Term Sheet模板(美国基金募集)

Term SheetSet forth below is a summary of certain significant provisions of the Limited Partnership Agreement of New Private Equity Fund, L.P. (the “Partnership”) and other related agreements governing the Partnership. The following summary does not purport to be complete and is subject to the detailed provisions of the Limited Partnership Agreement, the Subscription Agreement and the Management Agreement. These doc-uments should be read in their entirety by investors and are available upon request from the General Partner, who is also available to re-spond to investors' inquiries and requests for further information con-cerning the Partnership.The Partnership: New Private Equity Fund, L.P. (the "Part-nership") is a limited partnership organizedunder the laws of Delaware for the purposeof making equity and equity-related in-vestments (“Portfolio Investments”) activein [describe investment sector].Size of the Offering: The Partnership is offering $ million of limited partnership interests (the "Inter-ests"). However, the General Partner may increase or decrease the size of the offering. The minimum size of the Partnership shall be $ million.Purchasers of Interests are referred to col-lectively herein as the "Limited Partners," and together with the General Partner as the "Partners."Minimum Limited Partner Commitment: The minimum subscription by a Limited Partner will be $ million, subject to re-duction at the discretion of the General Partner, which also has discretion to reject the offer of a subscription for any reason.General Partner: The General Partner (the "General Partner")is New Private Equity Fund General Part-ner, LLC, a Delaware limited liability com-pany.Manager: The General Partner will engage New Pri-vate Equity Fund Management, LLC, a De-laware limited liability company (the"Manager"), to provide certain advisoryand management services to the Partner-ship.Term: The Partnership's term will continue untilthe tenth anniversary of the Final Closing,unless terminated sooner upon the happen-ing of certain events as set forth in the Part-nership Agreement, subject to extension ofup to two additional one-year periods bythe General Partner in the discretion of theGeneral Partner.Closings: An initial closing (the "Initial Closing")will be held as soon as practicable. TheGeneral Partner is entitled, in its sole dis-cretion, to continue to accept subscriptionsand to hold one or more subsequent clos-ings (the last one of which is referred to asthe "Final Closing") until nine months afterthe Initial Closing.Effect of Subsequent Closings: Each Limited Partner that participates in a closing subsequent to the Initial Closing will be required to contribute its proportio-nate share of all prior drawdowns (other than those used to pay Management Fees) and pay a charge equivalent to interest thereon at the rate of prime plus 2% per annum from the respective funding dates thereof to the funding date specified for the new Limited Partner.The amounts so contributed will be distri-buted to those Partners who participated in prior closings in proportion to their contri-buted capital. Any amount distributed to a Partner, to the extent it represents a recov-ery of contributed capital, will cause a commensurate increase in the amount of its undrawn commitment and will be subject to subsequent drawdown.Each Limited Partner participating in a closing subsequent to the Initial Closing also will be required to contribute its share of the cumulative amount of the Manage-ment Fee to the Manager that would have paid if it had been a Limited Partner on the date of the Initial Closing, and pay a charge equivalent to interest thereon at the rate of prime plus 2% per annum from the Initial Closing date, and any other Management Fee payment dates, to the closing date in question. Amounts contributed in respect of Management Fees (and any related amount equivalent to interest) will be paid to the Manager.Investment Period: The investment period (the "Investment Period") of the Partnership will extend from the Initial Closing to the earlier of (i) the date on which the total committed capital of the Partnership has been invested or used to pay expenses and liabilities of the Part-nership, or formally reserved for such pur-poses or (ii) the fifth anniversary of the Fi-nal Closing.Up to 15% of the committed capital of the Partnership may be designated as reserved for the purpose of making follow-on in-vestments in existing Portfolio Companies after the end of the Investment Period. Af-ter the Investment Period, further draw-downs may be made only for the purposes of funding investments committed to prior to the end of the Investment Period and which close within six months of the end of