Convention
Convention
Souscription au Fonds Professionnel de Capital Investissement OCCTE OCCIDEV
article L-4211-1 du code général des collectivités territoriales
ENTRE LES SOUSSIGNÉS :
- La société OCCTE, société par actions simplifiée au capital de 700 000 euros, dont le siège social est situé 0 Xxxxxxxxx Xxxxxxxx Xxxxxxx, xxxxxxxx X 00000 Xxxxxxxx, immatriculée au RCS de Toulouse sous le numéro 900 650 136, agréée par l'AMF en qualité de société de gestion de portefeuille conforme à la directive 2011/61/UE dite « AIFM » sous le numéro GP 202220 et représentée par Xxxxxxx XXXXXXX, dûment habilité aux fins des présentes, agissant en qualité de société de gestion du fonds professionnel de capital investissement OCCTE OCCIDEV.
Ci- après la "Société de gestion".
D’une part
Et :
- La REGION OCCITANIE, collectivité locale relevant des dispositions des articles L.4111- 1 et suivants du code général des collectivités territoriales, dont le siège est situé à l'Hôtel de Région, 00 xxxxxxxxx xx Xxxxxxxx Xxxx, 00000 XXXXXXXX xxxxx 0, représentée par la Présidente, Madame Xxxxxx XXXXX, dûment habilitée aux fins des présentes.
Ci-après dénommée la "Région"
D’autre part
IL EST CONVENU CE QUI SUIT :
Vu le règlement (UE) 2020/972 de la Commission du 02 juillet 2020 modifiant le règlement (UE) n° 1407/2013 en ce qui concerne sa prolongation et modifiant le règlement (UE) n° 651/2014 en ce qui concerne sa prolongation et les adaptations à y apporter,
Vu le règlement (UE) n°651/2014 de la Commission du 17 juin 2014 déclarant certaines aides compatibles avec le marché intérieur en application des articles 107 et 108 du traité,
Vu le régime cadre exempté de notification N° SA.59107 relatif aux aides en faveur de l’accès des PME au financement,
Vu le code général des collectivités territoriales et notamment ses articles L.1511-1 et L.4211-1,
Vu le code monétaire et financier et notamment son article D533-12, Vu le Règlement Budgétaire et Financier en vigueur,
Vu le Règlement de Gestion des Financements Régionaux en vigueur,
Vu la délibération du Conseil Régional N°2021/AP-JUILL/02 portant délégation du Conseil Régional à la Commission Permanente,
Vu la délibération de la Commission Permanente du Conseil Régional n° XXX en date du 21 avril 2023 approuvant les dispositions de la présente convention,
Article 1 - Objet de la convention
La Société de gestion a constitué le Fonds « OCCTE OCCIDEV » (ci-après dénommé le "Fonds"), Fonds Professionnel de Capital Investissement relevant des dispositions de l'article L.214-159 et suivant du Code Monétaire et Financier et ses textes d’application ainsi que par le règlement du Fonds.
Le Fonds est une copropriété de valeurs mobilières constituée entre plusieurs porteurs de parts à l'initiative de la Société de gestion et dont la société BANQUE FEDERATIVE DU CREDIT MUTUEL, société anonyme au capital de 1.711.279.700 €, immatriculée au RCS STRASBOURG sous le numéro B 000 000 000, dont le siège social est sis 0 xxx Xxxxxxxx- Xxxxxxxxx XXXXXXXXXX – 00000 XXXXXXXXXX, habilitée en tant que dépositaire d’OPC en est le dépositaire.
La Société de gestion gérera le Fonds selon les modalités stipulées dans le règlement du Fonds figurant en annexe 1.
Les investisseurs qui souscrivent à des parts du Fonds adhèrent au règlement du Fonds. La Société de gestion, le dépositaire et les porteurs de parts, s'engagent chacun pour ce qui les concerne, à respecter les termes de ce règlement.
La constitution du Fonds repose sur les objectifs suivants :
• Investissement en fonds propres (capital social) et quasi-fonds propres (comptes courants d’associés, obligations simples ou convertibles en actions) dans un portefeuille de sociétés ayant déjà une activité en Occitanie ou souhaitant s’y implanter ;
• Avec pour thème la souveraineté et la résilience économique autour des secteurs de l’industrie, plus particulièrement dans l’agroalimentaire, la santé, le numérique, les solutions environnementales et l’énergie.
Caractéristiques du fonds :
▪ Montant total : 50 M€
▪ Durée : 10 ans
▪ Cible : PME et ETI s’inscrivant dans une stratégie de mutation industrielle et/ou croissance externe avec de forts critères ESG
▪ Secteurs prioritaires : industrie, agro-alimentaire, santé, numérique, solutions environnementales, énergie
▪ Phase : capital-développement
▪ Montants : 1.5 M€ à 5 M€
Le Fonds a pour objectif de réunir un montant total de souscriptions de cinquante millions d'euros (50.000.000 €).
La politique d'investissement du Fonds telle que ci-dessus décrite figure à l'article 2.5 du règlement du Fonds.
La politique d'investissement du Fonds répond aux objectifs de la Région dans le cadre de sa politique de développement économique et de transformation écologique des grandes filières industrielles, et à la politique d’intervention de la Collectivité partenaire.
C'est dans ces circonstances que la Région a souhaité, dans le cadre de ses attributions pour le développement économique, souscrire à des parts du Fonds.
A cette fin, et conformément aux dispositions de l'article L4211-1 du Code Général des Collectivités Territoriales, les parties ont convenu de conclure la présente convention.
Article 2 – Engagements de la Région
La Région s'engage par les présentes, à souscrire dans les conditions ci-après, à 8.000.000 parts de catégorie A du Fonds, représentant un montant d'investissement de 8.000.000 € (huit millions d’euros) dans le Fonds.
En conséquence, la Région s'engage, à première demande de la Société de gestion formulée au cours de la Période de souscription (tel que ce terme est défini à l'article 5.1 du règlement du Fonds) :
- à lui remettre, un bulletin de souscription de parts de catégorie A du Fonds, conforme au modèle figurant en annexe 2 des présentes, dûment complété et signé par le représentant de la Région ;
- à verser sur le compte du Fonds ouvert dans les livres du dépositaire, le montant en numéraire correspondant au pourcentage de la souscription tel qu’arrêté par la Société de gestion à la date de Closing Initial du Fonds, formalisé sur le bulletin de souscription, conformément aux dispositions de l'article 7.1 du règlement du Fonds.
Le montant total des souscriptions sur fonds publics versées par les collectivités territoriales et leurs groupements ne peut excéder 50 % du montant total du Fonds. Cette limite peut être dépassée pour un fonds à vocation interrégionale, lorsqu'il est procédé à un appel à manifestation d'intérêt pour inciter des investisseurs privés à souscrire des parts du fonds ou si des dispositions spécifiques nationales ou européennes dérogent à ce plafond.
Par conséquent, la Société de gestion pourra demander à la Région l'exécution de ses engagements ci-dessus en une ou plusieurs fois au cours de la Période de souscription afin que sa souscription dans le Fonds ne dépasse pas le seuil maximum, mais puisse atteindre son montant tel que prévu ci-dessus en fonction des souscriptions réalisées par les autres investisseurs porteurs de parts du Fonds.
A chaque fois que la Société de gestion souhaitera que la Région exécute tout ou partie de ses engagements de souscription, elle l'en avisera préalablement par courrier.
La Région devra exécuter ses engagements au plus tard dans un délai de vingt (20) jours à compter de la réception de cette lettre, sauf en cas de circonstances particulières dument justifiées par la Société de gestion auquel cas le délai pourra être réduit sans pour autant être inférieur à dix (10) jours à compter de la réception de ladite lettre, conformément à l’article 7.1.5 du règlement du Fonds.
Article 3 – Engagements de la Société de gestion
La Société de gestion s'engage vis-à-vis de la Région à gérer le Fonds conformément aux dispositions du règlement de ce Fonds.
En particulier, la Société de gestion s'engage à ce que les investissements du Fonds soient réalisés conformément à la politique d'investissement mentionnée dans le règlement du Fonds et telle qu'exposée en préambule des présentes.
La Société de gestion s'engage vis-à-vis de la Région, à ne pas déroger aux critères d'investissements visés à l'article 2.5 du règlement du Fonds sans avoir reçu au préalable l'avis favorable du Comité Consultatif dans les conditions mentionnées à l'article 18.4 du règlement.
La Société de gestion s'engage également vis-à-vis de la Région à respecter les dispositions du règlement du Fonds en matière d'Appels de Fonds (tel que ce terme est défini dans le règlement du Fonds), de distribution des avoirs du Fonds, d'évaluation et de reporting, afin que l'investissement de la Région dans le Fonds réponde à ses objectifs de développement économique, ses contraintes propres budgétaires, et à ses obligations de transparence et d'évaluation de ses actions en matière de contrôle budgétaire et de légalité.
Conformément à la loi, la Société de gestion, et toutes personnes agréées par l'Autorité des Marchés Financiers agissant pour son compte, seront seules habilitées à décider des investissements et des désinvestissements du Fonds.
En conséquence la Région s'interdit d'interférer dans les choix et décisions de la Société de gestion en matière d'investissement, de suivi des participations, et de désinvestissement, sauf à demander le respect par la Société de gestion de ses engagements ci-dessus.
Article 4 – Durée du contrat
Le présent contrat est conclu pour une durée expirant à l'une des deux dates suivantes :
- soit au jour où la Région ne détiendra plus aucune part du Fonds,
- soit, si la Région n'a pas cédé ses parts avant, au jour de la clôture de la liquidation du Fonds.
Article 5 – Nullité d'une clause
De convention expresse entre les parties, dans l'éventualité où l'une quelconque des dispositions du présent contrat serait déclarée nulle ou sans effet de quelque façon ou pour quelque motif que ce soit, les autres dispositions dudit contrat ne seront nullement affectées par la nullité constatée, de sorte que, sauf impossibilité, il puisse poursuivre ses effets sans discontinuité.
Dans une telle hypothèse, les parties s'engagent d'ores et déjà à se concerter pour remédier de bonne foi à la cause de nullité constatée.
Article 6 – Non-renonciation
Le défaut d'exercice ou la renonciation expresse d'une partie d'exercer ou de faire valoir un droit quelconque dont elle serait titulaire aux termes du présent contrat ne pourra être assimilé à une renonciation par ladite partie à ce droit pour l'avenir, le défaut d'exercice ou la renonciation ne produisant ses effets qu'au titre de l'événement concerné.
Article 7 – Confidentialité
Les termes et conditions du présent contrat sont strictement confidentiels et ne peuvent être communiqués à quelque personne que ce soit, à l’exception des communications qui peuvent légitimement être exigées par les autorités compétentes, qui seraient nécessaires pour que l’une des parties au présent contrat puisse faire valoir les droits qui y figurent et à l’exception de la communication par la Société de gestion aux autres porteurs de parts du Fonds aux fins de respecter ses obligations légales et règlementaires, notamment au regard de l’égalité de traitement des porteurs de parts, ce à quoi la Région consent sans réserve.
Article 8 – Loi applicable et Compétence
Le présent contrat ainsi que les droits respectifs des parties résultant de ce dernier seront régis et interprétés conformément à la loi française.
Tous les litiges liés à la conclusion, à l’interprétation et à l’exécution du présent contrat seront de la compétence exclusive des juridictions compétentes dans le ressort de la Cour d'Appel de Toulouse.
Fait à Toulouse, le
en deux exemplaires dont un exemplaire a été remis à chacune des parties.
SAS OCCTE
Le Directeur Effectif
REGION OCCITANIE
La Présidente
Xxxxxxx XXXXXXX Xxxxxx XXXXX
Annexe 1
Règlement du Fonds Professionnel de Capital Investissement OCCTE OCCIDEV
OCCTE OCCIDEV
A FRENCH PROFESSIONAL PRIVATE EQUITY FUND
(Fonds professionnel de capital investissement)
Articles L.214-159 and seq. of the French Monetary and Financial Code
BY-LAWS
Dated: [---] 2023
Subscription for shares in the Fund is open only to Qualified Investors
WARNING
Occte (the “Management Company”) is a French simplified joint-stock company (société par actions simplifiée), authorised by the French financial markets authority (“Autorité des marchés financiers”, or “AMF”) under the number GP-202220 as a portfolio management company, acting as the Fund’s portfolio management company.
OCCTE OCCIDEV (the “Fund”) is a French professional private equity fund (Fonds professionnel de capital investissement). The Fund is not subject to the French financial markets authority’s approval and its operating rules are set out in its By-Laws.
Before investing in the Fund, you must understand how it will be managed and what special risks are entailed by the management implemented. In particular, you must have familiarised yourself with the Fund’s conditions and special terms of operation and management: (i) the investment and commitment rules and (ii) the terms and conditions for subscriptions, acquisitions and redemptions of shares in the Fund. Such terms and conditions are set out in the By-Laws, together with the conditions under which the By-Laws may be amended.
The Management Company draws your attention to the fact that shares of the Fund may only be subscribed for or acquired, directly or indirectly, by an investor falling into one of the following investor categories (hereinafter, a “Qualified Investor”):
1. an investor mentioned in article L.214-160, I of the French Monetary and Financial Code;
2. an investor whose initial subscription is equal to or exceeds €100,000;
3. an investor (individual or legal entity) whose initial subscription is at least €30,000 and who also meets one of the three following conditions:
- it provides assistance of a technical or financial nature to unlisted companies that fall within the investment purpose of the Fund with respect to such companies’ creation or development; or
- it provides assistance to the Management Company in relation to seeking potential investors or helps the Management Company with respect to seeking, selecting, monitoring or disposing of investments; or
- the person is knowledgeable about private equity as a result of prior experience in direct investments in unlisted companies or prior investment in a private equity investment fund (fonds commun de placement à risques) that was not subject to advertising or marketing (démarchage) or in a professional specialised fund (fonds professionnel spécialisé) or in a professional private equity investment fund (fonds professionnel de capital investissement) or in an unlisted venture capital company (société de capital risque non cotée);
4. any other investor, provided that its subscription for, or acquisition of, shares is made on its behalf and for its own account by an investment services provider, acting in the context of rendering portfolio management services pursuant to article L.533-13, I of the French Monetary and Financial Code.
The Management Company draws your attention to the fact that:
- the subscription of shares of the Fund is reserved to professional clients (within the meaning of the European Directive 2014/65/UE) (a “Professional Investor”),
- shares in the Fund have not been and will not be registered under the Securities Act of 1933, as amended, or any State securities law of the United States.
The Management Company is not registered with the United States Securities and Exchange Commission and, as such, is not subject to the Securities and Exchange Commission’s oversight or supervision.
RISK PROFILE
The Management Company draws Investors’ attention to the risks to which any Investor in the Fund will be exposed. These risks are described in Schedule 1. Prospective investors must carry out their own due diligence and rely on their independent assessment of the legal, regulatory, tax, financial, or other, consequences of an investment in the Fund, including the merits of any investment decision and the risks inherent to such decision.
DISCLOSURE OF INFORMATION TO INVESTORS
The Management informs the Investors that the list of information made available to the Investors prior to their investment in the Fund, in accordance with the law and AMF instruction no. 2012-06, appears in Schedule 2 of the By-Laws.
The Management Company informs the Investors that the information to disclose pursuant to SFDR and Taxonomy Regulation, is provided in 2.7 and 2.9 of the By-Laws. The Management Company publishes on its website (xxx.xxxxx.xx) information about its policy on the integration of sustainability risks into its investment decision-making process.
TABLE OF CONTENTS
2.1 Structure and Legal Form 23
2.9 Alignment with the Taxonomy Regulation 26
3 Composition of the assets — Legal and tax Provisions 27
4.1 Tax Provisions applicable to the Carried Interest Holders 27
5.3 Increase in existing Investors’ Commitments 29
5.4 First Payment of Subsequent Investors 29
6.1 Rights of the Investors 29
6.2 Issuance of Shares and subscription price 30
6.5 Maximum Total Commitments 30
6.6 Restriction Applicable to Investors 30
6.7 Third-party rights – Stipulation pour autrui 30
7.3 Delay or Default in Payment 33
8 Operation and Management of the Fund 35
8.2 Authority and Powers of the Management Company 36
8.3 Restrictions on Investors 38
9 Investors Protection Provisions 38
9.4 Removal of the Management Company 39
10.1 Organisational Expenses 43
10.5 Investor-Specific Expenses 44
10.7 Depositary and Centralising Agent 46
12 Accounts, Tax Information and Reports 46
12.1 Annual Report and Audited Annual Accounts 46
12.2 Composition of the Fund Assets 46
12.5 Changes to Accounting Principles 48
13 Portfolio Valuation and Share Value 48
14.1 Distribution Waterfall 49
14.2 Specific Provisions Applicable to the Carried Interest Holders 50
15 Timing, Re-Investment and Limitations of Distributions 51
15.1 Distributions Terms and Conditions 51
15.3 Timing of Distributions 51
15.4 Reinvestment by the Fund 51
15.5 Restrictions on Distributions 51
15.7 Temporary Distributions and Deemed Distributions 52
16.1 Transfer of Shares by the Investors 53
16.2 Terms and Conditions for Transferring Shares 54
16.3 Transfers of Shares in violation of this Article 55
17 Pre-liquidation, Dissolution and Liquidation 56
18.5 Quorum – Participation 60
18.7 Deliberations of the Advisory Committee 60
18.8 Liability of Advisory Committee Members 60
19 Limitation of Liability and Indemnification 61
19.1 Limitation of liability 61
20.1 Confidential Information 62
20.3 Refusal to provide information. 64
20.4 Exception with respect to Carried Interest Holders 65
20.5 Tax Information Provisions and regulatory provisions 65
20.6 Disclosure of information by the Management Company and/or its Affiliates 66
21 Amendment to the By-Laws 66
21.1 Amendment to the By-Laws with the Investors’ Consent 66
21.2 Amendment to the By-Laws without the Investors’ Consent 67
22.1 Form – Initiative – Agenda/Purpose 67
22.3 Participation – Representation – Voting 68
22.5 Minutes of Investors’ Consultations 68
24.3 Non-recognition of Trust Arrangements 70
24.4 Applicability of the By-Laws to Heirs and Assigns 71
24.6 Applicable Law and Jurisdiction 71
24.9 Reproduction of Documents 72
24.12 Power of Attorney – Publication Formalities – Legal Personality 73
24.13 Language – Langue Anglaise 73
Schedule 4. Specimen of notification letter 87
PROVISIONS
1.1 Whenever used in the By-Laws, including the Warning and Schedules, the following capitalised terms shall have the meanings defined below, without requiring any distinction to be made between their use in the singular or plural:
[6,5]% Return is defined in Article 14.1.
