted to show such extracted performance on a gross basis without also showing it on a net basis. Because fees and expenses are not usually deducted at the investment level, however, the 2023 FAQ resulted in RIAs having to calculate an often arbitrary net return.

In its updated FAQ, SEC staff now provides that RIAs can show gross returns at the investment level without also showing net returns (i.e., gross extracted performance only) if they meet certain criteria. Specifically:

• The gross extracted performance is accompanied by fund-level gross and net returns that comply with the Marketing Rule.
• The gross extracted performance is clearly identified as gross (e.g., by disclosing that it does not reflect the deduction of all fees and expenses and cross-referencing the fund-level gross and net returns).
• The fund-level gross and net returns are presented with at least equal prominence to – and in a manner designed to facilitate comparison with – the gross extracted performance.
• The fund-level gross and net returns are calculated over a period that includes the entire period over which the gross extracted performance is calculated.

The updated FAQ helpfully provides that, in the SEC staff’s view, the fund-level gross and net returns do not need to be on the same page as the gross extracted performance, as long as the presentation facilitates comparison between the fund-level returns and the gross extracted performance. In this regard, SEC staff notes that the fund-level gross and net returns can appear before the gross extracted performance.

In a companion FAQ, which may be less applicable to venture capital and private equity firms, SEC staff also provides its view on certain performance-like metrics and how an RIA might include them on a gross-only basis in an advertisement. The FAQ references “characteristics,” such as “yield, coupon rate, contribution to return, volatility, sector or geographic returns, attribution analyses, the Sharpe ratio, the Sortino ratio, and other similar metrics.” Importantly, SEC staff clarifies that “characteristics” would not include “total return, time-weighted return, return on investment (RoI), internal rate of return (IRR), multiple on invested capital (MOIC), or Total Value to Paid in Capital (TVPI), regardless of how such metrics are labelled.”

While stating that it was not taking a position on whether any particular characteristic or attribute should be considered performance for purposes of the Marketing Rule, SEC staff stated that it would not recommend enforcement action to the SEC under the Marketing Rule if an adviser chooses to present one or more gross characteristics of a portfolio or investment without showing corresponding net characteristic(s) if they meet certain criteria. Specifically:

• The gross characteristic is accompanied by fund-level gross and net returns that comply with Marketing Rule requirements.
• The gross characteristic is clearly identified as being calculated without the deduction of fees and expenses.
• The fund-level gross and net returns are presented with at least equal prominence to – and in a manner designed to facilitate comparison with – the gross characteristic.
• The fund-level gross and net returns are calculated over a period that includes the entire period over which the gross characteristic is calculated.

RIAs should keep in mind that other aspects of the Marketing Rule, including the general prohibitions, still apply to all performance advertising. For more on the Marketing Rule, please see Venture Capital Fund Managers’ Guide to Applying the Latest Marketing Rule Risk Alert and Last-Minute Checklist for Private Fund Managers Complying With Marketing Rule.

Background

Rule 506(c) allows private funds to engage in general solicitation and general advertising if they take reasonable steps to verify the “accredited investor” status of their investors.

What has changed

In a new no action letter (NAL), the SEC staff expressed its view that a fund could satisfy the verification requirement by taking into account a specific minimum investment or binding commitment amount if certain conditions are met. The implication of the SEC’s guidance is that the more burdensome steps to “verify” accredited investor status that had been associated with Rule 506(c) may be bypassed by simple reference to the minimum investment or commitment amount. As a result, both registered investment advisers (RIAs) and exempt reporting advisers (ERAs) may turn to Rule 506(c) more confidently, and hence discuss their fundraising more freely, including on various social media platforms, at conferences and through meetings with new prospective investors – instead of clinging to Rule 506(b) and its well-known obligation not to generally solicit or generally advertise.

Rule 506

As many managers know, sales of fund interests need to be registered under the Securities Act unless they qualify for an exemption. (See Securities Laws Fundamentals for Venture Capital Fund Managers.) Rule 506 provides two nonexclusive safe harbor exemptions for private offerings. First, Rule 506(b) exempts offerings that do not involve any general solicitation or general advertising if all purchasers are accredited investors (although up to 35 nonaccredited investors may be admitted if the issuer is willing to prepare and disclose information that goes far beyond what private funds typically share). Second, Rule 506(c) exempts offerings that involve general solicitation or general advertising, provided that the issuer takes “reasonable steps to verify” that purchasers are accredited investors. Unlike Rule 506(b), which generally allows issuers to rely on a purchaser’s self-certification of its accredited investor status, Rule 506(c) requires issuers to make an objective determination of a purchaser’s accredited status based on the applicable facts and circumstances.

Accredited investors include (among others):

• A natural person with individual income greater than $200,000 in each of the two most recent years, or joint income with that person’s spouse or spousal equivalent greater than $300,000 in each of those years, and who has a reasonable expectation of reaching the same income level in the current year.
• A natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, is greater than $1 million (after accounting for certain calculations with respect to that person’s primary residence).
• An entity not formed for the purpose of acquiring the securities offered, with total assets greater than $5 million.
• A trust with total assets greater than $5 million, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person.
• An entity in which all of the equity owners are accredited investors (look-through entity).

Rule 506(c) provides a nonexclusive list of verification methods, which includes reviewing IRS forms, bank statements, brokerage statements, appraisal reports issued by independent third parties, or having investors provide a written confirmation of accredited investor status from their certified accountants. While the SEC had previously stated that minimum investment amounts could be a factor in determining accredited investor status, until now, there had not been a bright-line approach that funds, especially commitment-based funds (which do not require investors to fund their investments all at once), were able to rely on for using minimum amounts as a verification method. Therefore, most fund managers had viewed the “reasonable steps to verify” requirement as an unreasonable burden, both to them and to their investors.

SEC staff’s no action letter

In the NAL, the SEC staff expressed its view that an issuer could reasonably conclude that it had taken reasonable steps to verify an investor’s accredited investor status based on a high minimum investment amount under certain conditions. Specifically, an issuer doing the following, without taking additional steps, could reasonably conclude it had taken the requisite steps under Rule 506(c):

• Obtain written representations from the purchaser that both:
  • The purchaser is an accredited investor. (Note: The NAL excludes certain categories of accredited investors that are less commonly used.)
  • The purchaser’s minimum investment amount is not financed in whole or in part by a third party for the specific purpose of making the particular investment in the issuer.
• Require a minimum investment or binding commitment amount of at least $200,000 for natural persons and $1 million for entities.
• Have no actual knowledge of facts that would indicate the purchaser’s representations are untrue.

For a look-through entity, the written representations would need to provide that:

• The look-through entity is an accredited investor in which each of its equity owners is an accredited investor. (Note: The NAL excludes certain categories of accredited investors that are less commonly used.)
• Each of the look-through entity’s equity owners has a minimum investment or binding commitment obligation to the look-through entity of at least $200,000 for natural persons and $1 million for entities.
• The minimum investment amount of the look-through entity, and of each of the look-through entity’s equity owners, is not financed in whole or in part by a third party for the specific purpose of making the particular investment in the issuer.

In addition, a look-through entity must agree to make a minimum investment or binding commitment of at least $1 million – or, if the look-through entity has fewer than five natural persons, $200,000 for each of the look-through entity’s equity owners.

The conditions in the NAL would not preclude a purchaser from financing its investment in, or binding commitment to, an issuer so long as the minimum amounts are not financed for the specific purpose of making the particular investment in the issuer. So, for instance, borrowings to fund capital calls in excess of the minimum commitment amount would not be precluded, nor would a secured credit facility that had a purpose other than funding the investment or binding commitments that predated the commencement of the offering.

Potential impact

We expect that the most likely use case of the new guidance will come from firms that are already relying on Rule 506(c) or those whose fundraising activities easily draw public attention. Rule 506(c) is still a “private offering” under Regulation D, and the verification requirement is intended to limit the offering to sophisticated investors. Going forward, we expect more funds will be less constrained on social media, and firms’ legal and compliance departments will have a less worrisome attitude toward the public statements made by their firm’s individuals – i.e., sponsors can use Rule 506(c) with more confidence, knowing the verification process is not as onerous on their investors or their back offices as once perceived, and they won’t need to self-edit their public statements as vigorously to work to fit into the no general solicitation, no general advertisement rubric of Rule 506(b). But while there may be more funds mentioned on public websites, blogs, podcasts and interviews, and at industry events, we expect the new guidance will mostly be used as a fail-safe to comply with Rule 506 and not necessarily to engage in broad marketing efforts like paid advertisements, cold calling, or posting a fund’s offering documents on social media.

We remind our RIA clients to keep the SEC’s marketing rule in mind when engaging in marketing activities. (See Venture Capital Fund Managers’ Guide to Applying the Latest Marketing Rule Risk Alert and Last-Minute Checklist for Private Fund Managers Complying With Marketing Rule.) ERAs also should be mindful of the general antifraud provisions that apply to their activities. Finally, firms conducting concurrent offerings in the US and in non-US jurisdictions may want to reach out to their Cooley contacts to discuss potential implications of engaging in these activities.

Key insights from Alexa von Tobel

On investing in companies driving industry disruption: “We believe that venture capital – when properly deployed – is the most powerful economic engine that the world has ever seen. … Economic value truly arises when big risks are solved, and when companies create innovative products and business models – often those that couldn’t have existed previously.”

On the best way investors can add value to startups: “One of our main objectives as a team is to be our founders’ first call. We strive to build relationships with our founders that give them space to not only share their wins, but also be open about their stickiest problems.”

On key trends from this quarter’s VC data: “The recent pullback in later-stage valuations may reflect a recalibration of expectations following years of inflated valuations. We are seeing continued conviction in early-stage investing, with seed-stage valuations remaining unchanged, while investors are adopting a more cautious approach in later rounds where the risks of overvaluation are more pronounced.”

Read full commentary from Alexa von Tobel

Schedule 13G

Funds – including their general partners and, in some cases, managing principals – that hold in excess of 5% of a class of public equity generally must file a Schedule 13G to publicly report their beneficial ownership of the portfolio company’s securities. In most instances, the initial filing is due within 45 days of the end of the quarter in which the fund’s ownership first exceeds 5%, including as a result of a portfolio company’s initial public offering (IPO). Additionally, any fund that has previously filed a Schedule 13G with respect to a portfolio company must file a quarterly amendment to its Schedule 13G within 45 days of quarter-end if there have been material changes in ownership since the most recent filing – including an “exit” filing if the fund’s ownership has declined below 5% of the outstanding class of stock.

As described in this December 2024 blog post, effective December 18, 2024, all Schedule 13Gs are now required to be filed with the SEC in the XML filing format.

Importantly, whether a fund is permitted to file a Schedule 13G for a particular investment, or is required to file the more onerous Schedule 13D, is often an important threshold question. Schedule 13D filings require far greater information, and these filings are due on a much more accelerated schedule, as compared to Schedule 13G filings. More information regarding Schedule 13D triggering events and filing deadlines is available in this October 2023 Cooley alert.

Form 13F

Investment advisers who exercise investment discretion over “Section 13(f) securities” – generally equity securities of public companies – are required to file quarterly reports with the SEC on Form 13F within 45 days of each quarter-end. Subject to certain exceptions, if your funds collectively owned in excess of $100 million of Section 13(f) securities as of the last day of any month during the 2024 calendar year, you’re obligated to file a Form 13F for the quarter ended December 31, 2024, which filing will be due February 14, 2025. In addition, the filing obligation continues for a minimum of an additional three consecutive calendar quarters (i.e., March 31, June 30 and September 30), with these filings due within 45 days of the relevant quarter-end. It is important to note that, even if you did not exceed the $100 million threshold as of December 31, 2024, the obligation to file a Form 13F for the quarter ended December 31, 2024 remains if the threshold was exceeded as of the last day of any single month in 2024.

Form 13H

Investment advisers who have previously filed a Form 13H to register as a “large trader” are required to file an annual update to the filing within 45 days of year-end. Large traders who have completed a full calendar year without exceeding any of the Form 13H triggering thresholds – measured across all portfolio companies – may be eligible to elect “inactive” status and thereby suspend certain ongoing large trader obligations. These triggering thresholds are daily trading of at least two million shares or $20 million in share value, or calendar-month trading of at least 20 million shares or $200 million in share value, in each case aggregating purchases and sales of the securities of all portfolio companies during the relevant day or month.

In addition to the annual filing requirement, large traders have a quarterly obligation to promptly amend the Form 13H following any quarter during which any of the information in their Form 13H materially changes.

Closing thoughts

As 2025 begins, funds should start to consider whether they will need to make any of the annual and quarterly filings under Section 13. The determination of whether you have a Schedule 13G, Form 13F or Form 13H filing obligation is often complex. As part of your assessment, consider contacting your fund/securities counsel to begin a Section 13 analysis, then prepare any required filings well in advance of the February 14, 2025 deadline. Funds with Schedule 13G filing requirements also should allow additional time to transition their filings to the new XML filing format.

Key insights from Asad Khaliq

On the most exciting advancements in technology right now: “Cybersecurity is unique in that progress is driven not just by technological improvements, but also by threat actors … Another area we are very excited about is edge computing.”

On trends in market terms: “Venture deals have generally trended towards some degree of standardization over the past few years. That makes sense because the industry is maturing, and therefore best practices have become clearer. As capital availability has increased, many founders also find themselves with lots of options for capital, and some terms that may have previously been more common have fallen out of favor.”

On key advice to succeed in VC investing: “The venture and startup ecosystem can be noisy, and there are a lot of ups and downs. You have to, of course, keep updating your priors and learning from what’s happening around you. But balance that with conviction and execution on your chosen strategy. I think most new venture advisors don’t appreciate how quickly your ideas and networks compound in the industry.”

Read full commentary from Asad Khaliq

Why the change?

The SEC’s move to require XML filings aims to enhance the accessibility and analysis of information disclosed by institutional investors in their beneficial ownership reports. By standardizing submissions in a structured format, the SEC hopes to streamline data processing and improve comparability of investors’ filings – while enhancing the overall transparency of the ownership information for publicly traded companies. For funds, these new requirements will necessitate a review and alteration of existing disclosure practices.

What does this mean for funds?

1. Advance planning will be important – With the pending effectiveness of the XML filing requirements, funds should prepare well in advance of their first Section 13 filing under the new requirements to ensure that they are prepared to comply. This will include reviewing their historical filing disclosures and considering necessary restructuring to facilitate compliance with the XML format.
2. Change in filing aesthetics and opportunity to reevaluate filing content – The XML format will change the “look and feel” of Section 13 beneficial ownership reports. The structured data format may enhance the clarity and usability of the information presented, but it also will require funds to adapt to a new way of organizing and reporting their beneficial ownership information. While the change will necessitate a restructuring of funds’ beneficial ownership reports, it also will provide an ideal opportunity for funds to reconsider the information that they present in these filings.
3. Potentially increased scrutiny – As Section 13 filings become more standardized, the SEC and market analysts can be expected to increase their scrutiny of disclosed information. Funds must ensure that their reports are not only compliant with the XML filing requirements, but also that the filings accurately reflect their investment positions. In recent years, the SEC has initiated numerous enforcement actions for Section 13 compliance issues, and the new XML requirements could facilitate more SEC enforcement activity.

Conclusion

While perhaps not as significant as the changes to the Schedules 13D and 13G filing deadlines that became effective earlier this year, the XML filing requirements will necessitate careful planning by funds to ensure a smooth transition. As the December 18, 2024 effective date approaches, funds should take proactive steps to prepare for this new landscape – including conferring with counsel to ensure they’re in a position to comply with the new requirements.

What is operational integration?

A fundamental principle under the Advisers Act is that an adviser cannot indirectly do something that would be unlawful for it to do directly. This means investment advisers and their affiliates cannot circumvent their registration requirements under the Advisers Act by forming separate entities if they are ultimately “operationally integrated.” As an example, an investment adviser relying on the venture capital adviser exemption (VC exemption) must not advise any client that is not a venture capital fund. A fund manager relying on the VC exemption might wonder if it can simply form a separate legal entity to manage a secondary fund, continuation vehicle, fund of funds, crypto fund or another type of fund that would not satisfy the “venture capital fund” requirements under the Advisers Act. Unsurprisingly, the concept of operational integration would not permit such a simple workaround.

As another example, an investment adviser relying on the private fund adviser exemption (PF exemption) must advise only private funds and have regulatory assets under management (i.e., gross assets under management) of less than $150 million. A fund manager relying on the PF exemption could not simply set up a new investment adviser entity every time its regulatory assets under management near $150 million to avoid registration.

While the determination of whether an adviser and its affiliates are operationally integrated depends on the facts and circumstances, the basic framework for conducting such an analysis is a five-factor test that the SEC staff established in a no-action letter to Richard Ellis. Under that framework, an adviser may be regarded as having a separate, independent existence and deemed to be functioning independently of an affiliated adviser if it:

1. Is adequately capitalized.
2. Has a buffer between its personnel and the affiliated adviser – such as a board of directors, a majority of whose members are independent of the affiliated adviser.
3. Has employees, officers and directors who, if engaged in providing advice in its day-to-day business, are not otherwise engaged in the investment advisory business of the affiliated adviser.
4. Itself makes the decisions as to what investment advice is to be communicated to – or is to be used on behalf of – its clients, and has and uses sources of investment information not limited to its affiliated adviser.
5. Keeps its investment advice confidential until communicated to its clients.

While larger organizations often have multiple adviser entities that can – and do – establish adequate separation to achieve operational independence, in our experience, it is much more challenging for smaller organizations to do the same. In addition to the cost and expense typically associated with having separate operations, we find that the separation of investment personnel and investment advice is not practical and is often inconsistent with commercial objectives.

The SEC’s enforcement actions

Since the Richard Ellis no-action letter was published, the SEC has brought a handful of enforcement actions involving operational integration. Two were brought in June 2014 against affiliated advisers TL Ventures and Penn Mezzanine Partners Management. One was brought in July 2017 against affiliated advisers Bradway Financial and Bradway Capital Management. The final one was brought in September 2024 against ACP Venture Capital Management Fund.

While all of these enforcement actions were settled, they nevertheless provide valuable insight into what the SEC considers – beyond the factors outlined in Richard Ellis – when determining whether separately formed adviser entities are operationally integrated. Specifically, the SEC cited the following in these enforcement actions:

1. Sharing the same office with no physical separation.
2. Sharing the same email domain and phone number.
3. Sharing the same technology systems.
4. Marketing materials that reference a “partnership” between the advisers and an ability to leverage and benefit from such relationship, including outsourcing of back-office functions.
5. Managing directors of one adviser serving on the investment committee of the other adviser and soliciting investors for funds managed by the second adviser.
6. Lack of information security policies and procedures to protect investment advisory information from disclosure to one another.
7. Employees of one adviser routinely using their email addresses associated with the other adviser in conducting business and communicating with outside parties about and on behalf of the first adviser.

In the settled actions, either one or both affiliated entities sought to rely on the VC exemption or the PF exemption. The SEC found that on an integrated basis, taking into consideration the factors above, the advisers were not eligible for the exemption they sought because they either advised a type of client not permitted under the applicable exemption, or they exceeded the regulatory assets under management permitted under the PF exemption.

Notably, the enforcement actions from 2014 and 2017 involved adviser entities that were clearly under common control and had at least one individual that owned more than 25% of each adviser entity. In the most recent enforcement action, no individual owned more than 25% of each adviser entity. The only common owner was an individual who owned 50% of adviser A and 20% of adviser B. That individual, however, served as the chief compliance officer of both adviser A and adviser B. Moreover, the other 50% owner of adviser A served as an accounting consultant to adviser B, and two individuals who each owned a 40% interest in adviser B (one of whom was the president of adviser B) co-managed certain funds of adviser A. According to the SEC’s settlement order, adviser A and adviser B also had other overlap in personnel, including other investment personnel, and no physical separation.

We note the limited overlap in the ownership of adviser A and adviser B because, in general, operational integration involves affiliated advisers, and affiliated advisers under the Advisers Act typically means there is at least one individual that owns more than 25% of each adviser. This is because affiliates are defined as being in a controlling, controlled by or under common control relationship, and control is generally presumed to exist when a person owns more than 25% of the voting interest in an entity, while control is presumed to not exist when a person owns 25% or less of the voting interest in an entity. That said, the Advisers Act defines the term “control” as the power to exercise a controlling influence over the management or policies of a company. A common owner with a 25% voting interest in each entity is not a requisite for two entities to be under common control.

Key takeaway for fund managers

For our clients and fund managers generally, the most important takeaway from the recent enforcement action is probably the reminder that the Advisers Act prohibits investment advisers from doing indirectly what they cannot do directly. Whether or not two entities have identical owners, substantial overlap in owners or limited overlap in owners, if they are operated as an integrated business without adequate policies and procedures to separate their advisory activities, then the analysis as to whether the VC exemption or the PF exemption applies would need to be conducted treating both entities as a single adviser.

We know that the decision to register as an investment adviser is not taken lightly by exempt fund managers. To this end, if you are considering setting up a new entity to navigate around the registration and exemption requirements, we recommend reaching out to your Cooley contact to discuss operational integration. The recent enforcement action could mark a renewed focus by the SEC on this topic.

As a reminder, under Sections 13(d) and 13(g), funds that beneficially own in excess of 5% of an outstanding registered class of public equity securities are required to file beneficial ownership reports on either Schedule 13G or Schedule 13D. Schedule 13G generally requires relatively limited information regarding the funds’ ownership of such securities, whereas Schedule 13D requires additional information regarding the funds’ interests and intentions with respect to the portfolio company. SEC rules also require funds to file amendments to these schedules from time to time.

Initial Schedule 13G deadlines

The rule changes going into effect on September 30, 2024, accelerate the deadlines for initial Schedule 13Gs. Under current rules, the initial Schedule 13G filing is generally due within 45 days following the end of the calendar year of the portfolio company’s initial public offering (IPO) – although different rules often apply to funds that purchase shares in the issuer’s IPO, a follow-on offering or the open market. Under the new rules, these initial Schedule 13G filings will be due within 45 days following the end of the calendar quarter, with the first of such filings due on November 14, 2024.

Schedule 13G amendment deadlines

Similarly, under current rules, most funds that report their beneficial ownership on Schedule 13Gs have historically been required to evaluate their beneficial ownership positions annually, at calendar year-end, and to amend their Schedule 13G filings within 45 days following year-end to report any changes in the information required by the filing. Under the amended rules, funds will now be required to make this evaluation on a quarterly basis following each calendar quarter. However, under the amended rules, funds will only be required to amend their Schedule 13Gs to report material changes in the information required by the filing, with such amendments due within 45 days following the end of the quarter if there has been a material change from the information in the most recent filing.

The determination of whether a change in information is “material” for this purpose will require an assessment of the particular facts. However, the rules specifically provide that no amendment will be required if the only change in the information is a change in the beneficial ownership percentage resulting solely from a change in the outstanding shares of the class of equity securities.

Additional deadline changes

Additionally, the rules going into effect on September 30, 2024, also accelerate other filing deadlines for initial and amended Schedule 13Gs:

• Acceleration of the deadline for initial Schedule 13G for funds that qualify as “passive investors” under SEC rules – from 10 calendar days to five business days following the acquisition of beneficial ownership in excess of 5% of a registered class of equity securities.
• Modification of the deadlines for passive investors to file amended Schedule 13Gs to report beneficial ownership increasing above 10% (and subsequent 5% increases or decreases in beneficial ownership) to two business days following the event, rather than the current, more subjective “prompt” requirement.
• Acceleration of the deadlines for initial Schedule 13Gs and amended Schedule 13Gs for entities that meet the definition of “qualified institutional investor” under SEC rules.

Closing thoughts

In preparation for the effectiveness of the amended rules, funds should begin reviewing their public company portfolios to evaluate whether there have been any changes in the information previously reported in their Schedule 13G filings and assess the materiality of such changes. Additionally, funds should prepare for the related increase in the compliance burden associated with the November 14, 2024 deadline.

The SEC’s beneficial ownership reporting requirements can be quite complex – including determination of whether a fund is required to file a Schedule 13D or is permitted to file a Schedule 13G, and whether and when such filings are required to be amended. Funds are encouraged to confer with counsel on their particular situations to ensure that they remain in compliance with these requirements.

Key insights from Laura Tadvalkar

On recent advancements toward human health: “We’re seeing the incredible impact of GLP-1 drugs not only for weight loss and diabetes, but across multiple disease areas, including cardiovascular, fibrosis, liver disease and even, potentially, neurodegeneration.”

On the outlook of later-stage private rounds: “Today’s late-stage private rounds might be the last round before IPO but are often intended to fund the company through one or more significant data catalysts, so investors are looking for lower valuations to make sure they get paid for taking data and market risk.”

On her approach to identifying promising founders and companies: “We always look for the ‘killer application’ that a technology is uniquely positioned to solve – and make sure that companies are funded to meaningful value inflection points, plus some buffer – because science takes time!”

Read full commentary from Laura Tadvalkar

As the governor of Minnesota, Walz is an “official” as defined in the rule, which means that contributions to the Harris-Walz ticket could implicate an adviser’s ability to receive compensation from investors such as Minnesota State Retirement System, Public Employees Retirement Association, Teachers Retirement Association, and other plans or funds managed by the Minnesota State Board of Investment (SBI). While the SBI website lists a number of fund managers in its private equity portfolio, the SBI historically has not been known for its venture investments. That said, given the rule’s “stickiness,” VC firms may still want to be mindful of the rule.

Below, we’ve outlined the rule’s main requirements and some compliance considerations. But first, we note the following points, which many of our clients have asked about since the announcement of Walz as Harris’ vice presidential pick:

• Contributions to the Harris campaign made prior to August 6, 2024, do not need to be returned, even if they exceed the de minimis limits discussed below.
• Because the Harris-Walz ticket cannot be bifurcated, contributions to the Harris campaign made on or after August 6, 2024, would implicate the rule even if intended to be “only for Harris and not Walz.”
• A contribution to a national committee such as the Democratic National Committee or a political action committee (PAC) would not, in and of itself, implicate the rule, but please see below regarding the rule’s prohibitions on coordinating, soliciting and otherwise circumventing the rule. (For instance, contributions to a PAC should not be earmarked for an official that would otherwise implicate the rule. To this end, we recommend obtaining a representation letter when contributing to a PAC.)

Quick primer on the Pay-to-Play Rule

The rule makes it unlawful for an adviser to receive compensation for providing advisory services to a government entity for a two-year period after the adviser or any of its “covered associates” (including senior personnel and members of the marketing or investor relations team) makes a contribution to a government entity’s “official” (including candidates and incumbents) who is or will be in a position to influence (directly or indirectly) the award of advisory business. Determining whether a particular government investor is captured often requires reviewing the governing documents and organizational structure of a government entity.

The rule generally prohibits advisers from paying third parties to solicit government entities for advisory business, unless such third parties are registered broker-dealers or registered investment advisers, which are in each case themselves subject to pay-to-play restrictions. Intended to address the concern that advisers and covered associates might try to indirectly solicit government entities and officials, the rule seeks to ensure that those who solicit through third parties still fall within the rule’s scope.

The rule also makes it unlawful for an adviser or its covered associates to coordinate or solicit either of the following:

• Contributions to an official of a government entity to which the investment adviser is seeking to provide investment advisory services.
• Payments to a political party of a state or locality where the investment adviser is providing or seeking to provide investment advisory services to a government entity.

This provision also seeks to prevent advisers and covered associates from indirectly engaging in conduct they would not be able to engage in directly.

Finally, the rule makes it unlawful for an adviser or any of its covered associates to do anything indirectly which, if done directly, would result in a violation of the rule. This catch-all provision triples down on the anti-circumvention goals of the rule. Making contributions through a family member to avoid the rule, for example, would be prohibited.

Compliance considerations

De minimis exception

The rule has a de minimis carve out pursuant to which any person who is eligible to vote for an official can contribute up to $350 to the official without running afoul of the rule. Those who are ineligible to vote for an official may contribute up to $150. Many VC firms often expect de minimis thresholds to be higher and are surprised by these limits.

Non-monetary contributions

The rule covers monetary and non-monetary contributions. Non-monetary contributions may include providing one’s home for a fundraiser or providing firm resources to support campaign activity. The rule does not prohibit covered associates from volunteering their time, provided the volunteering is not solicited by the adviser, adviser resources are not used, and it takes place during the covered associates’ personal time.

Look-back and look-forward limitations

The rule is “sticky” in that it covers contributions by persons who become covered associates – i.e., it covers contributions regardless of whether a person was a covered associate of the adviser at the time of the contribution. Unless a covered associate does not solicit investors after becoming a covered associate, in which case the look back period is six months, the two-year look-back period applies to new covered associates. Moreover, the two-year look-back period applies even where a covered associate contributes and then becomes a noncovered associate. Thus, for example, the departure of a covered associate would not lift the two-year ban on compensation if that covered associate has made a contribution to an official in excess of the de minimis limit within the prior two years.

Importantly, the rule also is “sticky” because it impacts an adviser’s ability to receive compensation from relevant government entities at any time during the two-year period following the date of contribution. Therefore, a contribution by a covered associate now could limit an adviser’s ability to accept an investment from a relevant government entity in the future, even if that government entity has not invested with the adviser at the time of the covered associate’s contribution.

Strict liability

Firms should note that the rule is a strict liability rule. In a recent enforcement settlement, the Securities and Exchange Commission (SEC) stated that the rule “does not require a quid pro quo or actual intent to influence an elected official or candidate.” In fact, the SEC has brought enforcement actions against private fund managers whose covered associates made contributions to an official of a government entity that was already invested in the adviser’s funds.

Conclusion

Fund managers and their covered associates should familiarize themselves with the rule’s restrictions and compliance requirements to prevent violating the rule. Given the costly consequences that can result from violations, a lot of firms have adopted policies that are broader than the bare minimum required under the rule. For instance, a policy might apply to all employees and not just “covered associates,” or de minimis exceptions might not apply. We encourage firms to review their policies and reach out to their Cooley contact with any questions.

Below, we address some frequently asked questions we’ve received since the ruling.

1. Which rules have been vacated?

The following rules under the Investment Advisers Act of 1940 have been vacated:

• Preferential Treatment Rule (Rule 211(h)(2)-3)
• Restricted Activities Rule (Rule 211(h)(2)-1)
• Quarterly Statement Rule (Rule 211(h)(1)-2)
• Adviser-Led Secondaries Rule (Rule 211(h)(2)-2)
• Private Fund Audit Rule (Rule 206(4)-10)

In addition, amendments to the Recordkeeping Rule (Rule 204-2) that were related to the above rules, as well as an amendment to the Compliance Rule (Rule 206(4)-7) that would have required written documentation of annual compliance reviews, have been vacated. (For a summary of these rules, refer to our Facing the SEC’s New Rules for Venture Capital and Other Private Fund Advisers blog post.)

2. Does vacatur mean the rules are dead, annulled, canceled, gone, etc.?

Sort of. A vacatur by the applicable highest court would mean those things. However, because the ruling was made by a panel of judges in the Fifth Circuit, it can be appealed for an en banc hearing by all the judges in the Fifth Circuit. Alternatively, it can be appealed to the US Supreme Court. The SEC has not announced whether it will appeal the decision. If the SEC were to appeal to the Supreme Court, the Supreme Court would still need to grant certiorari and agree to hear the case.