the Investment Period, or for follow-on in-vestments as described above, or for meet-ing Partnership expenses.Alternative Investment Vehicles The General Partner will have the right in connection with any investment to direct the capital contributions of some or all of the Partners to be made through one or more alternative investment vehicles if, in the judgment of the General Partner, the use of such vehicle or vehicles would allow the Partnership to overcome legal or regula-tory constraints or invest in a more tax-efficient manner or would facilitate partici-pation in certain types of investments. Any alternative investment vehicle will contain terms and conditions substantially similar to those of the Partnership and will be ma-naged by the Manager or an affiliate the-reof.Reinvestment of Capital: Proceeds from the sale or other disposition of investments other than short-term in-vestments of excess cash generally will not be subject to reinvestment and, once distri-buted, generally will not be subject to re-call. However, proceeds constituting a re-turn of capital (but not income or gain) from the sale or other disposition of a Port-folio Investment within one year of the date such investment originally was made may be reinvested by the General Partner in Portfolio Investments (including follow-on investments). In addition, if and to the ex-tent that any such proceeds are distributed, they will be added to unfunded capital commitments and again be available for drawdowns throughout the term of the Partnership to the extent otherwise permit-ted.Management Fee: The Manager will receive an annual man-agement fee (the "Management Fee"), pay-able quarterly in advance by the Partner-ship, of 2% per year based on the total capi-tal committed to the Partnership for the In-vestment Period and 2% per year basedupon unreturned capital contributions to thePartnership thereafter. Fifty percent of theaggregate amount of any fees (net of anyrelated expenses) received by the Manager,the General Partner, the Principals or anyaffiliate of any Principal from PortfolioCompanies or potential portfolio compa-nies, including directors fees, managementfees, advisory fees, consulting fees, moni-toring fees, brokers' and finders' fees, trans-action fees, investment banking fees andnet break-up fees and litigation payments, ifany, from broken deals, shall be applied toreduce the amount of future ManagementFees.The contribution of amounts applied to thepayment of the Management Fee will notreduce the capital commitment of any Part-ner.Expenses: Each Partner will be responsible for its prorata share of the organizational expenses ofthe Partnership up to a limit not to exceed$ , the payment of which will notreduce such Partner's capital commitment.The General Partner will bear the economicburden of any offering, start-up or organi-zational expenses in excess of the abovespecified amount, although the GeneralPartner may elect to have such excess ex-penses advanced by the Partnership inwhich case there will be a correspondingreduction will be made to ManagementFees amortized over the term of the Part-nership.Each Limited Partner will be solely respon-sible for its own legal and tax counsel ex-penses and any out-of-pocket expenses in-curred in connection with the organizationof, its admission to, or the maintenance ofits Interest in, the Partnership.The Manager will be responsible for all ofits own normal and recurring routine oper-ating expenses, such as compensation of itsprofessional staff and the cost of officespace, office equipment, communications,utilities and other such normal overheadexpenses. Legal, accounting or other spe-cialized consulting or professional servicesthat the Manager would not normally beexpected to render with its own profession-al staff shall not be considered normal op-erating expenses.The Partnership will be responsible for allother expenses of the Partnership including,but not limited to, the following:(i)All expenses incurred in connectionwith Partnership operations, includ-ing the purchase, holding, sale orproposed sale of any Partnership in-vestments (including legal and ac-counting fees) unless paid for by thecompany which is the subject of theinvestment and including Manage-ment Fees;(ii) Costs and fees relating to the prepa-ration of financial and tax reports,portfolio valuations and tax returnsof the Partnership;(iii) The costs of prosecuting or defend-ing any legal action for or against thePartnership, the General Partner, theManager or their affiliates;(iv) All costs related to the Partnership's indemnification of the General Part-ner, the Manager, the Principals,their affiliates and the members ofthe Advisory Committee;(v) Interest on and fees and expenses arising