A Share(s) the A shares issued by the Fund in accordance with the By-Laws.
A Shareholder(s) an Investor who holds A Shares in the Fund.
Acceptance is defined in Article 6.7.1.
Accounting and Administrative Delegate
[Crédit Mutuel Asset Management].
Accounting Date 31 December 2023, with respect to the first Accounting
Period, and 31 December of each subsequent Accounting Period or such other date as may be determined by the Management Company and of which the Investors and the Depositary are notified or, with respect to the Fund’s last Accounting Period, the date on which the Fund is permanently liquidated.
Accounting Period a period ending on, and including, an Accounting Date and
starting the day after the previous Accounting Date or, for the first Accounting Period, starting on the Fund Creation Date.
Acquisition Cost the acquisition cost paid by the Fund with respect to an
Investment.
Advisory Committee the committee described in Article 18.
Affiliate with respect to (i) an entity, in relation to a Person (“A”),
(a) a Holding Company of A, a Subsidiary of A, a Subsidiary of a Holding Company of A, or a Holding Company of a Subsidiary of A or (b) any investment fund managed or advised by A, which is managed or advised by the Holding Company or Subsidiary of A or by a Subsidiary of the Holding Company of A or which is managed or
advised by the same management company or the same advisor as A, it being specified, however, that the Fund is not an Affiliate of the Management Company and that Portfolio Companies or their Subsidiaries will not be considered Affiliates of the Management Company or (ii) an individual, a natural person, a spouse, lineal ascendant or lineal descendant of such person or a firm or other unincorporated body or body corporate where 50% or more of the votes exercisable at a general meeting of the members, or more than 50% of the profits of which, are directly or indirectly controlled by such person and/or its Affiliates.
Affiliated Enterprise (i) any enterprise controlled by the Management Company
exclusively or jointly within the meaning of article L.233-
16 of the French Commercial Code, (ii) any enterprise controlling the Management Company exclusively or jointly within the meaning of that same article L.233-16 of the French Commercial Code, (iii) any Affiliate of the Management Company, as well as (iv) any enterprise with which the Management Company has corporate officers or executives in common who carry out investment management duties on behalf of the enterprise, or portfolio management on behalf of third parties or management of undertakings for collective investment or investment advice, it being understood that the Fund, as well as its subsidiaries and Holding Companies shall not be deemed to be Affiliated Enterprises.
Affiliated Entity is defined in Article 16.1.1.
Agent the entity appointed agent by the Banks to represent them as part of a Financing Agreement.
AMF the French financial markets authority (Autorité des marchés financiers).
Amount Owed is defined in Article 7.3.1.
ATAD II Additional Taxes is defined in Article 4.2.
ATAD II Indemnity is defined in Article 4.2.
ATAD II Information Request
ATAD II Regulations is defined in Article 4.2.
Bank(s) one or more entities designated as “finance party” under a Financing Agreement and/or as “hedge counterparty” under a Hedging Agreement and benefiting from the stipulation pour autrui referred to in Article 6.7.
Bank Drawdown Notices is defined in Article 6.7.1.
Business Day a day (which is neither a Saturday, nor a Sunday, nor a
bank holiday) on which banks are generally open (excluding automated transactions) in Paris, France.
C Share(s) the C shares issued by the Fund in accordance with the By-Laws.
C-Share Tax Unavailability Period
the period between the Fund Creation Date and the Release Date.
C Shareholder(s) an Investor who holds C Shares in the Fund.
Carried Interest Holders is defined in Article 6.6.3.
Centralising Agent means [Banque Fédérative du Crédit Mutuel SA].
Change of Control means any Transfer which results in the current
shareholders, the Management Team, the employees of the Management Company and/or their Affiliates ceasing to control together directly or indirectly at least fifty percent (50%) of the economic and voting rights of the Management Company.
Claiming Investor(s) is defined in Article 9.4.2.
Claim Letter 1 is defined in Article 9.4.1.
Claim Letter 2 is defined in Article 9.4.2.
Commitment the total amount that an Investor undertakes to invest in
the Fund under one (or more) Subscription Agreement(s)
or one (or more) Transfer Agreement(s) applicable to it.
Confidential Information is defined in Article 20.1.1.
Constitutional Documents
Cumulative Cashflow means, on the calculation date, the following amount:
(a) the aggregate amount paid by the A Shareholders to the Fund; less
(b) the aggregate amount paid by the Fund to the A Shareholders.
Cut-Off Date means the last day of the Investment Period.
DAC 6 is defined in Article 4.3.
Date of First Investment means the date on which the Fund makes its first
Investment.
Deemed Distributions is defined in Article 15.7.
Default Interest is defined in Article 7.3.3.
Default Letter is defined in Article 7.3.1.
Defaulting Investor is defined in Article 7.3.2.
Depositary means [Banque Fédérative du Crédit Mutuel SA].
Distributable Income is defined in Article 15.2.1.
Distribution Date is defined in Article 15.6.4.
Drawdown the First Drawdown and/or any Further Drawdown.
Drawdown Notice a notice sent to the Investors, in such form as determined
by the Management Company, requiring such Investors to pay a Drawdown in accordance with Article 7.1.
Due Date is defined in Article 7.3.1.
ESG Criteria is defined in Article 2.8.
Euro or € the Euro, the single currency of the participating member states of the European Union that have the euro as their lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union (the “Single Currency”), or if: (a) the Euro is no longer in existence; or (b) the Management Company determines in good faith that a significant change to the composition of such participating member states has occurred, or is likely to occur as result of which the Euro is no longer an appropriate currency, such currency or currencies as the Management Company reasonably determines following consultation with the Advisory Committee, and in such circumstances any prior drawdowns, allocations and distributions shall be converted at their Spot Rate of Exchange from the Single Currency into such currency or currencies at the date of the relevant drawdown, allocation or distribution, provided that if a Spot Rate of Exchange between the Single Currency and such currency or currencies is not available on the date of a relevant drawdown, allocation or distribution as a result of such currency or currencies not being in existence on such date, then the Spot Rate of Exchange with respect to such date for converting the Single Currency into such currency or currencies shall be deemed to be the latest Spot Rate of Exchange available prior to such date.
Excluded Investor is defined in Article 16.4.2.
FATCA is defined in Article 20.5.1.
Fault (i) any violation by the Management Company or any of the Key Person of a provision of the By-Laws, any laws and/or regulations applicable to the Management Company or the Fund ascertained by an enforceable court decision, (ii) a gross negligence, (iii) fraud or (iv) wilful misconduct and/or (v) any criminal offence relating to the management of the Fund (to the exclusion of class 1 to 4 offences (contraventions de classes 1 à 4)), in each case having caused substantial harm to the Fund or the Investors, it being specified that (vi) the removal of AMF
approval from the Management Company as a portfolio management company shall also be deemed to constitute a Fault.
Final Closing Date the last day of the Subscription Period, which shall be the
last day of the [eighteenth (18th) month] following the First Closing Date, subject to any extension or early termination, as set forth in Article 5.1.
Final Liquidation Date the date on which the Fund makes the last distribution to
its Investors.
Financing Agreement means any credit facility, any kind of debt or other
undertakings entered into with one or more Bank(s).
First Closing Date any date chosen by the Management Company.
First Drawdown is defined in Article 7.1.1.
First Investment a first investment made (or to be made, as context
requires) by the Fund in a Portfolio Company in which it is not already invested.
First Payment the first payment made by an Investor to the Fund; it
shall consist of the First Drawdown and, if the Investor is making its First Payment after the First Closing Date, it shall also include any Further Drawdown(s) the Management Company has already called if any.
FMFC the French Monetary and Financial Code (as amended from time to time).
Full Repayment Date any date on which (i) the Cumulative Cashflow, plus the
Total Undrawn Commitments becomes equal to or less than zero (0) and (ii) the [6,5]% Return calculated on that date, has been fully paid.
Fund OCCTE OCCIDEV, a French fonds professionnel de capital investissement.
Fund Assets all or part of the Fund’s assets.
Fund Creation Date the date provided in the certificate of deposit issued by
the Depositary and provided for in articles 422-15 and
423-39 of the AMF’s General Regulations and confirming that the Fund Assets is at least equal to 300,000 Euros.
Fund Register is defined in Article 6.4.
Fund Reserve is defined in Article 14.2.
Further Drawdown is defined in Article 7.1.1.
Harm means all harm, including all liability, damages, claims, fines, penalties, taxes and contributions, and all costs (including expenses and fees) and other disbursements suffered or incurred by the Management Company in relation to an Investor’s default, and including, for the avoidance of doubt, all costs and expenses (including interest) suffered or incurred, directly or indirectly, resulting from borrowings taken out by the Management Company or the Fund to make up for the relevant Investor’s default.
Hedging Agreement means any currency forwards, currency futures or
currency options, contracts for differences or any Investment in other instruments intended to hedge currencies.
Holding Company an entity is the holding company of a Person if, directly or
indirectly, it:
(a) holds the majority of the voting rights in that Person; or
(b) holds shares or securities in that Person and has the right to appoint the chairman, the majority of its board of directors or the majority of the management board or the majority of its supervisory board or any other equivalent position in the Person as applicable; or
(c) holds shares or securities in that Person and controls, alone or pursuant to an agreement with other holders of shares or securities, the majority of the voting rights in that Person or has the right to appoint the chairman, the majority of its board of directors or the majority of the management board or the majority of its supervisory board or any other equivalent position in the Person, as applicable.
Hybrid Investor is defined in Article 4.2.
Hybrid Mismatches is defined in Article 4.2.
Indemnified Individual any corporate officer, director, agent, consultant, partner
or employee of the Management Company, or its respective Affiliates, any Nominated Director, any Investor who has appointed an Advisory Committee member or any duly appointed member of the Advisory Committee in relation with its Advisory Committee activities.
Indemnified Party the Management Company, its Affiliates and any
Indemnified Individual.
Investment an investment made (or to be made, as context requires) by the Fund in any of the Portfolio Companies.
Investment Period the period starting on the First Closing Date and ending
on the first of the following dates:
(a) the [fifth] anniversary of the First Closing Date, it being specified that the Investment Period may be extended by the Management Company for a period of
one (1) year subject to the prior approval of the Advisory Committee, or
(b) the date on which the Investment Period ends in accordance with Articles 9.2.8 or 9.3.4.
Investment Policy is defined in Article 2.5.
Investment Related Fees all the fees received by the Management Company, its
Affiliates or any of their respective officers, directors or employees directly in connection with the holding of an Investment and charged to the Portfolio Companies, including all agency fees, advisory fees, directors’ fees and benefits, consulting fees and monitoring fees.
Investor any Person (i) admitted as a shareholder in the Fund as a result of subscribing for Shares in the Fund, (ii) having acquired Shares in the Fund in accordance with the By- Laws.
Investors’ Consent an Investors’ Ordinary Consent or an Investors’ Special
Consent, as applicable.
Investors’ Consultation is defined in Article 22.1.
Investors’ Ordinary Consent
the consent of Investors (including by e-mail or other means of electronic communication, which may consist of one or more documents each signed by one or more Investor) holding together Commitments of an amount
greater than fifty percent (50%) of the Total Commitments.
Investors’ Special Consent
the consent of Investors (including by e-mail or other means of electronic communication, which may consist of one or more documents each signed by one or more Investor) holding together Commitments of an amount equal or greater than seventy-five percent (75%) of the Total Commitments.
IPEV is defined in Article 13.1.1.
Key Person means Xxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxxxx et Xxxxxx Xxxxx, as well as any individual proposed by the Management Company and approved by the Advisory Committee.
Key Person Event is defined in Article 9.2.1.
KYC Obligations any obligation pursuant to laws, regulations, international
sanctions, internal or external policies applicable to the Management Company, in connection with the identification and verification of the identity of an Investor (or any of its effective beneficiaries), including any laws and regulations implementing the Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, any OFAC sanctions or anti-bribery local statutory provision.
Legal Quota the quota set forth in articles L.214-28 and L.214-160 of
the FMFC relating to the composition of the Fund Assets.
Listing the admission of an Investment to any recognised stock exchange or the granting of permission for an Investment to be quoted or dealt in on a recognised market provided that such listing or dealing subsequently occurs which in the reasonable opinion of the Management Company is an appropriate stock exchange or market.
Management Fee is defined in Article 10.6.1.
Management Company Occte or, as applicable, its successor as the Fund’s
portfolio management company.
Management Team the Management Company’s management team, made up
of executives, partners and employees of the Management
Company it being specified that the composition of that team is decided by the Management Company and may change over time.
Minimum Reserve Amount
at any time, the higher of: (i) the Total Undrawn Commitments of A Shareholders less any value added allocated to the A Shares and (ii) twenty percent (20%) of the Total Undrawn Commitments of A Shareholders.
Net Asset Value the Value of the Fund Assets determined according to the
terms and conditions of Article 13.1, less the Fund’s liabilities.
Net Invested Amount is defined in Article 10.6.2.
Net Proceeds the consideration received in cash and/or in kind by the
Fund for the sale or repayment of all or part of an Investment by the Fund, less all the expenses incurred by the Fund with respect to that sale or repayment.
New Management Company
is defined in Article 9.4.7(a).
Nominated Director any Person designated by the Fund or the Management
Company to be a director, observer, member of the management board, or member of the supervisory board (or any equivalent positions) of the Portfolio Companies.
Notice is defined in Article 23.1.
Notification Letter is defined in Article 16.1.2.
Organisational Expenses is defined in Article 10.1.
Outstanding Commitment with respect to an Investor, the positive difference
between (i) the aggregate amounts paid by such Investor to the Fund (excluding any amount payable by a Defaulting Investor pursuant to Article 7.3) and (ii) the aggregate cumulative amounts received by such Investor from the Fund.
Person any individual, legal entity, fund or other organisation, association, trust or other entity.
Portfolio Company is defined in Article 2.5.
Professional Investor is defined in the Warning.
Purchaser is defined in Article 7.3.5(b).
Qualified Investor(s) is defined in the Warning.
Quarterly Accounting Period
a period ending on and including a Quarterly Date and starting the day after the previous Quarterly Date.
Quarterly Date 31 March, 30 June, 30 September and 31 December.
Redemption Price is defined in Article 7.3.5(c).
Regulated Market is defined in Article 13.1.2.
Release Date the date on which a five-year period from the Fund
Creation Date expires and on which the Investors have received 100% of the amounts drawn down from them.
Relevant Entity is defined as (i) the Management Company; (ii) the Fund;
(iii) any entity in which one of the entities described in points (i) and (ii) above owns a direct or indirect interest.
Repayment Date any date on which an amount equal to the sum of (i) the
amounts drawn down and (ii) the [6,5]% Return, as calculated at that date, has been paid.
Requested Right(s) is defined in Article 9.6.3.
Semi-annual Accounting Date
[30 June 2023] with respect to the first Accounting Period, and 31 December and 30 June of each subsequent Accounting Period, or any other date separated by six (6) calendar months determined by the Management Company and of which the Investors are notified.
Semi-annual Accounting Period
a period of six (6) calendar months ending on, and including, a Semi-annual Accounting Date and starting the day after the previous Semi-annual Accounting Date
or, with respect to the first Accounting Period, starting on the First Closing Date.
SFDR means Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability-related disclosures in the financial services sector.
Share(s) the shares (A Shares and C Shares, as applicable) issued by the Fund in accordance with the By-Laws.
Share Value the value of the Shares determined in accordance with Article 13.2.2.
Side Letter is defined in Article 9.6.
Side Letter Recipient(s) is defined in Article 9.6.1.
Spot Rate of Exchange means the average of the spot rates of exchange between
the Euro and another currency (being the spot rate for purchasing and for selling Euros in exchange for the other currency respectively) in Paris, France on the relevant date, in each case, as determined by the Management Company in its sole and absolute discretion.
Statutory Auditor means KPMG SA.
Subscription Agreement the agreement, drawn up in any form as the Management
Company has authorised, signed by the Fund, the Management Company and an Investor, whereby such Investor subscribes for Shares and undertakes to pay its Commitment.
Subscription Period means the period described in Article 5.1.
Subscription Premium is defined in Article 5.4.2.
Subsequent Investor an Investor admitted after the First Closing Date in
accordance with Article 5.2, or any Investor increasing its Commitment in accordance with Article 5.3, it being specified that, in the latter case, such Investor will only be treated as a Subsequent Investor with respect to the increased amount of its Commitment.
Subsidiary an entity is the subsidiary of a Person if that Person is the Holding Company of that entity.
Suspension Period the period during which the Management Company cannot
make any First Investment without the prior approval of the Advisory Committee, except for First Investments for which a decision to invest has been made prior to the beginning of the Suspension Period.
Tax Information Provisions
(i) Sections 1471 to 1474 of the US Internal Revenue Code of 1986 (as amended, as applicable) and any other current or future, similar or related legislation, regulations and official interpretation (including any administrative instruction published); (ii) the OECD Standard for the automatic exchange of financial account information for tax purposes – the Common Reporting Standard and any related directive; (iii) Directive 2014/107/EU of the Council of 9 December 2014 amending Directive 2011/16/EU concerning the automatic exchange of tax information, (iv) Directive (EU) 2017/952 of the Council of
29 May 2017 amending Directive (EU) 2016/1164 as regards hybrid mismatches with third countries, (v) Directive EU 2018/882 of the Council of 25 May 2018 and/or (vi) any legislation, inter-governmental agreement or regulations resulting from an inter-governmental approach to the items described in (i), (ii), (iii), (iv) and
(v) above, including any legislation pursuant to which the disclosure of information relating to Investors is required.