3. Should we view compliance with the rules as best practice?

Not necessarily. Fund managers are likely to face pressure from investors to implement some of the disclosure and reporting measures the rules would have required. But given how prescriptive the rules were, voluntary compliance with the rules would not seem to be a prerequisite for firms following a “best practice” standard in their business. For example, the Quarterly Statement Rule would have required dollar amount disclosure of every fund expense without exception for de minimis or miscellaneous items. And other aspects of the rules would have required fitting square pegs into round holes, expending resources (time and money) trying to fit under a two-sizes-fit-all approach. While it remains to be seen how the industry will ultimately trend, we note that the Institutional Limited Partners Association (ILPA), which had published reporting templates for public comment just days before the Fifth Circuit decision, announced that it is reorienting the templates and working to relaunch the comment period once it updates the scope of the templates.

All that said, firms should keep in mind that their fiduciary duty under the Investment Advisers Act has not changed. Investment advisers, whether registered or exempt, must act in their funds’ best interest, and not place their own interest ahead of the funds’ interest. This includes adequate disclosure of conflicts of interest, particularly where fees and expenses are involved. Many of the practices that the vacated rules sought to address have been the subject of SEC enforcement actions in the past, years before the rules were even proposed. The SEC’s exam staff will continue to probe – and the SEC’s enforcement staff will continue to investigate – fund managers’ practices and disclosures where conflicts of interest or fees and expenses are concerned.

4. Does this impact the requirements around showing levered and unlevered returns?

The short answer is no. The Quarterly Statement Rule would have required registered investment advisers (RIAs) to report levered and unlevered returns in their quarterly statements to investors. While this rule has been vacated, RIAs are separately subject to the Marketing Rule (Rule 206(4)-1), which has not been vacated.

The Marketing Rule requires gross performance in an advertisement to be accompanied by net performance with equal prominence. The net performance must be calculated over the same time period, using the same type of return and methodology, as the gross performance. In a marketing compliance FAQ, the SEC staff stated that it believes an adviser would not comply with this requirement if it showed a gross internal rate of return (IRR) that is calculated from the time an investment is made without reflecting fund borrowing or subscription facilities (i.e., an unlevered gross IRR) alongside a net IRR that is calculated from the time investor capital has been called to repay such borrowing (i.e., a levered net IRR). In the same FAQ, the staff stated its view that an adviser would violate the general prohibitions of the Marketing Rule if it showed only a levered net IRR without including an unlevered net IRR or disclosing the impact of subscription facilities on the net IRR shown.

Exempt reporting advisers (ERAs) are not subject to the Marketing Rule (nor would they have been subject to the Quarterly Statement Rule). RIAs, however, continue to be subject to the Marketing Rule, and the SEC staff’s FAQ described above remains applicable to their advertisements. (To learn more about the Marketing Rule, check out our previous blog posts: Venture Capital Fund Managers’ Guide to Applying the Latest Marketing Rule Risk Alert and Last-Minute Checklist for Private Fund Managers Complying With Marketing Rule.)

Key insights from Chris Ahn

On the significance of up rounds representing 65% of deals: “I think we’re still making our way through the impact of 2021 and early 2022, when there were low interest rates, high liquidity and, as a result, higher valuations.”

On his approach to risk management and mitigation strategies when investing: “Because each situation is unique, and there are no predetermined answers to these questions, it is paramount that founders and investors have a shared vision for the company to help guide them.”

On his perspective on the most effective monetization models for community-based ventures: “The tried-and-true method for monetizing open source has been to create a hosted version of the open-source project, build a sales team around this product and sell it as a subscription service.”

Read full commentary from Chris Ahn

Pay-related proposals

There are three types of pay-related proposals covered by the new rule, as outlined below.

1. Advisory votes on executive compensation

Sometimes referred to as “say-on-pay” proposals, these allow stockholders to cast an advisory vote on the compensation paid to the company’s named executive officers. These votes generally are held annually at the company’s annual meeting of stockholders, but some companies hold them less frequently.

2. Advisory votes on frequency of executive compensation votes

Sometimes referred to as “say-on-frequency” proposals, these allow stockholders to cast an advisory vote on the frequency of say-on-pay votes. These proposals are required to be held at least once every six years and generally are held at the company’s annual meeting of stockholders.

3. Advisory votes on ‘golden parachute’ arrangements

Sometimes referred to as “say-on-parachute” proposals, these allow stockholders to cast an advisory vote on the compensation payable to a company’s named executive officers as a result of a change-in-control event (e.g., a merger or acquisition). These proposals generally only arise in connection with the vote on the change-in-control transaction.

Form N-PX disclosure requirements

Form N-PX will require Form 13F filers to disclose, on an issuer-by-issuer basis, the number of shares voted, and how they were voted on the pay-related proposal(s) submitted to stockholders (e.g., for, against or abstain or, in the case of say-on-frequency proposals, every one, two or three years). If Form 13F filers cast votes in multiple manners for a particular company (e.g., both for and against a proposal), they should report how many shares they voted in each manner. It is important to note that there is no de minimis exemption to reporting the manner of voting, meaning that Form 13F filers will be required to report all pay-related proposal votes regardless of the number of shares of the issuer’s stock they own or the fair market value of the shares. For Form 13F filers who engage in share lending, Form N-PX will require the Form 13F filer to report the number of shares they loaned out and did not recall for voting. For any Form 13F filers who have a disclosed policy of not voting proxies, and who did not in fact vote their shares during the relevant period, Form N-PX will include a designation box to indicate this fact.

Filing deadline

The new requirements go into effect on July 1, 2024, and Form 13F filers will be required to file their first reports on Form N-PX by August 31, 2024. The first report will cover all pay-related proposals presented at any stockholder meeting held between July 1, 2023, and June 30, 2024.

Only Form 13F filers who filed Form 13F during 2023 and 2024 will be required to file Form N-PX by August 31, 2024. For fund managers who have been subject to Form 13F filings only for a portion of the 2023 to 2024 time period, the SEC has provided transition guidance on the Form N-PX filing requirements, which we’ve outlined below.

Form 13F filers for 2024, but not 2023

Form 13F filers are not required to file a Form N-PX during the first calendar year in which their initial Form 13-F was required, so these fund managers will not be required to file Form N-PX until 2025.

Form 13F filers in prior years, but not during 2024

These fund managers are not required to file a Form N-PX this year, and they will not be required to file an initial Form 13F until the calendar year following their next required Form 13F filing.

Form 13F filers who cease filing Form 13F during 2024

Fund managers who currently file Form 13F but do not trigger a filing obligation for 2025 – i.e., those managers who do not advise funds owning an aggregate of $100 million of Section 13(f) securities as of the end of any calendar month of 2024 – will be required to file a “stub period” Form N-PX next year. That filing will cover all pay-related proposals presented at stockholder meetings held between July 1, 2024, and September 30, 2024, and will be due on March 1, 2025.

What to do now

Form 13F filers should begin tracking the annual meeting dates of their public portfolio companies, including determining whether pay-related proposals will be, or have been, presented. Similarly, Form 13F filers should monitor and record the manner of voting on pay-related proposals for all their public companies during the period covered by this filing requirement. Finally, Form 13F filers should begin to aggregate this information for provision to outside counsel who can assist in preparing the Form N-PX by the filing deadline.

Practical considerations

It is important that institutional investmentfund managers recognize that their voting decisions on pay-related proposals now will be made public. Executive compensation matters recently have been the focus of heavy public criticism, so, to the extent there are sensitivities to the fund managers’ voting practices on these matters, they should consider whether and how these new requirements may impact their voting decisions.

Additionally, public companies generally are very sensitive to the degree of stockholder support that they receive on say-on-pay proposals. Companies that receive less than 80% support from stockholders on their say-on-pay proposals often undertake an investor outreach program to engage with their largest stockholders to seek feedback on their executive compensation programs. Accordingly, Form 13F filers should be mindful of the possibility of receiving outreach from management of these companies – and be prepared to engage in these discussions, particularly when their ownership position is relatively large (e.g., greater than 1%).

Last week, the Division of Examinations at the Securities and Exchange Commission (SEC) published a Risk Alert titled, “Initial Observations Regarding Advisers Act Marketing Rule Compliance.” This is the division’s third Risk Alert on the Marketing Rule since RIAs have had to come into compliance with the rule in November 2022, demonstrating the division’s continued focus on advisers’ marketing practices. (See our prior blog post on Marketing Rule compliance – Last-Minute Checklist for Private Fund Managers Complying With Marketing Rule.) In the latest Risk Alert, the division shares numerous observations by its staff regarding advisers’ compliance with the Marketing Rule.

In this post, we highlight some of the staff’s observations that we believe – based on our extensive experience reviewing our clients’ marketing decks – have particular relevance to venture capital fund managers. On their face, most, if not all, of these observations seem like obvious practices to avoid. But we’ve noted below some specific practices by VC firms that may benefit from another review in light of the new Risk Alert. While ERAs are not subject to the Marketing Rule, we encourage all of our clients – ERAs included – to review the practices noted below and be mindful of what the SEC would view as misleading.

1. Personal track record and balance sheet investments

Staff observation

The staff observed “[s]tatements or presentations regarding … advisers’ performance track record with securities that were not purchased by the advisers in a similar manner in their clients’ accounts.”

Cooley take

It is not uncommon for first-time fund managers to show their personal or angel investments as part of their track record, or for corporate VC firms or family offices launching their first third-party fund to show balance sheet investments as their track record. Doing so is not per se prohibited. But such presentations of track record should be accompanied by detailed disclosures around the assumptions made and risks involved in relying on such track record. Depending on what a firm has to work with, the track record may need to be presented as “hypothetical” performance, which too is not per se prohibited but does require policies, procedures and appropriate disclosures.

2. Unfair and unbalanced statements

Staff observation

The staff observed “statements about the potential benefits connected with the advisers’ services or methods of operation that did not appear to provide fair and balanced treatment of any material risks or material limitations associated with the potential benefits.” These included “advertisements on social media that highlighted performance information without also disclosing the material risks and limitations associated with the potential benefits.”

Cooley take

Given the very nature of marketing, it is typical for firms to emphasize the positive, and “balance” is the most common issue we address when reviewing initial drafts of marketing decks. But it also is relatively easy to correct this with the addition of footnotes, qualifiers and other disclosures. For various reasons (including the prohibition on general solicitation and general advertising under the exemption relied on by most VC funds), most of our clients do not use social media to advertise. However, when firms do use social media to highlight a new accolade, achievement or the like, it can be challenging to include the appropriate risks and limitations disclosure in the same post.

3. Cherry-picking and case studies

Staff observation

The staff observed “advertisements that included only the most profitable investments or specifically excluded certain investments without providing sufficient information and context to evaluate the rationale, such as investments that were written off as a loss or were lower-performing investments.”

Cooley take

This is another common theme in initial drafts of marketing decks we review. While the power law is of course a hallmark of VC investing, highlighting only the positive “performers,” “returners” or “drivers” can violate the Marketing Rule. References to specific investments need to be fair and balanced, which can be achieved through various means, and in our experience, firms have different appetites for how they want to comply with this requirement. One common approach is to include a table of all investments in the deck and cross-reference that table when highlighting a subset of investments.

4. Network of personnel

Staff observation

The staff observed advertisements stating material facts about the advisers’ businesses that were inaccurate, including “statements that a network of personnel perform advisory services for clients when a sole individual performs such services.”

Cooley take

We often see marketing decks that highlight venture partners, operating partners and other individuals in a firm’s network who are portrayed as having a role in the investment process. Because the actual role played by any of these individuals can vary from merely being available as consultants to actively engaging in the investment process, firms should consider how they are portraying their various networks and whether the description of the role played by any individual or groups of individuals should be refined. Firms also should take care not to imply that individuals are employed by the management company when they are in fact typically treated as third-party service providers.

5. Formalized screening processes

Staff observation

The staff observed advertisements describing material facts about advisory services or products offered that were inaccurate, including “referencing formalized securities screening processes that did not exist.”

Cooley take

Most marketing decks we review include slides on the investment process executed by a firm (e.g., how deals are sourced, screened, diligenced and voted on). Firms should consider whether the process described in their decks accurately matches what they actually do in practice, and if a formal process is referenced, firms should ensure that such a process is actually formalized.

6. Images of celebrities

Staff observation

The staff observed advertisements that contained untrue or misleading claims, such as “advertising images of celebrities in marketing materials in a manner that implied the celebrities endorsed the firms when such celebrities did not endorse the firms.”

Cooley take

While it is less common to see pop culture icons in VC fund marketing decks, we do from time to time see images of well-known investment personalities, like Warren Buffett and Elon Musk. Firms should take care when using stock images or quotes attributable to famous persons that they are not implying that such persons are endorsing them when that is not, in fact, the case.

7. Unreadable fonts

Staff observation

The staff observed advertisements that could “otherwise be materially misleading, such as presenting disclosures in an unreadable font on websites or in videos.”

Cooley take

We know that footnotes and disclaimers are not necessarily appealing, and there is a commercial desire to limit the real estate these disclosures take up in marketing materials. But using miniscule fonts could be viewed as materially misleading and lead to violations of the Marketing Rule. We are fans of concise, plain English disclosures that are set forth in legible fonts and tailored to each slide of a marketing deck. Additionally, as the Risk Alert indicates, these disclosure requirements apply to marketing materials in all forms of media. So, for example, when recording a marketing video, firms should include proper disclosures that are readable and pause long enough for the audience to be able to read them.

8. Outdated market data

Staff observation

The staff observed performance presentations that contained “outdated market data information only (e.g., market data from more than five years prior)” [emphasis added], or “investment products that were no longer available to clients and included lower investment costs than were available.”

Cooley take

For established firms with long-standing track records, it is quite standard to include performance information related to their older funds. This information can certainly be relevant (for example, to indicate a firm’s length of experience). Yet, context is important, and firms should consider whether the inclusion, or the manner of presentation, of these older funds could be misleading – for example, have the funds’ strategies or terms shifted or the investment team members evolved in such a way that their exclusion or additional explanation would be warranted?

9. ‘Proper’ calculation of net returns

Staff observation

The staff observed advertisements that contained “untrue or misleading performance claims, including … using lower fees in calculations for net of fees performance returns than were offered to the intended audience, and … omitting material information regarding fees and expenses used in calculating returns.” The staff also observed advertisements that “included the performance of only realized investment information in the total net return figure and excluded unrealized investments.”

Cooley take

In our experience, virtually all firms are aware that net returns are required when gross returns are presented. Many firms, however, do not appreciate all the nuances that the Marketing Rule requires, particularly with respect to the specific areas where the SEC or its staff have provided guidance that are not apparent from the rule and differ from industry practice. For example, both the Risk Alert and the adopting release for the Marketing Rule indicate that a RIA marketing its third fund with higher management fees than its first two funds would need to calculate the net returns of the earlier funds using the higher management fee rate to be charged to the third fund – in other words, showing the actual performance of the first two funds would be misleading because those funds charged a lower management fee rate than the fund currently being marketed. This is just one example of net return calculation principles that may not be intuitive. While a comprehensive discussion of properly calculating net returns is outside the scope of this blog post, we note that this is an area where we frequently advise RIAs and ERAs differently depending on their specific facts and circumstances.

A note that may be particularly relevant to our private equity clients: Firms that use subscription lines of credit also should be aware of the FAQ published earlier this year by the staff of the SEC’s Division of Investment Management. Please reach out to us if you have questions about this evolving area.

10. Benchmark index comparisons

Staff observation

The staff observed advertisements that contained “benchmark index comparisons that did not define the index or provide sufficient context to enable an understanding of the basis for such comparison or disclose that the benchmark performance did not include reinvestment of dividends.”

Cooley take

While we find that VC firms typically don’t include benchmark comparisons in their marketing decks, we commonly see the inclusion of benchmark comparisons in other fund asset classes. When incorporating benchmark comparisons, firms should include appropriate disclaimers for the index they are using to compare their performance.

The SEC has been focusing on Marketing Rule compliance for some time. For example, earlier this month, the SEC settled charges against five RIAs for Marketing Rule violations. While we highlighted some of the more VC-relevant issues identified in the Risk Alert above, we think firms would benefit from reviewing the entirety of the alert. As always, we are here to answer any questions and guide our clients through these marketing considerations.

The three main statutory regimes to know are:

• Investment Company Act of 1940 (Company Act): This applies to the fund and governs whether the fund must register as an investment company.
• Investment Advisers Act of 1940 (Advisers Act): This applies to the management company and governs whether the management company must register as an investment adviser.
• Securities Act of 1933 (Securities Act): This applies to fundraising and governs whether the sale of fund interests must be registered as a securities offering.

As a general matter, you will want to be exempt from registration under all three statutory regimes. However, while exemptions from the Company Act and the Securities Act are existential to a VC firm, an exemption from the Advisers Act is something that’s nice to have, if not as critical.

Company Act

The Company Act is the body of law that mutual funds are subject to. Among other things, it requires registered investment companies to make public filings, appoint independent directors, and operate subject to various restrictions, such as minimum capital requirements and limitations on leverage. By their nature, VC funds are designed to operate as private funds, without being subject to the requirements of the Company Act. To be a private fund, a venture capital fund relies on Section 3(c)(1) and/or Section 3(c)(7) of the Company Act, both of which allow the fund to be excluded from being treated as an investment company for most purposes of the Company Act.

Both “3(c)(1) funds” and “3(c)(7) funds” are equally exempt from the Company Act requirements. A 3(c)(1) fund is limited to 100 beneficial owners who must be at least “accredited investors,” which in general includes individuals with investment capital of $1 million (or individuals who meet certain income requirements) and entities with investment capital of $5 million. A 3(c)(7) fund may accept up to 1,999 investors, but each must be a “qualified purchaser.” In general, to be a “qualified purchaser,” an individual must have $5 million in investment capital and an entity must have $25 million. In some cases, an entity may count as multiple investors based on the number of its underlying owners, or the qualified purchaser requirement may need to be satisfied with respect to each underlying owner of such entity (for example, if an entity is formed for the purpose of making the investment at hand or its underlying owners can make individual investment decisions). Thus, an analysis of each investor’s beneficial ownership status is crucially important from a regulatory perspective. Most first-time fund managers will likely default to a 3(c)(1) fund, as few of their investors are likely to meet the qualified purchaser standards.

It is important to note that the qualified purchaser and 100 beneficial owners limit requirements do not apply with respect to “knowledgeable employees” of a firm sponsoring a fund. This is a defined term in the Company Act, and it requires a facts and circumstances determination in some cases. The definition generally covers executive-level personnel, as well as investment personnel who have been performing investment advisory functions for at least 12 months.

Questions to ask your Cooley contact:

1. Can I have multiple 3(c)(1) funds that each have their own 100 beneficial owners limit?
2. Can I have a 3(c)(1) fund and a 3(c)(7) fund investing alongside each other?
3. Do friends and family who are not charged fees need to be qualified purchasers or count toward the 100 beneficial owners limit?

Advisers Act

The Advisers Act is the body of law that applies to anyone meeting the definition of “investment adviser” – i.e., anyone in the business of advising others with respect to securities and who receives compensation. One thing to note about the Advisers Act is that certain of the requirements apply whether or not a firm is registered as an investment adviser – something referred to as being a “registered investment adviser” or “RIA.” For instance, the general antifraud provisions of the Advisers Act apply to RIAs and unregistered investment advisers. And, all investment advisers – registered or not – owe a fiduciary duty to their funds.

Most VC fund managers rely on an exemption from registration as an RIA that’s available under Section 203(l) of the Advisers Act. This “VC exemption” allows investment advisers whose only clients are VC funds to be exempt from registration and be subject to a much lighter regulatory regime than RIAs. The key to relying on the VC exemption is the Advisers Act’s definition of “venture capital fund.” In general, most plain vanilla VC funds should meet this definition – a 3(c)(1) fund or a 3(c)(7) fund that holds itself out as pursuing a VC strategy, doesn’t incur leverage in excess of 15% of the fund’s capital commitments (with any leverage that is incurred not exceeding 120 days), doesn’t give ordinary redemption rights to investors, and mostly invests in primary issuance of equity securities (including securities convertible to equity) of private operating companies.

To drill in slightly deeper, the Advisers Act definition of VC fund has several components, the most important of which is the “20% nonqualifying basket.” A VC fund must invest at least 80% of the capital commitments in qualifying investments. Conversely, no more than 20% of the capital commitments can comprise nonqualifying investments, although the 20% nonqualifying basket can be filled with any type of nonqualifying investment (e.g., crypto, debt, public company shares, investments in other funds and securities acquired in secondary transactions). The 20% calculation is done immediately after the acquisition of each nonqualifying asset, and it can be based on either cost or fair value, as long as it’s consistently applied (i.e., a manager can’t switch between using cost and fair value).

While the VC exemption is what most VC firms rely on, some smaller managers might rely on the private fund adviser exemption – the “PF exemption” – in lieu of, or in addition to, the VC exemption. The PF exemption, which is provided under Section 203(m) of the Advisers Act, is available to investment advisers whose only clients are “private funds” and whose gross assets under management total less than $150 million. A private fund is any 3(c)(1) fund or 3(c)(7) fund, even if it is not a VC fund. The trade-off between the VC exemption and the PF exemption is that the VC exemption does not have a cap on assets under management, but it does have a cap on nonqualifying investments (among other conditions), while the PF exemption has a cap on assets under management but no operational restrictions beyond that cap.

To rely on the VC exemption or the PF exemption and avoid registration as an RIA, a fund manager needs to file a Form ADV as an exempt reporting adviser (ERA). This is a public filing with the Securities and Exchange Commission (SEC), and it includes information about the management company, its affiliates, funds, executive officers, and direct and indirect owners. While filing a Form ADV is not difficult, it is important to make the filing in a timely manner – and submit annual and interim amendments as required.

As indicated above, ERAs have a fiduciary duty to their funds and are subject to certain Advisers Act requirements. In addition to general antifraud provisions, ERAs are subject to the limitations around political contributions, must adopt an insider trading policy, and must obtain investor consent to principal transactions and other similar situations involving conflicts of interest. In addition, the SEC adopted rules in 2023 around preferential treatment (colloquially known as the “side letter rule”) and certain restricted activities by private fund advisers. (For more information, see our September 2023 post about the SEC’s rules.) However, ERAs are not subject to various other requirements under the Advisers Act, including those around custody, audit, marketing, personal trading, record-keeping and quarterly statements. (For an overview of transitioning from relying on the VC exemption to becoming an RIA, refer to our August 2023 post.)

Questions to ask your Cooley contact:

1. Can I create two entities and rely on the VC exemption for one and the PF exemption for the other?
2. Can I switch between the VC exemption and the PF exemption?
3. What do I do if I don’t qualify for the VC exemption or PF exemption?
4. When do I need to file the Form ADV?

Securities Act

The Securities Act is the body of law that applies to the sale of securities, like in an initial public offering. VC and other private funds rely on an exemption that applies to private offerings. While there is a statutory exemption for transactions not involving any public offering generally, most funds rely on the safe harbor provided by Regulation D under the Securities Act. At a high level, there are two key requirements for relying on Regulation D. First, the fund cannot engage in general solicitation or general advertising. Second, the fund must only admit accredited investors. Called a “506(b) offering,” it’s what the vast majority of VC funds rely on. Technically, a fund is allowed to admit up to 35 non-accredited investors. However, doing so would require preparation and disclosure of financial and nonfinancial information that goes far beyond what private funds typically share. Therefore, private funds typically do not admit non-accredited investors.

The restriction on general solicitation or general advertising means that a firm is prohibited from publicly speaking about the fund, posting the fund’s marketing materials on its website, or reaching out to investors it doesn’t have a relationship with. As a general rule, the SEC requires the existence of a “substantive preexisting relationship” with potential investors in order to establish that there has not been general solicitation or general advertising. This is the type of relationship that allows a firm to evaluate a potential investor’s sophistication and accredited investor status. To a limited extent, a firm may rely on their existing network to be introduced to new prospective investors. But the manner, nature, and number of such introductions must be carefully tracked to avoid what can amount to general solicitation or general advertising.

Instead of choosing a 506(b) offering, a few funds choose to do a “506(c) offering,” which also is an exempt offering under Regulation D. The benefit of a 506(c) offering is that a firm may freely engage in general solicitation or general advertising – blog posts, cold emails and speaking at conferences all would be permitted. However, a crucial condition to a 506(c) offering is the requirement to take “reasonable steps to verify” that each investor in the fund is an accredited investor. While this may sound simple enough, the types of documentation that firms are expected to obtain from investors in order to satisfy the verification requirement are often considered intrusive and invasive, and the cost of the process itself can be expensive. While there are service providers that can assist with the verification requirement, and letters from a prospective investor’s accountant or lawyer verifying the investor’s accredited status would suffice, 506(c) offerings still tend to be much less common than 506(b) offerings.

Questions to ask your Cooley contact:

1. What are some ways I can fundraise in a 506(b) offering beyond my immediate network?
2. What are the do’s and don’ts to avoid general solicitation or general advertising?
3. What happens if I’ve inadvertently engaged in general solicitation or general advertising?
4. What type of documentation is requested from investors to satisfy the verification requirement for a 506(c) offering?

Other considerations

The securities laws principles we discussed above relate to US federal requirements. State requirements also will apply, although most firms will only need to make notice filings at the state level. Firms looking to fundraise outside the United States, and firms that are based outside the United States, will have different considerations – and other bodies of law may apply to them and their fundraising efforts.

Key insights from Bobby Yazdani

On underwriters’ ongoing hesitation to invest: “[C]oming off of 2022 and 2023, I think people are just gun-shy to underwrite investments. It’s an emotional reaction to two years of brutality. So, it’s not the lack of available capital – it’s more the emotions of the capital that’s involved.”

On growing as a leader and an investor: “Experiencing failures over the past 30 years, I had the opportunity to learn a lot. And that has helped me establish a methodology in terms of my selection and underwriting processes.”

On adding value to a professional environment: “I don’t want to occupy a room because I have the loudest voice. I want to occupy a room because I have something worthwhile to offer in terms of my knowledge and my know-how.”

Read full commentary from Bobby Yazdani

Schedule 13G

Funds – including their general partners and, in some cases, managing principals – that hold in excess of 5% of a class of public equity as of December 31, 2023, generally must file a Schedule 13G within 45 days of year-end. Also, any fund that has previously filed a Schedule 13G with respect to a portfolio company must file an annual amendment to its Schedule 13G within 45 days of year-end if there have been any changes in ownership since the most recent filing – including an “exit” filing if the fund’s ownership has declined below 5%.

Form 13F

Investment advisers who exercise investment discretion over “Section 13(f) securities” –generally equity securities of public companies – are required to file quarterly reports with the SEC on Form 13F within 45 days of each quarter-end. Subject to certain exceptions, if your funds collectively owned in excess of $100 million of Section 13(f) securities as of the last day of any month during the 2023 calendar year, you’re obligated to file a Form 13F for the quarter ending December 31, 2023, within 45 days of calendar year-end. In addition, the filing obligation continues for a minimum of three consecutive calendar quarters (i.e., March 31, June 30 and September 30), with filings due within 45 days of the relevant quarter-end.

It is important to note that, even if you do not exceed the $100 million threshold as of December 31, the obligation to file a Form 13F for the quarter ending December 31 remains if the threshold was exceeded as of the last day of any single month during the calendar year.

Form 13H

Investment advisers who have previously filed a Form 13H to register as a “large trader” are required to file an annual update to the filing within 45 days of year-end. Large traders who have completed a full calendar year without exceeding any of the Form 13H triggering thresholds, measured across all portfolio companies, may be eligible to elect “inactive” status and thereby suspend certain ongoing large trader obligations. These triggering thresholds are daily trading of at least 2 million shares or $20 million in share value, or calendar month trading of at least 20 million shares or $200 million in share value, in each case aggregating purchases and sales of the securities of all portfolio companies during the relevant day or month.

In addition to the annual filing requirement, large traders have a quarterly obligation to promptly amend the Form 13H following any quarter during which any of the information in their Form 13H materially changes.

Looking ahead: Schedule 13G filing deadlines changing

As described in an October 2023 Cooley client alert, the SEC has adopted comprehensive amendments to the Schedule 13G filing requirements. Once effective, those rule changes will generally accelerate the filing deadlines for initial and amended Schedule 13Gs. Beginning September 30, 2024, funds will be required to begin assessing their Schedule 13G filing requirements on a quarterly basis, with the first of such filings due November 14, 2024. The recent rule changes do not in any way affect the filing requirements under Form 13F or Form 13H.

Closing thoughts

As the end of the calendar year approaches, funds should start to consider whether they will need to make any of the annual filings under Section 13. The determination of whether you have a Schedule 13G, Form 13F or Form 13H filing obligation is often complex. As part of your year-end wrap-up, consider contacting your fund/securities counsel to begin a Section 13 analysis, then prepare any required filings well in advance of the February 14, 2024, deadline.

Key insights from Genevieve Kinney

On the initial public offering (IPO) markets as we look ahead to 2024: “We think some of the larger enterprise companies will wait on additional clarity in the economic environment to make moves on an IPO … we expect to see more significant activity in the early second half of 2024, as companies seek to go public in advance of the 2024 election and when we have another two quarters of economic data. Performance of public companies and the broader equity market will be key factors in companies’ willingness to go public; however, public investors will need to grapple with investment opportunities in undervalued stocks with proven track records and new issues that have – unfortunately – had spotty trading records when looking at recent IPOs. We think the bar is very high for companies that are looking to maximize value at IPO and maintain consistent trading performance, and those that aren’t in a rush will continue to wait it out until Q4 2024 or, more likely, 2025.” 

On the less-than-positive changes in the software as a service (SaaS) industry: “The democratization of the SaaS business model has enabled tech ecosystems to form and flourish around the world, but increased competition and investor sophistication has continued to make funding more difficult to obtain. The positive is that many companies in this newer SaaS cohort are stronger, more efficient and more profitable than those before them.”

On the trend of mid-stage rounds being down: “Market uncertainty over the fundamental stability of the economy, direction of monetary policy and outlook for corporate earnings have made mid-stage growth (particularly Series B) challenging to underwrite over the last six months. With limited execution proof points in the businesses, and a longer path to exit with an unclear view on where multiples stabilize, we have seen investors move in a barbell fashion to earlier, founder investments, or enter into later-stage businesses that may be doing down or structured rounds or offering secondary at a discount. In both cases, investors have been looking to mitigate their risk in either capital invested or valuation.”

Read full commentary from Genevieve Kinney

Read Full Article

The new rules cover the following topics:

1. Preferential treatment granted to select investors
2. Restricted activities of private fund advisers
3. Quarterly reporting of fees and expenses, adviser compensation and performance metrics
4. Private fund audits
5. Valuation or fairness opinions for adviser-led secondary transactions 

Rules related to the first two topics will apply to both registered investment advisers (RIAs) and exempt reporting advisers (ERAs), while rules related to the last three topics will apply only to RIAs. The SEC also adopted an amendment to an existing rule that will require RIAs to document their annual compliance reviews.

This post is intended to provide a summary of the new rules that would be most pertinent to VC advisers.

A note to our clients based outside the United States: The new rules will not apply to a non-US adviser with respect to its non-US funds, even if there are US investors in those funds. For this purpose, the SEC considers a non-US adviser to be an adviser whose principal office and place of business is outside of the US. The new rules will apply to a non-US adviser with respect to its US funds.

Rules applicable to all private fund advisers (RIAs and ERAs)

1) Rule 211(h)(2)-3 – Preferential Treatment Rule

The Preferential Treatment Rule will limit advisers from directly or indirectly providing preferential treatment – whether by agreement via a side letter or otherwise – to select investors in a fund, and in certain circumstances, investors in a similar pool of assets, unless the adviser discloses such preferential treatment to all investors, and in certain circumstances, offers the same treatment to all investors. A “similar pool of assets” would be a pooled investment vehicle with substantially similar investment policies, objectives or strategies to those of the fund and would generally pick up parallel funds, feeder funds and co-investment funds. The term will likely capture vehicles outside of what VC firms would typically view as a “substantially similar pool of assets.” For example, the SEC has stated that an adviser’s healthcare-focused fund may be considered a “similar pool of assets” to the adviser’s technology-focused fund.