out of all permitted borrow-ings made by the Partnership; (vi) The costs of any litigation, director and officer liability or other insur-ance and indemnification or extraor-dinary expense or liability relating tothe affairs of the Partnership; (vii) All unreimbursed out-of-pocket costs relating to investment or di-vestment transactions that are notconsummated, including legal, ac-counting and consulting fees, and allextraordinary professional fees in-curred in connection with the busi-ness or management of the Partner-ship;(viii) All expenses of liquidating the Part-nership; and(ix) Any taxes, fees or other governmen-tal charges levied against the Part-nership and all expenses incurred inconnection with any tax audit, inves-tigation, settlement or review of thePartnership.Incurrence of Indebtedness: The Partnership may not incur any indeb-tedness other than to pay expenses or short-term borrowings to fund Limited Partners' capital contributions on an expedited basis. If a Limited Partner's capital contributions are "bridged" by such short-term borrow-ings, the Limited Partners whose capital contributions were so "bridged" shall be responsible for the costs of such borrow-ings.Distributions: The General Partner will distributeproceeds realized from dispositions of in-vestments, plus any dividends or interestincome received at least annually; however,the General Partner may retain amounts itconsiders prudent reserves to meet futureexpenses and liabilities of the Partnership.Distributions will be made in cash and inU.S. dollars or in marketable securities atthe sole discretion of the General Partner(distributions of other property may bemade only with the consent of a majority ininterest of the Limited Partners).Distributions attributable to any PortfolioInvestment will be initially apportionedamong the Partners in proportion to theirrespective percentage interests relating tosuch investment. The amount apportionedto the Limited Partners will then be imme-diately reapportioned as between the Li-mited Partners and the General Partner asfollows:(i) Return of Contributed Capital:100% to the Limited Partners in pro-portion to their contributed capital un-til they have received distributionsequal to their capital contributionsand the pro rata expenses of the Part-nership with respect to all realized in-vestments;(ii) Preferred Return:100% to the Li-mited Partners in proportion to theircontributed capital until they have re-ceived distributions equal to an 8%per annum cumulative return, com-pounded annually (the “Preferred R e-turn”) as calculated on the ir capitalcontributions and the pro rata ex-penses of Partnership with respect toall realized investments;(iii) Carried Interest Catch-up: 100% to the General Partner as an incentivedistribution (the “Carried Interest”)until the General Partner has receivedcumulative distributions of 20% ofthe net profits on all realized invest-ments; and(iv) Carried Interest:thereafter, 80% to the Limited Partners in proportion totheir contributed capital and 20% tothe General Partner as additional Car-ried Interest.Allocation of Income, Expenses, Gainand Loss: Income, expense, gain and loss of the Part-nership will generally be allocated to the Partners in a manner consistent with the distribution of proceeds from investments as described above.Co-Investment by Limited Partners: When the General Partner deems it appro-priate and consistent with the interests of the Partnership, it may provide Limited Partners with additional co-investment op-portunities. Such opportunities may take the form of senior debt, subordinated debt, equity or equity-related investments.Investment Guidelines: The Partnership will invest no more than 20% of aggregate commitments in any sin-gle Portfolio Company without the express consent of Limited Partners representing 66-2/3% of the capital of the Partnership. The Partnership will invest no more than 20% of aggregate commitments in Portfolio Companies organized outside the United States.Drawdowns: Commitments generally will be drawndown as necessary to fund investments andto meet Partnership expenses. A minimumof ten calendar days written notice (a"Funding Notice") will be given by theGeneral Partner. Each Funding Notice willspecify the funding date, amount and pro-posed use of proceeds for each drawdown,as well as provide appropriate payment in-structions.Defaulting Partners: Any Limited Partner that fails to contribute the full amount specified in a Funding No-tice within five business days of the speci-fied due date or any other payment required to be made by it to the General Partner, the Manager or the Partnership may be deemed a defaulting partner (a "Defaulting Part-ner") at the discretion of the General Part-ner. The