Tax Quota is defined in Article 3.
Tax Reserve is defined in Article 4.1.
Taxation any form of taxation or mandatory levies (prélèvements obligatoires), including any direct or indirect tax, back taxes, duties, withholding, registration duty, general social contribution (CSG), other social security contributions and other social security charges, assessments, levies, charges, contributions, of a tax or employment nature, payable directly or by direct debit including any interest, fines, penalties, surcharges thereon, as well as amounts payable under the Tax Information Provisions and all expenses incurred in the context of a tax dispute.
Taxonomy Regulation means the Regulation (EU) 2020/852 of the European
Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable
investment.
Temporary Distributions is defined in Article 15.7.
Temporary Payment the Temporary Distributions and/or the Temporary
Repayments.
Temporary Repayment is defined in Article 7.2.
Term is defined in Article 2.4.
Target Total Commitment means the targeted aggregate amount of all the Investors’
Commitments amounting to fifty (50) million Euros.
Total Commitment the aggregate amount of all the Investors’ Commitments.
Total Reference Commitment
means (i) until the Final Closing Date, the higher of (a) the Total Commitment and (b) the Target Total Commitment and (ii) after the Final Closing Date, the Total Commitment.
Total Undrawn Commitments
the sum of the Undrawn Commitments of all the Investors.
Transaction Expenses is defined in Article 10.2.
Transaction Fees means all arrangement fees, syndication fees and any
other transaction fees received by the Management Company or any of its Affiliates, agreed upon at the time of, and attributable to the making of, an Investment and charged to the Portfolio Companies.
Transfer means any change in ownership for valuable consideration or free of charge, immediately or at a future time, whether direct or indirect, voluntary or involuntary, entailing the transfer of ownership (or of the bare ownership or beneficial ownership) of an asset, security, claim or other right, for any reason whatsoever, even as a transfer of all of a company’s assets and liabilities (transmission universelle de patrimoine), and in whatever form it may take (including as a synthetic transaction) in particular, without this list being exhaustive, as part of a sale, exchange, pledge or other security, a contribution of
ownership or possession, merger or spin-off or comparable transaction, a transaction entailing the transfer of all of a company’s assets and liabilities (transmission universelle de patrimoine), a gift, death, company liquidation, succession or community of property, a croupier agreement (convention de croupier), a loan, leasing, creation of a trust or distribution in kind. The verb “to transfer” will be defined in relation to this definition.
Transfer Agreement the agreement, drawn up in any form as the Management
Company has authorised, signed by the Fund, the Management Company and a Transferee Investor, whereby that Transferee Investor adheres to the provisions of the By-Laws and, as applicable, irrevocably undertakes to pay the relevant Undrawn Commitment corresponding to the Shares acquired.
Transfer Date is defined in Article 9.4.6.
Transferee Investor a Person approved by the Management Company as an
Investor, in the capacity of successor, in full or in part, of an Investor’s rights and obligations for all or part of such Investor’s Shares.
Transferred C Shares is defined in Article 9.4.8.
Transferor Investor is defined in Article 16.1.2.
Undrawn Commitment with respect to an Investor, the amount of its Commitment
in the Fund which the Management Company is entitled to call in accordance with the By-Laws, including, for the avoidance of doubt any Temporary Payments in accordance with Article 7.2 and/or 15.7.
Value means, unless expressly provided otherwise, in relation with an Investment or holding, its value determined by the Management Company, at its reasonable discretion, in accordance with the valuation criteria described in the Fund’s annual reports.
VAT the value-added tax and/or any other value-added tax or sales tax applicable in France or any other country.
1.2 References to the parties, the introduction, the articles and the schedules respectively refer to the parties, Introduction, Articles and Schedules of the By-Laws.
1.3 Schedules of the By-Laws shall form part of the By-Laws and any reference to the By-Laws is a reference to the By-Laws with its Schedules.
1.4 Any reference to statutory provisions, applicable laws or European Union Directives will include references to any amendment, extension, consolidation, replacement or new enactment of such provisions, laws or European Union Directives (occurring before or after the date of the By-Laws), as well as any regulation, decree, order or any other legislation or regulations adopted in compliance with such provisions, laws or European Union Directives, including any French law provision transposing them and applicable to the Management Company.
1.5 Times mentioned in the By-Laws refer to Paris time and references to a day refer to a 24- hour period starting at midnight.
1.6 Unless provided otherwise:
(a) words in the singular include the plural, and words in the plural include the singular;
(b) all references to a legislative text include any implementing legislation;
(c) references to persons or entities will include legal entities, associations and partnerships, whether or not they have a separate legal personality; and
(d) any reference to the words “to include” or “in particular (or any similar term) must not be construed as indicating a limitation and general words introduced by the word “other” (or any similar term) must not be understood restrictively because they are preceded or followed by a word indicating a special category of act, field or other thing.
The Fund is a French professional private equity fund (fonds professionnel de capital investissement) governed by articles L.214-159 and seq. of the FMFC.
The Fund’s name shall be: OCCTE OCCIDEV.
The Fund’s name shall be immediately succeeded by the words “fonds professionnel de capital investissement” or “FPCI”.
2.3.1 As at the Fund Creation Date, the Fund’s Management Company is:
Management Company: Occte
0, xxxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx X 00000 Xxxxxxxx
900 650 136 RCS Toulouse Approval no.: AMF GP-202220
As at the Fund Creation Date, for information purposes, the Fund’s service providers are:
Depositary: [Banque Fédérative du Crédit Mutuel SA]
Statutory Auditor: KPMG SA
Administrative and Accounting Delegate
[Crédit Mutuel Asset Management]
2.3.2 The Fund shall inform the Investors in the event of a change in the service providers listed above (with the exception of the Management Company) in the Fund’s periodic reports or by any other means it deems appropriate.
The Investors shall be shareholders in the Fund as from the later of: (i) the Fund Creation Date or, (ii) the date of their admission in the Fund.
The Fund shall commence on the Fund Creation Date and shall expire on the [tenth (10th)] anniversary of the Fund Creation Date, unless the Fund is sooner dissolved in accordance with Article 17.2 (the “Term”), it being specified that such Term may be extended for two
(2) one-year successive periods by decision of the Management Company subject to the prior approval of the Advisory Committee.
At expiry of the Term, the Fund shall be dissolved in accordance with Article 17.2 and liquidated in accordance with Article 17.3. The Management Company shall inform the Depositary of any Term extension.
The legal existence of the Fund shall start as from the Fund Creation Date and shall continue until the Final Liquidation Date.
The Fund is an alternative investment fund (fonds d’investissement alternatif – FIA) within the meaning of article L.214-24 of the FMFC.
The Fund is a growth capital fund whose objective is to carry out minority equity and quasi- equity investments in portfolio companies [which already have a significant activity in the Occitanie region or intending to expand their activity there and in any case incorporated in France], and involved in [the agribusiness, health, digital, industry and energy sectors] (a "Portfolio Company"), by taking into account the impact of the Portfolio Companies on the Occitanie region in terms of employment, activity, sovereignty and resilience (the “Investment Policy”).
The Fund may invest drawn down amounts while awaiting to make an Investment, as well as any Net Proceeds while awaiting to make a distribution to Investors, in money-market funds or short-term negotiable instruments.
Notwithstanding the foregoing, the Fund shall not invest more than fifteen percent (15%) of the Total Reference Commitment in any single Portfolio Company.
The Fund’s account shall be denominated in Euro and all calculations made in accordance
with the By-Laws shall be made in Euro. All distributions shall be made in Euro and the Investors undertake to pay all amounts required pursuant to the By-Laws in Euro.
2.7 SFDR [Note Gide : To be confirmed.]
The Management Company has categorised the Fund as meeting the criteria set forth in [article 9 of SFDR for products with a sustainable investment as its objective], as described below.
["Sustainable investment" means an investment in an economic activity that (i) contributes to an environmental objective or a social objective, (ii) provided that such investments do not significantly harm any of those objectives and (iii) that the investee companies follow good governance practices.]
In accordance with the Investment Policy, the Management Company defines the Fund's portfolio by taking into account the principles and criteria related to environmental, social and governance aspects below (together, the "ESG Criteria").
As for all of the Management Company's strategies, particular attention is systematically paid to the ESG practices of the target Portfolio Companies: beyond the environmental or social interest of a company's products, services or activities, its way of managing its environmental and social risks is analysed.
Only companies that demonstrate adequate ESG management performance, i.e. that operate in accordance with Occte's ESG Policy as provided on the Management Company website (xxx.xxxxx.xx), which is based on recognized standards of good environmental and social risk management should be considered for investment.
Accordingly, prior to any investment decision, all investments are subject to a specific sustainable development analysis by the Management Company's.
A member of the team in charge of conducting these ESG analyses outlines the opportunities for positive environmental and social impacts generated by the company under review. He also highlights any ESG risks inherent to the activity and how they are addressed by the company. This analysis is completed by the identification of the main areas for improvement.
During the holding of each Portfolio Company, ESG aspects are also taken into account to maximize the positive impact of the Investment in such Portfolio Company in the environment, local communities and the various stakeholders by monitoring the implementation of social, environmental and technical action plans as predefined and minimizing, where appropriate, their possible negative impact.
2.9 Alignment with the Taxonomy Regulation
The objective of the European taxonomy is to identify economic activities that are regarded as sustainable from an environmental standpoint. The Taxonomy Regulation identifies these activities according to their contribution to six major environmental objectives:
(a) climate change mitigation;
(b) climate change adaptation;
(c) the sustainable use and protection of water and marine resources;
(d) the transition to a circular economy;
(e) pollution prevention and control; and
(f) the protection and restoration of biodiversity and ecosystems.
At this time, technical screening criteria have been established for certain economic activities that can substantially contribute to two of these objectives: climate change mitigation and climate change adaptation. The data presented below therefore only reflects alignment with these two objectives. The Management Company will update this information as changes are made to these criteria, as new review criteria are developed for these two objectives, and as criteria for the other four environmental objectives are implemented.
To be regarded as sustainable, an economic activity must demonstrate that it contributes substantially to the achievement of one of the six objectives, while not harming any of the other five.
In order for an activity to be considered aligned with the European taxonomy, it must also respect human and social rights guaranteed by international law.
The share of Investments made in economic activities deemed to be environmentally sustainable within the meaning of the Taxonomy Regulation is calculated by weighting the assets aligned with the European taxonomy by the last valuation used for the valuation of the Portfolio Companies.
At the end of the Investment Period, the Fund will have invested at least [thirty percent (30%)] of its portfolio in activities aligned with the European taxonomy in terms of climate change mitigation and at least [thirty percent (30%)] in terms of climate change adaptation.
Furthermore, the Management Company will make its best efforts to comply as soon as possible with any changes in the application of the Taxonomy Regulation during the Term.
3 Composition of the assets — Legal and tax Provisions
The Fund is a co-ownership (copropriété) primarily composed of financial instruments and governed by the provisions of articles L.214-159 et seq. of the FMFC. The Fund shall comply with the Legal Quota and the provisions of articles L.000-00-00, L.214-159, R.214-205 and R.214-206 of the FMFC relating to the composition of the Fund Assets.
To allow French Investors to benefit from tax advantages in France, the Fund will also respect the tax quota provided for in Article 163 quinquies B of the French General Tax Code (the "Tax Quota").
4.1 Tax Provisions applicable to the Carried Interest Holders
Notwithstanding any provision of the By-Laws to the contrary relating to distributions, the C Shares issued by the Fund may only receive the distributions they are entitled to in accordance with the By-Laws (including distributions which may be subject to repayment, repayment of the paid-up capital, and payment of the Fund Reserve) after the Release Date.
During the C-Share Tax Unavailability Period, such amounts shall be blocked and retained by the Fund in a specific account (the “Tax Reserve”) and may be invested at the Management Company’s sole discretion in money-market funds or short-term negotiable instruments.
On the Release Date as the case may be, the Tax Reserve may be released by the Fund and paid to the Carried Interest Holders. Notwithstanding the foregoing, after the expiry of a five- year period from the Fund Creation Date, the amounts in the Tax Reserve corresponding to repayment of drawdown amount, shall be paid to Carried Interest Holders.
In addition to the foregoing, the amounts distributable to the Carried Interest Holders, other than those corresponding to the Outstanding Commitments with respect to the C Shares, shall not be paid to the Carried Interest Holders until the Outstanding Commitments with
respect to A Shares is equal to zero (0).
The provisions of the Directive (EU) No 2017/952 of 29 May 2017, transposed into French law under articles 205 B et seq. of the French General Tax Code (the “ATAD II Regulations”), aim to combat certain tax optimization schemes between related companies which are based on the mismatches between the laws of two jurisdictions as regards the tax qualification of an entity or a financial instrument or the attribution of a payment (a “Hybrid Mismatches”).
Each Investor will provide, upon request from the Management Company (the “ATAD II Information Request”), any information and documentation that the Management Company considers necessary, including legal opinion issued by a law firm, in order to determine whether such Investor, the Fund may qualify as an hybrid entity, if the holding of the Shares by the Investor or a payment from or to the Investor qualify as Hybrid Mismatch within the meaning of the ATAD II Regulations (an “Hybrid Investor”).
If the Investor fails to respond, or provides an incomplete or false response following an ATAD II Information Request, the Management Company may consider, after having made reasonable efforts to determine if the Investor may qualify as Hybrid Investor, that this Investor does qualify as Hybrid Investor.
The Management Company shall notify the Hybrid Investor if it considers that there is a reasonable risk that additional Taxes will be charged to the Fund, the Management Company or its Affiliates, according to the provisions of the ATAD II Regulations (“ATAD II Additional Taxes”).
If ATAD II Additional Taxes are due by the Fund, the Management Company or its Affiliates, the Hybrid Investors shall indemnify the Fund in order to offset all the costs derived directly or indirectly from an ATAD II Additional Tax (the “ATAD II Indemnity”). The Management Company may offset the amount of the ATAD II Indemnity against the amount of distributions due to the Hybrid Investor.
The EU Directive 2018/822 of 25 May 2018 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements ("DAC 6"), requires intermediaries (i.e. any person that designs, markets, organises or makes available for implementation or manages the implementation of a reportable cross-border arrangement) or taxpayers to disclose cross-border arrangements to their local tax authorities where the arrangement contains one or more features presenting an indication of a potential risk of tax avoidance as listed in the annex of the directive (the so-called "Hallmarks"). The responsibility of determining if a cross-border arrangement contains any of the listed Hallmarks lies on the Intermediaries or the taxpayer himself when the intermediaries are subject to legal professional privilege.
DAC 6 has been implemented into French domestic law in Ordinance n°2019-1068 dated 21 October 2019 (this Ordinance as well as the comments of tax administration will be referred to below by "DAC 6 Regulation"). The terms of the DAC 6 Regulation and any possible administrative comments will need to be carefully analysed to clarify the terms of the Directive, particularly in respect of the reporting process and assessment of the Hallmarks.
Pursuant to the DAC 6 Regulation, the Investors acknowledge that:
a) the Management Company, or the intermediaries that it involves, will, when relevant, file information on a reportable cross-border arrangement in accordance with the DAC 6 Regulation;
b) the assessment made by the Management Company and its advisor(s), on whether a cross-border arrangement is reportable or not is based on information available to
them and analysis they have carried out or collected, and may differ from those of other intermediaries, including the investor's advisor(s); and
c) each Investor is invited to consult with its own tax advisor in order to obtain more detailed explanations and to verify the tax consequences of its investment in the Fund in its particular case.
Notwithstanding the provisions of Article 20, the Fund or the Management Company may be required to disclose to the tax authorities certain information, in particular the identity of the Investor, or information relating to the Fund and the Investors, including companies related to these Investors.
Any Person who wishes to be admitted as an Investor must provide a duly completed and signed Subscription Agreement to the Management Company no later than on the Final Closing Date. Such Person will only be admitted as an Investor when the Management Company has counter-signed its Subscription Agreement. The Management Company shall be responsible for ensuring that each Investor is a Qualified Investor.
The Subscription Period shall start on the First Closing Date and shall terminate [eighteen
(18) months] after the First Closing Date on the Final Closing Date (such period being referred as the “Subscription Period”).
The Management Company may extend the Subscription Period for six (6) months, subject to the prior approval of the Advisory Committee and after having informed the Depositary.
The Management Company may also decide to terminate the Subscription Period by anticipation: it will then inform the Depositary as soon as possible, by any means, as well as the distributors of Shares.
With respect to the Subscription Period, additional Persons may be admitted in the Fund as Investors by the Management Company at any time up to and including the Final Closing Date. The relevant Person shall become an Investor on the date specified by the Management Company in the Subscription Agreement, subject to the First Drawdown being received by the Fund. Unless otherwise provided for by the By-Laws, no Investor may be admitted to the Fund after the Final Closing Date.
5.3 Increase in existing Investors’ Commitments
With respect to the Subscription Period, the Management Company may, at its discretion, authorise Investors to increase the amounts of their Commitments in the Fund up to and including the Final Closing Date, provided that such Investors sign an additional Subscription Agreement (or any other document acceptable to the Management Company) reflecting such increase of their Commitments in the Fund. Investors increasing their Commitment in accordance with this Article shall be treated as a Subsequent Investor but only with respect to such increased Commitment.
5.4 First Payment of Subsequent Investors
5.4.1 All Subsequent Investors shall make a First Payment which includes the First Drawdown and, as applicable, one or more Further Drawdowns which the Management Company has already called. For the avoidance of doubt all Investors shall be treated as if they had all committed on the First Closing Date.