Preferential redemption 

The Preferential Treatment Rule will prohibit an adviser from granting an investor in a private fund, or a similar pool of assets, the ability to redeem its interest on terms that the adviser reasonably expects to have a material, negative effect on other investors in that fund or in a similar pool of assets. There is an exception if an investor is required to redeem due to applicable laws (US or non-US), or if the adviser has offered the same redemption ability to all other existing investors (e.g., offered different share classes to all investors (but the share class must not be contingent on investment size)) and will continue to offer such redemption ability to all future investors in the same private fund and any similar pool of assets.

This aspect of the Preferential Treatment Rule is likely not going to have a large impact on VC funds, given that redemptions are impractical – if not impossible – for such funds, and are not permitted by the Advisers Act definition of “venture capital fund,” except in extraordinary circumstances. That being said, the rule will apply to ad hoc redemptions, and the SEC has indicated that extraordinary circumstances may be exactly the circumstances where preferential redemption rights for certain investors are most likely to have a material, negative effect on other investors. So, to the extent that a VC firm permits a one-off redemption to an investor that is not required by applicable laws, it will need to reasonably determine – and we would recommend documenting – that the redemption would not have a material, negative effect on other investors.

Preferential transparency

The Preferential Treatment Rule will prohibit an adviser from providing information (whether through formal or informal communication, or through written, visual or oral means) regarding portfolio holdings or exposures of the private fund, or of a similar pool of assets, to any investor in the fund if the adviser reasonably expects that providing the information would have a material, negative effect on other investors in that fund or in a similar pool of assets. There is an exception to this prohibition if the adviser offers such information to all existing investors in the private fund and any similar pool of assets at the same time or substantially the same time.

Helpfully, the SEC stated in adopting the rule that it generally would not view preferential information rights provided to an investor in an illiquid fund, such as a VC fund, as having a material, negative effect on other investors. However, the SEC did not provide a blanket exception for illiquid funds, stating instead that a facts and circumstances analysis would be required. The SEC has said that advisers would not be expected to predict how investors will react to information; rather, they would need to form only a reasonable expectation based on the facts and circumstances. VC advisers might consider whether information provided to certain investors – including in connection with their representation on limited partner advisory committees (LPACs) – should be subject to contractual provisions around non-use, in addition to nondisclosure and confidentiality.

Disclosure of preferential treatment

The Preferential Treatment Rule also will require written notice of all preferential treatment to both prospective and current investors in the fund. Disclosure will need to be provided to prospective investors – prior to their admission – if the preferential treatment is related to any material economic terms (e.g., the cost of investing, liquidity rights, fee breaks and co-investment rights). Other preferential treatments (i.e., those that are not related to any material economic terms) will need to be provided to current investors in the fund as soon as reasonably practicable following the end of the fund’s fundraising period (or, in the case of a liquid fund, following the investor’s investment in the fund). While “as soon as reasonably practicable” will depend on the facts and circumstances, the SEC has said that distributing the notice within four weeks would generally be appropriate. To the extent that an adviser provides additional preferential treatment to investors after the fund closes, it will need to provide written notice of such additional treatment on an annual basis.

Disclosure of preferential terms will require specificity. For example, if an adviser provides an investor with lower fee terms in exchange for a significantly higher capital commitment than others, the adviser will need to describe the lower fee terms, including the applicable rate (or range of rates if multiple investors pay such lower fees), in order to provide sufficiently specific information as required by the rule. Providing copies of side letters with identifying information redacted (if applicable) would comply with the disclosure requirements, as would a sufficiently specific written summary of preferential terms, such as a compendium or master side letter covering all preferential terms, similar to the practice used for most favored nation (MFN) elections.

2) Rule 211(h)(2)-1 – Restricted Activities Rule

The Restricted Activities Rule will prohibit private fund advisers from engaging in the following activities, subject to either disclosure to, and/or consent from, investors. Each consent-based exception will require an adviser to seek consent from all investors in the private fund and obtain consent from at least a majority in interest of investors that are not related persons of the adviser (i.e., LPAC consent will not suffice). A fund’s governing documents may generally prescribe the manner and process by which the applicable consent is obtained. 

Regulatory, compliance and examination expenses (post-disclosure)

The Restricted Activities Rule will prohibit an adviser from charging private fund clients:

• Regulatory or compliance fees and expenses of the adviser or its related persons
• Fees and expenses associated with an examination of the adviser or its related persons by any governmental or regulatory authority

unless the adviser distributes written notice of any such fees or expenses, including the dollar amounts, to investors in the fund within 45 days after the end of the fiscal quarter in which the charge occurs.

The written notice should include a detailed accounting of each category of such fees and expenses, and each specific category should be listed as a separate line item rather than grouped into broad categories such as “compliance expenses.”  

Investigation expenses (consent)

The Restricted Activities Rule will prohibit an adviser from charging private fund clients fees and expenses associated with an investigation of the adviser or its related persons by any governmental or regulatory authority, unless the adviser seeks written consent from all investors and obtains written consent from at least a majority in interest of the investors. However, in no event will an adviser be able to charge fees or expenses related to an investigation that results – or has resulted in – a court or governmental authority imposing a sanction for a violation of the Advisers Act or Advisers Act rules. If an adviser is ultimately sanctioned, and the adviser has already charged the fund for investigation expenses (i.e., with consent from the investors), the adviser will be required to refund the fund for the fees and expenses associated with the investigation. In light of circumstances in which governmental or regulatory bodies may not formally notify an adviser that it is under investigation, whether the adviser is under investigation would be determined based on available information. To request consent, advisers will generally need to list each category of fee or expense as a separate line item, rather than grouping them into broad categories, and describe how each such fee or expense is related to the relevant investigation. 

Adviser clawbacks – reduced for taxes (post-disclosure)

The Restricted Activities Rule will prohibit an adviser from reducing the amount of any adviser clawback by actual, potential or hypothetical taxes applicable to the adviser or its related persons (or their respective owners or interest holders), unless it distributes written notice to the investors setting forth the aggregate dollar amounts of the clawback, both before and after such reduction for taxes, within 45 days after the end of the fiscal quarter in which the adviser clawback occurs. 

Non-pro rata fees and expenses (pre-disclosure)

The Restricted Activities Rule will prohibit an adviser from charging or allocating fees and expenses related to a portfolio investment (whether or not consummated) on a non-pro rata basis when multiple clients are investing in the same portfolio investment, unless:

• The non-pro rata charge or allocation is fair and equitable under the circumstances.
• Prior to charging or allocating such fees or expenses to a fund, the adviser distributes to each investor in the fund a written notice of the non-pro rata charge or allocation and a description of how it is fair and equitable under the circumstances.  

Non-pro rata allocation may be fair and equitable where, for example, an expense is related to a bespoke structuring for one fund participating in an investment, or where one fund receives a greater benefit from an expense relative to other funds participating in the investment. Stating that there may be multiple methods to determine pro rata allocations, the SEC did not define pro rata.

Borrowing (consent)

The Restricted Activities Rule will prohibit an adviser from borrowing from a private fund client, unless the adviser distributes a written description of the material terms of the borrowing (e.g., amount to be borrowed, interest rate and repayment schedule) to the investors in the fund, seeks their consent for the borrowing and obtains written consent from at least a majority in interest of the investors that are not related persons of the adviser. The restriction will not apply to borrowings from a third party on the fund’s behalf or the adviser’s borrowings from individual investors outside of the fund, such as a bank that is invested in the fund.

Helpfully, the SEC has stated that it would not interpret management fee offsets and ordinary course tax advances (i.e., arrangements structured to contemplate amounts that reduce an adviser’s future income, as opposed to amounts that will be repaid to the fund) as borrowings subject to the rule. VC firms will need to determine whether other arrangements permitted under fund documents would be considered a borrowing subject to the rule.

Rules applicable to RIAs only (not applicable to ERAs)

3) Rule 211(h)(1)-2 – Quarterly Statements Rule

The Quarterly Statements Rule will require RIAs to private funds to distribute quarterly statements to investors, reporting detailed information regarding:

• Compensation and other amounts allocated or paid by the fund and portfolio investments to the adviser and its related persons.
• Other fees and expenses paid by the fund to third parties.
• Portfolio performance.

Statements will need to be delivered within 45 days after the end of each of the first three fiscal quarters of each fiscal year, and 90 days after the end of each fiscal year. A fund of funds, which the SEC describes as a fund that invests substantially all of its assets in the equity of third-party funds, will have 75 days after the end of each of the first three fiscal quarters, and 120 days after the end of each fiscal year. The first statement of a newly formed fund will be due following the second full fiscal quarter of operating results.

The rule requires advisers to determine – with substantiation – that a fund is either a liquid fund or an illiquid fund no later than when the adviser sends the initial quarterly statement. While most VC funds will be illiquid funds, certain hybrid funds may be liquid funds, and a fund may switch from being a liquid fund to an illiquid fund, or vice versa. Determination of whether a fund is a liquid fund or an illiquid fund turns on whether the fund is required to redeem interests upon an investor’s request and whether it has limited opportunities, if any, for investors to withdraw before termination of the fund. A fund that provides semiannual redemption rights would generally be a liquid fund. The rule requires different performance metrics depending on whether a fund is a liquid fund or an illiquid fund.

Fund table

Quarterly statements will need to include, in table format, a detailed accounting of:

• All compensation, fees and other amounts allocated or paid to the adviser or any of its related persons by the private fund during the reporting period, e.g., management fees, sub-advisory fees or carried interest (adviser compensation).
• All other fees and expenses allocated to or paid by the fund during the reporting period (fund expenses).
• The amounts of any offsets or rebates carried forward during the reporting period to the subsequent quarterly period to reduce future payments or allocations to the adviser.

The adviser compensation and fund expenses will need to be presented both before and after application of any offsets, rebates or waivers. There is no exclusion for de minimis expenses, smaller expenses may not be grouped into broad categories, and no expense may be labelled as miscellaneous.

Portfolio investment table

Quarterly statements will need to include, in table format, a detailed accounting of all portfolio investment compensation allocated or paid by each covered portfolio investment during the reporting period. Portfolio investment is defined as any entity or issuer in which the private fund has invested directly or indirectly, and would capture holding companies, subsidiaries, special purpose vehicles (SPVs) and master funds, as well as underlying third-party funds. Portfolio investment compensation is defined as any compensation, fees and other amounts (e.g., origination, management, consulting, monitoring, servicing, transaction, administrative, advisory, closing, disposition, directors, trustees or similar fees or payments) allocated or paid to the adviser or any of its related persons by a portfolio investment, which is attributable to a fund’s interest in such portfolio investment. Portfolio investment compensation is not limited to circumstances in which an adviser has discretion or authority over the portfolio investment.

Performance

Quarterly statements will need to include standardized performance information. For illiquid funds, performance will need to be shown based on internal rates of return and multiples of invested capital (both gross and net) for the entire portfolio, as well as internal rates of return and multiples of invested capital (gross only) for the realized and unrealized portions of the portfolio, with the realized and unrealized performance shown separately. For partially realized investments, advisers will need to determine whether to include them in the realized or the unrealized portion. Performance figures will need to cover the period from inception of the fund through the end of the quarter covered by the quarterly statement (or, to the extent quarter-end numbers are not available at the time the adviser distributes the quarterly statement, through the most practicable date), and will need to be disclosed with and without the impact of fund-level subscription facilities. There is no exception for short-term subscription facilities. As noted above, most VC funds will be illiquid funds; but firms should keep in mind that a fund meeting the definition of a liquid fund will need to disclose a different set of metrics, based on net total returns.

In calculating performance, advisers will generally be expected to exclude the adviser’s (and any affiliates’) interests. Advisers also will need to include a statement of contributions and distributions showing all capital inflows the fund received from investors and all capital outflows distributed to investors, with the value and date of each inflow and outflow, along with the net asset value of the fund as of the end of the reporting period.

In addition to the above, quarterly statements will need to include prominent disclosure (no hyperlinks and no separate documents) regarding the manner in which all expenses, payments, allocations, rebates, waivers and offsets are calculated, as well as cross-references to the relevant sections of the fund’s organizational and offering documents that set forth the applicable calculation methodology. Additionally, quarterly statements will need to include the date as of which the performance information is current through, and prominent disclosure (no hyperlinks and no separate documents) of the criteria used and assumptions made in calculating the performance. Advisers will need to consolidate reporting for similar pools of assets to the extent doing so would provide more meaningful information to the fund’s investors and would not be misleading. Advisers also will need to use clear, concise, plain English and present information in a format that facilitates review from one quarterly statement to the next.

4) Rule 206(4)-10 – Audit Rule

The Audit Rule will require RIAs to cause each private fund they advise (directly or indirectly, including in a sub-advisory capacity) to undergo a financial statement audit that meets the requirements set forth in Advisers Act Rule 206(4)-2 (Custody Rule), and to cause the audited financial statements to be delivered in accordance with the Custody Rule. Most RIAs already rely on private fund audits to comply with the Custody Rule. However, unlike the Custody Rule, there is not an option of surprise examination to comply with the Audit Rule, and the Audit Rule will apply regardless of whether an adviser has “custody” within the meaning of the Custody Rule. In the case of a fund that an adviser does not control (e.g., a sub-advised fund), the Audit Rule will require the adviser to take all reasonable steps to cause the fund to undergo an audit and have its financial statements delivered. 

5) Rule 211(h)(2)-2 – Adviser-Led Secondaries Rule

The Adviser-Led Secondaries Rule will require RIAs conducting an adviser-led secondary transaction to:

• Obtain and distribute a fairness opinion or a valuation opinion from an independent opinion provider.
• Prepare and distribute a written summary of any material business relationships the adviser or its related persons have – or have had within the two-year period immediately prior to the issuance of the opinion – with the independent opinion provider.

An adviser-led secondary transaction would be a transaction initiated by the adviser or any of its related persons that offers private fund investors the choice between:

• Selling all or a portion of their interests in the private fund.
• Converting or exchanging them for new interests in another vehicle advised by the adviser or its related persons.

The SEC would not consider the rule to apply to cross trades where the adviser does not offer the investors the choice to sell, convert or exchange their fund interests, and rebalancing between parallel funds generally will not be captured by the adviser-led secondary transaction definition. Distribution of the opinion and the written summary will need to occur prior to the due date of the election form.

Other rules applicable to RIAs only (not applicable to ERAs)

6) Rule 206(4)-7 – Compliance Rule

The SEC amended the existing Compliance Rule, which applies to all RIAs (i.e., not just RIAs to private funds), to require RIAs to start documenting their annual compliance reviews in writing. While documentation has always been a best practice, it is not currently required by the Compliance Rule.

7) Rule 204-2 – Recordkeeping Rule

The SEC also amended the existing Recordkeeping Rule to require RIAs to retain records related to the new rules, including notices, consents, quarterly statements, audited financials, certain determinations, and fairness or valuation opinions.

Compliance dates and transition periods

The rules will become effective on November 13, 2023.

Except with respect to the Compliance Rule, however, advisers will have a transition period to come into compliance.

• Advisers with less than $1.5 billion in private fund assets will need to comply with all applicable rules by March 14, 2025. 
• Advisers with $1.5 billion or more in private fund assets will need to comply with the Restricted Activities Rule, Preferential Treatment Rule and Adviser-Led Secondaries Rule by September 14, 2024, and the Quarterly Statement Rule and Audit Rule by March 14, 2025. 
• RIAs must begin documenting their annual compliance reviews starting on November 13, 2023.

Limited grandfathering/legacy status

The Preferential Treatment Rule and the Restricted Activities Rule both contain limited grandfathering provisions that confer legacy status to certain contractual agreements governing private funds that have commenced operations as of the applicable compliance date. Importantly, the adviser must have engaged in bona fide activity directed toward operating the fund as of the compliance date in order for legacy status to apply. The SEC has said this would include issuing capital calls, holding an initial fund closing and conducting due diligence on potential fund investments – or making an investment on behalf of the fund.

Specifically, legacy status may apply to the restrictions on preferential transparency, preferential redemption, charging a private fund fees or expenses associated with an investigation of the adviser or its related persons (unless the investigation results in a sanction for a violation of the Advisers Act), and borrowing from a fund. Legacy status would apply with respect to the foregoing if both of the following are true:

• A contractual agreement was entered into in writing prior to the applicable compliance date.
• The application of the new rules would require the parties to amend such an agreement.

Agreements subject to legacy status include limited partnership agreements, operating agreements, side letters, subscription agreements, promissory notes and credit agreements.

Legacy status will not apply to the written notice requirements under the Preferential Treatment Rule and the Restricted Activities Rule.

Next steps

These are significant rules, and significant effort will be required to come into compliance with them. While some firms may have heard that there is pending litigation with respect to the new rules, and perhaps have been considering a wait-and-see approach, we encourage fund managers to start focusing on these rules sooner rather than later. An outcome on the pending litigation is not expected in the short term, and the September 14, 2024, compliance date for larger firms is less than a year away.

• If not already in progress, we encourage fund managers to become familiar with the new rules now to begin assessing which of the new requirements and restrictions will apply to them.
• Upon attaining a working grasp of the new rules, firms should review various documents and practices – such as fund governing documents, side letters, informal arrangements with investors, practices and methodologies that can be considered borrowings from a fund, bookkeeping and expense tracking procedures, and arrangements with underlying funds and portfolio investments.
• Firms also should speak with auditors, administrators, intermediaries and service providers and work on preparing mock notices, statements and consents.
• A medium-term project will be crafting policies and procedures to comply with the new requirements. Firms that work with compliance consultants will likely receive outreach regarding this step.
• Long term, firms should adopt and implement their updated policies and procedures, train employees and stakeholders, and continue to monitor and adjust their practices, paying attention to industry standards that develop and any guidance the SEC staff may provide.

We are available to discuss and guide our clients through this process. Please reach out to a Cooley team member with any questions.

Key insights from Steve Harrick

On public financing in Q3 and Q4 2023: “There is still a lot of capital available that has been raised by venture funds, but it is a difficult deal environment when the last round prices were as high as they were in 2020 and 2021.”

On investor attitudes toward AI: “Our belief is that the value from artificial intelligence and machine learning will be enormous, but it will play out over the next several years.”

On investor reactions to market contraction: “What is different from some other cycles is – although the tourists have left, as they usually do when markets contract – the consistent venture practitioners raised a lot of money that will eventually need to find a home.”

Read full commentary from Steve Harrick

• Charging fees and expenses related to regulatory investigations, proceedings, or compliance without disclosure and consent from investors.
• Charging any fees related to sanctions of the private fund adviser in connection with a breach of the Advisers Act.
• Reducing the amount of an adviser clawback by taxes without disclosure of pre-tax and post-tax clawback calculation.
• Charging fees related to a portfolio investment on a non-pro rata basis, with certain exceptions.
• Direct or indirect borrowing by the adviser from a private fund client without disclosure and consent from the investors.

Additionally, under the reforms, all private fund advisers will be prohibited from providing certain types of preferential treatment to particular investors, including:

• Rights that modify the fees paid by particular investors without disclosure to all current and prospective investors.
• Redemption rights, unless all investors are provided the opportunity to elect such redemption rights.
• Additional information rights, unless all investors are provided the opportunity to elect such information rights.

The reforms also will require private fund advisers registered with the SEC to:

• Provide investors with quarterly statements detailing information regarding private fund performance, as well as fees and expenses charged to the private fund.
• Obtain an annual audit for each private fund.
• Acquire a fairness or valuation opinion in connection with an adviser-led secondary transaction.

Further, the reforms include amendments to the compliance rule for all registered investment advisers that require the adviser to document in writing the mandated annual review of their compliance policies and procedures. The SEC expects to use these reports to facilitate its assessment of registered investment advisers’ compliance.  

The SEC has included provisions to excuse the application of certain of the new prohibitions with respect to the preferential treatment rule and the restricted activities rule from preexisting private fund governing agreements entered into prior to the applicable compliance date.    

The adopted rule is different than the proposed rule in many respects, including the elimination of proposed limitations on indemnification and portfolio fees for services not performed (e.g., accelerated monitoring fees).  

The reforms will become effective 60 days after publication in the Federal Register and provide for a transition period of 18 months after the publication date for advisers with less than $1.5 billion in private fund assets under management (AUM). Advisers with $1.5 billion or more in private fund AUM will have 18 months after the date of publication to comply with the annual audit and quarterly statement reforms, and 12 months to comply with all other reforms. Compliance with the amended Advisers Act compliance rule will be required 60 days after publication for all registered investment advisers.  

We’re performing an in-depth review of the 660-page release and will provide an update with more information soon.

A note to our non-US clients: The registration and exemption analysis is different for managers that are based outside the US. The application of the various regulatory requirements also will depend on where your funds are organized. Please contact us for more information.

Registration basics for VC firms

Under the Investment Advisers Act of 1940 (Advisers Act), an investment adviser is any person who – for compensation – engages in the business of providing advice to others regarding securities. With the exception of family offices and corporate venture capital firms (CVCs), most VC firms will meet the definition of investment adviser. Anyone who falls within the definition of investment adviser is required to register unless an exemption applies. The main exemption for VC firms is the venture capital adviser exemption, although smaller firms, especially when first starting out, also may rely on the private fund adviser exemption.

The venture capital adviser exemption exempts from registration investment advisers that only advise one or more venture capital funds. The Advisers Act defines a venture capital fund as a type of private fund that represents to investors that it pursues a venture capital strategy, provides redemption rights only in extraordinary circumstances, does not borrow more than 15% of its aggregate capital contributions and uncalled capital commitments, and holds no more than 20% of its assets in nonqualifying investments (often referred to as the 20% basket), with the remaining 80% limited to investments in qualifying portfolio companies. Cash and cash equivalents do not count toward the 20% basket. A private fund is an investment vehicle that is not offered to the general public and is limited either to 100 beneficial owners or to beneficial owners that are qualified purchasers (which includes entities with $25 million in investments and individuals with $5 million in investments).

The private fund adviser exemption exempts from registration investment advisers that solely advise private funds and have less than $150 million in gross assets under management – also known as regulatory assets under management (RAUM) – across all their funds. While subject to a cap on its RAUM, a private fund adviser is not limited to advising venture capital funds and can advise any type of private funds, including private equity, crypto, hedge and others. A VC firm can rely on one or both of these exemptions, although it will likely outgrow the private fund adviser exemption over time. At that point, unless all of its clients are private funds that meet the venture capital fund definition, the adviser will need to register with the SEC. An adviser that relies on either exemption is referred to as an exempt reporting adviser (ERA). ERAs are required to file portions of the Form ADV Part 1A with the SEC and comply with limited requirements under the Advisers Act, and they are subject to examination by the Division of Examinations. However, they are not “registered” with the SEC.

What are the benefits of registering?

The biggest benefit of registering is flexibility. Advisers that rely on the venture capital adviser exemption or the private fund adviser exemption can find themselves forgoing certain opportunities or investment structures, negotiating less favorable terms, or taking on risk and dealing with uncertainties. They have to make a choice between the expensive and time-consuming process of registering and the regulatory burden that comes with it, or limit themselves to ensuring all their funds – including any special purpose vehicles (SPVs) they manage – meet the venture capital fund definition (including with respect to the 20% basket) or stay below $150 million of RAUM.

Perhaps the most significant limitation for venture capital advisers is the cap on nonqualifying investments. In general, qualifying investments are limited to equity investments acquired directly from private operating companies. Debt securities, securities acquired in secondary transactions (including from founders and company employees), public company securities, cryptocurrencies and interests in other venture capital funds are among the common nonqualifying investments that need to fit in the 20% basket. By registering, a venture capital adviser would no longer be constrained by the 20% basket, which, in addition to freeing up capacity in its main funds for nonqualifying investments, also can prove especially impactful on the use and nature of SPVs that invest in such nonqualifying investments. Registering also would mean that the adviser could advise funds that borrow in excess of the 15% limit or permit investors to redeem outside of extraordinary circumstances.

Registration also allows increased flexibility to take on non-private fund clients, such as separately managed accounts, family offices and employee funds that are not private funds. For firms looking to explore new business lines and different asset classes, or enter into joint ventures, registration may provide much-needed latitude.

Finally, some firms may find that certain investors are more willing to commit to a fund advised by a RIA than an ERA. While registration does not impose a heightened standard of fiduciary duty (ERAs are subject to the same standard of conduct as RIAs), it does impose a host of additional rules and requirements on the adviser that are designed to protect investors and provide additional information to the SEC. For some investors, this may be a factor they consider when choosing an investment adviser firm.

What are the downsides of registering?

While registration opens up new opportunities by removing regulatory constraints and offering flexibility in its place, it also imposes significant time and money costs. One of the first impositions of registration is the requirement to appoint a chief compliance officer (CCO) and implement a compliance program tailored to the RIA’s business. These days, there are a plethora of compliance consultants who can assist with the development of a compliance program and also can conduct training sessions. There also are various compliance tools to assist with the collection, approval and oversight functions. What is important for firms to understand, however, is that the mere adoption of a compliance program will not be adequate. RIAs are expected to have a dynamic compliance program that adapts to changes in their business and organization, as well as developments in the law and market.

Becoming a RIA will mean greater scrutiny by the SEC. While ERAs are subject to examination and do get examined, RIAs are much more likely to undergo an examination. As a rule of thumb, RIAs should expect to be examined within their first year of registration and approximately once every seven years thereafter. During an examination, SEC staff will rigorously evaluate an adviser’s compliance with the myriad of legal and regulatory requirements, including many that are based on fiduciary duty principles and disclosures to investors regarding conflicts of interest. Most examinations will result in the adviser receiving a deficiency letter that lists the areas where the adviser falls short, although some can and do get referred to the Division of Enforcement.

A firm that registers will become subject to various new rules under the Advisers Act, including the code of ethics rule, custody rule, marketing rule and recordkeeping rule. Each of these rules involves pain points that a new RIA will need to cope with. For example, the code of ethics rule requires senior executives and certain other personnel to submit quarterly transaction reports and annual holdings reports for their personal securities accounts and to preclear transactions in private placements and initial public offerings. The marketing rule requires deal-level net returns to be shown with equal prominence when deal-level gross returns are shown (something firms typically do not do and find meaningless), places limitations on the ability to use a track record achieved at a prior firm, and triggers disclosure and oversight requirements when engaging a placement agent. The custody rule requires stub year audits for funds that launch at the end of the year, irrespective of costs and investors’ consent to extended audits, while the recordkeeping rule requires RIAs to manage how employees use off-channel communications like text messages, WhatsApp and other direct messaging applications. (Please note that the above is not intended to summarize these rules or their numerous challenges, which is beyond the scope of this post.)

In addition, RIAs are subject to statutory requirements under the Advisers Act, pursuant to which they may be required to obtain investor consent when there are changes to their ownership structure. The addition or removal of a person who owns more than 25% of a RIA’s voting stock can result in a deemed assignment of an advisory contract requiring consent. Moreover, for RIAs to receive performance-based compensation, their investors must be qualified clients (which may require investors to satisfy a net worth standard that is more than double what they need to satisfy for a fund managed by an ERA).

RIAs also are subject to additional reporting requirements. First, rather than completing just portions of Part 1A of the Form ADV as ERAs do, RIAs must complete the entire Part 1A, as well as Part 2A (the brochure) and Part 2B (the brochure supplement). While these additional sections require more time and attention to complete, once prepared, they are typically not as time-consuming to update and keep current. Second, RIAs must file a Form PF with the SEC, a confidential filing that collects information about the private funds they advise. Although Form PF can be heavily burdensome for large hedge fund and private equity fund managers who may need to file the form quarterly, most registered VC firms only need to make the filing annually, and their costs for the reporting are typically not significant.

In considering the overall cost of registering, firms should note that in the past couple of years, the SEC has had an unusually active rulemaking agenda. Under current Chair Gary Gensler, the SEC has proposed a long list of rules, many of which are slated to be adopted in the coming months. Although some of these rules also would apply to ERAs, RIAs would be subject to significantly more, and the cumulative burden of the new rules may be prohibitive for a smaller firm newly registering. Among other requirements, if the proposed rules are adopted, RIAs would be required to send quarterly statements to fund investors detailing various fees and expenses, obtain fairness opinions prior to closing on adviser-led secondary transactions, adopt cybersecurity policies and procedures, disclose environmental, social and governance (ESG) practices and cybersecurity incidents and risks in their Form ADV, custody all client assets – not just funds or securities – with a qualified custodian, and conduct due diligence on outsourced service providers.

In addition, both RIAs and ERAs would be subject to new rules that, if adopted, would prohibit certain activities with respect to their private funds and place limitations on side letters. Among other things, the prohibited activities rule would prohibit an adviser from charging a fund fees or expenses associated with SEC exams and any compliance expenses incurred by the adviser, including registration expenses.

Should I register?

Given the number of variables that go into deciding whether to register, it can be a complicated decision. There is no one-size-fits-all answer. With that said, prior to the current administration at the SEC, an important aspect that a firm might have considered is the amount of resources – time and money – that registration requires. While compliance with additional requirements was an important consideration, it likely was not a determinative factor. Today, however, firms might consider not just the time and money that would be required to register but also the likelihood that they would be able to comply with all the requirements applicable to a RIA, especially if the proposed rules also are adopted. Dedicating a certain level of resources is one thing; inability to operate a business under the burden of compliance is another. For an established VC firm with ample personnel exploring new opportunities, registration may provide freedom from the 20% basket and flexibility to expand its business. But for a smaller firm with limited resources, would that flexibility be crushed by new restrictions and prohibitions that its own team and compliance program might not be able to handle? The answer here is entirely situational, and we are here to guide firms through the various considerations in answering this difficult question.

Key Insights from Julie Yoo

On predictions about the healthtech industry: “Software is (finally!) absolutely eating the healthcare world. In fact, the nature of the major challenges that the healthcare industry has faced in the last couple of years … are so conducive to software-based transformation that we have more conviction than ever on our core thesis.”

On why we are seeing a downward trend in investments in technology and life sciences companies: “Many growth-stage companies raised large enough amounts of minimally dilutive capital in 2021 and early 2022 that they had enough runway to live through this window without having to raise.”

On why deal terms remained stable while invested dollars, deal volume and up rounds are on the decline: “Early-stage deals tend to have less deal term structure, so we’re most likely seeing cleaner terms since most of the deals that got done in Q1 were in the earlier-stage zone.”

Read full commentary from Julie Yoo

Securities Act Rule 144

Rule 144 provides an exemption from SEC registration for resales of securities acquired directly from an issuer in a private offering (restricted securities) and resales of securities held by affiliates of an issuer (control securities). 

Restricted securities

Restricted securities are securities acquired in unregistered, private transactions from the issuer or an affiliate of the issuer. Examples of restricted securities include securities received in venture financings and private placements, including private investment in public equity (PIPE) transactions.

Control securities

Control securities are securities held by an affiliate of the issuer, regardless of how the shares were acquired. An affiliate is a person, such as a director or large shareholder, in a relationship of control with the issuer. Control means the power to direct the management and policies of the company, whether through the ownership of voting securities, board representation or otherwise. A fund will generally be considered to be an affiliate if it – alone or with related funds – beneficially owns more than 10% of the company’s stock, or if the fund has an associated individual serving as a director of the company.