General Partner in its sole discre-tion may waive or permit the cure of the condition causing such default subject to such conditions upon which the General Partner and such Limited Partner may agree.A Defaulting Partner will not be entitled to participate in any vote, consent or decision to be made by the Limited Partners of the Partnership or be permitted to make any further capital contributions to the Partner-ship.A Defaulting Partner may be subject to for-feitures of distributions that it otherwise would have received and may be subject to a 50% reduction in the balance of its capital account.A Defaulting Partner may also be required to sell its Interest in the Partnership to the other Partners or to a third party at its cost or another price determined to be fair and reasonable under the circumstances by the General Partner in its sole discretion.Withdrawal/ Transfer of Interests: Voluntary withdrawal by Limited Partners from the Partnership will not be permitted. In certain circumstances, however, a Li-mited Partner may be required to withdraw if its continued participation in the Partner-ship would result in a violation of ERISA or other laws or could otherwise be ex-pected to have a material adverse effect on the Partnership.The Interests will be subject to restrictions on resale designed to ensure that the Part-nership will not be required to register un-der the Investment Company Act, to ensure compliance with the laws regulating the sale of unregistered securities and to satisfy certain tax law considerations. All proposed transfers will be subject to the consent of the General Partner and proposed purchas-ers of Interests will be required, among other things, to demonstrate sufficient fi-nancial wherewithal to meet remaining drawdown obligations.Dedication of the Principals: In the event that a majority of the Principals ceases to be actively involved with the business of either the Manager or the Gen-eral Partner, Limited Partners representing 66-2/3% of the capital of the Partnership shall have the right to terminate their com-mitments (except as they relate to existing contracts of the Partnership) and to termi-nate the Partnership. The term "Principals" shall refer to and to any additional individuals who shall be ap-proved by Limited Partners representing 66-2/3% of the capital of the Partnership.Termination: Upon termination, the Partnership shall bedissolved and wound-up. The General Part-ner or, if there is no General Partner, a li-quidator or other representative (the "Rep-resentative") appointed by a majority in interest of the Limited Partners shall pro-ceed with the orderly sale or liquidation of the assets of the Partnership and shall apply and distribute the proceeds of such sale or liquidation in the following order of priori-ty, unless otherwise required by law:(i) first, to pay all expenses of liquida-tion;(ii) second, to pay all creditors of the Partnership (including Partners whoare creditors) in the order of priorityprovided by law or otherwise;(iii) third, to the establishment of any re-serve which the General Partner orthe Representative may deem neces-sary (such reserve may be paid overto an escrow agent); and(iv) fourth, to the Partners or their legal representatives.Upon dissolution, the General Partner or the Representative may in its sole and abso-lute discretion (a) liquidate all or a portion of the Partnership assets and apply the proceeds of such liquidation in the manner set forth above and/or (b) hire independent appraisers to appraise the value of Partner-ship assets not sold or otherwise disposed of or determine the fair market value of such assets, and allocate any unrealized gain or loss determined by such appraisal to the Partners as though the properties in question had been sold on the date of dis-tribution and, after giving effect to any such adjustment, distribute said assets in the manner set forth above, provided that the General Partner or the Representative shallin good faith attempt to liquidate sufficientPartnership assets to satisfy in cash thedebts and liabilities described above.If a Limited Partner shall, upon the adviceof counsel, determine that there is a reason-able likelihood that any distribution in kindof an asset would cause such Limited Part-ner to be in violation of any law, regulationor order, such Limited Partner and the Gen-eral Partner shall each use its best efforts tomake alternative arrangements for the saleor transfer into an escrow account of anysuch distribution on mutually agreeableterms.A reasonable amount of time shall be al-lowed for the orderly liquidation of the as-sets of the Partnership and the discharge ofliabilities to creditors so as to enable theGeneral Partner or the Representative