5.4.2 Each Subsequent Investor (excluding C Shareholders) must, in addition to the First Payment,
pay a subscription premium (the "Subscription Premium"). For each Subsequent Investor, the Subscription Premium is equal to the amount of the First Payment plus an interest rate equal to five percent (5%) for the period between the First Closing Day (and/or, as the case may be, the date of maturity of the Further Drawdowns already paid) and the date on which the Subsequent Investor's First Payment was called by the Management Company. The Subscription Premium will be paid either to existing Investors or retain to the Fund, at the discretion of the Management Company.
5.4.3 The Subscription Premium is due in addition to the Subsequent Investor's Commitment, and is not taken into account in the calculation of the Cumulative Cashflow.
6.1.1 The Investors’ rights in the Fund are represented by Shares issued by the Fund. Investors holding Shares in the same Share class issued by the Fund shall have the same rights to the Net Asset Value, in proportion to their holding.
6.1.2 Unless the By-Laws provides to the contrary, each Share class gives its holders the right to vote, receive any information intended for Investors in accordance with the By-Laws, and participate to Investors’ meetings.
6.2 Issuance of Shares and subscription price
6.2.1 The Fund will issue the following classes of Shares:
(a) A Shares, having an initial par value of one (1) euro each, subscribed for by any third-party Qualified Investor with a Commitment of at least three hundred and fifty thousand (350,000) Euros, it being specified that the Management Company retains the right to accept Commitments of a lower amount; and
(b) C Shares, having an initial par value of one (1) euro each, which are dedicated to the Carried Interest Holders, for an amount corresponding to one percent (1%) of the Total Commitments.
6.2.2 The Fund may issue fractions of Shares up to two decimal points.
6.2.3 Investors will be offered to subscribe to Shares at a price equal to the higher of (i) the initial value and (ii) the Net Asset Value per Share.
6.3.1 The ISIN Code of the A Shares is [---].
6.3.2 The ISIN Code of the C Shares is [---].
The Depositary shall hold a register of the Investors and a share account for each Investor in which the Investors’ Shares shall be registered (the “Fund Register”). A certificate of registration shall be issued by the Depositary upon request from Investors.
The Total Commitments shall not exceed [fifty (50)] million euros, or any higher amount as approved by the Advisory Committee.
6.6 Restriction Applicable to Investors
6.6.1 No individual, acting directly or through an interposed entity or a fiducie within the meaning of article 150-0 A of the French General Tax Code, shall hold more than ten percent (10%) of the Shares.
6.6.2 Subscription for A Shares is open only to Qualified Investors investing a minimum amount of three hundred and fifty thousand (350,000) Euros, it being specified that the Management Company retains the right to accept Commitments of a lower amount. The Management Company or any other entity designated by the Management Company for that purpose shall ensure compliance with this condition.
6.6.3 The subscription for and acquisition of C Shares in the Fund is reserved to the Management Company and the Management Team (the “Carried Interest Holders”).
6.7 Third-party rights – Stipulation pour autrui
6.7.1 The Fund, in its capacity as stipulator (stipulant), in accordance with the provisions of article 1205 of the French Civil Code, irrevocably stipulates to the benefit of the Banks as beneficiaries (bénéficiaires) that the Investors, acting as promisors (promettants) shall pay any Amount Owed and unpaid to the Fund into the Fund’s bank account in accordance with the drawdown notices sent by any such Banks or where applicable the Agent acting on behalf of the Banks (the “Bank Drawdown Notices”). Each Investor, acting as promisor (promettant), irrevocably promises in favour of the Banks, as beneficiaries (bénéficiaires), to pay, upon receipt of such Bank Drawdown Notice, the Amounts Owed and unpaid as specified in such Bank Drawdown Notice into the Fund’s bank account. Each Investor, acting as promisor, acknowledges that the stipulation (stipulation pour autrui) will become irrevocable between the Fund, acting as stipulator (stipulant), and the relevant Banks acting as beneficiaries (bénéficiaires), once the acceptance of such stipulation by the relevant Banks or, where applicable, the relevant Agent (the “Acceptance”) has been delivered (“est parvenue” within the meaning of article 1206 paragraph 3 of the French Civil Code) to the Fund acting as stipulator (stipulant) or each Investor acting as promisor (promettant). Notwithstanding article 1206 paragraph 2 and article 1207 paragraph 1 of the French Civil Code, the Fund, acting as stipulator (stipulant), hereby waives its right to withdraw at any time such stipulation before any Acceptance.
6.7.2 The Investors and the Management Company hereby acknowledge that Bank Drawdown Notices issued by the Banks (or by an Agent acting in the Banks’ name) shall have the same effects under the By-Laws as the Drawdown Notices issued by the Management Company and, in particular, any delay or default in payment of a Bank Drawdown Notice may be penalised pursuant to the By-Laws and in particular of the provisions of Article 7.3. The Banks and the relevant Agent shall not be vested in accordance with the foregoing with more rights than the Management Company’s rights under the By-Laws.
6.7.3 The Investors hereby consent to the Management Company disclosing directly or indirectly (e.g. through the Depositary), to any Bank, who is a beneficiary of the stipulation pour autrui, or where applicable the Agent acting on behalf of such Banks, all information required by such Banks in connection with any Financing Agreement and/or any Hedging Agreement and in particular (i) in order to comply with anti-money laundering laws and regulations or “know your customers” internal requirements and (ii) with respect to the Bank Drawdown Notices which may be sent to the Investors in accordance with and subject to the terms of any Financing Agreement and/or any Hedging Agreement, any information relating to the Investors (including the contact details of each Investor, the amount of its Commitment, its Side Letter, if any, and/or its Subscription Agreement).
7.1.1 The Commitment of each Investor shall be paid to the Fund in several instalments, in a first drawdown (the “First Drawdown”) and subsequent drawdowns (the “Further Drawdowns”) called by the Management Company from time to time.
7.1.2 Investors shall pay the First Drawdown upon subscription or on a subsequent date, as determined by the Management Company. Each Investor, by subscribing for Shares, irrevocably undertakes to respond to calls for funds by the Management Company within the limit of its Undrawn Commitment in the Fund without any set-off, counterclaims or defences of any kind. Any delay or default in payment may be penalised under the conditions provided for in Article 7.3. Any Drawdown called must be paid in full and in cash on the date indicated in the relevant Drawdown Notice by wire transfer on the Fund bank account opened with the Depositary.
7.1.3 In consideration for the payment of its First Drawdown, the Fund shall issue to an Investor all Shares subscribed for by such Investor and such Shares shall be paid-up in proportion to the amount of the First Drawdown paid by such Investor.
7.1.4 The Management Company may cancel any subscription for Shares for which the First Drawdown has not been paid in accordance with the Management Company’s instructions.
7.1.5 Further Drawdowns shall be paid on the dates indicated in the relevant Drawdown Notices, sent by electronic mail (or by any other appropriate written means) to the Investors by the Management Company at least ten (10) Business Days before the Due Date.
7.1.6 The Management Company shall call Drawdowns from Investors pro rata to their respective Commitments in the Fund (disregarding the Commitments of any Defaulting Investor) as adjusted and as applicable, in accordance with the By-Laws, except as otherwise provided under the By-Laws.
7.1.7 The Management Company may no longer call Further Drawdowns after the Cut-Off Date. Notwithstanding the foregoing, Undrawn Commitments (if any) may be drawn down by the Fund after the Cut-Off Date:
(a) to pay any obligation, debt and expense of the Fund (including the Management Fee, and any obligation, debt and expense under any Financing Agreement and any Hedging Agreement), including to honour any indemnification obligation under Article 19.4, as well as any written undertaking made in relation with any Investment (including its transfer, liquidation or any other form of transfer) or any Hedging Agreement, even when such undertakings were taken after the Cut-Off Date; or
(b) for the purpose of making Follow-on Investments other than First Investments or completing legally binding commitments or written contracts entered into by the Fund or the Management Company before the Cut-Off Date.
The Management Company may, at any time, by giving prior written notice to the Investors and the Depositary, elect to cancel all or part of the Investors’ Undrawn Commitments in the Fund. In such event, the cancelled Undrawn Commitments shall, for the purposes of the By- Laws, be deemed to have been drawn down by the Fund and immediately repaid to the Investors.
7.2.1 From the First Closing Date, the Management Company may cause the Fund to temporarily repay the Investors the following amounts (“Temporary Repayments”) in proportion to their Commitments in the Fund (paragraph (a) and (b) below being limitative):
b) all or part of a Drawdown called to make an Investment where such Investment does not proceed to completion or is only partially completed or where all or part of such Drawdown exceeds the needs of the Fund.
7.2.2 Any Temporary Repayment shall be paid as soon as possible to the Investors in proportion to their Commitment and will be deducted from the Share Value of the relevant Share class. Any Temporary Repayment shall increase the Undrawn Commitments of the Investor which receive it.
7.2.3 Any Temporary Repayment recalled by the Management Company pursuant to the above shall increase the Share Value which has been previously reduced by such Temporary Repayment and shall reduce the Undrawn Commitments of the Investors. Such recall may be satisfied, in full or in part, by setting-off the amount owed by an Investor against any distributions due to such Investor by the Fund. The Management Company shall notify the Investors in writing of any Temporary Repayment before such Temporary Repayment is made. The notice shall specify, where possible, whether the Temporary Repayment may be recalled in full or in part.
7.3 Delay or Default in Payment
7.3.1 If an Investor fails to pay to the Fund all or part of the amount which is the subject of a Drawdown Notice, on or before the payment date specified in such Drawdown Notice (the “Due Date”), the Management Company shall notify such Investor by email (or by any other means it deems appropriate) of the default in payment of all or part of the amount owed and not received and shall request the Investor to remedy such default (the “Default Letter”).
The Default Letter shall serve as formal notice to pay the amount called by the Management Company or owed by the relevant Investor under the By-Laws (the “Amount Owed”).
7.3.3 Any Amount Owed shall bear interest payable to the Fund at a rate of eight percent (8%) per year (capitalised annually) starting on and excluding the Due Date until and including the earliest of the following dates: (i) the actual payment date of all the amounts owed by the Investor to the Fund and (ii) the withdrawal of the Investor from the Fund in accordance with Article 7.3.5(c), according to the terms and conditions described below (the “Default Interest”).
7.3.4 As from the Due Date, the Management Company shall (i) suspend all the Defaulting Investor’s rights, including the Defaulting Investor’s right to receive any distribution whatsoever and (ii) suspend or dismiss the Advisory Committee member appointed by the Defaulting Investor of its duties.
If the Amount Owed and Default Interest are paid within the period indicated in the Default Letter, the Defaulting Investor shall recover the rights that were suspended by the Management Company in accordance with the paragraph above.
The Defaulting Investor shall also be deprived of its right to participate to any Investors’ meeting and Investors’ vote and to receive the notice sent by the Management Company concerning the Investors’ meeting or Investors’ vote, unless the Defaulting Investor pays the Amount Owed and Default Interest within the period indicated in the Default Letter before the end of the voting period. In the event of a vote, the amount of the Defaulting Investor’s Commitment shall be excluded from the base of the Commitments to be taken into account in calculating any majority and Investors’ Consent, even if the Defaulting Investor recovers, after the vote (i.e., the end of the voting period), the rights that had been suspended by the Management Company.
7.3.5 The Management Company may, at any time after the expiry of a period of ten (10) Business Days from the Default Letter, and without prejudice to all other legal rights and remedies that it may exercise on its own or on the Fund‘s behalf, take any measure among the following:
(a) limit the rights attached to all or part of the Shares held by the Defaulting Investor in the Fund on the Due Date, with the following characteristics and consequences:
(i) the Shares shall only confer the right to payment of distributions for an amount equal to the Outstanding Commitment in the Fund corresponding to the Defaulting Investor’s Shares at the Due Date, excluding any other distribution;
(ii) any payment due with respect to the Defaulting Investor’s Shares shall be subordinated to full repayment of the Outstanding Commitment of the other Investors;
(iii) the Total Commitments shall be reduced by an amount equal to the Defaulting Investor’s Commitment;
(iv) the Defaulting Investor shall not be authorised to participate to any Investors’ meeting or Investor’s vote;
and/or
(b) sell all or part of the Defaulting Investor’s Shares in the Fund to a Person designated by the Management Company (the “Purchaser”), according to the terms and conditions below:
(i) the sale shall be made at a price reasonably determined by the Management Company for an amount which may not be less than the lower of the two following amounts: (i) the Amount Owed and (ii) the Value of the Defaulting Investor’s Shares, it being specified that neither the Defaulting Investor, nor the non-defaulting Investors, nor the Purchaser may, in any event, claim any liability of the Fund or the Management Company as a result of the Transfer;
(ii) each Investor hereby gives all powers and appoints the Management Company, under an irrevocable joint interest mandate, as representative for the purposes of acting in its name and on its behalf, if it were to become a Defaulting Investor under the By-Laws, to transfer all or part of its Shares and, accordingly, to negotiate, sign and perform any documents or deeds required in connection with or for the purposes of such transfer, and each Investor undertakes to ratify the actions taken and deeds entered into by the Management Company pursuant to this power and to hold it harmless from any damages that could result therefrom;
(iii) the deposit, with the Management Company or the Fund, of the sale price corresponding to the Defaulting Investors’ Shares sold and the signature by the Purchaser of a Transfer Agreement, whereby it undertakes to purchase the Defaulting Investor’s Shares in the Fund and to pay the remaining Undrawn Commitment attached to the Shares thus acquired, shall entail valid transfer of ownership to the Purchaser of such Shares;
(iv) the Defaulting Investor shall then be struck off the Fund Register as a result of the sale of its relevant Shares; and/or
(v) the Management Company shall only be required to pay up the sale price of the sold Shares to the Defaulting Investor when the latter has remitted and signed all the documents deemed necessary or worthwhile by the Management Company (including confirmation by the Defaulting Investor that no claim will be made against the Management Company, its agents,
the Fund or any Purchaser), and/or
(i) the A Shares shall be redeemed by the Fund at a price equal to the Defaulting Investor’s Outstanding Commitment with respect to such A Shares (the “Redemption Price”);
(ii) payment of the Redemption Price to the Defaulting Investor shall be subordinated to full repayment of the Outstanding Commitment of all other Investors;
(iii) the redeemed Shares shall be cancelled, and the Total Commitments and the Total Undrawn Commitments shall be adjusted accordingly;
it being specified that if the Redemption Price is negative, the Redemption Price will be deemed equal to one (1) Euro. The Management Company shall deduct from the Redemption Price, the Default Interest incurred until the redemption date, an amount corresponding to the expenses incurred by the Management Company (including all legal fees) and a penalty of an amount equal to ten percent (10%) of the Amount Owed solely for the failure to perform its payment obligation. The Management Company shall allocate the amount of this penalty in good faith.
The balance of the Redemption Price, if any, shall be retained by the Fund and paid to the Defaulting Investor only after the Fund’s Liquidation Date. Any Temporary Distribution recalled by the Fund or amounts owed by the Defaulting Investor under Articles 15.7 and 19.2 shall be deducted from the balance of the Redemption Price. Shares redeemed by the Fund shall be cancelled.
The Total Undrawn Commitments and the Total Commitments shall be adjusted accordingly. All distributions, including Temporary Distributions, which were not paid to the Defaulting Investor in accordance with Article 15.1, shall be allocated at the Management Company’s discretion, acting reasonably.
and/or
(d) take any action as the Management Company deems necessary to enforce the Defaulting Investor’s payment obligations under the By-Laws.
it being clarified that no right, power or recourse conferred to the Management Company or the Fund under this Article 7.3, against the Defaulting Investor, shall not be considered exclusive and such rights, powers or remedies may be cumulated with all other rights, powers or remedies granted under this Article 7.3 or by any applicable legislation. No day-to-day transaction between the Management Company and a Defaulting Investor, or any delay with respect to the enforcement of such rights, powers and remedies may constitute or be interpreted as a waiver thereof or adversely affect them.
7.3.6 Each Defaulting Investor undertakes to indemnify the Management Company, the Fund for any Harm connected or in relation to its default. The Fund or the Management Company, as applicable, may deduct any amount corresponding to the Harm incurred by the Fund, the Management Company, its employees and/or executives as part of that default as well as any Defaulting Interest owed by the Defaulting Investor from any amount due to the Defaulting Investor pursuant to this Article.
7.3.7 The Management Company may issue at any time a new Drawdown Notice to the Investors other than the Defaulting Investor in order to meet any cash-flow requirement resulting from that default.
8 Operation and Management of the Fund
The Management Company shall act as the portfolio management company (société de gestion de portefeuille) of the Fund and shall manage the Fund in accordance with the Investment Policy.