The conditions of Rule 144 that apply to a particular sale of restricted or control securities vary depending on the circumstances and are beyond the scope of this alert. If you have questions regarding whether Rule 144 applies and about particular requirements of the rule, please reach out to your Cooley contacts.

Form 144

Among the conditions that apply to Rule 144 sales by affiliates is the requirement to file a Form 144 (notice of proposed sale) with the SEC, if aggregate sales over a three-month period involve more than 5,000 shares or greater than $50,000. Forms 144 have historically been paper filings to be deposited in the mail to the SEC on the date of first sale, and most full-service brokers have customarily prepared and submitted these Form 144 filings on behalf of their clients.

However, the SEC recently adopted rule amendments that will require all Forms 144 to be filed electronically on EDGAR beginning on April 13, 2023. 

What this means for you

Based on our conversations with many brokers, we believe that the majority of large, full-service brokers will continue to prepare and file Forms 144 for their clients after the transition to electronic filing. In order to do so, these brokers will, at a minimum, now require the EDGAR filing codes of any selling stockholder. In addition, some brokers are requiring amendments to service agreements and, for those brokers who plan to execute Forms 144 on behalf of their clients, you will likely be asked to deliver a power of attorney authorizing them to do so.

If you haven’t already been in communication with your broker(s) about this rule change, we recommend proactively reaching out to them to determine whether they intend to continue making filings on your behalf and, if so, what they will require from you. If any of them are not planning to make filings on your behalf following the rule change, you will need to plan for how you will make these filings.

Each entity and control person that will potentially sell portfolio company securities will be required to have their own separate EDGAR codes. We recommend evaluating your structure –including any affiliated entities or individuals that could receive distributions in kind – to identify potential filing persons. If any of them do not have EDGAR codes, consider applying as soon as possible. The application process is quite variable and can take between one day to two weeks, depending on the SEC’s backlog for processing applications. If you have questions concerning the identification of potential filing persons or need assistance with applying for EDGAR codes, please reach out to your Cooley contacts for assistance.

Finally, EDGAR code management practices vary considerably from fund to fund. The process of updating EDGAR codes can often result in avoidable fire drills when filings are triggered.  Given the tight filing deadlines for Forms 144, it will be more important than ever for funds to maintain a current schedule of EDGAR filing codes for their affiliated entities and individuals. Additionally, you should ensure that current filing codes are provided to your brokers and any outside counsel that may be involved in preparing or submitting these filings on your behalf. 

Action items

• Contact your brokers to confirm whether they intend to continue filing Forms 144 on your behalf and ascertain what they need from you in order to be prepared to file electronically beginning on April 13, 2023.
• Evaluate your structure to identify any entities or individuals that will need EDGAR codes and start the application process.
• Review your EDGAR code management practices and update them as needed to ensure that your brokers and outside counsel are promptly alerted to any updated codes.

Please reach out to the Cooley fund formation team if you have any questions. We are ready to assist you with this transition in any way we can. 

Key insights from Kate McAndrew

On recent trends in early-stage financings: “[T]he fundamentals of investing and company building are coming back. For the most part, pre-seed rounds have reset to be in the $750,000 to $2.5 million range and priced in the $5 million to $12 million post-money range.

On growing a startup in the current economic climate: “[L]ean times make for lean teams – and that is an asset in the first years after company formation. It forces founders to determine who and what is essential. It makes for a focused, customer-obsessed culture. Those values will help you grow, scale and endure.”

On building relationships with founders and mentoring companies: “A big part of this work is personal. I try to get to know founders as whole people, not just CEOs or CTOs, and to build a real relationship with them. … And then, honesty is vital. … Ultimately, you need to be able to tell founders hard truths and be very honest about what is working and what is not.”

Read full commentary from Kate McAndrew

After five years on the Securities and Exchange Commission’s rulemaking agenda, the proposed amendments to registered investment advisers’ custody rule finally came out for public comment last week. While the proposing release includes hundreds of questions regarding the proposed amendments, the most relatable question for venture capital firms that invest in crypto assets – especially firms that have recently switched from being exempt reporting advisers (ERAs) to registered investment advisers (RIAs) – might be the one posed by Commissioner Mark Uyeda in his statement on the proposed rule: “How could an adviser seeking to comply with this rule possibly invest client funds in crypto assets after reading this release?” In fact, there are a number of statements in the proposing release that prompt particular frustration for crypto fund managers. In the words of Commissioner Hester Peirce: “These statements encourage investment advisers to back away immediately from advising their clients with respect to crypto.”

Proposed Rule 223-1 (Safeguarding Rule) would replace current Rule 206(4)-2 (Custody Rule) under the Investment Advisers Act of 1940. Unlike the Custody Rule, which applies only to funds and securities, the Safeguarding Rule would apply to all assets, including crypto assets, whether or not they are funds or securities. Moreover, the Safeguarding Rule would apply to all client assets, even those for which the RIA receives no compensation. To be clear, the Safeguarding Rule would not apply to ERAs, nor would it apply to non-US RIAs with respect to their non-US funds, although these advisers may receive questions from their investors regarding how their crypto assets are held.

Under the Safeguarding Rule, a RIA with “custody” of a private fund’s assets, which would include serving as the general partner of the fund or having discretionary authority, would need to comply with the following requirements:

1. Engage a qualified custodian (QC) to maintain possession or control of client assets.
   • “Qualified custodian” is a defined term that includes certain banks, savings associations and registered broker-dealers. A crypto custodian that does not meet the definition of QC – no matter how superior its systems and protocols and notwithstanding the lack of any alternative options – could not custody client assets.
   • To have “possession or control,” the QC must be required to participate in any change in beneficial ownership of assets, its participation must effectuate the transaction involved in the change in beneficial ownership, and its involvement must be a condition precedent to the change in beneficial ownership.
2. Enter into a written agreement with the QC that provides for all of the following provisions and reasonably believe they have been implemented:
   • The QC will promptly provide records to the SEC or an independent public accountant engaged by the RIA to perform custody audits.
   • The QC will obtain, and provide to the RIA, an annual written internal control report that includes an opinion of an independent public accountant as to whether controls have been placed in operation as of a specific date, are suitably designed and are operating effectively.
   • The parties will specify the agreed-upon level of authority of the RIA to effect transactions in the account.
3. Obtain reasonable assurances in writing from the QC that:
   • The QC will exercise due care and implement appropriate measures to safeguard client assets.
   • The QC will indemnify the client – and have insurance to adequately protect the client – against the risk of loss in the event of the QC’s own negligence, recklessness or willful misconduct.
   • The QC’s obligations to the client will not be excused by the existence of any sub-custodial, securities depository or other similar arrangements.
   • The QC will clearly identify the client’s assets as such, hold them in a custodial account and segregate all client assets from the QC’s proprietary assets and liabilities.
   • The QC will not subject client assets to any right, charge, security interest, lien or claim in favor of the QC or its creditors, except to the extent authorized in writing by the client.
4. Engage a Public Company Accounting Oversight Board-registered independent public accountant to prepare annual audited financial statements in accordance with US generally accepted accounting principles and distribute the audited financial statements to investors within 120 days of the fund’s fiscal year-end. (Like under the Custody Rule, this “audited financial statements approach” would be an alternative to engaging an independent public accountant to conduct surprise examinations, and funds of funds would have additional time to deliver the financial statements.)
5. Enter into a written agreement with the independent public accountant providing that the accountant will notify the SEC within one business day of issuing an audit that contains a modified opinion, and within four business days of resignation or termination of engagement.

For a RIA to satisfy these requirements, it would effectively need to enforce the requirements of the Safeguarding Rule on its service providers – namely, the QCs and the independent public accountants. Setting aside the challenge of compelling a QC to meet the rule’s requirements, for crypto fund managers, the primary challenge may be finding a QC in the first instance that has the capability to maintain possession or control of the different crypto assets that the RIA’s clients own. As indicated above, the custodian most qualified to custody a crypto asset may not be a QC. To be a QC, the custodian would need to be a US bank, an SEC-registered broker-dealer, a registered futures commission merchant or a state-chartered trust company. A financial institution formed under non-US laws would not be a QC unless it satisfied seven conditions specified in the Safeguarding Rule – including that it is a foreign regulated entity, it is legally required to comply with anti-money laundering provisions similar to those in the Bank Secrecy Act, and it is legally required to implement internal controls designed to ensure the exercise of due care with respect to safekeeping client assets. In addition, the SEC and the RIA engaging the foreign financial institution would need to be able to enforce judgments against it.

Like the Custody Rule, the Safeguarding Rule would include various exceptions. For example, there would be an exception for certain assets unable to be maintained with a QC. However, this exception, which would apply to privately offered securities and physical assets, is unlikely to apply to crypto assets (if at all), either because they are not securities or because they are recorded on public, permissionless blockchains (rather than on the nonpublic books of the issuer or its transfer agent).

In proposing to expand the scope of assets that would need to be held by a QC, the SEC cites an investment adviser’s fiduciary duty and how that duty “extends to the entire relationship between the adviser and client regardless of whether a specific holding in a client account meets the definition of funds or a security.” The SEC also reminds advisers that “as additional financial institutions become available to custody assets, advisers must continue to exercise their fiduciary duties to clients in connection with selection and monitoring of the qualified custodian.”

For crypto fund managers, these statements by the SEC pose a fiduciary dilemma. If in exercising the due care necessary to satisfy its fiduciary obligations a RIA determines that the custodian most qualified to safekeep a client’s crypto asset is not a QC, must the RIA use a custodian that is less qualified but is a QC? If in managing a client’s investments a RIA determines that it would be in the client’s best interest – and consistent with the client’s investment objectives – to invest in crypto assets that can only be held by custodians that are not QCs, must the RIA forego such investments on behalf of the client?

As firms become more familiar with the proposed rule, they may discover additional challenges and questions. We encourage firms to share their concerns and take advantage of the comment process. Comments on the Safeguarding Rule will be due 60 days after the proposed amendments are published in the Federal Register. Anyone interested in submitting comments directly can do so via the SEC’s online form.

According to the 2023 priorities, there has been an 80% increase in the gross assets of private funds in the past five years, with retirement plans steadily contributing to this growth. More than 5,500 registered investment advisers (RIAs), totaling over 35% of all RIAs, manage approximately 50,000 private funds with gross assets exceeding $21 trillion. Citing these facts, the 2023 priorities state that the division will continue to focus on RIAs to private funds. In particular, the division will concentrate on the following areas:

1. Conflicts of interest.
2. Calculation and allocation of fees and expenses, including the calculation of post-commitment period management fees and the impact of valuation practices at private equity funds.
3. Compliance with the Marketing Rule, including performance advertising and compensated testimonials and endorsements, such as solicitations.
4. Policies and practices regarding the use of alternative data and compliance with Advisers Act Section 204A, which requires investment advisers to establish, maintain and enforce written policies and procedures reasonably designed to prevent the misuse of material nonpublic information.
5. Compliance with Advisers Act Rule 206(4)-2, the Custody Rule, including timely delivery of audited financials and selection of permissible auditors.

The 2023 priorities state that the division will also focus on private funds with specific risk characteristics – including, among others, private funds that hold certain hard-to-value investments, such as crypto assets, and private funds involved in adviser-led restructurings, including stapled secondary transactions and continuation funds.

Venture capital firms that are exempt reporting advisers (ERAs) might wonder if the 2023 priorities’ focus on RIAs to private funds means that ERAs are not part of the SEC’s scrutiny. From our experience, it appears that the SEC is increasing its focus on private funds across the board. As noted in a previous blog post, we saw the SEC bring a number of enforcement actions against venture capital firms that are ERAs throughout last year. In addition, at the end of last year, we saw the SEC initiate a sweep against venture capital ERAs – and that sweep has continued into this year. Just over a year ago, the SEC proposed a suite of new rules that would drastically impact both RIAs and ERAs. We expect these rules to be adopted in the near future.

ERAs, of course, are not subject to certain Advisers Act rules that RIAs are subject to. For example, the Marketing Rule and the Custody Rule – both of which are identified in the 2023 priorities – apply only to RIAs. To this end, compliance and regulatory burdens on RIAs and ERAs are different. As we always remind our ERA clients, though, ERAs remain subject to their fiduciary duty. Adequate disclosure regarding conflicts of interest and proper calculation and allocation of fees and expenses are just as important for ERAs as they are for RIAs. In addition, certain other requirements under the Advisers Act, such as having adequate policies and procedures reasonably designed to prevent the misuse of material nonpublic information, as well as compliance with Advisers Act Rule 206(4)-5 (the Pay-to-Play Rule), are substantive requirements that apply to all investment advisers, including ERAs. With this in mind, we encourage ERAs and RIAs to be vigilant of the SEC’s focus on private funds.

Schedule 13G

Funds – including their general partners and, in some cases, managing principals – that hold in excess of 5% of a class of public equity as of December 31, 2022, generally must file a Schedule 13G within 45 days of year-end. Also, any fund that has previously filed a Schedule 13G with respect to a portfolio company must file an annual amendment to its Schedule 13G within 45 days of year-end if there have been any changes in ownership since the most recent filing – including an “exit” filing if the fund’s ownership has declined below 5%.

Form 13F

Investment advisers who exercise investment discretion over “Section 13(f) securities” –generally equity securities of public companies – are required to file quarterly reports with the SEC on Form 13F within 45 days of each quarter-end. Subject to certain exceptions, if your funds collectively owned in excess of $100 million of Section 13(f) securities as of the last day of any month during the 2022 calendar year, you are obligated to file a Form 13F for the quarter ending December 31, 2022, within 45 days of calendar year-end. In addition, the filing obligation continues for a minimum of three consecutive calendar quarters (i.e., March 31, June 30 and September 30), which filings will be due within 45 days of the relevant quarter-end.

It is important to note that, even if you do not exceed the $100 million threshold as of December 31, the obligation to file a Form 13F for the quarter ending December 31 remains if the threshold was exceeded as of the last day of any single month during the calendar year.

Form 13H

Investment advisers who have previously filed a Form 13H to register as a “large trader” are required to file an annual update to the filing within 45 days of year-end. Large traders who have completed a full calendar year without exceeding any of the Form 13H triggering thresholds, measured across all portfolio companies, may be eligible to elect “inactive” status and thereby suspend certain ongoing large trader obligations. These triggering thresholds are daily trading of at least two million shares or $20 million in share value, or calendar month trading of at least 20 million shares or $200 million in share value, in each case aggregating purchases and sales of the securities of all portfolio companies during the relevant day or month.

In addition to the annual filing requirement, large traders are reminded that there is a quarterly obligation to promptly amend the Form 13H following any quarter during which any of the information in the large trader’s Form 13H materially changes.

Closing thoughts

As the end of the calendar year approaches, funds should start to consider whether they will need to make any of the annual filings under Section 13. The determination of whether you have a Schedule 13G, Form 13F or Form 13H filing obligation is often complex. As part of your year-end wrap-up, consider contacting your fund/securities counsel to begin a Section 13 analysis, and then prepare any required filings well in advance of the February 14, 2023, deadline.

The SEC also proposed record-keeping requirements that would apply in connection with the new rule, as well as further diligence and monitoring requirements that would apply when RIAs engage third parties as record-keepers. If the rule is adopted, the impact of the prescribed oversight requirements would be particularly burdensome on smaller RIAs, many of whom engage compliance consultants – and would need to conduct due diligence and periodic reassessments on their engagement of those compliance consultants – in addition to conducting such diligence and reassessments on other service providers.

Scope of the proposed rule

Proposed Rule 206(4)-11 under the Investment Advisers Act of 1940 would apply to RIAs, as would the proposed amendments to Investment Advisers Act Rule 204-2, which is known as the “Books and Records Rule.” Venture capital firms and private fund advisers that are “exempt reporting advisers” (ERAs) would not be subject to the proposed requirements.

Rule 206(4)-11 would apply with respect to “covered functions,” which the SEC proposes to define as functions that:

1. Are necessary to provide advisory services in compliance with federal securities laws.
2. If not performed or performed negligently, would be reasonably likely to cause a material negative impact on the RIA’s clients or on the RIA’s ability to provide investment advisory services.

The SEC proposes to define a “service provider” to include an RIA’s affiliates if they are not otherwise subject to the RIA’s oversight as supervised persons (as defined in the Investment Advisers Act).

Due diligence and monitoring

Under proposed Rule 206(4)-11, before engaging a service provider, an RIA would need to reasonably identify and determine that a covered function is appropriate to outsource to a service provider and that the selected service provider would be appropriate to perform such covered function. Rule 206(4)-11 would require an RIA to evaluate and consider the following elements as part of its due diligence:

1. The nature and scope of the services to be performed.
2. Potential risks resulting from the service provider performing the covered function, including how to mitigate and manage such risks.
3. The service provider’s competence, capacity, and resources necessary to perform the covered function in a timely and effective manner.
4. The service provider’s subcontracting arrangements related to the covered function – and how the RIA will mitigate and manage potential risks in light of any subcontracting arrangements.
5. Coordination with the service provider for federal securities law compliance.
6. The orderly termination of the provision of the covered function by the service provider.

Once selected, the RIA would need to periodically monitor the service provider and reassess the elements above to reasonably determine that it would be appropriate to continue outsourcing the covered function to that service provider. The amount of due diligence that would be considered reasonable would depend on the nature, scope, and risk profile of a covered function and the service provider.

Record-keeping requirements

The SEC also is proposing to amend the Books and Records Rule to require an RIA to keep detailed records related to its compliance with Rule 206(4)-11. This would include maintaining a list of covered functions and the service providers to whom such functions have been outsourced, records that document the RIA’s due diligence and monitoring as required by Rule 206(4)-11, and copies of written agreements entered into with the service providers. Such records would need to be maintained in an easily accessible place throughout the period that the RIA outsources a covered function, and for a period of five years thereafter.

In addition, if an RIA relies on a third party to make and/or keep any books and records required by the Books and Records Rule, the proposed amendments would require the RIA to perform due diligence and monitoring as though the record-keeping function were a covered function and the third party were a service provider. The RIA would also need to obtain reasonable assurances that the third party will:

1. Adopt and implement internal processes and/or systems for making and/or keeping records that meet the requirements of the Books and Records Rule applicable to RIAs.
2. Make and/or keep records that meet all of the requirements of the Books and Records Rule applicable to RIAs.
3. Provide the RIAs and the SEC access to electronic records.
4. Ensure the continued availability of records if the third party’s operations or relationship with the RIA ceases.

The SEC suggests that one way to obtain reasonable assurances from a third-party record-keeper would be to enter into a written agreement that expressly includes the four standards listed above. Alternatively, an RIA may seek to ensure the requirements are satisfied through one or more letters of understanding, statements of work, or other means.

Form ADV reporting and transition period

Accompanying proposed Rule 206(4)-11 and the proposed record-keeping requirements is a proposed amendment to the Form ADV. The SEC proposes to include a new item in Part 1A that would collect census-type information about the RIA’s use of service providers.

If the SEC’s proposals are adopted, RIAs would have 10 months from the effective date to come into compliance. The new requirements would apply to any engagement of new service providers made on or after the compliance date, with ongoing monitoring requirements also applying to existing engagements of service providers. Comments on the proposal will be due 30 days after publication in the Federal Register or December 27, 2022, whichever is later and may be submitted here: https://www.sec.gov/regulatory-actions/how-to-submit-comments

A note to venture capital firms and private fund managers that are exempt reporting advisers (ERAs): The Marketing Rule applies to RIAs. Technically, it does not apply to ERAs. This means that the SEC cannot charge an ERA for violation of the Marketing Rule. However, ERAs are subject to the general antifraud provisions of the Investment Advisers Act. To this end, ERAs might consider the requirements of the Marketing Rule, especially its general principles, as a guide to what the SEC might consider misleading.

1. Advertisements

Determine which materials are advertisements. Marketing decks, firm overviews, and track record information sent to prospective investors are advertisements. Letters and reports sent to existing investors are not advertisements unless they offer new products or services, or they are sent to prospective investors.

2. Data rooms

If using a data room, take down any advertisements that have not been updated to comply with the Marketing Rule. It may be possible to take the view that historical investor communications provided to prospective investors upon request or as supplemental diligence information are not advertisements. Include clear legends on such materials, and understand that there is a risk the SEC may disagree.

3. Track record

Track record presentation should meet the “fair and balanced” standard. There are nuances to presenting a track record. If there are multiple ways to show a return, or when fees and carry differ across prior funds and current funds, it may be necessary to err on the side of using the more conservative returns and including explanatory footnotes to “paint the full picture.” If showing the returns of a subset of investments from a fund, also include the total fund level return. If including the returns of prior funds, do not cherry-pick (e.g., if including same strategy funds, include all same strategy funds).

4. Net returns

Net returns must be presented with equal prominence to gross returns. If including deal level returns, net returns may not be necessary under a plain reading of the Marketing Rule, but understand that there is a risk the SEC may disagree. If including “pro forma” deal level returns, paint the full picture with explanatory footnotes.

5. Targets and projections (hypothetical returns)

Understand that “hypothetical performance” is defined broadly as any performance not actually achieved by a fund or an account. It includes target returns, projected returns, and combined investments from multiple funds or accounts. There are specific requirements to using hypothetical performance, which generally entail:

• Adopting policies and procedures around providing hypothetical performance only to those who can understand it and to whom it is relevant.
• Disclosing the criteria and assumptions used in calculating the performance.
• Including a statement regarding the risks and limitations of using hypothetical returns to make investment decisions.

For the purposes of this last-minute checklist, consider removing hypothetical returns from advertisements and working with counsel to determine what would be required to comply with the Marketing Rule.

6. Substantiation

For any material statements of fact, confirm there is a reasonable basis for believing the statements can be substantiated upon demand by the SEC. Include sources in footnotes and retain copies. Take caution to ensure subjective statements are not presented as facts.

7. Explanatory footnotes

Include all relevant information to explain and give context to the presentation. If including a discussion of potential benefits connected with the manager’s services or methods of operation, include a discussion of material risks and material limitations associated with those benefits. Include a general disclaimer in the front and specific disclaimers in footnotes.

8. Case studies and investment examples

References to specific investments must be “fair and balanced” (i.e., no cherry-picking). Including all investments in a fund will be the simplest way to satisfy this standard (although not the only way). “Early drivers” and “key performers” are red flags for cherry-picking.

9. Ratings or rankings

If including a third-party rating or ranking, the manager must have a reasonable basis for believing (e.g., by reviewing the questionnaire, survey or description of the methodology) that any questionnaire or survey used to prepare the rating or ranking is structured to make it equally easy for a participant to provide favorable or unfavorable responses, and it is not designed or prepared to produce any predetermined result. Clearly and prominently disclose the date of the rating or ranking and the time period covered, the identity of the third party and, if applicable, that compensation has been provided in connection with obtaining or using the rating or ranking.

10. Testimonials and endorsements

Statements that describe a person’s experience with the manager or its personnel, or that refer investors to the manager’s funds, are “testimonials” if made by investors and “endorsements” if made by non-investors. Endorsements include statements by founders from prior portfolio companies and others in the manager’s network that indicate approval, support, or recommendation of the manager. For all unpaid testimonials and endorsements, use a clear and prominent disclaimer stating that the person giving the testimonial or endorsement (promoter) is either a current investor or not a current investor, as applicable, and disclose any conflicts of interests arising from the manager’s relationship with the promoter. For any paid testimonial or endorsement (“paid” can include fee discounts, indirect payments, and non-cash compensation), there are additional disclosure, oversight, and disqualification requirements. To meet these requirements by the compliance date, it may be necessary to remove the testimonial or endorsement until you can consult counsel to determine what would be required to comply with the Marketing Rule.

11. Placement agreements

Placement agents (also known as consultants, finders and introducers) for funds managed by RIAs are considered promoters under the Marketing Rule. If a promoter will be referring investors to the manager as of, or after, the compliance date, including non-US promoters referring non-US investors, and the placement agreement has not already been updated to comply with the Marketing Rule, contact counsel immediately to determine what would be required.

12. Policies and procedures

If policies and procedures have not yet been updated, work with counsel or a compliance consultant to make appropriate revisions.

With the compliance date just a few days away, setting priorities and getting the right players to focus and coordinate is crucial. The Marketing Rule is complex and complicated, and there remain a number of unanswered interpretative questions. The good news is that the industry has been working closely together over the transition period to come up with good faith approaches to complying with the rule. This checklist will help you to assess your immediate needs. Then, work with your counsel and your compliance advisers to resolve the more difficult questions.

The landscape appears to be changing under Gary Gensler’s leadership of the SEC. With five new settled enforcement actions against venture capital advisers in September alone, we are reminded that VC advisers are not outside the SEC’s ambit of scrutiny. Since March, the SEC has announced the following categories of settled enforcement actions against venture capital advisers:

1. Pay to play: These four enforcement actions involved political contributions made by employees of fund managers to certain public officials occupying positions within government entities that were already invested in the managers’ funds. 
2. Interfund loans and commingling: These two enforcement actions involved loans and cash transfers between the sponsors’ various funds that the SEC alleged were unauthorized and undisclosed. 
3. Miscalculation of management fees: These two enforcement actions involved disclosures around management fees that the SEC alleged were misleading and calculation of management fees that the SEC alleged resulted in overpayment to the managers. 

The SEC’s focus on private fund advisers has been clear for some time, as evidenced by the Division of Examinations’ Risk Alerts and Exam Priorities. Moreover, as the industry is keenly aware, the SEC proposed sweeping new rules earlier this year that would drastically impact private fund advisers, including ERAs. The enforcement actions listed above do not include the charges that the SEC has recently brought against other types of private fund advisers (just last week, 9 settlements were announced involving registered private fund advisers and alleged custody rule violations). As the SEC continues to focus on private fund advisers, it’s likely that we’ll see more venture capital advisers operating under the ERA exemption being caught by the SEC’s scrutiny.

So, what to do? This is a time to clearly understand the obligations that ERAs are bound to, adhere to them, and follow elements of your agreements (such as the determination of management fees) with extreme precision.

Key insights from Matt Sacks

On the future of the Midwest’s innovation ecosystem: “Over the past decade, the size of the venture capital industry has expanded at a remarkable pace. … We believe there is a tremendous opportunity to be a capital provider to the early-stage innovation ecosystem in the Midwest and help this market develop.”

On disruptive technology trends in the Midwest: “[W]e find that the Midwest ecosystem generates a significant number of exciting startups attempting to disrupt categories like steel manufacturing and commodities trading.”

On the growth of Chicago’s VC market: “To truly achieve scale, a startup ecosystem needs to nurture an appetite for risk and acceptance of failure, have great research institutions and strong engineering talent pools, have a series of successful prior-generation companies that created significant value for those involved, and importantly, have enough early-stage capital providers willing to embrace risk.”

Read full commentary from Matt Sacks

Key Insights

On various sub-segments in Web3: “There are commonalities within the sub-segments due to a shared ethos around concepts like decentralization and uncensorability. But the various sub-segments are fundamentally tackling different problems.”

On disrupting traditional industries: “[E]very participant in every creative industry is looking at Web3 and asking the question: ‘What does this mean for me?’”

On Web3 changing the investment landscape: “A fundamental principle that’s been adopted by Web3 builders is that value should accrue to the community that adds value to an ecosystem rather than to a small number of investors and builders in the ecosystem.”

Read full commentary from Frank Rotman

Do private fund managers need to comply with US sanctions regulations?

Fund managers who are subject (or likely subject) to US jurisdiction need to comply with US sanctions regulations. US sanctions against Russia and Belarus apply to US persons, which are defined to include US citizens and permanent resident aliens, persons holding special immigration status (e.g., refugees and aslyees), entities organized under US law, and any person acting within the United States. Whether a fund is subject to US jurisdiction is a complicated issue, but in general, if your fund or fund manager is legally organized in the US, if one or more of the control persons of the fund manager are US persons or located in the US, if the fund manager has an office located in the US, and/or if the fund directly or indirectly has US investors, the fund manager and fund are likely subject to US jurisdiction and should comply with US sanctions regimes.

What do I need to do with respect to the potential that limited partners are directly subject to Russian or Belarusian sanctions?

We recommend undertaking the following three-step process to assess your direct exposure to Russian or Belarusian sanctions issues:

1. Check your records to ensure that none of your limited partners are located in the Crimea, Donetsk or Luhansk areas of Ukraine.
2. Check your records to ensure that no Russian or Belarusian governmental entities, including sovereign wealth or other state-sponsored entities, are limited partners directly.
3. Check your limited partner list against the Office of Foreign Assets Control (OFAC) list of Specially Designated Nationals and Blocked Persons to ensure no persons or entities match your directly subscribed limited partners.

If you identify the potential existence of any of the above types of limited partners, contact your legal counsel immediately for assistance – and refrain from accepting capital contributions from or making distributions to such investors until your legal counsel has discussed the situation with you.

What about the potential that sanctioned parties indirectly hold interests in my direct limited partners?

You are obligated to ensure that none of your direct limited partners are in turn more than 50% owned, directly or indirectly, by persons or entities on the US sanctions lists. Generally, clients we work with will often first determine their comfort level with respect to the potential for indirect issues (i.e., “look-through issues”) with their limited partner base. On one end of the spectrum, a fund that is comprised of all individuals known to be US persons has no look-through issue. On the other end of the spectrum, a large fund raised globally that has numerous institutional limited partners may have a material risk of look-through issues.

Where a fund is concerned about look-through issues, the next step is usually to examine the fund’s subscription materials. In some cases, those materials may contain representations made by entity limited partners at the time of subscription to the effect that none of their capital is attributable to sanctioned parties, together with representations to update the fund manager of any future changes. If you are in this situation, you might determine either to rest on these representations or to disseminate a reminder to your applicable limited partners of their attendant obligations. If the fund’s subscription materials do not rise to the above level or if there are additional concerns, the fund manager may wish to obtain current, proactive representations from applicable limited partners to have more certainty that there are not indirect issues with the fund’s limited partner base. The fund’s counsel should assist to develop the appropriate questionnaire depending on the exact circumstances.

Do I really need to worry about any of this? What are the potential consequences of failing to comply?

The potential consequences are serious. Violations are enforced on a “strict liability” basis – meaning if you have sanctioned persons or entities in your limited partner base (directly or indirectly with reference to the above 50% standard) you are in violation – there is no “intent” element. Further, failure to timely identify sanctions issues may lead to a continuing series of violations. OFAC, for its part, treats violations as a serious threat to national security and foreign relations. As a result, offenders face very significant monetary fines. In addition, criminal penalties, including prison time, can be pursued for willful (i.e., knowing and intentional) violations.

What about my portfolio companies?

Where a portfolio company is not a controlled entity (as typical for most venture capital fund managers), in general there is not a legal requirement to ensure compliance, as such legal requirement falls to the portfolio company and its management. However, as portfolio companies can experience significant monetary fines for transacting with sanctioned parties, and as reputational issues may accrue even to such companies’ investors, it is prudent to ensure that each of your portfolio companies is taking steps to ensure sanctions compliance. In addition, you may have agreed in a side letter with one or more of your limited partners to monitor compliance of your portfolio companies. If you are aware of potential sanctions violations by a portfolio company, or if you make control investments, contact the fund’s legal counsel immediately for further assistance.

Key Insights

On valuations and later-stage investments: “As a growth investor, I believe the valuation environment puts a bigger onus on us to make the right calls on investments. … We have to make sure we are picking winners who will grow into and beyond their valuations.”

On the Bain Capital Ventures platform: “Everyone on the Bain Capital Ventures team is laser-focused on one or two sectors. … Because we spend a lot of time in our areas, we like to think we can disproportionately support and contribute to the success of our portfolio companies.”