tominimize the losses attendant upon suchliquidation.Clawback: To the extent that over the life of the Part-nership the General Partner has receiveddistributions in respect of the Carried Inter-est exceeding the stipulated share of aggre-gate gains from Portfolio Investments, theGeneral Partner will be liable to return theafter-tax amount of any such excess distri-butions received by it to the Partnership, fordistribution to the Partners, at the end of thePartnership's term.Other Funds: Neither the General Partner, the Principals,nor any affiliate of any Principal will or-ganize or be associated with another in-vestment fund with objectives substantiallyidentical to those of the Partnership withoutthe prior consent of the Limited Partnersrepresenting a majority of the aggregateCommitments until the earlier of the termi-nation of the Investment Period or the dateon which at least 75% of the aggregate cap-ital commitments has been drawn down oris committed to Portfolio Companies or isotherwise unavailable therefor. Indemnification: The Partnership will indemnify, to the max-imum extent permitted by law, the GeneralPartner, the Manager, each of their respec-tive directors, officers, partners, employees,affiliates and assigns and the AdvisoryCommittee, against liabilities, claims andrelated expenses including attorneys' fees,incurred by reason of any action performedor omitted in connection with the activitiesof the Partnership or in dealing with thirdparties on behalf of the Partnership if suchaction or decision not to act was taken ingood faith, and provided that such action ordecision not to act does not constitute grossnegligence, intentional misconduct, aknowing violation of law or an intentionaland material breach of the PartnershipAgreement or the Management Agreement.ERISA Considerations: Investment in the Partnership generally is open to sophisticated institutional investors, including pension and other funds subject to the United States Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Investors subject to ERISA will be required to make certain customary re-presentations or provide assurances in order that the General Partner may determine compliance with ERISA's provisions.The Partnership may be managed in a man-ner intended to qualify it for the venture capital operating company exception from the ERISA plan asset rules. Alternatively, the General Partner may decide to limit theaggregate Interests held by investors sub-ject to ERISA to less than 25%. See "ERISA Considerations."Income Tax Considerations: The Partnership expects to be treated as a partnership for U.S. federal income tax purposes. Accordingly, each Partner will be allocated its allocable share of Partnership items of income, gain, loss, deduction and expense. See "U.S. Federal Income Tax Considerations" for a discussion of the U.S. tax consequences of an investment in the Partnership.The General Partner intends to operate the Partnership in a manner such that it will not be engaged in a trade or business for U.S. tax purposes. Further, the Partnership gen-erally will use its best efforts to avoid gene-rating income or allocating income in a manner that would cause an ERISA or oth-er investor exempt from tax in the United States to recognize "unrelated business tax-able income" or "unrelated debt-financed income" for U.S. tax purposes. See "U.S. Federal Income Tax Considerations."Risk Factors: An investment in the Partnership involvessignificant risk and should be consideredonly by sophisticated investors able to meetdrawdown obligations and assume the risksof loss and illiquidity inherent with an in-vestment in the Partnership. See "Risk Fac-tors."Financial Reporting: The General Partner will provide the Li-mited Partners with annual audited finan-cial statements of the Partnership within 120 days after the end of the fiscal year of the Partnership and quarterly unaudited financial statements within 90 days after the end of each fiscal quarter (except the last). Financial statements will be prepared in accordance with accounting principles generally accepted in the United States. The fiscal year end of the Partnership will be December 31.Annual Meeting: The Partnership will hold an annual meet-ing of the Partners.Legal: Skadden, Arps, Slate, Meagher & FlomLLP shall serve as legal counsel to thePartnership and the General Partner in con-nection with the organization of the Part-nership and the offer and sale of Interests. Auditors: _______________Placement Agent: _______________Advisory Committee: The General Partner will establish an Advi-sory Committee which will include repre-sentatives from the Limited Partners. The Advisory Committee will address, among other things, certain conflicts of interest.。