8.2 Authority and Powers of the Management Company
8.2.1 In its capacity as portfolio management company (société de gestion de portefeuille) of the Fund, the Management Company shall act on behalf of the Fund with respect to third parties and have full power and authority, on behalf of the Fund, to do all such things as are, in the Management Company’s reasonable opinion, necessary or desirable in connection with the Fund’s operations, the management of the Fund’s investment portfolio or to successfully conduct the Fund’s business, including (without limitation):
(a) to receive applications for Commitments in the Fund from prospective investors, to require prospective investors to provide such information as the Management Company deems necessary or appropriate in order to comply with any applicable anti-money laundering regulations, or to comply with, or obtain any exemption from or reduction in, withholding taxes under AEOI and/or FATCA, or to comply with any other applicable laws or regulations, and to admit such Persons as Investors by accepting on the Fund behalf Subscription Agreements signed and delivered by such Persons;
(b) to admit Transferee Investors into the Fund in accordance with the provisions of Article 16;
(c) to identify, evaluate and negotiate investment opportunities, to acquire (or agree to acquire) Investments falling within the Investment Policy, to sell, exchange or otherwise dispose of (or agree to sell, exchange or dispose of) Investments and to prepare and sign investment agreements, subscription agreements, shareholders’ agreements, sale and purchase agreements, and all other deeds and agreements in connection with the acquisition or disposal of Investments (directly or through a representative or any other agent);
(d) to enter into any agreement seeking to borrow money and to issue, accept, endorse, sign and request the issuance of promissory notes, drafts, bills of exchange, security agreements (including letters of credit), credit facilities and other instruments and evidence of indebtedness, subject to Article 9.1. For the avoidance of doubt, the Fund may enter into bridging facilities in order to facilitate Investments and/or the management of the Fund’s cashflows;
(e) to enter into agreements with third parties in connection with the management of the Fund Assets, including contractual undertakings other than delivery (livraison) undertakings. The Investors expressly agree that the Fund may enter into such agreements;
(f) to mortgage, charge, pledge, assign or grant a security interest to any third party including security in rem (sûretés réelles) over all or part of the Fund Assets (including the Total Undrawn Commitments) if the Management Company deems it necessary or desirable, in particular, without limitation, (i) to assign its rights under this By-Laws to any Person and (ii) to pledge the Fund bank account to secure any amount due by the Fund under any borrowing and/or under any other payment obligations;
(g) to give guarantees (including any security interests in personam (sûretés personnelles)), warranties and indemnities in connection with the acquisition, financing, holding or disposal of Investments;
(h) to monitor the performance of and, where appropriate, to designate directors or representatives to the management bodies, boards and/or supervisory boards of the Fund Assets, to exercise all rights conferred to the Fund under the terms of any agreement or contract, or of applicable laws or regulations or with respect to a Fund Asset and, more generally, to take any action the Management Company deems appropriate to manage the Fund Assets;
(j) to open and maintain bank accounts for and in the name of the Fund, to make payments and give other instructions to banks with respect to such accounts and to receive and pay into such accounts the Commitments paid by Investors, investment income and any other amounts received by the Fund;
(k) to discharge any obligations of the Fund, including paying the expenses referred to in Article 10.1, and to provide for present or future contemplated obligations and risks;
(l) to pay or cause the Fund to pay all amounts of Taxation for which the Management Company, the Fund and/or any Affiliate of the Management Company is liable on behalf of any Investor and to pay any amount of Taxation in respect thereof which any Investor or the Fund has been assessed in the name of the Management Company, such Affiliate or the Fund;
(m) to pay to any Indemnified Party (including the Management Company and any Affiliate of the Management Company) any amounts to which the Management Company, acting in good faith, determines that such Indemnified Party is entitled to pursuant to Article 19.2.1;
(n) to make distributions to the Investors, in accordance with the By-Laws;
(o) to appoint the Depositary and to instruct such Depositary;
(p) to appoint the Statutory Auditor or renew its appointment or appoint a new Statutory Auditor, in the event of vacancy or failure to perform;
(q) to hire such employees, independent agents (including placement agents), paying and collecting agents and financial or professional advisors or consultants as the Management Company deems necessary or desirable in relation to the Fund’s operation, which may be Affiliates of the Management Company, provided that such hires are on arm’s-length terms;
(r) to file, initiate, conduct, defend or settle any dispute or litigation relating to the Fund or to any of the Fund Assets;
(s) to qualify or register under foreign limited partnership statutes or similar laws or regulations in any jurisdiction in which the Fund owns or intends to own property or transact or intend to transact business or in which Shares may be offered;
(t) to enter into and perform such deeds, documents, contracts, agreements, undertakings, guarantees and indemnities as the Management Company may, in its reasonable discretion, deem necessary or desirable in connection with the exercise of its powers pursuant to this Article 8.2.1(t) or otherwise in furtherance of the business of the Fund; and
(u) to carry out all formalities required by law with respect to the Fund, in particular for the purposes of creating and registering the Fund (including all publication formalities).
8.2.2 The Management Company may at any time delegate to any Person(s) all or part of its rights, powers or obligations.
The Investors shall take no part in the external management (gestion externe) and shall have no right or authority to act towards third parties on behalf of the Fund other than as provided under French law or as set forth in the By-Laws.
9 Investors Protection Provisions
9.1.1 Borrowings incurred by the Management Company on behalf of the Fund shall not exceed the lower of (i) the Total Undrawn Commitments and (ii) thirty percent (30%) of the Fund Assets.
9.2.2 During the Investment Period, if one or more Key Person(s) representing fifty (50)% or more of the Key Persons do/does not devote most of his/her professional time to the Fund, to the Management Company and/or to the funds to be set up and managed by the Management Company (a “Key Person Event”), the Fund shall enter into a Suspension Period and the Management Company must inform the Advisory Committee as soon as possible of such Key Person Event. However, it is specified that the departure of a Key Person which is replaced with the Advisory Committee’s prior consent in the absence of any Key Person Event upon such departure shall not be taken into account to determine a Key Person Event.
9.2.3 The Suspension Period shall last three (3) months from the Key Person Event. The Management Company shall use its best efforts during the Suspension Period to (i) identify potential additional Key Persons or suitable replacement Key Persons, in particular among the members of the Management Team, in order to replace the individual(s) involved in the Key Person Event, and (ii) obtain the Advisory Committee’s approval on the ability of such suggested professionals to be additional Key Persons. The Advisory Committee may extend the Suspension Period, at the Management Company’s request, for one additional three- month period.
9.2.4 Prior to the expiry of the Suspension Period, if the Management Company has obtained the Advisory Committee’s approval on (i) the replacement of one or more Key Person(s) involved in the Key Person Event, or (ii) any other solution proposed by the Management Company, such Suspension Period shall be lifted.
9.2.6 Upon expiry of the Suspension Period (including any extensions thereof) if no such approval is obtained from the Advisory Committee, the Investment Period shall terminate.
9.2.7 Subject to Advisory Committee’s approval, the Management Company may re-open the Investment Period at any time. In this case, the Management Company shall automatically
and immediately recover the ability to make First Investments.
(a) re-open the Investment Period;
(b) terminate the Investment Period;
(c) dissolve the Fund early; or
(d) remove the Management Company under the conditions of Article 9.4.1.
9.2.9 The Management Company will inform the Depositary of any Key Person Event.
9.3.1 As soon as reasonably practicable from the date the Management Company is informed of a contemplated Change of Control, the Management Company shall consult the Advisory Committee on such Change of Control, and the Advisory Committee shall approve the Change of Control prior to its completion.
9.3.2 Until the end of the Investment Period, in the event of a Change of Control which has not been approved by the Advisory Committee prior to its completion, the Management Company shall inform the Advisory Committee as soon as possible, and the Fund shall automatically enter into a Suspension Period of six (6) months from the effective date of such Change of Control or from any later date when the Management Company has been informed of the Change of Control. During such Suspension Period, the Management Company shall obtain the approval of the Advisory Committee as to any solution that the Management Company might suggest.
9.3.3 During the Suspension Period, if the Management Company has obtained the approval of the Advisory Committee regarding the Change of Control or any solution proposed by the Management Company, the Suspension Period shall be lifted.
(a) approve the Change of Control and re-open the Investment Period;
(b) terminate the Investment Period;
(c) dissolve the Fund early; or
(d) remove the Management Company under the conditions of Article 9.4.2.
9.3.5 The Management Company will inform the Depositary of any Change of Control.
9.4 Removal of the Management Company
9.4.1 No-Fault Removal — After twenty-four (24)-month as of the First Closing Date, at least two
(2) Investors who are not Affiliates, holding together at least fifty percent (50%) of the Total Commitment, may ask in writing the Management Company (which undertakes to comply with this request) to propose to the Investors the Management Company's removal from its duties as the Fund’s portfolio management company (société de gestion de portefeuille) (the “Claim Letter 1”). Within thirty (30) Business Days from reception of the Claim Letter 1 by
the Management Company, the Management Company shall hold an Investors consultation to vote on the Management Company’s removal. The Management Company shall be removed from its duties as the Fund’s portfolio management company if, by an Investors’ Special Consent, the Investors vote in favour of such removal. In the event of removal pursuant to this Article, the Management Company shall receive as a compensation for termination of its duties, an amount equal to the annual Management Fee paid to the Management Company on the Accounting Period immediately preceding such removal. The Fund shall pay such amount no later than ten (10) Business Days before the Transfer Date.
9.4.2 Removal for Fault — At least two (2) Investors who are not Affiliates, holding together at least forty percent (40%) of the Total Commitment, may ask in writing the Management Company (which undertakes to comply with this request) to propose to the Investors the Management Company's removal from its duties as the Fund’s portfolio management company (société de gestion de portefeuille) following a Fault determined by a competent court decision (the “Claim Letter 2”). The Management Company shall have a period of fifteen (15) Business Days from the reception of the Claim Letter 2 to (i) inform the Investors of the actions that have been taken to remedy the consequences of the aforementioned Fault or of the solution it proposes to remedy it and (ii) hold an Investors Consultation to propose the Management Company’s removal. If, by an Investors’ Ordinary Consent, the Investors vote in favour of the Management Company's removal, the Management Company shall be removed as the Fund's portfolio management company without being entitled to any compensation.
9.4.3 As of the date of receipt of the Claim Letter 2, the Fund will enter into a Suspension Period.
9.4.4 The Claim Letter 1 and the Claim Letter 2 shall contain the following information: the name of the proposed replacement management company and the reason(s) for such proposed removal (including the alleged Fault thereof).
9.4.5 In the event the alleged Fault is cured, as agreed by the majority (in Commitment) of the Claiming Investors, in writing by the Management Company (if curable and excluding any Fault referred to in (v) and (vi) of the Fault definition) within thirty (30) calendar days following the notification of the alleged Fault by the Claiming Investors, the Fault removal process shall end and the Management Company shall continue to manage the Fund.
9.4.6 If the Fault is not curable or is not deemed cured by the Claiming Investors within forty-five
(45) calendar day following the fifteen (15) Business Days referred to in Article 9.4.2 or in case of any Fault referred to in (v) and (vi) of the Fault definition, the reception of the Claim Letter 2, the Management Company shall submit to the vote of the Investors the removal of the Management Company upon the expiration of such forty-five (45) calendar day period. The Fund’s management shall be transferred to a new portfolio management company, subject to an Investors’ Ordinary Consent, the effective date of transfer being referred to as the "Transfer Date".
(b) the New Management Company shall be approved by the AMF and shall immediately change the Fund’s name and those of any Relevant Entities to remove any reference to “OCCTE OCCIDEV”, any reference to the Management Company or its Affiliates, or any name derived therefrom, and the New Management Company must ensure the Fund’s update of registration under such new name within ten (10) Business Days of its appointment and must refrain from using the name “OCCTE OCCIDEV” for any purpose, including as any trademark or service mark;
(c) the New Management Company must, as soon as possible, proceed with all required formalities which fall within its purview to replace the Management Company under the conditions set out by the applicable laws and regulation; and
(d) the Management Company must provide the New Management Company with the registers and books pertaining to the Fund.
The Depositary will be informed of the appointment of a New Management Company.
9.4.10 Upon the no-fault removal of the Management Company, each Carried Interest Holder shall transfer to the New Management Company, or to any other Person designated by the New Management Company, a number "N" of C Shares it holds determined as follows:
N shall be equal to: C X (100% - 10% X R). Where:
“C” corresponds to the number of C Shares held by the relevant Carried Interest Holder on
the Transfer Date.
“R” corresponds to number of full years between the Date of First Investment and the Transfer Date.
9.4.11 In case of no-fault removal of the Management Company, the price to be paid by the New Management Company in consideration for the transfer of the C Shares shall be equal to the higher of (i) the paid-up amount of the Transferred C Shares on the Transfer Date less any distribution (including any amount distributed to the Tax Reserve) made by the Fund to such Carried Interest Holder prior to the Transfer Date and (ii) the last Share Value of the C Shares, without the total price being less than one (1) euro. For the avoidance of doubt, amounts in the Tax Reserve on the Transfer Date shall be deemed distributed to the Carried Interest Holders and shall be distributed to them upon the end of the C-Share Tax Unavailability Period.
9.5.1 Provided that the Management Company retains the appropriate resources to manage the Fund properly, the duties and responsibilities which the Management Company carries out on behalf of or in relation to the Fund are not exclusive and the Management Company may perform similar duties and responsibilities for other investment funds or managed accounts or engage in any other activity.
9.6.1 All Investors agree that the Management Company may enter into side letters or similar agreements (“Side Letters”) with existing or future Investors (the “Side Letter Recipients”) relating to their investments in the Fund.
9.6.3 Within twenty (20) Business Days after disclosure of the Side Letters provisions in accordance with Article 9.6.2, any Investor may request in writing to benefit from the rights or benefits (the “Requested Rights”) equivalent to those set out in the disclosed Side Letters provisions, subject to:
(a) the application of Article 9.6.5;
(b) the relevant Requested Rights being applicable to such Investor;
(c) satisfaction by an Investor of any condition entitling this Investor to benefit from such Requested Right (including where that Requested Right is conditioned to a minimum Commitment subscription before a given date, or where granting the benefit of that Side Letter is conditioned to there being no other equivalent Side Letter provision);
(d) the sum of the Commitments of the Investor and its Affiliates is greater than or equal to the sum of the Commitments of the relevant Side Letter Recipient and its Affiliates;
(e) such Investor not having committed a material breach of any of its obligations (for the avoidance of doubt, becoming a Defaulting Investor in accordance with Article
7.3.2 shall also be deemed to be a material breach) under the By-Laws, its Subscription Agreement and/or its Transfer Agreement; and
(f) such Investor not already benefiting from substantially similar rights or benefits under its own Side Letter.
9.6.5 Notwithstanding the foregoing, Side Letter provisions relating to:
(a) the Advisory Committee (including participation to the Advisory Committee) and all rights relating thereto;
(b) secondary opportunities;
(c) transfers of Shares;
(d) the identification of Investors’ Affiliates or the extension of the definition of Affiliate to identified Persons and the rights granted to such Affiliates and identified Persons;
(e) representations, confirmations and warranties granted at a particular time;
(f) tax and regulatory reporting;
(g) the use or disclosure of any Confidential Information;
(h) legal opinions to be issued by an Investor’s in-house counsel;
(i) an Investor's legal, regulatory, tax or ERISA status;
(j) statutory or regulatory provisions applicable to an Investor;
(k) administrative, operational or written policy requirements applicable to and/or binding on an Investor,
shall not fall within the scope of application of Article 9.6.2.
The Fund shall be liable for all legal, accounting and other professional expenses (including VAT) incurred in connection with (i) the formation of the Fund, the marketing and offering of the Shares, including printing, documentation and postage costs as well as documentation costs, disbursements and mission costs incurred by placement agents, travel expenses, and consultancy and audit fees, it being specified that commissions, success fees and retainer fees due to the placement agents will be paid by the Management Company (the “Organisational Expenses”).
It is specified that the amount of the Organisational Expenses shall not exceed one percent (1%) of the Total Commitment, unless otherwise agreed by the Advisory Committee.
The expenses and costs relating to the disposal of the Portfolio Companies by the Fund may be borne by the Portfolio Companies (as the case may be), where the expenses and costs are in connection with the identification, valuation, negotiation, acquisition, holding and disposition of the Investments, including (but not limited to) fees for intermediaries (finders' fees), business providers, merchant bankers and similar fees; legal, tax and accounting fees; valuation, research and audit fees; fees for external consultants; duties and taxes of a fiscal nature, and in particular registration fees; litigation costs; costs related to an initial public offering; and underwriting/syndication fees (the “Transaction Expenses”).
Failing that, the Fund will bear the unrealized Transaction Expenses invoiced by third parties.
The Fund shall bear all expenses incurred by the Fund, as part of the Fund’s operations and businesses including, but not limited to, costs of printing and circulating the Fund’s reports and notices, legal fees, administrators’, auditors’ and valuers’ fees, accounting expenses (including the expenses associated with preparing the Fund’s financial statements and tax returns), fees and expenses incurred in relation to any Depositary, depositary or nominee of the Fund and expenses relating to the Advisory Committee, other costs and expenses for bringing the Fund into compliance with laws and regulations including any required authorisation, registration or reporting in relation to the Fund, the costs of any restructuring of the Fund, external consultants’ fees, bank charges not relating to a financing or investment, disbursements relating to Investors’ meetings and Investors’ votes, the Fund’s
insurance costs (including insurance policies covering any liability of any Nominated Director), and all non-tax or regulatory filing or registration duties of the Fund, costs associated with the Fund’s liquidation, lawyers’, statutory auditors’, valuers’ and any external consultant’s fees incurred, it being specified that the Fund shall not be liable for expenses relating to the Management Company’s overhead, which must be paid by the Management Company out of the Management Fee received, including remuneration and expenses paid to its employees, rent and utilities.
The Management Company and its Affiliates shall be entitled to accept and retain for their own account:
(a) all Transaction Fees; and
(b) all Investment Related Fees,
provided that any Transaction Fees and Investment Related Fees (net of any VAT or similar tax related thereto) earned during an Accounting Period shall, to the extent provided in Article 10.6, be credited against and reduce the Management Fee payable by the Fund.
10.5 Investor-Specific Expenses
All fees, costs and expenses, together with any Taxation thereon, incurred directly or indirectly by the Management Company, its Affiliates or the Fund with respect to any particular Investor, and/or if such Investor is required to pay amounts other than its Commitment pursuant to the terms of the By-Laws or of its Subscription Agreement or Side Letter, including in relation to:
(a) such Investor becoming a Defaulting Investor pursuant to Article 7.3.2;
(b) any paying agent or legal representative being appointed to act in relation to such Investor, either: (i) by or at the request of such Investor; or (ii) to take account of any law or regulation applicable to such Investor, in either case, whether in connection with such Investor’s admission to the Fund or otherwise;
(c) any Transfer, or proposed Transfer, of an Investor’s Shares;
(d) the realisation of an Investment that would otherwise have been distributed in kind (in specie) to such Investor at or following the expiry of the Term in connection with the liquidation of the Fund, where such Investor has elected not to receive such distribution in kind (in specie);
(e) the provision of any other service provided by the Management Company or any of its Affiliates to such Investor at such Investor’s request (whether such service is set out in a Side Letter or not), including reports, the preparation of the Fund’s accounts in accordance with other accounting principles (such as IFRS or US GAAP), valuations or other information provided to such Investor; and/or
(f) the Management Company, its Affiliates, or the Fund incurring any fees, costs or expenses, together with any Taxation thereon, that the Management Company determines in good faith is incurred as a consequence of having such Investor admitted in the Fund,
shall, unless the Management Company determines otherwise in its sole and absolute discretion, be borne by such Investor in addition to its Commitment. The Management Company may, in its sole and absolute discretion, either: (a) request such payment from the Investor, in which case any such payment shall not be reflected in its accounts or reduce its Undrawn Commitment; or (b) deduct such amounts from allocations and distributions that would otherwise have been made to such Investor pursuant to the By-Laws in such case the Investor shall nevertheless be treated as having been allocated and distributed such amounts
for the purposes of the By-Laws.