On embedded marketplaces: “We believe that the future of vertical SaaS will be defined by embedded financial services and embedded marketplaces. … We are seeing embedded marketplaces pop up everywhere – in software for construction, spas and salons, restaurants, financial institutions … the list goes on.”

Read full commentary from Merritt Hummer

For the full list of topics and complete presentation, please see below:

Key insights

On the pace of the market: “The use of technology has been paramount for companies, organizations and institutions to operate through an unparalleled period. This has led to increased purchasing, growing company revenues, and further capital allocation and investment at record levels.”

On founding BLCK VC: “[A]s current Black venture capitalists, we could see the reliance on personal networks for access to roles at firms, but also the reliance of these networks to drive deal flow, were creating structural barriers for the Black community.”

On upside and impact: “The current system, as it is, is leaving huge economic upside on the table largely because networks haven’t evolved. The reality is that companies that prove successful are global – and to be global, you need to be diverse.”

Read full commentary from Frederik Groce

Key Insights

On going back to basics this year: “HMI made its first investment in early 2009. … Everything was for sale, and the experience taught us some important lessons – prioritize the best ideas and then invest in those with conviction, focus on high-quality businesses that can compound through cycles, and think about investing outcomes as probabilistic rather than single pathways.”

On a robust deal environment: “Q4 was the most active quarter we have seen in years. We believe the fourth quarter generally had more deal flow than usual due to political uncertainty and high valuations, coupled with lots of capital, making for a good supply-demand setup.”

On putting money to work right now: “We’ve been selective, focusing on great companies that can grow for a decade or more. The base rate for decade+ compounders is not amazing, but if you can find them, your entry valuation doesn’t matter so much. If you’re wrong, it’s a different story.” 

Read Full Commentary from Sean Barrett

GGV Capital VIII will support entrepreneurs across all stages of growth; GGV Capital VIII Plus enables GGV to extend its investment in portfolio companies that are part of Fund VIII that have demonstrated ability to scale and have become category leaders; GGV Discovery III is dedicated to global entrepreneurs at the earliest stage of development; and GGV Capital VIII Entrepreneurs Fund will continue to the firm’s tradition of extending and building the GGV entrepreneur family network globally.

The closing of the funds coincides with one subsequent closing of GGV Capital RMB Fund II, with total committed capital of approximately $525 million. This increases the firm’s total capital under management to approximately $9.2 billion across 17 funds.

“It’s been another productive, highly efficient experience working with Jordan and his team at Cooley once again to raise our biggest funds in history in less than three months,” said Jenny Lee, managing partner at GGV. “We are excited as this capital will allow GGV to continue to invest in entrepreneurs around the world across all stages of growth.”

GGV Capital has been a Cooley client since its founding in 2000. Cooley has advised GGV on the closing of all its USD-denominated funds and 80+ of its financing transactions across the US, China, Southeast Asia and India. GGV Capital invests in seed-to-growth stage companies across three sectors: social/internet, enterprise tech and smart tech. Over the past two decades, GGV has backed more than 400 companies around the world. In the past 15 months, 11 GGV portfolio companies have completed public listings, including Affirm, Agora, Airbnb, BigCommerce, DraftKings, eHang, Kingsoft WPS, Poshmark, Opendoor Technologies, Wish and Xpeng.

About Cooley LLP

Clients partner with Cooley on transformative deals, complex IP and regulatory matters, and high-stakes litigation, where innovation meets the law.

Cooley has 1,100+ lawyers across 16 offices in the United States, Asia and Europe.

Key Insights

On valuations moving forward: “While the amount of capital in the system is so high, it’s discerning in nature, and some of these rounds that were done based on forward multiples last year are going to be hard to clear if growth expectations aren’t met or customer demand tapers off.”

On late-stage investing: “The 0.01% of these [very high-quality, fast-growing] companies are almost in the ‘I-can-name-the-price-I-want’ mode, and they’ll often get it in the private markets (within reason) if the growth and efficiency are there.”

On evaluating new investments during the pandemic: “The way we’ve gotten comfortable has honestly been scheduling time for unstructured conversations. … Having some dedicated social time makes a difference.”

Read Full Commentary from Logan Bartlett

View the full discussion below:

We are providing updates on our original post here to reflect the issuance of a final rule by the U.S. Treasury Department which will become effective on October 15, 2020.  Between November 2018 (when the first regulations implementing FIRRMA came into effect) and October 15, 2020 (when the Final Rule becomes effective), mandatory CFIUS filings were assessed with reference to an industry test, which asked whether the U.S. business receiving an investment or being acquired utilizes its technology in, or designs its critical technology for use in, certain industries listed in the CFIUS regulations (e.g., biotechnology, battery manufacturing, semiconductor manufacturing, and so forth).

The final rule disposes of that industry criterion and replaces it with a new test that asks whether a U.S. regulatory authorization (e.g., an export license) would be required to release the U.S. business’s products or technology to its foreign investor or acquirer pursuant to any of the four main U.S. export control regimes administered by the Departments of State, Commerce, Energy and the Nuclear Regulatory Commission. More specifically, the final rule requires transacting parties to determine whether a regulatory authorization would be required for the “export, reexport, transfer (in-country) or retransfer” of the critical technology of the U.S. company to the specific foreign investor or acquirer and certain other foreign persons or entities in that foreign investor’s or acquirer’s upstream ownership chain.

Unlike the comparatively simple (though somewhat ambiguous) industry test, which focuses on the business activities of the U.S. company, the far more complex regulatory authorization test focuses on the export control classification of a U.S. business’s products and technologies, as well as the principal place of business (for entities) or nationality (for individuals) of each of the foreign parties involved, including certain entities in the foreign parties’ ownership chains.

Practically speaking, the final rule will add complexity to assessments of mandatory CFIUS filing requirements – particularly with respect to the requisite export control/regulatory authorization analysis, and determinations of whether an investor is a “foreign investor,” and if so, such investor’s specific nationality.

Under the CFIUS regulations in effect prior to October 15, 2020, the absence of a mandatory filing requirement often could be ascertained relatively easily (e.g., by determining that the U.S. business in question does not operate in one of 27 sensitive industries listed in the CFIUS regulations). Under the final rule, mandatory filing determinations require more comprehensive diligence of both the U.S. business and the foreign investor(s) or acquirer.  The U.S. business may need to assess not only the products that it sells, but also the technologies related to the development, production or use of those products, as well as any technologies that are developed and tested for the U.S. business’s internal use only.  Foreign investors and acquirers may need to determine their own nationality and the nationalities of all foreign persons and entities in their upstream ownership chains.

Venture funds investing in U.S. companies that may be implicated will require more complex and detailed legal guidance after October 15, 2020 than previously.  Care should be taken to add as a “checklist item”, early in the investment process, an analysis of the potential target company for CFIUS purposes.

Previous Blog Post (January 2, 2020)

Contributors

Jordan Silber

Unregistered “finders” have long been a fixture in the venture capital community, and a source of considerable regulatory uncertainty.  Based on SEC guidance dating back to the early 1990’s, a so-called “finder’s exemption” was thought to exist whereby a person could perform the limited function of introducing investors to an issuer, such as a venture capital firm raising a new fund, for compensation without registering with the SEC as a broker.  However, the SEC never formally endorsed a “finder’s exemption.”

Indeed, based on its broad interpretation of the term “broker,” the SEC has in some cases over the years denied regulatory relief to finders and even brought enforcement action against finders and the issuers that hired them.

As market practices and the SEC’s approach to finders have diverged, fund managers that want to use unregistered “finders”  have faced a difficult choice: accept the regulatory risk, insist that the “finder” associate herself with a licensed broker-dealer or simply forego the chance for increased investor introductions.  IA particular regulatory risk faced by fund issuers was resulting doubt regarding the use of Regulation D as a 1933 Act exemption for their offerings.

In response to demands from the industry over many years for additional clarity in this space, the SEC has now proposed a formal exemption from broker registration requirements for finders that meet certain conditions.  If the exemption is approved as proposed, it will provide much needed regulatory certainty for fund managers and a clear framework for how finders should be engaged.

Scope of the Proposed Exemption

The proposed exemption would permit payment of transaction-based compensation by fund managers (i.e., a percentage of sourced investors who subscribe to the fund, for example) to finders, provided the following conditions are met:

• The finder is a natural person, and not a legal entity or fundraising platform;
• The fund using the finder does not file reports with the SEC under the Exchange Act and is relying on an exemption from the Securities Act (such as Regulation D) to conduct a primary offering;
• The finder does not engage in general solicitation;
• All potential investors solicited and introduced by the finder are “accredited investors”;
• The issuer and finder enter into a written agreement that describes the finder’s services and compensation;
• The finder is not associated with a broker-dealer; and
• The finder is not subject to a statutory disqualification.

These conditions align well with primary offerings of private funds that rely on the 3(c)(1) or 3(c)(7) exemptions from registration under the Investment Company Act of 1940, and are offered under Rule 506(b) of Regulation D.  We suspect that our fund clients’ typical relationships with finders will generally be able to be conducted in a manner consistent with these conditions.

Tier I and Tier II Finders

The proposed exemption covers two categories of finders:

• Tier I finders would be permitted to provide contact information of potential investors in connection with a single capital raising transaction by the fund in a 12 month period, but would not be permitted to have any contact with a potential investor about the fund. This exemption essentially permits a finder to sell her rolodex to an issuer in exchange for success fees.

• Tier II finders would be permitted to engage in more direct solicitation activity, including identifying and screening potential investors; distributing offering materials to the prospective investors; discussing the offering with the prospective investors (but not advising as to the valuation or advisability of investing); and arranging or participating in meetings with the prospective investors and the issuer.

Because of their greater involvement in solicitation activities, Tier II finders would be required to provide a solicitation disclosure to each prospective investor prior to or at the time of the solicitation, and obtain a written acknowledgment of receipt of that disclosure from each prospect who invests in the fund. This process closely tracks the requirements that registered investment advisers are required to follow when hiring solicitors under the “Cash Solicitation Rule”, and we expect that finders and the fund managers that hire them will be able to leverage existing industry standard forms of agreements and disclosures to meet these requirements.

What Happens Next?

The proposed exemption will soon be published in the Federal Register, which will start a 30-day comment period. The SEC staff will then gather and review the comments, and determine whether any changes to the proposal should be made. During that process and until the exemption is ultimately finalized, we unfortunately remain in the murky grey area of uncertain regulatory risk. In addition, while some may view this proposal as an expression of the SEC’s views on the regulatory treatment of finders, we note that this proposal is not yet effective and caution is still warranted when dealing with unregistered finders.

Contributors

Kenneth Juster

The HSR Act requires parties to transactions that meet specified thresholds and do not fall within an exemption to report them to the antitrust agencies and observe a waiting period before consummating reported transactions. The HSR Act allows the agencies to investigate whether such proposed acquisitions are likely to lessen competition and to challenge them under antitrust law before they are consummated.

Read Full Article

Changes for Individual Investors

1.  Professional Certifications, Designations or Credentials

Traditionally, the sole avenue by which an individual investor could meet the accredited investor definition was through that investor’s relative wealth or income.[i]  However, through the Adopting Amendment, the SEC will now also look to the professional certifications, designations and/or credentials of an individual issued from an approved educational institution as evidence of one’s requisite financial sophistication and ability to assess the related risks of a securities offering to meet the accredited investor definition, regardless of an individual’s level of wealth or income.  The SEC has stated that, for now, the only recognized individuals eligible for accredited investor status under this new category are those individuals in good standing holding a Series 7, Series 65 and/or Series 82 license.  Notwithstanding this, the SEC has the ongoing authority to adjust and add to those professional certifications, designations and credentials they deem sufficient to confer accredited investor status on an individual, and thus, it is likely further types of credentialed and licensed professionals will be added in time by the SEC to the list of those individuals permitted to be treated as accredited investors under this new professional certification category.  For now, the movement away from a wealth and income-based analysis in this category is a good first step by the SEC to open the private offering markets to potential additional individuals.  However, it is still very early days with this new and expansive category to fully comprehend yet the potential implications for funds and their investors, especially with respect to the more complex fund private offerings such as those conducted under Rule 506(c) of Regulation D (i.e., general solicitation offerings) which require a much greater degree of independent verification of each investor’s accredited investor status.  Further, it remains to be seen whether this new professional certification method of qualifying for accredited investor status will be materially additive to the overall number of potential accredited investors eligible to participate in fund and other private offerings, given that many of such individuals may, by the very nature of their qualifications and profession, already meet the wealth or income requirements in the first instance.

2.  Knowledgeable Employees

As applicable solely to investments by individuals in private funds, the Adopting Amendment adds a new category of accredited investor for individuals who qualify as “knowledgeable employees” of the fund sponsor as defined in Rule 3c-5(a)(4) under the Investment Company Act of 1940, as amended (the “ICA”). Pursuant to the ICA, an individual that is a knowledgeable employee is allowed to invest in private funds sponsored by the fund manager employing such individual without affecting the fund’s ability to qualify for the exclusions from the definition of “investment company” under Section 3(c)(1) or Section 3(c)(7) of the ICA. Individuals meeting this category are deemed to possess the requisite information and financial sophistication regarding the particular fund offering due to their intimate involvement with the firm sponsoring such fund and its investment portfolio.  Individuals qualifying as knowledgeable employees include (a) executive officers, directors, trustees, general partners, advisory board members or persons serving in a similar capacity of a fund exempt from the ICA under Section 3(c)(1) or 3(c)(7), or affiliated persons of the fund who oversee the fund’s investments and (b) employees or affiliated persons of the fund (other than employees performing solely clerical, secretarial or administrative functions) who, in connection with the employees’ regular functions or duties, have participated in the investment activities of such private fund (or other private funds) for at least 12 months.  Thus, the key take away here is that, while the underlying analysis is a fact specific one, it is likely that only mid to senior level personnel with heavy involvement in and responsibility for the investment activities of the firm will be eligible for accredited investor treatment under this new category.

3.  Spousal Equivalent

The Adopting Amendment broadened the scope of the existing income and net worth tests applicable to individuals by not only permitting the income and/or net worth of a spouse of the individual to be considered when determining the individual’s status as an accredited investor[ii] but also the income and/or net worth of that individual’s “spousal equivalent” (in lieu of the individual’s spouse).  A spousal equivalent is generally considered to be a cohabitant occupying a relationship with the individual equivalent to that of a spouse without the requirement for a formal official recognition of such status (e.g., a domestic partnership or civil union).  While this specific change will not likely result in a material influx of new qualifying investors, it does reflect the SEC’s broader thinking about social norms and family constitution and tying those relationships to greater market access.

Changes for Entity Investors

1.  Regulatory Profile or Form of Certain Entities

• A new category of accredited investor has been added for those investors that are investment advisers registered under Investment Advisers Act of 1940, as amended (the “Advisers Act”), exempt reporting advisers under the Advisers Act and/or investment advisers registered under applicable state laws, regardless of whether such entities meet the $5M total asset threshold for entities generally under the accredited investor definition.

• Limited liability companies that have not been formed for the purpose of making the investment in a fund and that have total assets in excess of $5M will qualify as an accredited investor.  This change is more of a codification for how practitioners traditionally dealt with LLCs under the existing accredited investor definition than a material change to the fabric of the definition itself.

2.  General Catch-all Entity Category

A new category of accredited investor has been added for those entity investors that are not otherwise specified in the accredited investor definition and not formed for the specific purpose of acquiring the securities offered that owns more than $5M in “investments.”[iii]  It is important to highlight that this new category looks specifically to “investments” and not “assets” held by the entity, which is a change in construct from most of the primary financial determinations applicable to entities under the accredited investor definition.  Thus, not only does this new category not look to entity construction and constitution for purposes of meeting the accredited investor definition, it also veers away from the traditional asset-based mindset of analyzing whether an entity should or shouldn’t be considered an accredited investor.  This new more amorphous bucket will include entities such as Native American tribes, governmental bodies, foreign entities and other entities whose structure and nature do not fit within the other identified categories in the accredited investor definition.

3.  Family Offices and Family Office Clients

The Adopting Amendment has added a new category for those entities that (a) can meet the definition of “family office” pursuant to rules issued under the Advisers Act, (b) have at least $5M in assets under management, (c) were not formed for the purpose of making the investment in the fund and (d) are managed by an individual who has such knowledge and experience in financial and business matters that the family office is deemed capable of evaluating the merits and risks of the prospective investment.  Further, in the event that the family office can meet the above criteria, any “family client” of the family office (as defined by the rules issued under the Advisers Act) shall also be deemed to meet the definition of accredited investor regardless of whether such family client can meet any other parts of the definition of accredited investor.  Most family office structures can and do meet the existing rubric of the accredited investor definition, thus, the import of these new rules be mainly for non-traditional family office structures and/or family clients that may not themselves be eligible for accredited investor status.

Adopting Amendment Timing

While the Adopting Amendment was announced by the SEC on August 26, 2020, it will not become effective until 60 days after its publication in the Federal Register.

Parting Thoughts

Many funds and those investing in them are heralding the changes promulgated by the Adopting Amendment as an encouraging sign that the SEC is desirous of expanding market access to a greater number of investors.  Such parties view changes such as providing non-wealth based categories of measurement for accredited investor status, expanded categories and natures of entities that can qualify for accredited investor treatment and revisions to the accredited investor rules to take into account evolving social norms and ideals as necessary steps in the right direction. 

The above notwithstanding, given that the Adopting Amendment did not make any inflation-based adjustments to the existing financial thresholds applicable throughout the accredited investor definition, many (if not most) individuals that can meet the new and/or expanded categories will likely already have satisfied the language and requirements under the existing accredited investor rules.  Thus, it remains foggy at best as to the actual number of additional investors that will be eligible for accredited investor status, and thus, access to private fund and other securities offerings.  While we hope that these new changes effectuated by the Adopting Amendment do, in fact, live up to the promise and intentions pursuant to which they were enacted, only time will tell just how much of a true impact they will have given the above.

Regardless of the ultimate direction these additions and changes to the accredited investor rules take us, we do know that their effective date is fast approaching us.  To get prepared, your fund subscription agreements, transferee investor questionnaires and other recordkeeping efforts related to oversight of your investors’ accredited investor status should be made ready for the changed rules, especially for any funds or other vehicles you are managing that will have a closing after the effective date of the Adopting Amendment.  We encourage you to call your fund counsel soon and consult with them on the best plan for getting your documents and operations in order related to these issues moving forward.

[i] For instance, an individual could only be considered an accredited investor if such individual either had (a) an income in excess of $200,000 in each of the two most recent years or joint income with that individual’s spouse in excess of $300,000 in each of those years and had a reasonable expectation of reaching the same income level in the current year or (b) a net worth, or joint net worth with that individual’s spouse, in excess of $1,000,000.

[ii] See Footnote 1 for clarification on income and net worth thresholds for individuals.

[iii] “Investments” are defined by reference to Rule 2a51-1(b) under the ICA, which is used to determine an investor’s status as a “qualified purchaser” under such rules.

The principal reason for the low incidence of serious defaults is that typical venture capital fund agreements impose very onerous default remedies against the defaulting investor, including up to full forfeiture of the capital account value associated with the interest, inclusive of paid-in capital and any gains.  Once material capital has been contributed to the fund, there is considerable impetus to make further contributions timely.  If I’ve paid in $1 million of my $5 million commitment, am I really willing to walk away from that $1 million and any attendant gains?  Even if I’m seriously distressed financially, there’s a high incentive not to simply abandon my capital account value.  In short, paying in contributions timely is something that investors are well advised to try to remain on the right side of, and most often, they do. 

With that said, occasionally cases of serious default arise, and fund managers are put in the position of acting on the default remedies found in their fund agreements.  This article explores typical options available to venture capital fund managers when defaults reach a serious level demanding action.

Do I Have to Act?  When?

The preliminary question we usually get is: do I have to act and when?  We are often contacted at a point when a contribution is several months past due, the manager may have had some initial conversations with the investor, and the investor isn’t taking, or seeming likely to take, timely remedial action. 

From a manager’s perspective, defaults are not ideal.  They disrupt budgets for future investments and follow-on activity and potentially cause shortages of cash for quite immediate investment activity, which can then require unplanned additional capital calls from other investors.  If you raised a $500 million fund, you want to end up with $500 million to invest, not $450 million.  Furthermore, defaults will eventually work their way into audited financials if there are not direct contractual notification provisions in the fund agreement or side letters in the first place.  Other investors will eventually learn of the situation, which may raise questions.  Managers typically prefer to avoid this for reputational reasons.

With the above in mind, our first advice is to try to work with the investor to rectify the situation.  Perhaps the investor is not aware of the possible onerous consequences and/or is trying to manage many different capital demands.  A stern letter reminding them of their obligation and the potential outcome can often lead to a reprioritizing of payment to the fund.  Take the case of a distressed corporate investor that has money to pay some but not all obligations.  On reminder, it is often a result that the payment to the fund is moved to the front of the payment queue after awareness is focused on the impending downside.  In our experience, stern letters of explanation may cure something like 25-40% of serious default situations.

Another potential early conversation is to encourage a secondary sale, in which the purchaser will catch-up on missed contributions and take over the interest going forward.  In the preceding example, even if the distressed investor ends up with 70-80% of FMV in a secondary (i.e., $700,000 to $800,000), the result is much more favorable than forfeiting the $1 million of value under the fund agreement’s default clauses.  Where a seller just simply does not have cash, and there is capital account value, this path almost always makes sense and a distressed investor that is rational will pursue it.  They may do that largely on their own once prompted (say by approaching typical secondary buyers), or in some cases the fund manager may wish to get more involved, for example to “steer” the interest to a friendly existing or prospective LP that is or may be a long term investor in the manager’s other funds (i.e., usually not a secondary buyer, unless they have a fulsome primary investment platform).

As to the question of whether a manager is required to do anything, and if so when, fund agreements we work with generally provide that the choice of a manager to enact or not enact default remedies, and the timing thereof, is at the manager’s discretion.  Even on this typical drafting, there may be an ultimate fiduciary duty at law to take action in good faith for the benefit of the fund and its partners as a whole.  We are not often distressed by this concept because typical contracts make it clear enough that ample time is to be permitted for rectification of the situation, and give the manager a lot of discretion on how to handle each case in particular.  Regardless, interest is frequently aligned as the manager has its own capital at stake, has the reputational concern of keeping the books and records free of evidence of serious default and more than anything, has an interest in preserving originally targeted capital to ensure budgeting for follow-ons isn’t disrupted.  In practice most managers we work with might give a long standing, credible investor suffering temporary distress some leeway to rectify, but not likely in excess of say 6 months at the outer edge.  Less known, newer investors, or those as to which there is specific doubt as to creditworthiness, would typically get less leeway, with formal default provisions enacted sooner.

That Didn’t Solve It – What Do I Do Now?

In a few cases, no matter how sensible it may be on that part of the defaulting investor to cooperate, the above methods won’t yield successful results.  So what then?

First, make sure to follow any technical “notice and cure” periods in the fund agreement, if not already done by this time.  Usually there is a requirement for a formal notice of default letter, and 10 or 20 days cure time.  There may be multiple notices and cure periods in some cases.  Given the serious nature of the situation, and notwithstanding notice procedures in the relevant fund agreement, we recommend dispatch by both trackable courier and email.  Once this box is checked, the manager is free to pursue remedies under the default provisions of the fund agreement.  Typically, the choice of which remedy or remedies to pursue is at the discretion of the fund manager, and not mutually exclusive.  Among the typical remedies we would expect to see in a typical fund agreement are the following:

1. Sue for Damages and/or Performance:  This is ordinarily provided for, including the right to collect interest on the defaulted contribution(s) at an interest rate significantly in excess of the prime rate (say 12-18%).  It is not often, however, relied upon because by the time an investor is in serious default there are likely to be collection issues on any judgment, and proceeding along this route takes time and money.  Furthermore, there is reputational risk (fund managers generally don’t want to be seen suing their investors) as well as the potential for the lodging of counterclaims, such as breach of fiduciary duty or other “complaints”.  Even where meritless, the simple potential risk of the filing of a counterclaim can deter the initiation of legal proceedings by the fund manager.  In any event, the typically found remedies listed below are stronger, faster and easier to implement. 

2.  Enact a Transfer:  Under this approach, the fund manager may designate one or more parties (which usually may be existing limited partners or third parties) to be transferees who will receive the defaulting investor’s interest (or parts of it if there are more than one transferee) in exchange for agreeing to contribute capital toward the outstanding capital calls and make good on future capital calls.  This approach usually will not involve payment of any purchase price to the defaulting investor (i.e. the “seller”), other than assumption of these liabilities.  So this approach involves a forfeiture by the defaulting investor of 100% of the existing capital account balance.  Notice that this approach results in aggregate commitments being unchanged, and therefore this is commonly a preferred method by managers.  It is also simpler to deploy (less parties to transact with) and in a sense more “private” (in terms of not “outing” the situation with each and every investor) than #3 below, and thus tends to be more frequently considered.

3.  Enact a Sales Waterfall:  Under this sort of provision, the non-defaulting investors are offered, essentially in a “ROFR” type offering, their proportionate pieces of the defaulting investor’s capital account balance in exchange for proportionate contribution of then-unfunded and future calls.  If not all investors make the election, commonly a second tranche may occur where investors initially electing can get “more”.  Ultimately if the whole interest is not spoken for, third parties may be invited to participate.  In some sense this is not vastly different from #2 above: the defaulting investor suffers a 100% forfeiture, and the fund manager (assuming a successful process) ends up with an undisturbed amount of aggregate commitments.  However, this remedy requires undertaking a significant formal process from a logistical standpoint, and furthermore involves effectively notifying all investors of the situation.  So why would a manager choose this?  Sometimes, there is a view that the most equitable result since some party stands to get a windfall is to share that windfall proportionately with the entirety of the investor base. 

4.   Run To Zero Rights:  This type of provision calls for declaring that the defaulting investor is no longer a limited partner, has no right to vote on any fund matters, and is held back from income/gain allocations into its capital account (and usually distributions as well, discussed further below); however, expenses including management fee may be debited against the capital account (and in doing so “full scheduled management fees” may be collected at the fund level) until such time as the capital account reaches zero.  If that does not occur by liquidation, the remaining balance is often forfeited and allocated proportionately to the other partners.  While this provision protects the fee base, it does not maintain the full aggregate commitments, and as such, is seen as an inferior approach to methods #2 and #3 above.  However, this type of provision is commonly present in most fund agreements in the venture space and can play a role in certain situations where macroeconomic or other events beyond the specific limited partner limit participation in amelioration efforts by other sources of capital.

5.  Pure Forfeiture Provisions:  The most punitive commonly available remedy is the provision allowing the enactment of a simple, pure forfeiture, either of the capital account balance, the right to future profit allocations, or both.  These will commonly cause the forfeited amounts to be redistributed proportionately amongst the other partners, creating a windfall for them to the extent of any capital account balance being shifted.  As is the case with #4 above, this causes aggregate commitments to decrease, and as such, is not usually a preferred method.

6.  Distribution Withholding Provisions:  Recall that the above remedies are not mutually exclusive.  Distribution withholding provisions usually exist and are used in tandem with other default remedies.  These are rights to refrain from distributing cash or securities to an investor in default, and apply proceeds to outstanding calls and expenses, including outstanding interest.  In the case of securities, a well drafted provision will allow the right to sell the securities to generate cash to satisfy such items, which for tax purposes should expressly provided to be a deemed distribution to the investor, followed by sale by them and a deemed recontribution (with a pre-agreed hold harmless in favor of the fund manager).

Anything Else To Consider?

There are a couple of closing thoughts on the issue of investor defaults to keep in mind.  First, a well drafted fund agreement will place the right to act for the defaulting investor squarely in the hands of the fund manager by reference to the power of attorney provisions.  For example if a transfer is to be enacted to rectify the situation, there should be no need to chase down the recalcitrant investor for signatures; the fund manager should be able to act on that directly using a pre-agreed power of attorney.  Ideally, the drafting is very broad, to the effect of the power of attorney being available for any needs arising under the default provisions.

Next, consideration should be given to making sure parallel funds are properly included in the default provisions.  As an example, if a sales waterfall will run to all investors, it will usually (though not always) be appropriate to include parallel fund investors for this purpose.  This should be considered and resolved appropriately in the given context.  Another item to consider is the potential for cross-default provisions, meaning a default by investor X in fund A may be deemed to be a default in additional fund B automatically and lead to the potential for enactment of remedies in both funds A and B.  This is rarely appropriate, but in some cases may be.  For example funds that are literally stapled (say a growth fund with a top up fund for home run deals that has no management fee and lower carry, and everyone is subscribed in a 2:1 ratio; in this case access to the preferred terms fund is “part and parcel” of an investment in the growth fund, and it would not be equitable for an investor to default in the growth fund and keep the preferred piece).

Another concept to keep in mind is credit security.  In venture funds with typical default provisions along the lines discussed above, credit security comes from drawing down cash in order to put value in the capital accounts.  The greatest credit risk exists right after the fund is formed, and until the time capital account balances are sufficient to provide incentive to perform contribution with respect to the remainder of the commitment.  This often deserves special consideration, especially when holding a dry closing in turbulent economic times.  Some fund managers will call a small amount of capital (~5%) in order to create this credit security at the outset of the fund. 

In the case of fund managers that utilize capital call lines or other credit instruments, there will often be borrowing covenants in their loan agreements with respect to defaults by investors in the fund that may require self-reporting or other remedial steps.  Fund managers should review their loan agreement to fully understand the implications of a default on the credit arrangement.

Yet another issues centers around questions about the extent to which a fund manager may itself participate in default remedies.  For example, could the fund manager assign itself to be the transferee of the interest where there is a material capital account balance, taking all the windfall for itself?  There are potentially significant contractual and fiduciary limitations in this area, so consult carefully with counsel before acting in this manner.

Our best closing advice is to get a health check.  Have you reviewed your default provisions with fund counsel lately?  Default provisions have come a long way in the last few market cycles, and if this area of your fund agreement has remained untouched for several vintages, the default provisions probably do not reflect the “latest and greatest” techniques being deployed.  This is an unusual area of the fund agreement inasmuch as investors are generally aligned with the fund manager to provide greater protections and remedies to the fund; unless the investor plans to be the defaulting investor, updating it serves to both help ensure the fund is fully capitalized to make investments, and create stability within the investor group.

Key Insights

On executing deals in the pandemic: The venture capital market is very connected. Although, for instance, Vietnam has managed COVID really well, it’s still difficult to fly to that country from Singapore or Indonesia. This makes doing deals in these markets nearly impossible even with COVID being managed.

On building a portfolio in an evolving market: As a firm, we have always looked closely at consumer behavior across Southeast Asia. … Leveraging data allows us to follow these trends closely and find investment opportunities accordingly.

On which COVID adaptations may be here for good: Currently, our investment team spends more time on desk research. This is an interesting development, because desk research and expert reviews give a more neutral view on the scalability of a business. Deeper research will definitely remain an important part of the investment process.

Read Full Commentary from Michael Lints

On June 25, 2020, various U.S. agencies and the Federal Reserve Board issued a new final rule to revise the 2014 rules, adopting several new exclusions, most notably an exclusion for “qualifying venture capital funds.”[1]

The venture capital exclusion being enacted now in 2020 is intended to support capital formation, job creation and economic growth to small businesses and start-ups, and to help ensure that banking entities can indirectly facilitate this activity (through investments in venture funds) to the same degree that banking entities can do so directly.[2]  Promoting these investment and development activities for the U.S. economy is a worthy goal, and the Volcker Rule had the unfortunate consequence of curtailing such activities.  Given that the Volcker Rule was designed in general to reduce systemic risk to the financial system, of which from our vantage point we see relatively little such risk arising from investing in venture capital funds, we view this is as a somewhat overdue acknowledgement and course correction of the overbroad nature of the 2014 rule as pertaining to these sorts of investments.

Under the Final Rule, a banking entity is permitted to invest in “qualifying venture capital funds,” in general defined as any fund that meets the “exempt reporting adviser” definition of a “venture capital fund”.  This likely creates an additional incentive for venture capital sponsors to stay inside that exemptive definition (for example a venture fund that does secondaries and is considering increasing the proportion of secondaries investments over 20% of fund capital would stand to fall outside this definition, and would have to query if changing strategy is worth it as against being able to attract banks as investors in their fund).

If a bank invests in a venture capital fund, the bank’s investment in, and relationship with, the fund must comply with certain rules regarding material conflicts of interest, high-risk investments, safety/soundness and financial stability.  Finally, while less common, if a bank wants to establish and act as sponsor of a venture capital fund, or be an investment adviser to such a fund, additional rules and disclosure requirements apply.

[1] A copy of the Final Rule is available at https://www.fdic.gov/news/board/2020/2020-06-25-notice-dis-a-fr.pdf, and becomes effective on October 1, 2020.

[2] Final Rule, pg. 11.

Three Year Holding Period for Carried Interest

This blog has previously discussed how to structure a fund manager’s carried interest, meaning the contractual right of a fund manager to receive a percentage of the fund’s profits that is unrelated to any capital commitment. Prior to the enactment of the TCJA, both carried interest holders and capital interest holders were entitled to long-term capital gains rates (for individuals, generally 23.8% at the federal level) on gain from the sale of a portfolio company held longer than one year. However, the TCJA introduced a new three-year holding period requirement solely applicable to carried interest in the fund context. If an investment fund holds stock in a portfolio company for three years or less and sells it at a gain, the fund manager will now be taxed on its share of the gain allocated in respect of its carried interest at short-term capital gains rates (for individuals, as high as 40.8% at the federal level).

In order to mitigate the impact of the new three-year holding period, many fund agreements drafted after the enactment of the TCJA provide fund managers with the option to waive their right to receive carried interest from an investment that does not meet the three-year holding period. In return, fund managers have a right to receive a corresponding increased amount of future appreciation in investments that do meet the three-year holding period requirement. In ideal circumstances, this would permit a fund manager to achieve the same results economically while avoiding the higher tax imposed on short term capital gains. The waiver is typically drafted such that limited partner investors are generally not disadvantaged (e.g., the fund manager generally cannot waive interest or other ordinary income, or gain from the sale of investments held for one year or less).  It should be noted, however, that this strategy involves inherent risks. Catch-up allocations of profits must derive from appreciation in portfolio company equity after the waiver is made, making the catch-up entirely contingent on future upside.  There is no guarantee that the fund’s investments will continue to rise in value (or will rise in value in an amount equal to the waived carry), in which case the fund manager will not have new gains to completely (or partially) recover the waived carry. In addition, this structure has not been blessed by Treasury or the IRS, and may be subject to challenge by the IRS, or may be prohibited by future legislation. Nevertheless, managers we work with are somewhat regularly inserting this architecture in their existing and/or new partnership agreements and will decide whether to utilize the waiver depending on the facts at the time of an exit.

Passive Foreign Investment Companies

U.S. investors in non-U.S. corporations that are classified as passive foreign investment companies (“PFICs”) are subject to special anti-deferral rules under U.S. federal income tax law.

At a high level, a foreign corporation is a PFIC if either 50% or more of the foreign corporation’s assets are passive assets (such as cash, securities, or certain intangible assets) or 75% or more of the foreign corporation’s grossincome is passive income (such as dividends, interest, and certain rents or royalties). Technology companies, life science companies, and other IP-driven companies are often categorized as PFICs because these businesses are less likely to generate any active income during the early stages of their life cycle but can often generate passive interest income.

Typically, a U.S. investor in a PFIC is required to recognize ordinary income instead of capital gain as well as interest charges upon a distribution from the PFIC or a disposition of its stock. These are harsh consequences that can significantly decrease an investor’s profits on an eventual disposition. However, a U.S. investor can avoid these consequences by making a “QEF Election”, which will cause the investor to be currently taxable on the net income of the PFIC (whether or not distributed). Many PFICs have little or no net income, so the practical cost of this election is often minimal. In addition, an investor with leverage may be able to negotiate for distributions from the PFIC in order to pay its tax liability.

When investing in a foreign corporation, it’s important for a U.S. fund to request covenants in the deal documents that require the foreign corporation to cooperate to manage any negative tax consequences to the U.S. fund (or its investors) that could result from the corporation being a PFIC. The foreign corporation should be required to consult with U.S. tax advisors to determine if it is a PFIC on a yearly basis. This can be a complicated analysis that requires detailed information about the corporation and the corporation’s shareholders.  Accordingly, the foreign corporation is in the best position to make this determination. The deal documents should require that, if the foreign corporation determines that it is a PFIC, the foreign corporation will provide its U.S. investors with any information that they need in order to fulfill their tax reporting obligations or make a QEF Election. Taking these steps could help mitigate the negative consequences that otherwise arise from investing in a foreign corporation that is treated as a PFIC.  

Controlled Foreign Corporations (CFCs) and Global Intangible Low-Taxed Income (GILTI)

U.S. investors in foreign corporations should also consider whether those corporations are classified as controlled foreign corporations (“CFCs”). A foreign corporation is a CFC if U.S. shareholders each owning at least 10% of the corporation’s voting power or value (“Significant U.S. Shareholders”) collectively own over 50% of the total combined voting power or value of the corporation’s stock. This determination is made by applying a complex constructive ownership regime, pursuant to which shareholders can be attributed ownership by certain related parties.

If a foreign corporation is a CFC, its Significant U.S. Shareholders will be taxed on their share of certain types of income of the CFC (whether or not distributed). In the past, CFCs were only taxed on certain types of income (known as “Subpart F Income”), which includes dividends, interest, and certain income generated from related party sales and services. However, the TCJA greatly expanded the scope of current taxation to Significant U.S. Shareholders by creating a new, shareholder-level tax based on the CFC’s global intangible low-taxed income (“GILTI”). GILTI generally includes all of the income of a CFC that is not Subpart F Income (other than a deemed modest return on tangible property).

When investing in foreign corporations, investment funds should carefully consider the impact of their choice of investment entity. When determining if a foreign corporation is a CFC, a U.S. partnership is treated as a separate entity and all stock owned by the U.S. partnership is included to determine whether the partnership is a Significant U.S. Shareholder and the foreign corporation is a CFC. In contrast, a foreign partnership is disregarded as a separate entity for CFC testing purposes and each of its partners are treated as owning a proportionate amount of the stock held by the foreign partnership. As a result, an investment by a U.S. partnership is more likely to cause a foreign corporation to become a CFC than an equal investment by a foreign partnership, even if the ultimate beneficial owners of each investment are the same. 

New tax rules now treat domestic partnerships like foreign partnerships for purposes of applying the GILTI rules, meaning the U.S. partners of domestic partnerships can account directly for GILTI and if no U.S. partner is a Significant U.S. Shareholder, no GILTI tax should apply.  Proposed tax rules (which can be applied now under certain circumstances) would extend this treatment to Subpart F determinations, i.e., the proposed rules, like the final GILTI rules, would treat U.S. partnerships like foreign partnerships for purposes of determining if a U.S. partner has taxable Subpart F income under the CFC rules. However, a U.S. partnership would still be treated as a U.S. entity for purposes of testing whether a non-U.S. company has the status of a CFC.  The IRS and Treasury have not yet clarified how the new CFC rules that treat a U.S. partnership like a foreign partnership will impact PFIC reporting and PFIC taxation,

Funds with U.S. investors should require a foreign portfolio company to determine its status as a CFC each year, and to covenant to assist each U.S. investor of the fund to determine if it is a Significant U.S. Shareholder if the foreign portfolio company is a CFC. In addition, the foreign corporation should be required to provide its Significant U.S. Shareholders with the information that they need in order to comply with their tax reporting obligations and determine the amount of any current income inclusions. Funds making significant investments in a portfolio company may be able to require the portfolio company to make tax distributions to cover any tax triggered by the CFC rules, although distributions to cover GILTI tax are not common in our experience.

For any business, one’s good name is one of its most essential assets.   That is especially true in venture capital, where, according to a 2004 study[1], firms with high reputations are much more likely than others to have their startup funding offers accepted.  A VC firm’s name or logo is a symbol of its reputation, and trademark law protects the goodwill those identifiers embody.

As more and more VC firms and other financial services firms come into being, protecting the uniqueness of their names has become increasingly important.  Indeed, as of May 2020, there are over 5,000 applications or registrations with the U.S. Patent and Trademark Office covering venture capital services. 

Having a name that stands out from the crowd and protecting that name by trademark registration can help a VC firm safeguard its valuable reputation and position in the industry.  

Choosing a Unique Distinctive Name

One of the most critical steps in the formation of a new VC firm is choosing a name.  A VC firm should have a memorable name that differentiates itself from others in its field.   Bad things can happen when a firm chooses a name like someone else’s.  If the other business is hit with bad publicity, the similarly named firm’s reputation may suffer from such confusion, or it may have to spend time and effort explaining that it isn’t the guilty party.  If a firm chooses a name like another’s, it could also face an infringement suit costing $1 million or more to defend, which is also very time-consuming and distracting to management’s attention.  

Once a name is chosen, trademark counsel should do a thorough search at the outset to help minimize the risks of confusion and infringement claims.  What is “infringement” is notoriously subjective, and trademark searching is an art. An experienced trademark lawyer won’t just give you a list of trademarks that came up in a search – he or she should give you an assessment of the risk and, where applicable, strategies for reducing it. Using a “low-cost,” cookie-cutter search service is false economy, and often will cost more in the long run.

When a firm is fixated on a particular name – whether because of its meaning, for sentimental reasons, or because a desirable domain name is for sale – that can complicate the selection process and increase expense.  Too often the name that seems “perfect” is unavailable – because someone else thought it was “perfect,” too.  There are workarounds like coexistence agreements, purchases of trademark rights, and licenses, but they always cost money and the firm often ends up with a name that’s far from unique.   

It’s best to avoid names that describe what the firm does, because the law generally doesn’t allow businesses to monopolize descriptive terms as trademarks.  Descriptive names like “Biotech Partners” or “Bay Area Ventures” can’t be protected as trademarks – if at all – unless they have developed enough recognition over time to have “secondary meaning” as brands.  Instead, choose a distinctive name.

What matters most is to select a unique and distinctive name that the firm can own exclusively.  Keep in mind that the meaning of a business name is not the one in the dictionary – it’s the meaning the people who make up the business put into it by developing a strong reputation.

Logos and Tag Lines are Trademarks, Too

Distinctive logos and tag lines also identify a business and its products, and they can be protected just like word trademarks.  Before investing in a logo or tag line, it’s important to do appropriate searching, and applying for registration as with the name to ensure that you are well protected. 

Benefits of Trademark Registration

Once the searching is done and the firm chooses a strong and unique name, it should take advantage of the protection of federal trademark registration.  While trademark rights in the U.S. come from using a mark to identify one’s goods or services, a federal trademark registration enhances those rights with a number of legal benefits.  They include:

• The nationwide right to use the mark for the services listed in the registration, with priority as of the filing date.  Unregistered or “common law” trademark rights only extend as far as the geographic area in which the business trades.
• A legal presumption that the mark is valid and the registrant is its exclusive owner.  This usually makes it easier and cheaper to pursue infringement claims in court.
• A public record of the registrant’s rights, which can discourage others from trying to adopt a similar mark.
• A defense against others’ claims of trademark infringement.  As noted above, infringement cases can cost $1 million or more to defend, and a registration can help a business defeat a claim early or dissuade others from claiming infringement in the first place. 
• Protection against registration of similar marks.  The Patent and Trademark Office will refuse registration of marks that it finds are likely to cause confusion with earlier-filed marks.
• Constructive nationwide notice of the registrant’s rights as of the registration date, which keeps later users from trying to claim that they adopted their marks in good faith. 
• A basis for seeking foreign registration of the mark – important for any business that operates outside the US.
• Enhanced monetary remedies when suing infringers in federal court.
• The right to use the ® symbol, denoting a federal registration. 

While it’s not necessary to have a lawyer file a trademark application, the process is filled with pitfalls and traps for the unwary, so it’s best to have experienced trademark counsel do it.  After an application is filed with the U.S. Patent and Trademark Office, an examining attorney will review it and search for conflicts with earlier-filed marks.  It’s not unusual for examiners to raise issues about the application.  Examiners may flag problems that may not exist in the real world – for example, an examiner may refuse a VC firm’s application because of a similarly named hedge fund or wealth management firm.  Experienced trademark counsel can help anticipate and avoid those issues or address an examiner’s concerns. 

Registrations will protect a mark for defined goods and services.  Because VC firms provide advice to their portfolio companies as well as capital, we typically apply to register their marks for business advisory services as well as venture capital services.  Where firms offer other services, like incubator services, educational seminars in a particular field, blogs, or podcasts, the trademark application should cover those, as well.

Protecting Your Trademarks Abroad

If you plan to conduct business outside the U.S. or license your mark to others, it’s important to protect your trademark by registering it in all foreign jurisdictions in which you plan to operate.  Otherwise you could be at the mercy of trademark squatters, infringers, and unscrupulous local partners.  International trademark protection doesn’t have to break the bank if done according to a well-thought out strategy. 

Policing Your Brand

Once you’ve invested time and energy in developing your good name, you’ll want to protect that investment.  If others adopt names like yours, that can cause confusion or harm to your reputation.  Your trademark counsel can subscribe to a watch service that will identify applications for similar trademarks so that your counsel can take appropriate and swift action to defend your marks. 

Your personnel and their contacts are on the front lines of your brand protection, so it’s important that they know what to do when they see a possible infringer.  There should be a point person to whom they can report possible infringements, and who can then alert counsel. 

If someone is infringing your trademark, it’s important to take quick action.  If you delay, and the infringer itself starts to become invested in the mark, it will likely be harder to get it to find a new name.  Also, if two businesses use a similar mark over a sustained period of time without substantial evidence of confusion, a court may decide that the marketplace has sorted out the difference between the two, and decide there’s no infringement.  As a result, the brand loses its uniqueness, and becomes less valuable. 

In Conclusion

Because it embodies the goodwill and reputation that a successful business develops over time, a trademark – whether a word, a logo, or a tag line – is one of a firm’s most important and valuable assets.  Choosing a distinctive trademark, searching to ensure others aren’t using it, and registering it are important steps for every VC firm to take.

[1] D. Hsu, What do Entrepreneurs Pay for Venture Capital Affiliation, The Journal of Finance (Aug. 2004), p. 1085 https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1540-6261.2004.00680.x (“Offers made by VCs with a high reputation are three times more likely to be accepted, and high-reputation VCs acquire start-up equity at a 10-14% discount.”). 

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As we enter the month of May, federal, state and local governments are signaling that restrictions may be loosened soon, such that certain businesses may be able to resume operations at their workplaces in coming weeks or months. While the details will differ based on how each location eases its restrictions, we recommend that employers start planning ahead now as to what a return to the office might look like. 

On April 17, we published an article highlighting a number of general issues for all employers to consider as they draft their return to office plans. This blog expands on some of the items covered in such article and highlights specific considerations for U.S-based venture capital firms.

1. When we are allowed to return to the office, how do we decide who returns?

This decision will first be impacted by how applicable restrictions are lifted. Firms should review all relevant federal, state and local orders to determine the parameters of who will be allowed to return. Some orders, for example, are only letting businesses reopen at 25 or 50% of their prior capacity. Higher-risk individuals, as identified by the CDC or other sources, may be ordered to continue to shelter in place to protect their health.

Once you have determined who you are legally permitted to allow back into the workplace, make a list of the employees who will be asked to return. Which of the firm’s critical functions cannot be successfully performed from home? Which teams need to come into the office at least occasionally to complete their tasks efficiently? 

Also consider the communication, sequencing and structure of the return. Will you have all employees return at once or allow them to return slowly in phases? Will you require employees to return or ask them to? Should the managing partners and other teams be divided into subgroups that come into the office on differing days or weeks, so that if one individual is infected the potential exposure to the entire team can be contained? 

2. What if an employee voices concern about returning to the office and asks to work from home?

If an employee is hesitant to come in, we suggest allowing them to continue working from home to the extent they can do so productively. The federal government’s guidelines on “Opening Up America Again” suggest that for the first 2 of 3 phases of returning to work, employers encourage and use telework options as much as they can while maintaining productivity. We anticipate any state or local orders will advise similarly.  

We anticipate that firms will be able to accommodate a request to work from home for most investment professionals, back office employees and administrative assistants. Especially if those employees have demonstrated during the shelter in place that they can be trusted to get their work done, we suggest allowing them to continue to work from home until they feel comfortable returning to the office.

However, some tasks must be performed in the office. For example, a firm may insist that a receptionist return to the office to perform his or her duties. For other job positions, management may determine that in-person meetings will be required for certain purposes. Management may determine that productivity is better during in-office  performance, for various reasons, and set minimum expectations for attendance. Firms may set these requirements, and employees generally cannot refuse a reasonable expectation and continue working on their own terms.

However, in responding to an employee’s refusal to come into the office, consider the following laws:

• Disability Discrimination Laws. Certain qualified disabled employees may request a reasonable accommodation, under the Americans with Disabilities Act (ADA) and, in the case of California based firms the California Fair Employment and Housing Act (FEHA) (consider other similar laws in your state if not California), to permit them to continue performing essential functions of their position remotely, in order to avoid a significant risk of substantial harm to the employee.  Employers have a duty to provide reasonable accommodations, absent undue hardship, and must engage in an interactive process with the employee to determine what accommodations may be possible. Employers may require medical substantiation of the impairment and risk of harm.  Ultimately, after the interactive process, the employer decides what, if any, reasonable accommodation will be attempted.  Refusing a request for an accommodation, or failing to conduct the interactive process, could lead to liability. A firm may begin the interactive process before employees are asked to return to the office. The federal Equal Employment Opportunity Commission (EEOC) has suggested use of an Attendance Survey in advance of returning to work, which may prompt employees to make accommodation requests in advance.  Firms should seek legal advice before using such a survey. Employees cannot be asked to disclose previously unknown impairments.
• The Occupational Safety and Health Act. Under the federal Occupational Safety and Health Act, and certain state analogs, employees have a right to refuse work assignments if they can show that the firm did not meet its duty to provide a safe and healthy workplace. This issue could arise with any employee returning to the workplace.  Some employees may resist returning to the office simply on the basis of age (per CDC recommendations for those age 65 or more), even without an impairment requiring the duty to accommodate a qualified disabled employee. The employee would have to show all of the following: (i) the employee genuinely believes an imminent danger exists in the workplace; (ii) a reasonable person would agree that there is a real danger of death or serious injury; (iii) the employee asked the firm to eliminate the danger and the employer failed to do so; and (iv) the circumstances are such that the issue cannot be corrected through regular enforcement channels.  Note that if the firm follows CDC and local health guidelines, and enforces the firm’s social distancing protocol when employees are together in the workplace, employees may not be able to show an imminent danger, or that the firm failed to meet its duty to provide a safe and healthy workplace.  Any California employer should update and apply its Injury and Illness Prevention Program, in order to show that obligations for workplace inspections, employee training and communication, and hazard investigation and abatement are being met under current health and safety requirements.  Non-California employers should consider any similar state laws.
• The National Labor Relations Act. If individual contributor employees refuse to come in, and communicate with other employees about it, or ask for their support, they might have a claim that any adverse action taken against them is retaliation for engaging in protected concerted activity under the federal National Labor Relations Act. In that case the firm should continue dealing with each individual request on its own merits, and treat the employees identically to similarly situated employees.   

Even if none of the above laws are implicated, if an employee is refusing to come in and has no reasonable or protected basis for doing so, the employer may consider such refusal insubordination.  While under ordinary circumstances, at-will employees may find themselves summarily terminated for flatly refusing a reasonable work assignment, these are not ordinary times. During the initial return to the office phases, employers may consider less drastic measures, simply for employee relations and firm culture purposes.  Instead of termination, the firm may be able to negotiate a part-time work from home arrangement with prorated pay, until the concerns in question subside, or put the employee on an unpaid personal leave. The employee should be ineligible for unemployment if the firm has clearly offered full-time employment but the employee refuses without good cause. In this case “good cause” is determined by the state’s unemployment insurance agency.  Again, if the firm is following all of the CDC and County Health Department directives, and enforces the firm’s social distancing protocol when employees are together in the workplace, the employee may not be able to show good cause for refusing the work.

3. What if an employee cannot work, either in the office or remotely?  When do we have to let the employee take a leave of absence?

Employees may be unable to return to the office or work remotely due to personal circumstances involving themselves or a family member, and having nothing to do with a risk or fear of entering the workplace due to COVID-19.  Such reasons can include the employee’s illness or that of a family member, or caretaking obligations related to dependents. 

Almost every venture firm is already familiar with paid sick leave laws enacted in the last few years, entitling employees to take paid time off for specified illness and safety reasons.  However, because of typically small workforces, many venture firms have been insulated from having to learn and apply the intricacies of the Family and Medical Leave Act (FMLA) and state analogs.  That insulation is gone for the rest of 2020.

Congress has enacted a temporary expansion of FMLA to reach all small and mid-size employers, for paid child care leave purposes related to COVID-19.  A companion expansion requires paid sick and dependent care leave for certain purposes related to COVID-19. The Families First Coronavirus Response Act (FFCRA)  allows employees to take up to an additional 2 weeks of paid sick leave if the employee is unable to work or telework for certain COVID-19 related reasons and up to an additional 10 weeks of paid family care leave if the employee is unable to work or telework because their child’s school or daycare is closed. See our prior alerts on the FFCRA here and here.

Upon an employee’s request to stop work, or reduce working time, the firm should consider why the employee is unable to work or needs to reduce working time, and assess whether that entitles them to take a limited leave of absence, whether paid or unpaid. Make sure to examine all applicable federal, state and local sick leave laws, including the FFCRA, as well as the firm’s own leave policies, to confirm what type of leave or leaves an employee may be entitled to take.

4. As we start work on a return to the office plan do we have to consider privacy laws, particularly if we plan to ask employees or visitors to disclose any medical or travel history?

The Americans with Disabilities Act (ADA) and state privacy laws impose privacy protections that will apply to certain inquiries involving COVID-19. 

The EEOC has some helpful guidance regarding the ADA and COVID-19 here.  We focus on that guidance below, although certain state laws may impose additional restrictions.

Firms may generally ask employees about COVID-19 symptoms. Initially the EEOC listed symptoms such as fever, chills, cough, shortness of breath, or sore throat. Current EEOC guidance advises: “As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.”

The EEOC also states that, given the current pandemic, employers may take employee temperatures and may also administer COVID-19 tests as they become available. However, firms must maintain the confidentiality of any medical information obtained. Such information should be stored separately from the employee’s personnel file, with other confidential medical records such as doctor’s notes, and leave requests. If a firm chooses to administer a COVID-19 test, it should ensure the test is accurate and reliable and should consult FDA and CDC guidance in making that determination.

Employees may be instructed not to return to the office if they have COVID-19 or are under observation pending a diagnosis. Those employees will clearly be entitled to sick leave under the FFCRA and other sick leave laws, and also likely under any firm sick leave policy. Such employees can be asked to provide a fitness for duty release once they are released to return to work.

Screening office visitors is not covered by the EEOC, but must be considered in order to protect employees and provide a safe workplace. As a practical matter, visitors invited to the office could be sent a symptom questionnaire in advance, to avoid having to confront them at the front desk with a personal questionnaire. Providing a temperature check at the front desk may also be considered, and certainly should be conducted if employees are required to undergo temperature checks.

Closing Thoughts

As venture capital firms plan for an eventual return to office, they will need to take a number of issues into consideration. Our discussion above is by no means exhaustive and does not, for example, cover the considerable changes firms will have to make to their physical facilities to implement social distancing. Consult our April 17 article for these and other considerations.  Local county health officers have published guidance on these and related issues.

Most crucially, the extent to which firms can return employees to the office, and the manner by which firms can do so, will be dictated by federal, state and local orders that are issued in the coming weeks and months. These orders may be difficult to interpret or reconcile with each order.  Consider working with counsel to prepare a draft plan now and revise the firm’s plan in compliance with those orders once they are released.

As much of the world shelters in place, nearly every client conversation we have with our venture capital fund clients comes around to some version of the questions “what are you seeing” and “will all of this impact our fund raising plans”.  We acknowledge the lack of clarity, at present, regarding the eventual duration and depth of the global health pandemic, and the associated impact on financial markets.  Nonetheless, as we are now several months into these events, we thought it timely to provide our observations, initial in nature as they may be, regarding the present market for venture capital fund raising.

As background, our commentary here is based on interactions with hundreds of venture capital firms, all differently positioned.  The punch line of the situation is that the impact of COVID-19 on fund raising will inevitably interrelate with a manager’s particular attributes: investment area of focus, geography, size, performance, LP base, investment team composition and location, amount of dry powder and proximity to natural fund raising time, and cash position of portfolio companies, among others.  In addition, further developments in coming weeks and months in regard to macroeconomic conditions are also likely to factor into fund raising outcomes, particularly in respect of the potential association of the public markets’ performance with ability and desire of institutions to commit to private investments (the “denominator effect”).  The snapshot from our seat at the table looks something like this:

Timing of Fund Raising

As the pandemic unfolded, managers were in various stages of fund raising: some were in market already, some were soon to be, some had plans to go out later in 2020 and others had no such near term plans at all.  Those that were already in market and on their way to their targets were best positioned to proceed and, with rare exception and not surprisingly, those deals have had the desired outcome for the sponsor.

As to funds being offered by established sponsors that were about to launch as the pandemic unfolded, in general we have seen more of them continue unabated, perhaps with slight adjustments to timing or target capital amounts.  We are heartened to have seen some major closings including a billion dollar plus “one and done” a few weeks into U.S. shelter in place orders, and we are likewise enthusiastic about the near-term 2020 pipeline.  We are not hearing from essentially any prominent managers in important investment sectors that they are making major changes to near-term 2020 fund raising plans, though in select cases minor changes might include small modifications to timing or the holding of an additional closing to accommodate latecomers with logistical delays due to the pandemic.

Where established funds were scheduled to launch later in 2020, a demand for a closer look at unfunded reserves and the adequacy of current capital for continued operations may arise, and managers are often being asked by LPs to be transparent and to disclose a thesis as to why additional capital is needed in the planned time frame.  These managers may need to focus on explaining how they are working with portfolio companies to manage cash flow (thus indirectly reducing pressure on fund raising until a later time).  Where there is a chance to push fund raising out in time to where there might be more clarity, not only regarding the course of the pandemic but also on valuations, that has been the preferred choice of some managers; however in at least a few cases managers are electing to accelerate fund raising based on cash needs or in some cases a view that it is better to go out before there might be even more uncertainty in financial markets.  Interestingly, we note that some projects have also sprung to life on theses that are tied directly to an intent to capitalize on market dislocations (e.g., overcorrections) or with conviction based on anticipated lower valuations in future rounds of outstanding private companies.  This is a new trend in our experience likely tied to “lessons learned” following the previous global financial crisis.

While the sample is more scattered, we sense hesitancy and are discussing various types of changes in plans among pure “emerging” managers who were in process or planning initial funds in the history of their franchises.  We’ve had a number of related discussions tapping into our prior experiences in down markets and how emerging managers successfully or unsuccessfully navigated those choppy waters to meet their fund raising goals and LP base construction.  At a minimum, some of the family offices or high net worth individuals that might have been the target audiences for emerging manager deals are reassessing their programs, and “go slow” orders do seem to be cropping up in some instances.  On the other hand, we have already successfully closed first time funds during shelter in places times, including funds that were oversubscribed and engaged in cutbacks.  So while the situation for emerging managers is not a “nuclear winter” by any means, in some cases there is evidence of more caution on behalf of investors and the need on the part of managers to proceed thoughtfully.

Market Segment and Past Performance

Drilling in slightly deeper, for funds about to be in market as the pandemic was declared, the investment area of focus, construction and dynamics of the management team as well as performance (as always) have seemed most pertinent to the outcome.  The pandemic for now has arguably created “winners and losers” at the portfolio level; those managers focused on areas such as ed-tech, health care, remote enterprise, online entertainment, semiconductors, online communications and other similarly related sectors have in our recent experience mostly been encouraged by investors to go ahead with fund raising especially where there is any potential for a delay to leave the firm with inadequate dry powder for any period of time.

On the other end of the spectrum, managers focusing or overweight in consumer discretionary, retail, travel, hospitality, offline entertainment and the like have faced resistance in some cases, particularly where there is any perception that additional capital would be used to support distressed companies.  Notably, more venture managers are technology and life sciences focused, as compared to retail and consumer, and inasmuch, the industry may prove somewhat resilient to current macroeconomic events.

The LPs’ Point of View

Our observation from an LP standpoint has been that, in general, investors are continuing to go ahead with their process for deals that were significantly advanced (for example, where on-site due diligence had already been completed).  Many of them appear to have taken note, looking back to 2008 and the aftermath of the financial crisis, of the value of having dry powder to make investments as purchase price multiples level off and then drop during times of crisis.  Savvy firms we work with are highlighting this.  For example, a prominent Silicon Valley venture manager recently highlighted at their annual meeting, held online, that they continued to invest at an ordinary if not heightened pace through the 2001 and 2008 down cycles and investors were very much better off for it.

Regarding deals scheduled to go out later in 2020, it remains to be seen if on-site due diligence will be successfully replaced by remote due diligence, to the extent global travel does not resume in the near term, and if not, how that impacts fund raising.  With that said, as we witness fund managers pivot fairly successfully to remote operations, as well as to remote investor relations (i.e., web-based annual and LPAC meetings, etc.), it seems promising that a mere lack of travel will not itself have a materially detrimental impact on fund raising later this year, especially for those firms that have been nimble enough to efficiently and effectively migrate their flow of work to remote.  One key for LPs will likely be whether they have already “been in business” with the particular fund sponsor in prior funds, or at least have had an in person visit with the team prior to the current lockdown on in person meetings, providing additional headwind for emerging managers as well as a potential headwind for established managers looking to increase their LP roster.

Another trend to point out is that the industry, pre-pandemic, has been responding to a landscape where private companies stay private and require support longer, as borne out by the formation and use of a myriad of SPVs and top-up funds to capture late stage investments in portfolio winners.  We have not seen that currently abate, and if anything, some managers that may have done one-off SPVs in the past (especially where their focus is on in-demand market sectors), or may have simply let later stage opportunities go to others, may take this as a chance to launch a growth fund product.  Accordingly, there is the potential for a convergence of views and motivations: LPs understand the impact of the 2008 downturn on valuations and want access to these opportunities; and GPs have access to allocations in these sorts of deals and want to capitalize on that.  Multiple products we are working on that are either in market now or coming to market soon will offer top-up fund vehicles to capture this perceived opportunity, and in general we think the trend of strategically raised SPVs and top-up funds is very likely to continue, if not expand.