The Management Company shall receive with respect to each Accounting Period a fee from the Fund (the “Management Fee”) calculated in accordance with Article 10.6.2.
The Management Fee shall be paid to the Management Company by the A Shareholders and the C Shareholders.
The Management Fee shall be paid quarterly in advance on each Quarterly Date. The Management Fee shall be paid for the first time on the First Closing Date on a pro rata temporis basis.
10.6.2 Calculation of the Management Fee
During the Investment Period (as extended, as the case may be), the Management Fee for each Accounting Period shall be equal to two percent (2%) (excluding taxes) of the Total Commitment. This computation will be made as if all A Shareholders and C Shareholders had subscribed on the First Closing Date.
After the end of the Investment Period, the Management Fee for each Accounting Period shall be equal to two percent (2%) of the Net Invested Amount as calculated on each Quarterly Date with respect to the following Quarterly Accounting Period.
The “Net Invested Amount” means: the difference between (i) the aggregate Acquisition Costs of Investments made by the Fund and (ii) the aggregate Acquisition Costs of Investments that have been realised, disposed of or written-off at least at ninety percent (90%), providing that recapitalisation (i.e. dividend recapitalisation), refinancing or similar event shall not be deemed a realisation.
The Management Fee shall be reduced in January of each year by an amount (net of any VAT or similar tax related thereto) equal to one hundred percent (100%) of any Transaction Fees and/or Investment Related Fees received by the Management Company, any of their Affiliates or any of the Management Company’s officers, directors or employees for the previous Accounting Period pursuant to Article 10.4, together with any amount of such reduction with respect to a previous Accounting Period which did not previously reduce the Management Fee. If, on the Final Liquidation Date, any such Transaction Fees and/or Investment Related Fees which have not been applied in reduction of the Management Fee with respect to any Accounting Period remain, they shall be distributed to all Investors (pro rata to their Commitments), other than Investors which expressly opt to waive such rights.
For the avoidance of doubt, where any Transaction Fees and Investment Related Fees received by the Management Company, or any of its Affiliates, employees or officers relate to an Investment by the Fund and any other funds managed or advised by the Management Company or any Affiliate, or any third party co-investors in the same Investment, the Transaction Fees and Investment Related Fees reducing the Management Fee shall be the proportion of the total of such fees received with respect to such Investment which the amount of the Investment by the Fund bears to the amount of the Investment by the Fund and any other funds managed or advised by the Management Company or any Affiliate and any third party co-investors.
In accordance with applicable regulations, the Management Company has not opted to make the Management Fees subject to VAT.
10.7 Depositary and Centralising Agent
The Fund shall pay the remuneration due to the Depositary and to the Centralising Agent of the Fund.
The Depositary’s and Centralising Agent’s remuneration will be determined contractually. The breakdown of that remuneration will be available upon request made to the Management Company. The Management Company will indicate the fees paid to the Depositary and the Centralising Agent in the annual report.
The Fund shall be responsible for the Statutory Auditor’s remuneration established each year.
The Fund shall pay the remuneration due to the Accounting and Administrative Delegate.
Pursuant to article L.000-00-00 of the FMFC, Investors are liable for the debts of the Fund solely within the limit of the Fund Assets and pro rata to their share in the Fund Assets. The Investors shall not be liable for the debts and obligations of the Fund beyond the amount of their Commitments.
12 Accounts, Tax Information and Reports
12.1 Annual Report and Audited Annual Accounts
Following the end of each Accounting Period, the Management Company shall draw up the Fund’s annual report, including the annual accounts of the Fund certified by the Statutory Auditor. The first annual accounts shall cover the period from the Fund Creation Date to 31 December 2023. A copy of the annual report will be made available to each Investor as soon as practicable after the end of each Accounting Period and in any event within five (5) months from the end of each Accounting Period.
12.2 Composition of the Fund Assets
The Management Company shall prepare the composition of the Fund Assets, certified by the Statutory Auditor, available to Investors within eight (8) weeks from the first Semi-annual Accounting Date.
The aforementioned document shall include:
(a) the inventory, drawn up under the Depositary’s supervision;
(b) the Net Asset Value;
(c) the number of Shares;
(d) the Share Value; and
(e) the off-balance sheet commitments.
Within two (2) months from the first Semi-annual Accounting Date, the Management Company shall make available to the Investors a semi-annual management report including the following information:
(a) a statement on the Fund Assets, specifying:
(i) the securities,
(ii) the Fund’s cash position,
(iii) the other assets held by the Fund, if any,
(iv) the inventory of the Fund Assets,
(v) the Net Asset Value,
(b) the number of Shares in the Fund;
(c) the Share Value;
(d) the securities portfolio,
(e) the changes in the composition of the securities portfolio during the relevant Semi- annual Accounting Period;
(f) if applicable, the amount in dividends paid during the relevant Semi-annual Accounting Period.
12.4.1 The Management Company shall make available to each Investor an unaudited quarterly activity report as soon as practicable from the end of each quarter ending 31 March, 30 June and 30 September and in any event within twelve (12) weeks as from such Quarterly Date.
12.4.2 Quarterly reports shall contain:
(a) details of the Investments carried out during the relevant period Quarterly Accounting Period;
(b) the unaudited Share Value as at such Quarterly Date with respect to each Share class, such unaudited Share Value is communicated for information purposes only ; and
(c) a capital account statement of the Fund.
The first quarterly report shall cover the period from the Fund Creation Date to [30 June] 2023.
12.5 Changes to Accounting Principles
Subject to the Statutory Auditor’s approval, the Management Company may change the accounting principles applicable to the Fund provided that such change complies with the applicable laws and regulations. The Management Company will inform the Depositary and the Investors of the Fund of such change.
for, preparing, compiling and obtaining any information as set out above and in this Article
12.6.1 shall be borne by the requesting Investor and any payment by the Investor reimbursing the Management Company for such costs shall not be deemed to be Further Drawdowns but rather shall be an additional amount to the Commitment of such Investor. For the avoidance of doubt, such cost shall be disregarded for the purpose of calculating the Outstanding Commitment. It is further acknowledged that external advisers may be required to be engaged to carry out certain requests and additional costs may be incurred in this regard. Where external advisers are required to be engaged, the Management Company shall seek the prior written approval of the requesting Investor(s) first.
12.6.2 The Management Company shall make reasonable efforts to notify Investors of any opportunities to obtain exemptions from or refunds of any withholding or similar taxes imposed by a taxing authority with respect to amounts distributable or allocable to the Investors of which the Management Company is aware.
13 Portfolio Valuation and Share Value
13.1.1 Unless otherwise expressly provided, in order to determine the Share Value (see Articles
13.2.1 et seq.), any Investment held by the Fund shall be valued by the Management Company, in its reasonable discretion and in accordance with the methodology developed by the Management Company in accordance with the valuation criteria described in the Fund’s annual reports drawing on the international private equity and venture capital valuation guidelines developed by the International Private Equity and Venture Capital Valuation (“IPEV”) board, as updated, from time to time.
(a) French financial securities listed on a Regulated Market will be valued on the basis of the last bid price recorded on the Regulated Market where they are listed, on the valuation date or the last business day prior to the valuation date if this is not a business day, and
(b) foreign financial instruments listed on a Regulated Market, will be valued on the basis of the last bid price recorded on the Regulated Market if they are listed on a French Regulated Market on the valuation date, or on the last business day preceding the valuation date if this is not a business day, or on the basis of the last bid price recorded on their main Regulated Market converted into euros at the Paris exchange rate on the valuation date.
For the purposes of this paragraph, a “Regulated Market” is a market which is regulated and supervised by State approved bodies, is held on a regular basis and is directly or indirectly accessible to the public.
13.1.3 Units or shares in collective investment schemes (in particular UCITS and AIF) shall be valued on the basis of the last known net asset value on the valuation date.
13.1.4 Any change in valuation baseline must be stated in the annual report referred to in Article 12.1.
13.1.5 The Value of all securities shall be converted into Euro at the currency exchange rate on the valuation date.
13.1.6 The Fund Assets include all securities held in its portfolio, its receivables and any cash. The Net Asset Value shall be determined by deducting any liabilities from the Value of the Fund Assets.
13.2.2 The Share Value of the Shares of a specific Share class is determined by calculating the amount that would have been distributed to the Investors invested in such Share class, had all the Investments been sold on the calculation date at a price equal to the Net Asset Value determined in accordance with Article 13.1, divided by the number of Shares of the relevant Share class.
Subject to Articles 4.1, 7.3, 14.2, 15.1 through 15.5 and 15.6.1 of the By-Laws, all distributions made by the Fund shall be made in the following order of priority:
a) first, one hundred percent (100%) to the Investors, pro rata to their paid-up Commitments, until they have recovered all amounts drawn down from them;
b) second, one hundred percent (100%) to the A Shareholders, pro rata to their accrued [6,5]% Return, until they have received cumulative distributions pursuant to this paragraph b) sufficient to achieve the payment of their [6,5]% Return;
c) third, one hundred percent (100%) to the C Shareholders until they have received cumulative distributions pursuant to this paragraph c) sufficient to achieve the payment of twenty-five percent (25%) of the [6,5]% Return received by the A Shareholders pursuant to paragraph b);
“[6,5]% Return” means a preferred return on positive amounts of the A Shareholders' Cumulative Cashflow as daily compounded as of the First Closing Date, drawn down and outstanding, at a rate equal to [six point five] percent ([6,5]%) per annum, compounded annually.
With respect to each distribution made by the Fund, the Management Company shall send a notice to the relevant Investors, in such form as determined by the Management Company, to inform such Investors of the distribution.
14.2 Specific Provisions Applicable to the Carried Interest Holders
In order to ensure that the Carried Interest Holders do not receive distributions in excess of their entitlement in their capacities as beneficiaries of the carried interest, the Management Company shall retain in the Fund the amount that would have been distributed to the Carried Interest Holders under Article 14 c) and d) (i), (the “Fund Reserve”), until the Fund Reserve is at least equal to the Minimum Reserve Amount, subject to compliance with the C-Share Tax Unavailability Period.
Once the Minimum Reserve Amount is reached, the Fund may distribute to the C Shareholders, subject to the following paragraph, any amount of the Fund Reserve that exceed the Minimum Reserve Amount.
Notwithstanding the preceding paragraphs, if the Investors pay a Further Drawdown (including any repayment to the Fund of a Temporary Payment) to the Fund, subsequent distributions will be allocated to the Investors in accordance with Article 14.1 until the next Repayment Date and any distributions made to the Carried Interest Holders from the Fund
Reserve will be suspended until such Repayment Date. On this new Repayment Date, the Minimum Reserve Amount will be recomputed and the Fund shall be able to distribute to the Carried Interest Holders the amount that exceeds the Minimum Reserve Amount so recomputed.
All amounts in the Fund Reserve will be invested in money market funds or short-term negotiable instruments at the discretion of the Management Company. Any interest, gains or dividends received in respect of the Fund Reserve shall increase the amount of the Fund Reserve and be paid to the Carried Interest Holders in accordance with the preceding paragraphs.
Notwithstanding the foregoing, but subject to compliance with the C-Share Tax Unavailability Period, the Management Company may make a payment to a Carried Interest Holder as an advance against subsequent distributions to such Carried Interest Holder to the extent that annual distributions made to such Carried Interest Holder are in a small amount than any Taxation imposed on such Carried Interest Holder that are attributable to income allocated to such Carried Interest Holder. Amounts to be subsequently distributed to such Carried Interest Holders in accordance with Article 14.1 shall be reduced by any amount previous distributed pursuant to this paragraph to such Carried Interest Holder.
15 Timing, Re-Investment and Limitations of Distributions
15.1 Distributions Terms and Conditions
15.1.2 All distributions made with no redemption of Shares shall be deducted from the value of the Share classes concerned by the distribution and such Shares will be fully or partially amortised.
15.2.1 Pursuant to applicable laws, the net income of the Fund with respect to any Accounting Period shall be equal to the amount of interest, premiums and bonuses, dividends and any other income relating to the securities comprising the portfolio, less any expenses and fees provided in Article 10, including any borrowing costs incurred by the Fund. The distributable income (the “Distributable Income”) shall be computed on each Accounting Date and is equal to such net income increased by the amount carried forward. Interest shall be recorded on a cash basis.
15.2.2 If the Fund generates Distributable Income, the Management Company may capitalise all or part of the Distributable Income to incorporate it into the Fund Assets or may decide to distribute it pursuant to Article 15.1. All distributions of Distributable Income shall take place as soon as reasonably practicable. The Management Company may also decide during the Accounting Period to cause the Fund to make one or more interim distributions within the limit of the net income available as at the date of such interim distribution.
15.2.3 In the event the Distributable Income during the course of an Accounting Period becomes negative, the net loss incurred during such Accounting Period shall be capitalized and deducted from the value of the Fund Assets. If there is a net loss upon the Fund’s liquidation, the loss shall be deducted from the value of the existing shares pro rata to the Share Value of such Shares.
During the Term, the Fund may retain all or part of the amounts received by the Fund, including all Net Proceeds and Acquisition Costs excluding short-term Investments to carry out Investments, provided that the Acquisition Costs initially invested and reinvested by the Fund, excluding short-term Investments, do not exceed one hundred ten percent (110%) of the Total Commitment.
15.5 Restrictions on Distributions
15.5.1 The Management Company shall be entitled to retain all or part of all amounts received by the Fund, including all Net Proceeds and Distributable Income, in order to:
(a) pay any liabilities and expenses or obligations, including any other amounts reasonably contemplated by the Management Company that may be due by the Fund and any further drawdown called or that are expected to be called by the Fund within a twelve (12) month period from the date of receipt of such amounts or beyond subject to the Advisory Committee prior consent;
(b) fulfil any obligation undertaken by the Fund including any obligation to repay any indebtedness, to fund any guarantee or obligation made with respect to realised Investments, such as warranties and/or indemnities; or
(c) set off such distributions against subsequent Further Drawdowns.
15.6.1 The Management Company (or where applicable, the liquidator) may, at any time, distribute the Fund Assets in cash or in listed securities with or without redemption of Shares. All distributions shall be made in accordance with Article 15.1. All distributions made without redemption of Shares shall be deducted from the Share Value of the category of Shares concerned by the distribution.
15.6.2 During the Term, the Management Company shall generally cause the Fund to make distributions in cash. However, the Management Company may, during the Term or during the liquidation of the Fund, distribute listed securities in kind subject to the prior consent of the Advisory Committee, provided that the Management Company gives to each Investor written notice thereof at least fifteen (15) Business Days before the Distribution Date, which notice shall include a description of the securities proposed to be distributed. Each Investor shall have fifteen (15) Business Days following receipt of the notice to deliver to the Management Company a written notice waiving its right in receiving any of the listed securities that has been proposed to be distributed. If no written notice is delivered to the Management Company by an Investor within the aforementioned 15-Business-Day period, the Management Company may distribute in kind (in specie) the listed securities to such Investor. In the event an Investor has waived its right to receive the listed securities, the Management Company shall use its best efforts to sell the listed securities on the market, on behalf of such Investor and to distribute to the Investor the sale consideration of such listed securities net of the Management Company’s expenses associated with the disposal of the listed securities. Notwithstanding the foregoing, the Investor which has waived its right to receive the listed securities shall, for the purpose of the By-Laws, be deemed to have received the listed securities in kind (in specie) on the Distribution Date.
15.6.3 Any distribution of listed securities shall be treated as a disposal of the Investment followed by a distribution of the Net Proceeds.
15.6.4 Where the distribution in kind (in specie) is made contemporaneously with the Investment achieving a Listing, the value of the Investment concerned shall be the listing price of the Investment. Where a distribution in kind (in specie) is made of securities which are already quoted on a Financial Instrument Market the value of such securities shall be the weighted average of the quoted closing price of such securities in the five (5) previous trading days prior to such distribution (“Distribution Date”) (or if shorter the period from the date of such Listing) and the five (5) trading days following the Distribution Date.
15.6.5 Any distributions of securities in kind (in specie) shall be made net of any costs resulting from such distribution, such that each Investor receives, to the extent possible, its proportion of all the securities of each category that may be distributed plus a cash payment for any Investor who has not received the total number of securities to which it is entitled.
15.7 Temporary Distributions and Deemed Distributions
15.7.1 When the Management Company is giving any seller’s warranty following the disposal of the Portfolio Companies, it shall be entitled to make temporary distributions to Investors under the conditions provided for below (“Temporary Distributions”).
15.7.2 Any Temporary Distribution will be made in accordance with Article 15.1 and will be deducted from the Share Value to which the Temporary Distribution relates. Any Temporary Distribution shall increase the Investors Undrawn Commitments who receive it. It is further specified that Temporary Distributions may be recalled by the Management Company in one or more Further Drawdowns at the latest until the earlier of (i) the second anniversary of such Temporary Distribution and (ii) the Final Liquidation Date. Payment to the Fund of such Further Drawdown(s) shall increase accordingly the Value of the Shares whose Share Value had previously been reduced by the Temporary Distribution(s). That payment may be made, in whole or in part, by offsetting the amount payable to the Fund against any amounts the Management Company proposes to distribute to the Investors from the Fund.