A further observation relates to the “denominator effect”.  During the global financial crisis, many LPs significantly curtailed their investments in private funds as they became overweight as public markets fell.  Commitments were cancelled and relationships were pruned.  Our perception was that in many cases this was quite formulaic and rigid.  While we have seen a small handful of institutions back out of recent deals specifically citing being overweight in privates, we are encouraged and hopeful that the rigidity of the position held in 2008 may have shifted.  It would seem that taking into account post-2008 IRRs in the space, this is savvy.  Many LPs have indicated to managers we work with that they now have greater, in some cases much greater, ability based on internal policy to break target limits where there is public market stress, so as to be positioned to capitalize on the potential for favorable private valuations moving ahead.  We think this is healthy, and are glad to hear it.  This evolving area deserves continued focus.

Finally, we have been watching developments as they relate to geography.  Of the hundreds of venture firms we represent, somewhere around 15% of them are Asia-based.  These firms and especially mainland China firms are a cycle ahead of U.S. firms, in the sense that their shelter in place orders came sooner, and have for now been lifted.  We watch with interest the trend lines as these firms get back to business, at least for the time being.  The initial observations are promising, in the sense that the return to work flows, and the resumption of investing if not fund raising, seem to us for now like a “V shaped bottom”.  This area deserves continued monitoring and we intend to watch Asia venture capital fund trends for potential signals about the U.S. market.

Advice to Managers

Our general advice to venture capital fund managers who are thinking about fund raising plans for 2020 or beyond is to assess your own unique situation, and talk to your investors.  We have found that sometimes managers have assumed LPs would desire a fund raising freeze only to discover through analysis and discussion that, in fact, LPs wanted the manager to push ahead, if not also accelerate and/or create extra opportunities for later-stage deals.  This is clearly not what every manager will discover on thoughtful diligence with their LPs, however it is important now more than ever to spend time having these detailed and honest conversations with LPs and formulating strategies around what is learned from them.

We are aware of a small number of prominent managers that are in frank conversation with their well-known investors, and highly institutional limited partners in certain of these cases have agreed to particular timing with respect to current or future fund raising plans, including delays in planned fund raising, made feasible by ready dry powder in existing funds.  The wisdom of this type of collaboration is plain: doing the right thing for your investors nearly always makes sense in the long run, and we imagine that such managers will be well served by this collaboration when they do return to market.

The extended filing deadline for Form ADV remains the same as under the prior order (May 14, 2020), however, the conditions have been simplified such that:

• Fund managers are no longer required to provide a description of the reasons why meeting the regular deadline is infeasible.
• Fund managers are no longer required to provide an estimate of when the filing is expected to be made.

Under the new order, to be eligible for Form ADV and brochure delivery extension, ERAs and RIAs need only meet the following conditions:

1. Fund managers must be unable to meet the original deadline due to circumstances related to current or potential effects of COVID-19.
2. Fund managers must promptly provide the SEC with a notice to the effect that they are relying on the SEC extension, in an email to IARDLive@sec.gov.
3. Fund managers must also post the same notice on their website (or provide such notice directly to investors and clients if no website is available).

The exemption period for RIAs filing of Form PF has also been extended.   The March 13th order covers such filings due by April 30, 2020; while the March 25th order covers such filings due by June 30, 2020.

To be eligible for the extension for Form PF filings, RIAs are now required to meet the following conditions:

1. Fund managers must be unable to timely file Form PF due to circumstances related to current or potential effects of COVID-19.
2. Fund managers must promptly provide the SEC with a notice to the effect that they are relying on the SEC extension, in an email to FormPF@sec.gov.

Additional details may be found at:  https://www.sec.gov/rules/other/2020/ia-5469.pdf.

RIAs’ brochure delivery and updating deadlines have also been extended, as have RIAs’ Form PF filings that would otherwise be due during the exemption period (March 13 – April 30, 2020).

New Deadlines.  Since the relief applies to multiple filing deadlines, the SEC states the extension as: “as soon as practicable, but to no later than 45 days after the original due date….” 

For annual Form ADV amendments otherwise due on March 30, 2020, this extension is until no later than May 14, 2020. 

Conditions.  To be eligible for the Form ADV and brochure delivery the extension, ERAs and RIAs must meet the following conditions:

1. You must be unable to meet the applicable deadline due to circumstances related to current or potential effects of COVID-19.
2. You must promptly provide the SEC an email notice that you are relying on the SEC extension, along with a brief description of the reasons you could not meet the regular deadline and an estimate of when you expect to comply. The email address is IARDLive@sec.gov. 
3. You most also post on your website the information required in the email to the SEC. Advisers without a website must provide notice directly to fund investors and any other clients.

To be eligible for the extension for Form PF filings, RIAs must meet the following conditions: 

1. You must be unable to timely file Form PF due to circumstances related to current or potential effects of COVID-19.
2. You must promptly provide the SEC notice that you are relying on the SEC extension, along with a brief description of the reasons why you could not file Form PF on a timely basis and an estimate of when you will make the filing.  The email address is FormPF@sec.gov. 

Additional details may be found at:  https://www.sec.gov/rules/other/2020/ia-5463.pdf.

Key insights

On how US/China trade tensions are impacting VC investing: China tech and healthcare investments into the US have dropped 90% as a result of trade tensions. In the meantime, more European and Southeast Asian companies are fund raising in China.

On the economic impact of coronavirus: Many businesses are adversely impacted given China and, increasingly, many countries across the globe are taking a cautious approach to control spread of the virus. The financial market had its biggest drop since 2008. In some sectors, we have seen an uptick in their business, including online education, food delivery and, in the healthcare sector, diagnostic and lab tests, to name a few. Companies that have filed for an IPO have delayed, as it is difficult for management teams to go on roadshows with the quarantine requirements. We had a Shanghai Stock Exchange Science and Technology Innovation Board (STAR Market) virtual IPO recently, where the official ceremony was postponed but the trading of the stock began and performed very well. We hope things will be back to normal soon.

VC deal terms favoring investors: The investment pace has definitely slowed down in Q1 in China, but we are still seeing activities as investors perform their due diligence online and through video conference. One of our companies just closed a $100 million round, and one received six term sheets last week. 

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The Cayman Islands published the Private Funds Law 2020 on February 7, 2020 and further amended it on July 7, 2020.  Most importantly, the Law requires certain Cayman Islands private funds to register with the Cayman Islands Monetary Authority (“CIMA”).  This requirement covers most closed-ended funds formed in Cayman Islands, including typical venture capital and private equity funds (though certain exceptions exist for single-LP funds, holding vehicles, and a few other less common situations).  Failure to register can result in penalties including a fine of approximately US$122,000.

For existing Cayman funds that will have first called capital by such date, the deadline to complete registration is August 7, 2020.  Any funds formed or first calling capital thereafter are required to file a registration application within 21 days of initial closing, and to complete the entire registration process prior to making an initial capital call for investment purposes.

Details of the registration process remain to be released by CIMA.  We anticipate that in practice legal counsel will assist fund managers to register their Cayman funds where needed as part of the ordinary fund formation routine.  Once registered, an annual fee will apply (though not in 2020).  The amount of the fee remains to be specified, but as a point of reference open-ended funds (i.e., mutual funds, hedge funds, etc.), who have been required to file for some time now, pay about US$4,500 per year.

There are some other requirements of the Law to take note of.  Implicated funds must:

• Prepare annual audited financial statements and have local Cayman auditors “sign off” on those (this requirement has existed for some time for open-ended funds; the ordinary working practice is that the long standing offshore auditors, PwC or whoever, will get their local counterparts to sign off on what they prepare, usually in a transparent manner to the fund manager in an efforts sense, and often with no additional cost); and
• Submit to CIMA the signed-off financial statements and a summary of fund information in the format prescribed by CIMA within 6 months of financial year-end.

We will update this blog post with more details when known.

With that in mind, at a high level, there are three things to consider generally when structuring management fees: first, what is the amount of those fees; second, when in time do those fees start and end; and third, will the amount of fees reduce (i.e., “step down”) at some point in time reflective of perhaps a lesser level of work later in a fund’s lifecycle.

As to amount, management fees are typically based on an agreed percentage rate applied to an agreed capital base, and are usually described annually in the legal agreements (though in terms of cash payment they are most often divided up and paid quarterly or semi-annually).  In actively managed venture capital funds, the market rate is 2.5% of aggregate committed capital in the first part of a fund’s life.  This is contrary to say the buyout side of private equity where you often hear “2/20”, i.e. where the fee rate is often 2% instead of 2.5%.  Rates in venture capital funds are quite regularly 2.5% reflective of the fact that whereas a buyout fund may have a very large committed capital base and do 5-10 investments over its lifespan, a venture capital fund usually has a smaller capital base, often much smaller, and over time can make a quantity of investments on the magnitude of 2-3x that of a private equity fund.  In short, there is a lot to do, and where the capital base is more modest, management fees are not typically a source of a high degree of residual profitability over fixed expenses, if any.  With that said, in some very large venture capital funds (say $750 million and north), fees can sometimes drop to 2.25% or 2%, though depending on the size and nature of the organization, even these larger funds may often have a fee rate of 2.5%.  The preceding is widely applicable in the United States and Asia venture capital markets (as to USD-denominated funds); in Europe there may be more tendency for fees in venture capital funds to be in the 2% range, possibly reflective of a much smaller overall industry and an accordingly less degree of market term separation from private equity.

As to the start time for the payment of fees, they are often assessed from the initial closing (including retroactively for later admitted investors) though sometimes they are assessed beginning later, such as from the time of first capital draw or first investment.  This is somewhat dependent on the strategy in raising the fund and the expected time at which the team will start looking to place opportunities therein.  If the predecessor fund is out of dry powder and therefore necessarily the fund being raised will be the place where the next new opportunity is taken down, then there is significant justification for fees from the initial closing.  The team is after all “working” for the new fund already, in the sense they are out there sourcing deals for it; as such, the justification for payment of fees is clear.  In other situations, an existing fund may have remaining available capital for a couple of new deals, and there is an intent to put identified opportunities into the existing fund accordingly.  In this situation, the new fund is being effectively raised but put on the shelf, so as to be ready when capital is needed without any chance for a period of time without capital for new deals.  Where this is the case, a later inception of fees in the new fund may be warranted.

One also needs to consider when fees end.  This is a point that has been undergoing some change in the last 5-10 years, and may be subject to some negotiation.  There are three ending times that are most common: at the end of the natural term (say, 10 years in); at the end of any extensions to the term (say, 12 years in); or at the final liquidation of the fund (say, 13 years in).  In the last couple of years, we have seen increasing instances in which fees are paid all the way to final liquidation, albeit often at much lower rates than initially (see below, regarding fee step downs).  The theory here is that there is work to be done, someone needs to do it; and that is not free to provide, nor should it go unpaid for.  We see a number of venture capital funds with whom we work collecting fee to final liquidation on this basis, more in number than was the case some years ago.

Finally, there is the issue of the potential for fees to reduce (i.e., “step down”) at some point in time.  This is usually at the time that investments in new portfolio companies ceases, and the venture fund enters a period where it is doing solely follow-on investing and harvesting.  The theory in reducing the amount of management fee at that time is primarily that there is less work to be done, and secondarily, as a corollary thereto, that there is likely to be a successor fund providing a “full” fee base and therefore it is not necessary to collect high fees in the fund that has reached this level of maturity.  One way or another, most venture capital funds do have some “step down” concept.

A connected issue is, where fees reduce, how is that done exactly?  There are three ways the reduction in fees can be accomplished: the percentage rate can be reduced and the capital base can be left unchanged (a “rate step down”); the percentage rate can be left unchanged and the capital base can reduce (a “base step down”), or both the percentage rate and capital base can be reduced (a “double step down”).  In the years immediately following the reduction, say years 5-10 or 5-12, double reductions are quite uncommon and usually reflect quite a bit of lack of negotiating leverage on the part of the fund manager.  This is versus reductions during liquidation, where a double reduction is more common.

So, again focusing on what happens at or around year 5, in almost all cases it will be one or the other of a rate step down or a base step down.  Most venture capital managers will prefer a rate step down.  The reason is that this leads to a situation where one can state with specificity (at least from the time of final closing when the capital base amount is known) the exact amount, in dollars, of management fees in later years.  Since management fees are meant to be used for fixed expenses (think rent, equipment, hiring staff) and are usually consumed fully in furtherance of those expense requirements as opposed to leading to retained earnings, not knowing the dollar amount fees you will get in say year 6 (as would be the case where those fees are some percentage of a capital base not known until that time) is an extremely hard position for a manager.

With that said, while savvy investors understand this and will work to support the needs of the managers they invest in, they often prefer a base step down.  Their point of view is that no matter how low a percentage rate drops, it may be inappropriate to apply any rate to the full committed capital base later in the lifecycle when there are few remaining investments.  With that said, especially in smaller venture capital funds (say, $500 million and south), usually the method of rate step down prevails.  Sometimes, a compromise may be agreeing to a double reduction in the liquidation period to address the foregoing concern very late in the fund’s life.

It is important to get these concepts right.  We have found that getting them wrong can amount to “penny wise, pound foolish”, in extreme cases, hampering a manager’s chance of success.  What we mean by that is, investors put fund managers in business.  They pay a lot in fees to do that, no matter how negotiations on the above issues work out.  Fees are needed to compete for talent in the marketplace.  It is a shame to see negotiations to reduce fees result in a situation where the fund manager can’t hire and retain the “A” team from a compensatory standpoint.  Careful attention to market norms can assure the manager avoiding a competitive disadvantage, yet doing so in a way that is respectful of the investors’ perspectives on these matters.

The answer lies in a set of provisions that reside in the fund’s partnership agreement.  We generally refer to these as “LP governance rights”.  The common theme is that these LP governance rights represent ways in which LPs can take action if, in fact, they do become deeply concerned about the fund’s prospects or the conduct of the manager.

LP governance rights are best thought of as a suite of options.  Not all of them will exist in every fund agreement, but usually some of them will.  They can differ based on the duration of engagement between investors and the fund manager and the adherent level of trust that has developed over time amongst the parties, or for other reasons (including business leverage and precedence of prior funds).  It is safe to say that where investors are very demanding of attaching unusually strong LP governance rights to a deal, they probably have a heightened level of concern about issues of team stability, trust or just generally a lack of familiarity with the manager.  Certain investors may, internally and in light of their nature, be prone to requesting stronger than middle-market LP governance rights; for example managers of public pension or sovereign wealth assets may have strong legal or fiduciary reasons for such requests compared to private sources of capital.

So, what encompasses this suite of options comprising LP governance rights?  At a high level, there are three broad categories to be aware of: (1) provisions which can lead to the fund’s investment period ending prior to its scheduled time; (2) provisions which can lead to the fund’s entire term culminating early and the fund being completely shut down; and (3) provisions which leave both the investment period and overall term of the fund intact but cause the existing fund manager to be replaced with a new fund manager of the investors’ choosing.  Let’s examine each of these in turn.

Termination of the Investment Period

In a typical venture capital fund, an investment period will apply.  This is the period of time after closing, usually four to six years in duration, that the fund may make investments in brand new portfolio companies.  Beyond this time, only follow-on investments will be permitted.  The goal is to ensure that the fund can liquidate reasonably on-time, say after ten to twelve years.  That won’t be possible if investments in brand new portfolio companies, especially early stage ones, are made late in the fund’s lifecycle.  The investment period duration regulates this.

An investment period may end early if a fund becomes fully invested ahead of schedule, but from an LP governance perspective, there are two ways it might end even earlier.

The first is in association with a key person event, in which a certain number or particular persons of a select group of the fund’s investment personnel are no longer meeting their time devotion to the fund (usually substantially all business time) or are no longer managers of the fund.  For example, perhaps a fund is targeting 30 investments, and has five professionals expected to identify and nurture, on average, six deals each.  It might be the case that investors would tolerate some level of departures and still be comfortable with the team’s ability to fulfill the investment mission, but what if a supermajority of the five investment professionals has left and replacements have not been found and approved?  It may no longer be feasible to invest in 30 deals if these departures happen a couple of years into the investing cycle.  In many agreements, this happenstance, called a “key person event,” may call for the suspension of the investment period either automatically or by LP / Advisory Committee vote.  During this suspension period, the manager seeks to find replacement talent or otherwise formulate and propose some go-forward plan.   After exhausting efforts to find suitable substitute talent over a period of time, the fund’s investment period will terminate under the fund’s governing documents.  In this case, the remaining team will stay in place to guide the fund’s investments that have been made to fruition, but the investment period will terminate and opportunities in new portfolio companies cannot be pursued.

The second way an investment period may end earlier than scheduled is upon an investor vote.  This term is present in only a minority of deals to begin with, but where it is seen, it will almost always require bad conduct on the part of the fund manager team (“cause”, in industry parlance), usually proven in court, arbitration or a similar tribunal to the stage of final adjudication.  Very infrequently, it may be the case that a supermajority of investors may vote to terminate the investment period without any such cause.  It’s worth careful emphasis to highlight that this is a very uncommon clause, and one that most venture capital managers will not agree to.  The position is usually that such a punitive action should require wrongdoing and not be arbitrary, especially where venture fund managers by their lengthy mandate invest in and contract for long duration assets and obligations (offices leases, etc.) that can be difficult and costly to unwind.

Termination of the Fund

Whereas investment period termination is usually driven by a concern over the ability to make all of the contemplated investments, as reflected in a typical set of key person provisions, if concerns run deeper, the investors may in exceptional circumstances wish to completely terminate the fund.  If this occurs, the fund is liquidated and the securities – marketable and nonmarketable – are simply distributed in kind to the investors in connection with the winding up of the fund.

This remedy is in fact truly exceptional inasmuch as investors typically do not desire to hold private venture-backed securities in their portfolios.  This is what they hire fund managers to do, and they are often ill-prepared to take this on, especially if they are outside the domicile of the investments (like a UK pension fund trying to deal with U.S. portfolio securities).  In addition, the diffused, small positions that each particular investor may receive are not likely to carry the weight of the position as a whole that was previously held by the fund (think of things like the leverage to obtain a board seat or major investor rights); and the act of seeing the positions to fruition through follow-ons or if not disposing of them privately, perhaps in a secondary transaction at a discount, are not terribly appealing either.  So this remedy is reserved, in application, for the most serious situations.  Reputable fund managers need not lose much if any sleep that such a provision will be acted on.

The flip side is, in light of this sort of “natural bias” on the part of investors to call for application of the termination right, it is in fact often able to be exercised without cause.  In comparison to say a right to terminate the investment period or substitute a fund manager for no cause, the strong “downside” of enacting the fund termination serves as a natural check and balance.  The result is that in the industry, a majority of venture deals have no-fault termination rights.  These are usually on supermajority investor votes – perhaps as high as 85% in interest.  Sometimes, the right to terminate the fund in entirety on a lesser vote is seen where there is adjudicated cause and/or after a key person event – perhaps in these cases, on a 66% vote.

Replacement of the Fund Manager

The final type of LP governance right we see in venture capital deals involves an option for investors to replace the fund manager (often referred to as “GP removal”).  Where this happens, the fund will continue, but under the supervision of a new manager they choose.  The former manager is likely to retain some carried interest and possibly some transitional management fees, but won’t be involved in the going-forward management of the fund and ultimately will be likely to cede some economics, perhaps to a significant degree, to the new manager.

Some deals, especially in the case of emerging managers or managers struggling in fund raising, have some sort of removal and replacement right, almost all of which run off adjudicated cause.  In this case, following that sort of final determination in court of a serious bad act, a supermajority vote may lead to the right to remove and replace the fund manager; provided that in some deals where the bad conduct is resulting from a particular team member and that team member is terminated, the removal right may disappear (it being intended that an otherwise well-run organization shouldn’t be punished as a whole for basically “lone wolf” type conduct that isn’t pervasive in the firm).  Investors may ask for no-fault removal and replacement rights on a high supermajority vote – 85% or north, for example.  In reality, this type of provision is highly infrequent; a positive number yet approaching somewhere close to zero percent of deals we see today have this sort of provision.  As with no-fault investment period termination, most managers are simply unwilling to concede that they can be put out of business where there is no adjudicated bad conduct.

In the case of a removal and replacement right, whether for cause or otherwise, the departing manager is almost always afforded carried interest in the prior deals (often up to 100% though in some cases less) and sometimes a transitional amount of management fees permitting the outgoing manager to gracefully wind down operations.  These provisions are meant to be a deterrent to enacting the removal rights, such that those rights are invoked only where circumstances truly warrant it.

A Suite of Rights

In the end, most deals will have some collection of the above rights.  Having no such LP governance rights is rare, as is having everything listed above in any particular deal.  Fund managers and investors are well advised to cooperate to put in place a standard set of provisions encompassing some of the above and as the situational facts dictate.  In deals where provisions are too favorable for LPs, team retention issues may result.  That is to say, an excellent investment professional at the top of her game may not be satisfied to work at a firm where provisions can be enacted, especially on a no-fault basis, to effectively shut the company’s doors.

Some of the most significant changes effected by FIRRMA will not take immediate effect, and may not be implemented for up to 18 months.  When FIRRMA’s changes come into effect, however, CFUIS’s expanded jurisdiction will be broad enough to reach foreign funds as well as U.S-based funds with foreign limited partners.

CFIUS Overview

CFIUS is an inter-agency U.S. government committee chaired by the Department of the Treasury tasked with reviewing acquisitions of and investments in U.S. businesses by non-U.S. persons and entities to determine whether such transactions will have a detrimental impact on U.S. national security.  Where CFIUS determines that a transaction within its jurisdiction raises security concerns, it can require the parties to mitigate those security risks (e.g., by requiring the U.S. business to divest sensitive assets, or requiring the foreign investor to relinquish board representation on the U.S. business).  In extreme cases, CFIUS can recommend that the President block or suspend a transaction, or even unwind a transaction post-closing.

Historically, CFIUS has focused its reviews on “traditional” national security concerns, such as foreign investments in U.S. defense contractors and acquisitions of companies that deal in technologies controlled under U.S. export laws.  In recent years, the government has grown increasingly concerned that CFIUS lacks the authority and resources necessary to address evolving national security risks, including efforts by foreign actors to access foundational and emerging technologies (e.g., artificial intelligence, virtual reality, autonomous vehicles) and sensitive information (e.g., personal and health data of U.S. citizens).

Congress drafted FIRRMA to limit access to important U.S. technologies and sensitive information through foreign investment, without unduly deterring the flow of foreign investment into the United States.  Whether FIRRMA and its implementing regulations will strike an appropriate balance between those dual goals remains to be seen.

Broadening CFIUS Jurisdiction to Include “Other Investments”

Prior to FIRRMA’s enactment, CFIUS’s jurisdiction was limited to transactions that could result in a foreign person gaining “control” of certain U.S. businesses.  FIRRMA broadens the scope of CFIUS’s jurisdiction to include “other investments” that do not require a foreign person gaining control of a U.S. business.

Only Applies to Certain U.S. Businesses

FIRRMA establishes the fundamental rule that to be an “other investment” the investment must be in a U.S. business that:

 (1) owns, operates, manufactures, supplies, or services critical infrastructure;

 (2) produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies; or

 (3) maintains or collects sensitive personal data of United States citizens that may be exploited in a manner that threatens national security.

The terms “critical infrastructure” and “critical technologies” will be further defined in forthcoming CFIUS regulations that may not come into effect for up to 18 months.  FIRRMA’s definition of “critical technologies” includes categories of technology that already are subject to U.S. export control laws, as well as an as-yet-undetermined list of “emerging and foundational technologies.”  While the list of emerging and foundational technologies will be developed pursuant to a new U.S. government inter-agency process and with input from CFIUS, “critical technologies” likely will include capabilities associated with artificial intelligence, quantum computing, virtual and augmented reality, autonomous vehicles, encryption, and nanoscale technologies, all of which have been the focus of recent attention by CFIUS.  The definition of “critical technologies” may also include emerging financial services (i.e., “fintech”) sectors, including cryptocurrency and blockchain technology, especially where the business interconnects with sensitive personal data of U.S. persons.

Direct or Indirect Investment by Foreign Person That “Affords” Certain Covered Rights

To be an “other investment,” the investment must be a direct or indirect investment by a foreign person.  Therefore, a fund manager must assess whether the subject fund itself is a foreign person and whether such fund has any foreign person investors.

Under current CFIUS regulations, a “foreign person” means any “foreign national,” “foreign government,” “foreign entity,” or any entity controlled by any foreign person or group of foreign persons that are related or act in concert.  A “foreign entity” is an entity that is organized under non-U.S. law and has its principal place of business outside the U.S., or its equity securities are primarily traded on one or more foreign exchanges.  Notably, however, the term “foreign entity” does not include an entity that, notwithstanding the satisfaction of the criteria above, can establish that a majority of its equity interest is ultimately owned by U.S. nationals.

A fund will be controlled by a foreign person if the fund’s general partner (“GP”) itself is a foreign person or if the GP is controlled by a foreign person.  Additionally, a fund can also be deemed controlled by a foreign person if an LP or group of LPs controls the fund.  A determination of “control” will hinge on whether there is power to decide important matters, which may include investment decisions, management of portfolio companies, dismissal or compensation of the GP, dissolution of the fund or operating budgets.

In order to fall within CFIUS jurisdiction, the direct or indirect investment by a foreign person must also afford such foreign person any one of the following:

 (1) access to material non-public technical information of the business;

 (2) membership or observer seat on board of directors or similar body; or

 (3) any involvement (other than through the voting of shares) in substantive decision making regarding the use, development, acquisition, safekeeping or release of sensitive personal data of U.S citizens maintained or collected by the U.S business, the use, development, acquisition or release of critical technologies, or the management, operation, manufacture or supply of critical infrastructure.

“Material nonpublic technical information” is defined under FIRRMA as information that is not available in the public domain and that “provides knowledge, know-how, or understanding . . . of the design, location, or operation of critical infrastructure” or “is necessary to design, fabricate, develop, test, produce, or manufacture critical technologies, including processes, techniques, or methods.”  In other words, it is information that would provide a foreign person access to the kinds of critical infrastructure and critical technologies that Congress intended FIRRMA to protect.  Significantly, however, material nonpublic technical information does not include “financial information regarding the performance” of a U.S. business, so basic financial data that a fund would ordinarily receive regarding a portfolio company and potentially report to its LP investors should be excluded from that definition.

General fund strategy documents or descriptions of U.S. business portfolio companies also probably would not qualify as material nonpublic technical information, unless those documents or descriptions would provide a foreign LP insight into critical infrastructure or critical technologies that would not be available to the general public.  Going forward, funds wishing to remain firmly outside of CFIUS’s review jurisdiction should carefully consider the types of information distributed to LPs to ensure that technical information about the U.S. business is omitted from those distributions whenever possible.

Pending further guidance, questions exist regarding what “affords” means in the context access, membership or involvement in the enumerated matters, especially how this construction will be applied to indirect investment by foreign person LPs.  For example, “affords” may not be limited strictly to contractual rights, but may take into account other facts and circumstances.  For example, it may include information access certain investors obtain in due diligence or influence certain strategic investors of a fund may have in connection with rights to meet with portfolio company management.

Clarification Regarding LPAC Membership

FIRRMA includes a specific clarification regarding a foreign LP’s membership on a fund’s limited partner advisory committee (“LPAC”) or similar body.  Specifically, a fund’s investment in a covered U.S. business is not an “other transaction” solely by reason of having a foreign LP who sits on LPAC or has the right to appoint LPAC representatives, so long as (a) the foreign LP does not control the fund (i.e., no power to approve, disapprove or control investment decisions or GP decisions with respect to portfolio companies or to unilaterally dismiss, select or determine the compensation of, the GP), (b) the GP is not a foreign person and is the exclusive manager of the fund, (c) the LPAC has limited powers (i.e., no power to approve, disapprove or control investment decisions (except waivers of conflicts, allocation limits, or similar activity) or GP decisions with respect to portfolio companies), (d) the foreign LP has no access to material nonpublic technical information through LPAC, and (e) the foreign LP is not otherwise afforded covered rights.

It is important to note that the clarification for LPAC participation is not a broad exemption for investment funds, but instead narrowly states that LPAC status of a foreign LP does not by itself cause a fund’s investment to fall within the “other investment” category so long as the conditions described above are met.  Additionally, the provision does not address the situation where the fund itself is a foreign person.

Introducing Mandatory Declarations

Another key innovation introduced by FIRRMA is the concept of a “mandatory declaration” for certain transactions, including “other investments” in which a foreign government will directly or indirectly acquire an as-yet-undefined threshold interest in a U.S. business.  While CFIUS has historically permitted voluntary notice of transactions, under FIRRMA parties to a transaction will be required to file mandatory declarations with CFIUS in advance of closing for investments in which a foreign investor directly or indirectly acquires a “substantial interest” in a U.S. business, and a foreign government has a “substantial interest” in the foreign investor.  Although the term “substantial interest” will be defined in forthcoming regulations, FIRRMA provides that a “substantial interest” will not include an interest that is less than a 10 percent voting interest or an interest arising from an investment that meets the requirements for exclusion from the definition of “other investment” under the LPAC rule.  Notably, the 10 percent voting interest threshold for “substantial interest” will apply both to the foreign government interest in the foreign investor, and to the foreign investor’s interest in the U.S. business.  In other words, the mandatory declaration requirement would not be triggered in cases where a foreign government controls less than 10 percent of the voting interest in a foreign investor, even if the foreign investor will acquire a greater than 10 percent voting interest in a U.S. business.

An exception to the requirement for mandatory declarations is also available for investments by investment funds if the GP of the fund is not a foreign person and is the exclusive manager of the fund, and if any foreign person serves on the LPAC of the fund, the foreign LP does not control the fund and the LPAC has limited powers.

Finally, FIRRMA gives CFIUS discretion to require a mandatory declaration for any “other investment” transaction involving foreign access to “critical technologies,” another term that has yet to be defined.  Because FIRRMA leaves this and other important terms to be defined pursuant to future regulatory action, FIRRMA’s provisions calling for mandatory declarations will not come into immediate effect.

Considerations for Fund Managers Going Forward

Although FIRRMA’s full impact on venture capital and private equity funds will depend in significant part on the substance of the forthcoming CFIUS regulations that will implement FIRRMA’s changes, funds that anticipate making investments in U.S. technology companies should consider how their organization and participation by non-U.S. LPs in future investments will implicate CFIUS jurisdiction.  For example, funds can take steps now to ensure that (i) they are controlled by a GP that will not qualify as a “foreign person” for CFIUS purposes, (ii) any non-U.S. LPs will not have access to information about portfolio companies that would provide insight into critical infrastructure or critical technologies that is not available to the general public (including limiting access to such information in the diligence process and in connection with the granting of strategic rights), and (iii) non-U.S. LPs are not granted rights that could be construed as “controlling” the fund.

Additionally, funds with investors backed by foreign governments will want to pay close attention to the mandatory declaration requirements as the relevant regulations are implemented.

Key insights

On asking for help from your investor: Repeat entrepreneurs ask for help more frequently. When you need help, ask for it. That’s what we are here for.

On building and retaining fans of your business: Having advocates in your customers, your employees and your board is paramount to your success. As you grow, keeping these people on board is even more important.

On company growth potential: I often ask entrepreneurs: “If your company had $30 million in the bank, what would you be doing differently?” If their answer sounds like a solid and promising growth trajectory, then why aren’t we pursuing that path?

Read full commentary from Anna Patterson

A few highlights

On technology companies driving valuations to historic highs: “Software is eating the world, and it has a voracious appetite. … Against a backdrop of sweeping technological change, the right companies have an opportunity to be truly gigantic.”

On European deal term trends: “This feels like a healthy place to be. Entrepreneurs are no slaves to investors, but, equally, investors are able to exercise appropriate fiduciary responsibility on behalf of their own backers.”

On how Brexit could affect the UK startup community: “My biggest long-term concern is that a hard Brexit and nationalistic rhetoric will fundamentally damage Britain’s hard-earned reputation as a welcoming, supportive home for ambitious folk from the world over.”

Read full commentary from Suranga Chandratillake

A few highlights

On the current market: “It’s an ebullient time with plenty of cash in the ecosystem, rising valuations and – importantly – a huge wave of liquidity.”

On the future: “It feels like a gold rush mentality amongst investors right now, who are willing to fund pretty much anything that moves. What matters is how long that lasts, and it certainly can’t last forever.”

On Lux’s strategy: “Our preference is to invest in areas where we can maintain some price discipline. This means pursuing ideas that may be unpopular or outside others’ domains or, in some cases, ideating and funding companies at inception.”

On the proliferation of venture capital: “It’s not just a great time to be an entrepreneur, but a great time to be a new GP, in that you’re seeing thousands of new firms get started with individual partners from larger organizations branching off on their own or angel investors starting to institutionalize.”

Read full commentary from Zack Schildhorn

A few highlights

On the atomization of seed rounds: Often founders are raising multiple seeds – sometimes raising their institutional seed after already raising over a million dollars, whether through a “friends and family” round or a pre-seed round.

On the availability of capital: I think capital constraints are good for a company and a founder to force them to stay focused on proving the core hypothesis instead of spreading their resources and team over many different [ones].

On consumer tech: We’re actually seeing a lot of consumer companies that aren’t software based and instead operate in the real world with physical assets. … For us as a tech VC, it feels like that’s on the edge of our investment thesis.

Read full commentary from Hayley Barna

A few highlights

On deal terms: The pendulum is definitely favoring entrepreneurs and founders, which in life sciences also typically includes venture creation-focused investors.

On shifting dynamics: These trends bring life sciences terms closer to where technology terms have been in recent years – where companies and entrepreneurs have many options to play off each other.

On pharma deal flow: There’s been a real disconnect between pharma partnering and the equity capital markets recently, in particular around M&A. … If the equity markets cool considerably, I would anticipate an increase in pharma dealmaking. 

On market outlook: I think we’ll see a cooling of venture financing and public offerings through the end of 2018 with a likely resurgence in early 2019 as markets stabilize and IPO activity picks up again.

Read full commentary from Bruce Booth

Some of the most significant changes effected by FIRRMA will not take immediate effect, and may not be implemented for up to 18 months. When FIRRMA’s changes come into effect, however, CFUIS’s expanded jurisdiction will be broad enough to reach foreign funds as well as US-based funds with foreign limited partners.

CFIUS overview

CFIUS is an inter-agency US government committee chaired by the Department of the Treasury tasked with reviewing acquisitions of and investments in US businesses by non-US persons and entities to determine whether such transactions will have a detrimental impact on US national security. Where CFIUS determines that a transaction within its jurisdiction raises security concerns, it can require the parties to mitigate those security risks (e.g., by requiring the US business to divest sensitive assets, or requiring the foreign investor to relinquish board representation on the US business). In extreme cases, CFIUS can recommend that the President block or suspend a transaction, or even unwind a transaction post-closing.

Historically, CFIUS has focused its reviews on “traditional” national security concerns, such as foreign investments in US defense contractors and acquisitions of companies that deal in technologies controlled under US export laws. In recent years, the government has grown increasingly concerned that CFIUS lacks the authority and resources necessary to address evolving national security risks, including efforts by foreign actors to access foundational and emerging technologies (e.g., artificial intelligence, virtual reality, autonomous vehicles) and sensitive information (e.g., personal and health data of US citizens).

Congress drafted FIRRMA to limit access to important US technologies and sensitive information through foreign investment, without unduly deterring the flow of foreign investment into the United States. Whether FIRRMA and its implementing regulations will strike an appropriate balance between those dual goals remains to be seen.

Broadening CFIUS jurisdiction to include “other investments”

Prior to FIRRMA’s enactment, CFIUS’s jurisdiction was limited to transactions that could result in a foreign person gaining “control” of certain US businesses. FIRRMA broadens the scope of CFIUS’s jurisdiction to include “other investments” that do notrequire a foreign person gaining control of a US business.

Only applies to certain US businesses

FIRRMA establishes the fundamental rule that to be an “other investment” the investment must be in a US business that:

1. owns, operates, manufactures, supplies, or services critical infrastructure;
2. produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies; or
3. maintains or collects sensitive personal data of United States citizens that may be exploited in a manner that threatens national security.

The terms “critical infrastructure” and “critical technologies” will be further defined in forthcoming CFIUS regulations that may not come into effect for up to 18 months. FIRRMA’s definition of “critical technologies” includes categories of technology that already are subject to US export control laws, as well as an as-yet-undetermined list of “emerging and foundational technologies.” While the list of emerging and foundational technologies will be developed pursuant to a new US government inter-agency process and with input from CFIUS, “critical technologies” likely will include capabilities associated with artificial intelligence, quantum computing, virtual and augmented reality, autonomous vehicles, encryption, and nanoscale technologies, all of which have been the focus of recent attention by CFIUS. The definition of “critical technologies” may also include emerging financial services (i.e., “fintech”) sectors, including cryptocurrency and blockchain technology, especially where the business interconnects with sensitive personal data of US persons.

Direct or indirect investment by foreign person that “affords” certain covered rights

To be an “other investment,” the investment must be a direct or indirect investment by a foreign person. Therefore, a fund manager must assess whether the subject fund itself is a foreign person and whether such fund has any foreign person investors.

Under current CFIUS regulations, a “foreign person” means any “foreign national,” “foreign government,” “foreign entity,” or any entity controlled by any foreign person or group of foreign persons that are related or act in concert. A “foreign entity” is an entity that is organized under non-US law and has its principal place of business outside the US, or its equity securities are primarily traded on one or more foreign exchanges. Notably, however, the term “foreign entity” does not include an entity that, notwithstanding the satisfaction of the criteria above, can establish that a majority of its equity interest is ultimately owned by US nationals.

A fund will be controlled by a foreign person if the fund’s general partner (“GP”) itself is a foreign person or if the GP is controlled by a foreign person. Additionally, a fund can also be deemed controlled by a foreign person if an LP or group of LPs controls the fund. A determination of “control” will hinge on whether there is power to decide important matters, which may include investment decisions, management of portfolio companies, dismissal or compensation of the GP, dissolution of the fund or operating budgets.

In order to fall within CFIUS jurisdiction, the direct or indirect investment by a foreign person must also afford such foreign person any one of the following:

1. access to material non-public technical information of the business;
2. membership or observer seat on board of directors or similar body; or
3. any involvement (other than through the voting of shares) in substantive decision making regarding the use, development, acquisition, safekeeping or release of sensitive personal data of US citizens maintained or collected by the US business, the use, development, acquisition or release of critical technologies, or the management, operation, manufacture or supply of critical infrastructure.

“Material nonpublic technical information” is defined under FIRRMA as information that is not available in the public domain and that “provides knowledge, know-how, or understanding … of the design, location, or operation of critical infrastructure” or “is necessary to design, fabricate, develop, test, produce, or manufacture critical technologies, including processes, techniques, or methods.” In other words, it is information that would provide a foreign person access to the kinds of critical infrastructure and critical technologies that Congress intended FIRRMA to protect. Significantly, however, material nonpublic technical information does not include “financial information regarding the performance” of a US business, so basic financial data that a fund would ordinarily receive regarding a portfolio company and potentially report to its LP investors should be excluded from that definition.

General fund strategy documents or descriptions of US business portfolio companies also probably would not qualify as material nonpublic technical information, unless those documents or descriptions would provide a foreign LP insight into critical infrastructure or critical technologies that would not be available to the general public. Going forward, funds wishing to remain firmly outside of CFIUS’s review jurisdiction should carefully consider the types of information distributed to LPs to ensure that technical information about the US business is omitted from those distributions whenever possible.

Pending further guidance, questions exist regarding what “affords” means in the context access, membership or involvement in the enumerated matters, especially how this construction will be applied to indirect investment by foreign person LPs. For example, “affords” may not be limited strictly to contractual rights, but may take into account other facts and circumstances. For example, it may include information access certain investors obtain in due diligence or influence certain strategic investors of a fund may have in connection with rights to meet with portfolio company management.

Clarification regarding LPAC membership

FIRRMA includes a specific clarification regarding a foreign LP’s membership on a fund’s limited partner advisory committee (“LPAC”) or similar body. Specifically, a fund’s investment in a covered US business is not an “other transaction” solely by reason of having a foreign LP who sits on LPAC or has the right to appoint LPAC representatives, so long as (a) the foreign LP does not control the fund (i.e., no power to approve, disapprove or control investment decisions or GP decisions with respect to portfolio companies or to unilaterally dismiss, select or determine the compensation of, the GP), (b) the GP is not a foreign person and is the exclusive manager of the fund, (c) the LPAC has limited powers (i.e., no power to approve, disapprove or control investment decisions (except waivers of conflicts, allocation limits, or similar activity) or GP decisions with respect to portfolio companies), (d) the foreign LP has no access to material nonpublic technical information through LPAC, and (e) the foreign LP is not otherwise afforded covered rights.

It is important to note that the clarification for LPAC participation is not a broad exemption for investment funds, but instead narrowly states that LPAC status of a foreign LP does not by itself cause a fund’s investment to fall within the “other investment” category so long as the conditions described above are met. Additionally, the provision does not address the situation where the fund itself is a foreign person.

Introducing mandatory declarations

Another key innovation introduced by FIRRMA is the concept of a “mandatory declaration” for certain transactions, including “other investments” in which a foreign government will directly or indirectly acquire an as-yet-undefined threshold interest in a US business. While CFIUS has historically permitted voluntary notice of transactions, under FIRRMA parties to a transaction will be required to file mandatory declarations with CFIUS in advance of closing for investments in which a foreign investor directly or indirectly acquires a “substantial interest” in a US business, and a foreign government has a “substantial interest” in the foreign investor. Although the term “substantial interest” will be defined in forthcoming regulations, FIRRMA provides that a “substantial interest” will not include an interest that is less than a 10 percent voting interest or an interest arising from an investment that meets the requirements for exclusion from the definition of “other investment” under the LPAC rule. Notably, the 10 percent voting interest threshold for “substantial interest” will apply both to the foreign government interest in the foreign investor, and to the foreign investor’s interest in the US business. In other words, the mandatory declaration requirement would not be triggered in cases where a foreign government controls less than 10 percent of the voting interest in a foreign investor, even if the foreign investor will acquire a greater than 10 percent voting interest in a US business.

An exception to the requirement for mandatory declarations is also available for investments by investment funds if the GP of the fund is not a foreign person and is the exclusive manager of the fund, and if any foreign person serves on the LPAC of the fund, the foreign LP does not control the fund and the LPAC has limited powers.

Finally, FIRRMA gives CFIUS discretion to require a mandatory declaration for any“other investment” transaction involving foreign access to “critical technologies,” another term that has yet to be defined. Because FIRRMA leaves this and other important terms to be defined pursuant to future regulatory action, FIRRMA’s provisions calling for mandatory declarations will not come into immediate effect.

Considerations for fund managers going forward

Although FIRRMA’s full impact on venture capital and private equity funds will depend in significant part on the substance of the forthcoming CFIUS regulations that will implement FIRRMA’s changes, funds that anticipate making investments in US technology companies should consider how their organization and participation by non-US LPs in future investments will implicate CFIUS jurisdiction. For example, funds can take steps now to ensure that (i) they are controlled by a GP that will not qualify as a “foreign person” for CFIUS purposes, (ii) any non-US LPs will not have access to information about portfolio companies that would provide insight into critical infrastructure or critical technologies that is not available to the general public (including limiting access to such information in the diligence process and in connection with the granting of strategic rights), and (iii) non-US LPs are not granted rights that could be construed as “controlling” the fund.

Additionally, funds with investors backed by foreign governments will want to pay close attention to the mandatory declaration requirements as the relevant regulations are implemented.

Sounds safe, right? Not so fast. There are multiple issues to consider, and our first and foremost piece of advice for managers we work with is: don’t sign that letter.

The first issue is one of how broadly the manager’s sensitive information will be broadcast, and related, who will be the eventual buyer. The agent is ordinarily, though not always, paid in a percentage of sales fashion; and the seller of course receives the purchase price. So usually, to generalize, those parties don’t care all that much about the quality of the buyer – their sole incentive is to get the highest possible price.

The fund manager’s considerations are usually adverse to the goals of agent and seller. On the issue of how broadly the manager’s information is shared, most managers we work with tend to want to keep a tight lid on things – they would prefer their sensitive information go to a very limited pool of qualified buyers they would tend to accept as substituted LPs, and not be sent out broadly in a “spray and pray” type approach by the agent – which unfortunately we do see more often than you might imagine.

Perhaps more importantly, good managers work hard to optimize their LP base over time, favoring long-term participants who understand VC and can be a helpful asset to the fund, from the standpoint of providing knowledgeable LPAC members, to understanding the manager’s amendment and consent proposals, to helping the brand to maintain its allure over time for example both by the caliber of its name but also by reducing investor turnover in the fund. Since most VC partnership agreements cause the original investor to acknowledge that their interest in the fund is highly restricted as to transferability, and accordingly, give the fund manager broad discretion to consent (or not) to any transfer proposal, the fund manager has considerable leverage in the face of these sorts of letters from agents. In light of all of the above, most managers we work with will not agree to “sign the letter” and let the agent just run with the process.

So what to do in this situation? We recommend the following as the “gold standard” in terms of approaching a structured secondary sale run by an agent: the agent should enter into an agreement with the fund manager to which the underlying limited partner acknowledges and agrees, pursuant to which the agent commits to keeping any and all fund information confidential (this step establishes a direct contractual obligation of the agent to the fund manager, as opposed to needing to rely on the underlying partnership agreement and whatever it might say the limited partner’s responsibility is for the actions of their advisors). This “master agreement” with the agent will contain an exhibit which is the agreed upon form of NDA that a prospective buyer will need to enter into. The agent becomes required to present a list of proposed buyers to the fund manager, and the fund manager may then elect to approve one or more parties on that list. Once approved, the agent is free to go off and get the prospective buyer to enter into the agreed NDA, deliver a copy of the same to the fund manager, and then (and only then) disseminate the fund manager’s confidential information in initiation of the diligence process.

This procedure solves for the key considerations noted above that a typical fund manager is concerned about. First, it eliminates the chance for a “spray and pray” including to parties the fund manager would not accept anyway (competitors or others adverse, investors of dubious credit quality, investors that might invoke regulatory concerns, and so forth.). Second, it provides a chance for the fund manager to cull the list of prospective buyers to its preference. Will it take as a buyer secondary funds that don’t have primary programs to invest in the manager’s next fund? Difficult sovereigns or public pensions where the manager has tried hard to avoid those investors in its own fund raising? Third, it gives the manager robust contractual protection to dissuade the misuse of the confidential information – both in how it creates a direct obligation on the part of the agent, but importantly, also by enforcing the use of an agreed and acceptable buyer’s NDA.

As to that buyer’s NDA, there is often a question of whose form will be used. The agent will have a reasonable concern that if every manager insists on its own form of NDA, there is a very unwieldy process at hand (a prospective buyer of the “slate” of interests prior to starting diligence may have to sign numerous NDAs, which can be costly and impracticable). In the spirit of cooperation, many managers we work with will try pretty hard to go forward with the agent’s proposed NDA. However, there are boundaries, and in some cases, an agent (or underlying limited partner) presents an NDA that is so grossly unfair to the fund manager that pushback is necessary. A couple of good examples: a UK based limited partner in a Delaware domiciled Silicon Valley VC fund presents an NDA governed by UK law with dispute resolution in London; or an NDA that does not firmly establish the express third party beneficiary status of the fund manager to enforce its terms.

So, when you get that innocent looking letter – please think hard before just signing it. There are many important considerations to evaluate and you should focus on these issues before letting the agent and seller run freely with your sensitive information.

A few highlights

On deal terms: Generally, the terms have been company and entrepreneur favorable for a long time now, and they continue to remain that way.

On the proliferation of late-stage investors: It’s created this downward movement on stage of financing, and therefore upward pressure on what a normal Seed or Series A round looks like.

On Bessemer’s response to the influx of capital: We’re doing a lot more earlier-stage investing. The key to moving earlier is to know when to double down on your winners.

On fewer IPOs: There’s a lot more talk about companies staying private, and I don’t necessarily think that’s a bad thing … by definition if you have more time to mature, you should be more predictable and stable in your growth profile and earnings potential, which is generally more attractive to public market investors over the long term.

Read full commentary from Stephen Kraus

Let’s examine the case of a US or Asia based manager that doesn’t have an office, legal registration or any personnel in the EU – a category which fits a vast supermajority of clients we work with. If you don’t fit this category (i.e. if you have a Paris office or two staff in Belgium), this article doesn’t apply to you – your EU connectivity places you squarely inside of the scope of GDPR and you should get further, detailed professional advice. But returning to the former category, we note that, looking directly to the language of the law itself, there are three ways that a firm might be jurisdictionally “captured” by GDPR. Two can be stricken right away on our assumed facts: first, firms that are located in an EU member state (which should be read broadly to include offices, personnel or legal registrations); and second, firms that while not being technically located in an EU member state are located “in a place where Member State law applies by virtue of public international law”; the example given is operating inside a consular mission in a country outside the EU. Those which are the subject of this article should have easily passed through these first two gates.

Which brings us to the third way GDPR may apply to a firm. The law states that: “This regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to either (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or (b) the monitoring of their behavior (NTD: “their” being data subjects in the Union) as far as their behavior takes place within the Union.”

The key language above, highlighted, is “data subjects in the Union”. This plainly refers to individuals in the EU, and not entities (the GDPR concerns protection of the data rights of individual human beings, called “data subjects” in its parlance, and doesn’t extend protections to entities). So arises, essentially, a B2B versus B2C distinction. If a venture capital manager in say Silicon Valley or Beijing is marketing to high net worth individual investors inside the EU, which some but not many managers we work with do, GDPR will apply under this third jurisdictional test. However, mostly, fund managers outside the EU we work with, if marketing at all into the EU, are marketing only to entities – think that French fund of funds, and so forth. If this “B2B” marketing covers the extent of the venture firm’s activity with respect to the EU, it appears plain on the language of the law that GDPR simply does not apply. To be very clear, this would, in our view, cover even a situation where an individual associated with that French fund of funds inks his name, phone number and email address into a subscription agreement as a contact party, and so forth. Since the venture firm is outside the scope of GDPR, the law doesn’t apply even in respect of that limited capture of the individual’s information in the entity’s subscription agreement.

While analysis has been made that probably the venture manager on Sand Hill Road with a few bits of EU data is not the intended subject of GDPR, it appears there is a better position legally than just hoping for non-enforcement. This jurisdictional analysis should be the first stop in determining potential obligations under GDPR. With that said, at a broader level, GDPR is about transparency and security of data processing, and avoiding data breaches or at least as a fallback having plans to respond to such breaches quickly and efficiently. We have been working with clients recently, in no small part because of the directionality of GDPR and attendant media coverage and client relations inquiries, to update policies to a sensible, modern standard.

A few highlights

On his market outlook: Overall, I am extremely bullish as technology continues to be a major contributor to the US economy, and I do think disruptive technology and business models will continue to change many aspects of healthcare, consumer and enterprise opportunities.

On valuations: With so much capital deployed over the past several years, valuations seem to have cooled for some companies needing more time to get aligned with the “rule of 40” metrics.

On sector trends: There continues to be a demand for breakout enterprise security opportunities, multitenant cloud-based applications, artificial intelligence augmentation and robotics. We also see a huge white space in solving real-world consumer problems like urban mobility, living spaces and the future of work. We’re also tracking innovative technologies that will make healthcare more personalized, efficient and cost effective.

On exit routes: I expect, based on 2016 and 2017 data, that more often than not, companies will go the M&A route.

On M&A: Q1 2018 saw a huge increase in the tech M&A market from non-tech buyers. Transactions led by non-tech buyers nearly tripled from Q4 2017.

Read full commentary from Anna Patterson

Is your venture capital fund name a trademark?

The term “trademark” generally includes any word, name or symbol that a person or company uses to identify and distinguish its goods or services from those of others, and to indicate the source of goods or services, even if that source is unknown. The name of your venture capital firm will generally be a trademark.

What makes a name a strong candidate for a trademark?

A word or name will generally fall in one of five categories along a spectrum from weak to strong: generic, descriptive, suggestive, arbitrary and fanciful.

• A generic term is the common or class name. A generic name says “what you are,” but it does not differentiate “who you are” in the context of your business. In the context of venture capital funds, terms like “Investment Fund” would be generic terms that can never be trademarks.
• A descriptive term may describe a quality, characteristic, function, feature, purpose, or use of your business or its services. At the time it is initially used in the marketplace, a descriptive term cannot be protected as a trademark. However, over time a descriptive term can acquire what is called a “secondary meaning” and thereafter can become a trademark that indicates a single source of services. Usually this takes several years of substantially exclusive use of the term. This category of marks includes names comprised of a geographic location term (such as “California” or “Silicon Valley”) plus a generic term (such as “Ventures” or “Fund”). So for example a fund manager’s use of “Silicon Valley Ventures” fits this category. It won’t be initially protected, but it might gain “secondary meaning” with the passage of time and, later, gain the ability to become protected as such.
• A suggestive term does not immediately convey something about you and your services, but it requires imagination, thought or perception to reach a conclusion as to the nature of your business and your services. Suggestive terms are on the “inherently distinctive” side of the spectrum, which means that they can be protected as trademarks from the outset, without the need to acquire distinctiveness or “secondary meaning.” This category of marks would include names like “Future Fund”.
• An arbitrary or fanciful term is generally the strongest candidate for a trademark. An arbitrary term is an existing word that has meaning in general but no meaning in the context of the services or goods then proposed for trademark, while a fanciful term is a coined word with no prior meaning. Like suggestive terms, these can be protected as trademarks from the outset.

Depending on context, a single term can fit in various places along the spectrum. For example, “espresso” would be a generic term for a beverage. “Espresso” would be descriptive for a venture capital fund that focuses on coffee companies. “Espresso” may be suggestive for a venture capital fund that focuses on opportunities in Italy. Finally, “Espresso” may be arbitrary for a venture capital fund name that was picked only because the founders like espresso, where there is no relationship between the fund and espresso.

Is the name available for me to use?

If you have picked a generic name for a fund, it is probably available under trademark law for you to use, but you would not be able to gain exclusive rights in the common term. If you have picked a more distinctive name (descriptive, suggestive, arbitrary, or fanciful), a clearance search can help you assess whether the term is available. While you can do some preliminary searching on your own with an Internet search engine and using the United States Patent and Trademark Office (“USPTO”) website available at http://tmsearch.uspto.gov/, it is a good idea to work with an experienced trademark attorney to conduct the search and interpret the results.

In the U.S., a comprehensive trademark clearance search would investigate not only the USPTO records for similar marks used with related goods/services, but would also investigate the state trademark registries, business name directories, Internet search engines, and potentially other sources as well. It is important to consider unregistered uses in the marketplace, because trademarks rights in the U.S. can begin to accrue when a trademark is first used, even if the trademark is not registered. In trademark infringement cases, courts will look for which party has priority in trademark rights and then apply the subjective “likelihood of confusion” test. A similar “likelihood of confusion” test is applied by the USPTO in determining whether to grant a trademark registration and assessing whether two trademarks are conflicting. Keeping this “likelihood of confusion” test in mind, an experienced trademark attorney would look for confusingly similar marks (not just identical marks), as well as goods/services that are related such that the relevant public might expect them to emanate from the same source as your services (even though those goods/services may not specifically entail a venture capital fund).

Should I try to register the name as a trademark?

Registering a name as a trademark is not compulsory, but registration comes with many benefits. A federal trademark registration is evidence of your nationwide and exclusive right to use the name as a trademark in the context of your services. A registration may block later-filed applications to register confusingly similar trademarks. A registration allows you to use the ® symbol, and it may deter others from adopting similar names. The registration will generally have a priority date (seniority date) set by the application filing date, so there is a benefit to starting the process early. A federal trademark registration can be very helpful in your ability to stop others from using and registering similar names as trademarks, and it may be helpful in your defense against claims of infringement and related demands that you change your name.

What entity will own the trademark?

Because a trademark indicates a particular source of goods or services, a single entity will generally own and control all related trademarks. For example, your venture capital firm may own all of the trademarks associated with the venture capital firm name and all of the names of venture capital funds that the firm operates, even though those funds are distinct legal entities. But there are alternative ways to structure trademark ownership, in particular where there is a “unity of control” among various legal entities. There are additional legal considerations to take into account when deciding which entity will be the owner of trademarks and which entity will use a name under a trademark license from the owner, so it is best to discuss these aspects of trademark strategy with experienced legal counsel.

I’ve registered my name as a trademark, now what?

Obtaining a registration for a trademark does not mean that trademarks are “checked off” the list never to be considered again. At a minimum, there will be maintenance and renewal filings required in order to keep your registration alive. In the U.S., a filing is due between the 5th and 6th anniversary of registration, and again between the 9th and 10th anniversary of registration, and every 10 years thereafter. These maintenance filings generally require payment of a fee and submission of proof that the trademark is still in use in commerce by the owner for the specified services. It is also a good practice to subscribe to a “watching service” to be alerted to third party trademark filings for the same or similar trademarks, because, if you permit others to use and register similar trademarks, you may make it more difficult to enforce your trademark rights in the future, or even lose your trademark rights altogether. Finally, if there are licensees that use the trademark with permission from the owner, there is a duty of the owner to exercise ongoing “quality control” over the use of the mark by the licensee.

What about international expansion?

Trademark rights are territorial in nature. Generally, the trademark clearance and registration process in other countries is analogous to the process in the U.S., but there are some significant differences in local trademark laws. Notably, unlike in the U.S. where trademark rights are generally recognized on a “first-to-use” basis, many other countries have a “first-to-file” system. An experienced trademark lawyer can help you coordinate an international strategy in the event your fund has international activity.

Conclusion

Even though fund names may not warrant the same level of investment in trademark clearance and protection as “consumer-facing” trademarks, fund names still raise some important trademark considerations. If it would be disruptive to be forced to change the name of your fund, or to be limited in the manner in which you can expand use of your fund name, or to have to tolerate coexistence with others using confusingly similar names for their own related goods or services, then you should consider proactively working with experienced trademark counsel to navigate these issues.

In short, it is generally not practicable or possible for a typical venture capital fund manager to manage and operate an ERISA “plan assets” fund. Luckily, the path to avoiding holding ERISA plan assets is generally pretty clear and potentially self-executing for many venture capital funds. There are two primary ways venture capital funds generally avoid holding “plan assets”: (1) by ensuring that less than 25% of the fund’s commitments are held by “benefit plan investors”(the so called “25% test,” see below for how this is calculated) or (2) by operating as a “venture capital operating company” (VCOC, for short, also described below).

For purposes of the 25% test, three primary categories of prospective LPs will be “benefit plan investors” included in the numerator: (1) private U.S. pension funds (i.e., IBM’s retirement fund for its U.S. employees), (2) LPs investing through IRAs and other similar personal retirement vehicles, and (3) funds of funds which themselves have over 25% of their assets held by “benefit plan investors.” Amounts invested by LPs in categories (1) and (2) will count 100% towards the 25% test, whereas amounts invested by LPs in category (3) will only be counted on a look-through basis. For example, assume a venture capital fund has $100 million in aggregate capital commitments, IBM’s U.S. retirement fund subscribes for $10 million and a fund of funds which itself is 30% ERISA capital subscribes for $5 million. In this event, the aggregate investment by benefit plan investors will equal the full amount of IBM’s U.S. retirement fund’s $10 million commitment plus 30% of the fund of fund’s $5 million capital commitment ($1.5 million), or $11.5 million. Participation in this $100 million fund by benefit plan investors will be 11.5%, and the fund will satisfy the 25% test. Note that if the aforementioned fund of funds itself had 20% ERISA capital, it would not identify as or be treated as a benefit plan investor subject to ERISA and would not be counted at toward the 25% test at all. It is also important to note that for purposes of this 25% test, capital committed by the fund’s sponsor or its affiliates will be disregarded (from the numerator and denominator), unless such commitment is made by an affiliated benefit plan investor (such as the sponsor’s retirement plan). Finally, while this is not ordinary for most VC funds, if there are different classes of interests, this 25% test will be applied on a class by class basis and the fund will be deemed to hold plan assets if any one class of equity interest of the fund exceeds this 25% limit.

There are two types of non-ERISA investors that, while not actually counted towards the 25% test may still cause ERISA-related concern for fund managers: first, non-U.S. pension plans (i.e., Siemens retirement fund for its German employees) and second, U.S. governmental or public pension plans (i.e., CalPERS for California public employees). While not technically included in the 25% test, these investors may however, seek similar protections and covenants as ERISA investors that are so included.

In our experience, a majority of funds will be able to meet the 25% test and avoid holding plan assets in this manner. However, if your fund exceeds this 25% limit, then you will need to structure your fund in order to qualify and operate as a VCOC. You may also want to qualify as a VCOC if benefit plan investor commitments are close to the 25% limit, if you desire to preserve flexibility to accept additional ERISA commitments in subsequent closings and/or accommodate transfers to U.S. pension plans later in your fund’s life, or if you are contractually obligated to do so pursuant to an agreement with an ERISA investor.

In order to qualify as a VCOC, on each measurement date, more than 50% of the fund’s assets, valued at cost, must be invested in “operating companies” and the fund must hold “management rights” with respect to such operating companies, and actually exercise such management rights in the ordinary course of business. This 50% of assets test is measured initially on the date of the fund’s first long term investment and then annually during a fixed 90-day period, typically commencing on each anniversary of the first investment. If the fund does not qualify as a VCOC on such first investment date, the fund cannot later obtain VCOC status.

For VCOC purposes, an “operating company” is an entity that is engaged in the production or sale of a product or service, other than investment of capital – a requirement should easily be satisfied by most fund portfolio company investments. To have “management rights” the fund must have a direct contractual right to participate in or substantially influence the company’s management. A typical way to satisfy this requirement is secure the right to appoint a member of the company’s board of directors. however, it is also possible to satisfy this requirement holding lesser management rights, such as a board observer right, consultation, inspection and informational rights, rights to talk to management, etc. These lesser rights are sometimes encapsulated in a “management rights letter” and many fund managers as a matter of practice ask to obtain such a letter in the course of every investment (whether or not they intend to comply as a VCOC). Fund sponsors may in fact find that the board seat or lesser management rights are an attractive thing to gain and dovetail with their investment strategy and can leverage their fund’s ERISA compliance obligations to ask for such item(s). Obtaining a NVCA-type management rights letter has become standard operating procedure for venture investments.

Some ERISA investors may ask for a legal opinion from fund counsel to the effect that the fund qualifies as a VCOC as of the fund’s first investment, and the ERISA investor will not be required to fund their capital commitment until this opinion is delivered. In order to support a legal opinion, you will want the strongest suite of management rights possible for your first portfolio company investment, which under DOL guidance involves the right of the fund to appoint at least one member of the company’s board of directors.

As noted above, many venture capital funds will easily satisfy the 25% test or be able to qualify as a VCOC in the ordinary course of the fund’s business and should therefore be able to avoid holding “plan assets.” However, it is important to be aware of your LP base and invest in an approach and plan for ERISA compliance at the outset. Managing ERISA compliance upfront can be straightforward and painless, but, if caught off guard, retroactive compliance or correction can be arduous if possible at all.