15.7.3 Before any Temporary Distribution or any Deemed Distribution is made, the Investors will be notified thereof in writing by the Management Company.
16.1 Transfer of Shares by the Investors
(b) in the case of any Transfer:
(i) to an Affiliate of an existing Investor, provided however that: (x) if such Transfer is being undertaken as a series of Transfers which would result in the ultimate proposed Transferee Investor not being an Affiliate of the original transferor Investor then the Management Company’s consent to such Transfer(s) can be given or withheld in its sole and absolute discretion; and
(y) if at any time the Transferee Investor ceases to be an Affiliate of the original transferor Investor, then the Transferee Investor shall promptly notify the Management Company of such change and, if the Management Company so directs, as soon as reasonably practicable thereafter, transfer back to the original transferor Investor (or an Affiliate of the original transferor Investor) all the Shares in the Fund transferred directly or indirectly by the original transferor Investor; or
(ii) by an existing Investor to any other fund or undertaking for collective
investment managed or advised by the same management company or any of its Affiliates, as the existing Investor,
(each of the transferees referred to below qualifying as an “Affiliated Entity” of the transferor Investor for the purposes of the By-Laws), but only (i) insofar as the Management Company has all information proving that the transferee is an Affiliated Entity and any other document or information which the Management Company would need to comply with its regulatory, legal and tax obligations relating to knowledge of the transferee or more generally to the Transfer and (ii) provided that the transferor Investor irrevocably undertakes to buy back the transferred Shares, upon the Management Company’s first request, at any time should the transferee cease to be an Affiliated Entity of such transferor within the meaning of this Article);
(c) where the Management Company considers that none of the following apply:
(i) such Transfer would result in a violation of any applicable law, including French securities laws and United States Federal or State securities laws, or any provision of the By-Laws; or
(ii) as a result of such Transfer, the Fund or the Management Company would be required to register as an “investment company” under the Investment Company Act; or
(iii) such Transfer would result in the Fund Assets being treated as “plan assets” under ERISA; or
(iv) the transferee is not a Qualified Investor; or
(v) if the Management Company considers that such Transfer does or might jeopardise the tax status of the Fund, the Management Company or the Investors; or
(vi) such Transfer does or might (i) create a regulatory or tax issue for the Fund, the Management Company, the Investors or any of the Investors or (ii) cause the Fund to be directly or indirectly in violation, breach or failure under any debt or guarantee or of any financing or security agreement relating to a debt, or would require payment of a debt before its planned maturity, additional expenses or penalties (including at Portfolio Companies' level); or
(vii) such Transfer may constitute a transaction effected through an “established securities market” within the meaning of the US Treasury Regulations promulgated under Section 7704 of the Code or otherwise may cause the Fund to be a “publicly traded Fund” within the meaning of Section 7704 of the Code; or
(viii) such Transfer would result in an individual, acting directly or through an intermediary or trust (fiducie), within the meaning of article 150-0A of the French General Tax Code, owning more than ten percent (10%) of the shares in the Fund.
16.1.2 The Management Company must be notified of any proposed Transfer indicating the full name, mailing address of the transferor Investor (the “Transferor Investor”) and proposed transferee Investor (the “Transferee Investor”), the amount of the Commitment which the Transferor Investor plans to transfer, and the proposed consideration (a “Notification Letter”), a specimen of which is provided in Schedule 4, and such Notification Letter should also contain all the required information for the Fund and the Management Company to comply with their legal and statutory obligations, including with respect to Tax Information Provisions or KYC Obligations, in a form satisfactory to the Management Company. Provided the Notification Letter is complete, the Management Company shall respond to such Notification Letter within twenty (20) Business Days following receipt with an affirmative or negative answer. The Management Company may, in its absolute discretion, waive the requirement for a Notification Letter. The Management Company may, in its sole discretion,
recognize Transfers for purposes of the Fund as of the end of each calendar quarter in which such Transfer occurred.
16.1.3 The Management Company may make the registration or approval of any Transfer conditional on the remittance, by any Transferee Investor, of an opinion of counsel (which counsel and opinion must be reasonably acceptable to the Management Company) or, at the Management Company’s choice, a certificate signed by a duly authorised legal representative of the Transferee Investor stating that the proposed Transfer violates no provision of Article 16.1.1(c). The Management Company, the Fund may rely on such opinion or certificate for the purposes of determining whether the proposed Transfer breaches any provision of Article 16.1.1(c).
16.2 Terms and Conditions for Transferring Shares
16.2.1 Each Transferee Investor will be bound by all the provisions of the By-Laws.
16.2.2 As a condition for registering or approving any Transfer, the Transferee Investor and the Transferor Investor shall take all necessary steps for that purpose, and must agree in writing in a format approved by the Management Company, to take on (in full or, if the transfer is only of part, the corresponding share of) the obligations of the Transferor Investor, including payment of any Undrawn Commitment relating to the transferred Shares, to be bound by all the provisions of the By-Laws as an Investor and to indemnify the Fund and the Management Company for any costs, liabilities, legal fees, taxes and expenses associated with or incurred directly or indirectly as a result of such Transfer.
16.2.3 The Transferee Investor will not become an Investor and neither the Fund nor the Management Company will incur any liability to any Person for voting matters or for allocations of distributions made in good faith to the Transferor Investor until:
(a) the Transfer Agreement executed by the Transferee Investor has been received and countersigned by the Management Company and the effective date of the Transfer has passed;
(b) the Transferee Investor has been recorded in the Fund Register;
(c) the Management Company has confirmed that the Transferee Investor has, in the Management Company’s view, provided all the necessary information to enable the Management Company (and, as the case may be, the Depositary) to comply with any applicable law requirements, including its KYC Obligations and Tax Information Provisions relating to the admission of the proposed Transferee Investor as an Investor in the Fund as well as with any contract to which the Fund and/or the Management Company is a party; and
(d) more generally, the Management Company has confirmed that the Transferor Investor and the Transferee Investor have provided all the information and documents deemed necessary by the Management Company to admit the proposed Transferee Investor as an Investor in the Fund.
16.2.4 The Transferee will reimburse the Management Company all costs incurred in connection with the Transfer of Shares, including any lawyer’s fees. The Management Company may also receive remuneration from the Transferor Investor, negotiated by mutual agreement, if the latter requires its assistance in seeking a Transferee Investor with respect to it Shares.
16.2.5 If any Transfer results in multiple ownership, separation of the attributes of ownership (démembrement) or beneficial ownership of any Investor’s, the Management Company may require one or more trustees, nominees or agents to be designated as representing a portion of or the entire interests transferred for purposes of, inter alia: (a) receiving all notices, reports and information which may be given, and all payments which may be made, under the By-Laws; and (b) exercising all rights which the Transferor Investor as an Investor has pursuant to the provisions of the By-Laws. The Management Company may also require in its sole discretion any other covenants from such parties to such Transfer as it deems necessary.
16.3 Transfers of Shares in violation of this Article
16.4.1 No Investor may request the Fund to redeem Shares until the Final Liquidation Date.
16.4.2 Notwithstanding the foregoing, an Investor may at any time be requested to withdraw from the Fund (the “Excluded Investor”):
(a) if the Excluded Investor is no longer a Qualified Investor; or
(b) if the continuation of the Excluded Investor as an Investor in the Fund would cause any Relevant Entity to cease to comply with KYC Obligations, or change its status for the purposes of KYC Obligations.
16.4.3 Exclusions made in accordance with this Article will be made by the Fund redeeming the Shares of the Excluded Investor at the price determined in accordance with Article 16.4.4 and in exchange for the consideration described in Article 16.4.4.
16.4.4 If the Fund redeems an Excluded Investor’s Shares in accordance with Article 16.4.3, the redemption price for such Shares shall be equal to the amount the Excluded Investor would have been entitled to receive in accordance with Article 17.3 had the Fund been liquidated and dissolved on the date of such redemption calculated based on the Fund’s audited and unaudited accounts. Such valuation will be made by the Management Company acting in good faith and in co-operation with the Statutory Auditor. That purchase price must be paid by means of a subordinated promissory note, it being specified that the Fund will in no event be required to sell Investments or effectively redeem the Excluded Investor’s Shares before the Final Liquidation Date in accordance with Article 17.3.
17 Pre-liquidation, Dissolution and Liquidation
17.1.1 The Fund may enter into a pre-liquidation period from the date of the decision taken by the Management Company in accordance with the relevant provisions of the FMFC, following the filing of a declaration with the AMF and with the relevant tax authorities. Such pre-liquidation period shall end upon the dissolution of the Fund.
17.1.2 From the beginning of the Accounting Period during which the declaration referred to above is filed, the Legal and Tax Quota will no longer need to be complied with.
17.1.3 The Management Company will inform the Depositary beforehand of any pre-liquidation of the Fund.
The Fund will be dissolved at the expiry of the Term or, prior thereto, in the following cases:
(a) if the Fund Assets fall below the regulatory minimum of assets for a period of thirty
(30) calendar days;
(b) at the initiative of the Management Company and following an Investors’ Ordinary Consent.
The Management Company will inform the Depositary beforehand of any extension of the Term or of the dissolution of the Fund.
17.3.1 Upon dissolution of the Fund, no further business shall be conducted by the Fund except for such acts as are necessary to wind up the Fund’s business, protect and realise the Fund Assets, and distribute the Fund Assets in cash or in kind.
17.3.2 The Management Company shall act as liquidator, except in the case of insolvency in the event referred to in Article 17.2(a). In such an event, the liquidation will be carried out by a liquidator appointed by a court of competent jurisdiction at the request of the most diligent Investor.
17.3.3 The liquidator may exercise all powers conferred to the Management Company under the By- Laws as shall be necessary or desirable to carry out the realisation of the Fund Assets and the winding up of the Fund’s business and affairs, including the power to issue Drawdown Notices requiring Investors to contribute any part of their Undrawn Commitments, or to require Investors to return distributions in accordance with Articles 15.7 and 19.2, to enable the Fund to pay all debts, obligations and liabilities.
17.3.4 Upon the Fund’s dissolution, the liquidator shall ensure payment by the Fund of any debt, obligation and any other liability of the Fund and all the costs relating to the liquidation. The liquidator may retain all liquid amounts it deems necessary to enable the Fund to comply with its present and future foreseeable obligations. The liquidator may sell any or all of the Fund Assets on what it considers to be appropriate terms and/or may, at its discretion, provided that it has first made reasonable efforts to sell the Fund Assets and subject to Article 17.3.5, distribute all or any of the remaining assets in kind at a value reasonably determined by the liquidator. Such Value will be disclosed by the liquidator to the Investors.
17.3.5 The liquidator may distribute in kind all or part of the Fund Assets in accordance with Article 15.6. If any Investor has requested, in accordance with Article 15.6, that the liquidator (or the entity retaining such securities) retain its share of the securities involved in that distribution, any security thus retained will no longer be a Fund Asset and will be deemed to have been distributed in kind to the relevant Investor(s) in accordance with this Article. The liquidator shall use its reasonable endeavours to sell such securities, acting on the relevant Investor’s behalf, and the proceeds of such sale shall be distributed to such Investor following their disposal. The relevant Investor shall bear the costs and expenses relating to the holding and the selling of such securities by the liquidator (or the entity retaining such securities).
17.3.6 Distributions to Investors will be made in accordance with Articles 15 and 17.3.5, it being specified that the Investors receiving a distribution in kind will take the Fund’s place in the rights and obligations relating to such assets under any documents, contracts and other agreements relating thereto.
17.3.7 On the Final Liquidation Date, the Management Company shall verify that the Fund has fully paid amounts at least equal to the sum of all amounts drawn down and the [6,5]% Return to the Investors in accordance with Article 14.1. If not, the Management Company shall distribute the Fund Reserve to the Investors, including to the Carried Interest Holders in their capacity as Investors, until such conditions have been met. After such distributions, the Management Company shall verify that the Carried Interest Holders in their capacity as Carried Interest Holders entitled to receive the Carried Interest have not received distributions in excess of twenty percent (20%). If Carried Interest Holders have received amounts higher than the amounts that they are entitled to pursuant to Article 14.1, the Fund Reserve shall be distributed to the Investors until the distributions to the Carried Interest Holders in their capacity as Carried Interest Holders have received amounts corresponding to their entitlement to carried interest, in accordance with Article 14.1. Finally, if there is any amount remaining in the Fund Reserve, such amount (together with whatever interests or other gain which have accrued thereon) will be paid to the Investors and to the Carried
Interest Holders in accordance with Article 14.1.
18.1.1 The Management Company shall be assisted by an advisory committee (the “Advisory Committee”) composed of five (5) to ten (10) members who each shall be a single named individual proposed by a significant Investor and appointed by the Management Company.
18.1.2 Each Advisory Committee member may ask any other member or a third party, with the Management Company’s consent, to represent him or her at a meeting and to vote in his or her name and on his or her behalf, provided that a power of attorney has first been remitted to the representative for that purpose, with a copy to the Management Company.
18.2.1 Advisory Committee members may resign with written notice of at least ten (10) Business Days given to the Management Company.
18.2.2 Advisory Committee members will, in addition, be removed by the Management Company:
(a) at the request of the Investor having proposed such member;
(b) at the Management Company’s discretion, (i) in the event of a Transfer of more than fifty per cent (50%) of the Shares subscribed for or acquired by the Investor having proposed the relevant member (provided that Transfers to Affiliated Entities in accordance with Article 16.1.1(a) shall not be taken into account), (ii) if the Investor having proposed such member becomes a Defaulting Investor and has not remedied such default as provided for by the By-Laws; or
If an Advisory Committee member is removed by the Management Company in accordance with paragraph (b) above, the Investor having proposed such member will not be authorised to propose a new member to replace him or her.
18.3.1 Advisory Committee members shall meet when convened by the Management Company. Any meeting notice will be sent by any means, even verbal, and shall respect a minimum notice of ten (10) calendar days, except in case of an emergency or where such notice has been waived by all Advisory Committee members.
18.3.2 The Management Company may be required, by a majority of the Advisory Committee members, to convene a meeting provided that such Advisory Committee members explain the reasons for convening such meeting, it being understood that the Management Company may refuse to convene such meeting if it deems (acting reasonably) that the agenda proposed by the Advisory Committee members relates to subjects which fall outside the Advisory Committee’s powers as defined by the By-Laws.
18.3.3 The Advisory Committee meetings shall be held at the registered office of the Management Company or in any other location in France that is specified in the convening notice, by video conference or by telephone. Furthermore, the Management Company may also request to hold an Advisory Committee meeting by written or electronic consultation.
18.3.4 The Advisory Committee members shall be reimbursed by the Fund for reasonable expenses incurred while acting in such capacity but shall not be otherwise compensated for their services as Advisory Committee members. The Fund shall be responsible for legal expenses incurred by the Advisory Committee while performing its prerogatives.
18.3.5 Representatives of the Management Company and its Affiliates shall be invited to attend the
Advisory Committee meetings. The Management Company may also invite third parties to attend the Advisory Committee meetings. Such third parties and the representatives of the Management Company and its Affiliates shall have no voting rights. The representatives of the Management Company and its Affiliates shall not attend a meeting of the Advisory Committee if requested by a majority (by number) of the Advisory Committee members not to attend such meeting.
18.4.1 The Advisory Committee shall be consulted by the Management Company on:
a) potential or actual conflicts of interest,
b) any extension of the Term,
c) any Key Person Event, and
d) all other matters provided for in the By-Laws or as the Management Company may determine.
18.4.2 The Advisory Committee members shall not take part in the management of the Fund’s affairs and business, nor shall they have any power or authority to act for or on behalf of the Fund, and all investment decisions, as well as the responsibility for the management of the Fund which shall remain the Management Company’s. In the event that the Management Company consults the Advisory Committee in relation to an action to be taken and acts contrary to the written recommendation of the Advisory Committee then the Management Company shall inform the Investors in writing of such action enclosing a copy of the written recommendation as soon as practicable after the action has been taken. The Advisory Committee’s approval shall be required for the conflict of interest matters upon which it is consulted and the Management Company may carry out a transaction where an actual or potential conflict of interest exists, without being deemed to be in breach of the By-Laws or any duty of any kind owed by the Management Company to the Fund or the Investors, if such transaction was approved by the Advisory Committee. The Advisory Committee members shall not be agents (mandataires) or delegates (représentants) of any Investor. For the avoidance of doubt, the Advisory Committee has no management functions and no Advisory Committee member shall owe any duty whatsoever to the Fund or the Investors solely by reason of him or her being an Advisory Committee member. Advisory Committee members may take into account their sole interest in voting on the Advisory Committee.
18.4.3 Where the approval or consent of the Advisory Committee is required under the By-Laws for the Fund to make or dispose of any particular Investment, the Advisory Committee shall not consider the commercial merits of such Investment, or disposal thereof, but shall determine only:
(a) how the Investment Policy of the Fund should, in general terms, be implemented to enable such Investment to be made; and/or
(b) whether, at the relevant time, the Management Company and/or its Management Team have the appropriate resources, skills, expertise and experience necessary to make, monitor and/or carry out a similar Investment on behalf of the Fund.
18.4.4 The approval or consent of the Advisory Committee permits, but does not commit, the Fund to make or dispose of any Investment. Following any Advisory Committee approval or consent, the Management Company shall independently evaluate the commercial merits of the relevant Investment and determine, in accordance with the terms of the By-Laws, whether such Investment should be made or disposed of by the Fund.
18.4.5 Notwithstanding anything to the contrary in the By-Laws, any matter requiring the consent or approval of the Advisory Committee under the terms of the By-Laws, or otherwise for which the Management Company determines that the consent or approval of the Advisory Committee should be obtained, may instead be presented by the Management Company to
the Investors for their consent or approval by way of an Investors’ Ordinary Consent.
18.5.1 The Advisory Committee shall only validly deliberate if a majority of the members are present in person or represented, participate at the meeting, by conference call or videoconference. Decisions may also be made by written resolution, including by email. Notwithstanding the foregoing, voting or participation by any Advisory Committee member who declares that it is subject to a conflict of interest shall not be taken into account.
18.5.2 An Advisory Committee member may give a power of attorney to another member to represent him or her at a meeting, vote in his or her name and on his or her behalf and also to sign a written document. A member may hold one or more powers of attorney provided that a power of attorney has first been remitted to the member with a copy to the Management Company.
18.5.3 Participation by an Advisory Committee member to the Advisory Committee meetings is the result either of his or her actual presence, or his or her participation via conference call or videoconference, or his or her signature on a written deed, or delegation of a power of attorney which he or she gave to another Advisory Committee or a nominated substitute representative (with a copy to the Management Company) on the basis of a drawn-up agenda.
18.5.4 If the quorum is not reached after the first meeting notice is sent, a second meeting notice shall be sent. No quorum is required for the second meeting notice.
18.6.1 All Advisory Committee decisions shall be taken by majority vote of its members, either expressed at a meeting called by the Management Company, or, where no meeting is held or certain members declined to attend the meeting, by the members communicating their vote to the Management Company in writing.
18.6.2 No Advisory Committee member may attend a meeting or take part in the deliberations, either directly, or by delegation of power, if he or she declares having a conflict of interest. Any participation at an Advisory Committee meeting shall automatically entail acknowledgement by each participating member that he or she has no conflict of interest. If a member has a conflict of interest, he or she must inform the Management Company and the other Advisory Committee members thereof prior to the meeting.
18.7 Deliberations of the Advisory Committee
The Advisory Committee shall have no power to manage the Fund. Unless otherwise expressly provided for in the By-Laws and for the decisions relating to conflicts of interest referred to in Article 18.4, the decisions, opinions, advice or comments of the Advisory Committee and/or its members are provided for advisory purposes only and shall not be binding upon the Management Company.
18.8 Liability of Advisory Committee Members
Subject to Article 19.1 and in compliance with applicable laws and regulations, neither the Advisory Committee members, nor the Investors which proposed such members shall be liable to third parties, including any other Investor, the Management Company, the Fund, in connection with their role in the Advisory Committee. Advisory Committee members shall have no power to manage the Fund and may not conduct regulated activities. Advisory Committee members shall have no fiduciary duty to the Fund solely by reason of their capacity as Advisory Committee members. The Advisory Committee members participation to the Advisory Committee’s activities and any advice given by such members (whether or not such advice is given in the capacity of Advisory Committee member) shall not constitute participation by such members (or the Investors thereof) in the supervision, management of the Fund, or management of the Fund’s day-to-day business.
All information given as well as all decisions made by Advisory Committee members, including meeting minutes, must remain confidential except with the Management Company’s prior written consent.
19 Limitation of Liability and Indemnification
To the fullest extent permitted by law, no Indemnified Party’s liability may be sought after for any reason whatsoever for damages, losses and costs, suffered by the Fund or the Investors, resulting or likely to result from their involvement in the operation, business or activities of the Fund or the Investments, except with respect to any matter resulting from such Indemnified Party’s Fault, as determined by a first instance court decision of a competent jurisdiction.
19.2.2 Each Indemnified Party seeking to be indemnified shall use its reasonable efforts to, as a first step, exercise any rights of recovery it may have for all damages, losses and costs (including all related expenses and disbursements) with any insurance company from which such indemnification may be sought.
19.2.3 Article 19.2.1 shall give no right of indemnity to an Indemnified Party to the extent that the relevant claims, fees, costs, expenses, liabilities or taxes are the result of a dispute (i) arising between an Indemnified Party and one or more Investors holding 50% or more of the Total Commitments, (ii) arising between an Indemnified Party and Investors holding together fifty percent (50%) or more of the Total Commitments, unless such dispute is resolved in favour of the relevant Indemnified Party, in the latter case such indemnification shall only be paid to the Indemnified Party once the relevant court decision is final and becomes non appealable or (iii) arising entirely or substantially between Indemnified Parties (excluding Nominated Directors and Advisory Committee members).
For the purposes of this Article 19.2, a dispute arising entirely or substantially between Indemnified Parties and one or more other Indemnified Parties means any proceeding in which:
(a) one or more corporate officers, directors, executives, shareholders, members or employees of the Management Company bring proceedings against one or more corporate officers, directors, executives, shareholders, members or employees of the Management Company and no other party is involved in the court proceeding; and
(b) neither the Fund, nor any Investor may reasonably expect to receive any substantial monetary benefit at the outcome of such proceedings.
For the avoidance of doubt, the indemnities under Article 19.2 shall continue in effect and shall be due notwithstanding that (i) the Indemnified Party shall have ceased to act as
portfolio management company (société de gestion de portefeuille), Nominated Director or Advisory Committee member or otherwise to provide any service to the Fund, or (ii) the Fund has been dissolved.
Each Investor shall indemnify the Fund, the Depositary, the Management Company or their respective Affiliates against any Taxation amount for which the Fund, the Depositary, the Management Company or their respective Affiliates may owe on behalf of such Investor or with respect to such Investor’s Commitment. The Management Company shall inform such Investor of such amount having been paid.
Any Taxation which may arise, directly or indirectly, and which may be payable will be borne by the relevant Investor in addition to its Commitment.
This payment obligation shall survive after such Investor’s exit or withdrawal from the Fund or in the event of transfer of its Shares. In the latter case, the Transferee Investor shall be jointly and severally liable for such payment with the Transferor Investor.
The Management Company undertakes to take out and maintain, during the Term, a “professional civil liability” covering the Management Company its executives and the members of the Management Team.
20.1.1 The Investors shall not, and each Investor shall use all reasonable endeavours to procure that every person connected with or associated with such Investor (its representative on the Advisory Committee, as applicable, and any person or entity to which information was transmitted under Article 20.2) shall not, without the prior written consent of the Management Company, disclose to any person or entity (other than in accordance with the conditions provided for in Article 20.2) any written or oral information concerning the Investors, the affairs of the Fund, the Portfolio Companies or their Affiliates, the Investments or proposed investments (the “Confidential Information”).
20.1.2 Each Investor undertakes to use Confidential Information on its own behalf and for the sole purpose of evaluating, implementing, monitoring and participating in the Fund’s activities.
20.1.3 Each Investor further undertakes not to use Confidential Information, directly or indirectly, in any manner that may cause Harm to the Fund or any of the Investors (except with respect to claims made against such parties for any breach of their obligations under the By-Laws).
20.1.4 Such Confidential Information are strictly confidential, provided however that, with respect to each Investor, the foregoing shall not apply to information which:
(a) is in such Investor’s possession prior to the receipt thereof from the Management Company, without such information having been transmitted by any person or entity acting in breach of an obligation to maintain confidentiality or which has been obtained such unlawfully or in breach of an obligation to maintain confidentiality; or
(b) has subsequently entered the public domain, in any case other than as a result of a breach of an obligation to maintain confidentiality.
20.1.5 Each Investor acknowledges that, unless otherwise stated, all information provided to them by the Management Company relating to the Investors, the affairs of the Fund, the Portfolio Companies, their Affiliates, the Investments or proposed investments is confidential and is commercially sensitive information, and the release of such information may be detrimental to the affairs or business of the Fund, the Management Company, or the Portfolio Companies, and may prejudice the commercial interests of the Fund, the Portfolio Companies or the Management Company.
20.2.1 Notwithstanding Article 20.1, an Investor shall be entitled to disclose information concerning the business or affairs of the Fund received pursuant to Articles 12.1 and 12.6, to the extent strictly necessary:
(f) if disclosure of the relevant information is required by law (and no applicable exception may be made) or by a court of law or by the regulations of any relevant market authorities (including the AMF) or any other regulator to which the relevant Investor is subject;
(g) to any governmental, regulatory or tax authority to which such Investor is required to make declarations;
(h) which such Investor is strictly required to disclose in accordance with applicable laws, regulations or stock exchange rules; or
(i) with the Management Company’s prior written consent, it being specified that:
(j) for the purposes of Articles 20.2.1 (a), (b), (c), (d) and (e) above, such disclosure shall only be allowed if each recipient is bound by an equivalent obligation of confidentiality in the terms of this Article with respect to such information and has undertaken not to make further disclosures of such information and each Investor hereby warrants to the Management Company that such recipient will continue to comply with such undertakings (including in the event such information has been communicated directly by the Management Company at the request or on behalf of such Investor);
(k) each Investor subject to an obligation or request for the disclosure of information to a third party pertaining to all or some of the business or affairs of the Fund, the Management Company or any Portfolio Company, shall immediately notify the Management Company as soon as it becomes aware of any request from any third party (prior to any disclosure of information) and each Investor hereby warrants to
the Management Company that it shall use its best efforts to resist or limit that request to the extent permitted by law, to take, in consultation with the Management Company, all measures necessary to eliminate or reduce the scope and effects thereof and to request that the information transmitted be treated as confidential.
20.2.2 In the event of disclosure of information in violation of this Article 20, the Investor undertakes to inform the Management Company and to take, in agreement with the latter, all necessary actions to put an end to the violation and to eliminate or reduce the effects.
20.2.3 If an Investor was to disclose any information concerning the valuation of its Shares or any performance data regarding the Fund, the Investor undertakes to include in such disclosure a statement that such valuation or data does not necessarily reflect the current or expected performance of the Fund and should not be used to compare the Fund’s performance against the performance of other private equity funds, and that the disclosure has in no way been approved by the Management Company.
20.3 Refusal to provide information
(a) the Fund or the Management Company is required by law or by an agreement with a third party to keep such information confidential; or
(b) the Management Company in good faith believes that the disclosure of such information to the Investor is not in the Fund’s interest or could be detrimental to the Fund, the Portfolio Companies or its business (which may include, if the Management Company deems it appropriate, that the Investor discloses or may disclose such information and that such disclosure or potential disclosure by such Investor is not in the Fund’s interest or could be detrimental to the Fund, the Portfolio Companies or their business); or
(c) the Management Company in good faith believes that (i) an Investor has not complied with the provisions set out in Article 20 (including where such Investor’s own investors fail to comply with their own confidentiality undertakings), or (ii) it is reasonably foreseeable that such information could be disclosed by the Investor as a consequence of the Investor being subject to freedom of information acts or to any information disclosure laws, regulations, orders or policies and that the disclosure of such information would not be in the best interests of the Fund, the Management Company or the Portfolio Companies.
20.3.2 If the Management Company does not provide an Investor with any information in accordance with Article 20.3.1, the Management Company may instead elect, but shall not be required to make such information available for inspection at its offices (or such other place as the Management Company may designate) or to make it available in “read-only” format on such website as the Management Company may determine.
20.4 Exception with respect to Carried Interest Holders
Notwithstanding the foregoing, the Management Company shall be entitled to cease to
(i) communicate the Confidential Information to and (ii) invite to Investors’ meetings, the C Shareholders who are no longer members of the Management Team.
20.5 Tax Information Provisions and regulatory provisions
20.5.1 Information on the Foreign Account Tax Compliance Act
In accordance with the provisions of the Foreign Account Tax Compliance Act (“FATCA”), once the Fund invests directly or indirectly in US assets, the income derived from such investments is liable to be subject to a thirty percent (30%) withholding tax.
In order to avoid payment of the thirty percent (30%) withholding tax, France and the United States entered into an inter-governmental agreement under which foreign financial institutions undertake to set up a procedure for identifying direct or indirect investors who are US taxpayers and to send specific information on such investors to the French tax authorities, which will send it to the United States Internal Revenue Service. The Fund, in its capacity as a foreign financial institution, undertakes to comply with FATCA and to take any measure under the aforementioned inter-governmental agreement.
20.5.2 Information on the Automatic Exchange of Information
To meet the requirements of the Automatic Exchange of Information (or AEOI), the Fund may be required to collect information on the Investors and disclose it to third parties, including tax authorities, so that it may be transmitted to the relevant jurisdictions. Such information may include (but is not limited to) the names of the Investors and of their direct or indirect beneficiaries, the ultimate beneficiaries, and the persons controlling them. The Investors shall be required to comply with any request from the Fund to provide such information so as to enable the Fund to comply with its reporting obligations.
20.5.3 Each Investor undertakes to:
(a) provide, and periodically update, whenever requested by the Management Company, any information (or verification thereof) that the Management Company deems necessary to comply with the requirements imposed by the Tax Information Provisions or any applicable regulations (in particular anti-fraud or tax avoidance), to establish the Fund’s right to claim an exemption from, or obtain a reduction in, withholding or any other tax or similar payment; and
(b) implement any measures as the Management Company may reasonably request so as to enable any Relevant Entity to comply with the Tax Information Provisions.
20.5.4 In addition, each Investor shall implement such measures as the Management Company may reasonably request in connection with the foregoing. If an Investor fails to provide such information on a timely basis, the Management Company shall have full authority to: (i) treat any taxes imposed as a result of such failure as having been distributed to such Investor in accordance with Article 15.1 and/or (ii) implement any other measure as the Management Company determines, in its discretion, is necessary or appropriate to mitigate the consequences of such Investor’s failure to comply with this Article 20.5.4 on the Relevant Entities and other Investors of the Fund.
20.5.5 The Investors shall sign all documents, opinions, instruments and certificates as the Management Company may reasonably request them to sign or which are otherwise required to implement the foregoing. If an Investor fails to comply with this Article 20.5.5, such Investor undertakes to indemnify and hold harmless the Management Company or the Fund and their direct and indirect beneficiaries from any costs or expenses arising out of such failure, including any withholding tax or other payments imposed under the Tax Information Provisions on the Fund, or any Relevant Entity and any withholding or other tax imposed as a result of a transfer made pursuant to this Article 20.5.5. Each Investor undertakes to notify the Management Company promptly in writing of any changes in its status or in the information provided to the Management Company in accordance with this Article 20.5.5. The obligations resulting from this Article 20.5.5 shall survive (i) an Investor’s ceasing to be an Investor of the Fund, but also (ii) the expiry of the Term, (iii) dissolution and/or (iv) liquidation of the Fund.
20.5.6 The Fund and the Management Company may be required to file returns with the relevant tax authorities pursuant to the Tax Information Provisions. In this connection, the Fund or the Management Company may come to disclose specific information to the relevant tax authority, such as the names of the Investors or information relating to the Fund and its Investors, including the entities associated with such Investors.
20.6 Disclosure of information by the Management Company and/or its Affiliates
20.6.1 Except as may be required by applicable law or regulation, any applicable regulation, the By- Laws or any regulator to which the Management Company is subject, the Management Company may not, without the Investor’s prior written consent, use in writing, disclose or permit any shareholder, employee, agent, representative or Affiliate of the Management Company, or any employee, agent or representative of its Affiliates to use in writing or disclose the name of such Investor or the name of any Affiliate of such Investor or any derivative of such names in order to promote the Fund, including in any sale materials, offering documents or press releases relating to the Fund, or otherwise indicate that any product or service provided by the Management Company or its Affiliates has been approved or endorsed by such Investor other than to (i) other Investors or potential Investors of the Fund, (ii) any institution providing financing to the Fund, (iii) a Portfolio Company (or a potential Portfolio Company) or (iv) any potential co-investor or any party to a transaction.
21.1 Amendment to the By-Laws with the Investors’ Consent
(15) Business Days from the receipt by the Investors of the Management Company’s request. Failure by the Investors to respond to such request within the mentioned period shall be deemed as an abstention and the Commitments of the Investors which are deemed to have abstained shall be excluded from the base of the Commitments to be taken into account in calculating the majority vote to obtain the Investors’ Special Consent.
(a) requires any Investor to make any further payment to the Fund beyond the amount of its Commitment in the Fund; or
(b) increases the liabilities of, or obligations of, or diminishes the rights of, or protections of, a particular Investor or a particular group of Investors differently than the other Investors under the By-Laws; or
(c) changes the limited liability of any Investor,
without having received such Investor’s consent or, where applicable, the majority of 75% in Commitments of the Investor(s) adversely affected by such amendment. The Management Company will inform the Depositary of any amendment of the By-Laws.
21.2 Amendment to the By-Laws without the Investors’ Consent
21.2.1 Notwithstanding Article 21.1.1, the By-Laws may be amended by the Management Company without the Investors’ Consent to:
(a) change the Fund’s name after first informing the Investors;
(b) reflect any amendments or additions to applicable law, any other legislation or regulations the application of which is mandatory;
(c) replace the service providers listed in Article 2.3, or acknowledge a change in the Management Company’s or service providers corporate names and addresses;
(d) make any changes necessary to comply with the obligations, conditions or guidelines of any law, regulation or directive applicable to the Fund or the Management Company;
(e) amend any provision relating to the tax treatment applicable and to the distribution restrictions applicable to the Carried Interest Holders provided that such amendment does not adversely affect the Investors’ rights and obligations;
(f) correct any printing, stenographic or clerical error, remedy any ambiguity, provided that such amendment does not adversely affect the Investors’ rights and obligations; or
(g) add or replace Key Persons under the conditions of Article 9.2.5.
21.2.2 Notwithstanding the provisions of Articles 21.1.1 and 21.1.2, no amendment may be made to the By-Laws, in particular to the provisions of Article 18.1 following the Management Company’s removal and no measure or action must be taken by any person insofar as such amendment or measure could diminish the rights of the former Management Company, its Affiliates or any Indemnified Party.
21.2.3 For the avoidance of doubt, the Management Company may waive any provisions of the By- Laws, unless otherwise provided in the By-Laws, subject to an Investors’ Special Consent.
22.1 Form – Initiative – Agenda/Purpose
An Investors’ Consent is obtained, at the Management Company’s discretion, (i) at a general meeting of the Investors held at the registered office of the Management Company or in any other location in France that is specified in the convening notice and which Investors may attend general meetings by videoconference or teleconference or (ii) by written or electronic consultation of the Investors (an “Investors’ Consultation”). The Management Company will decide upon the agenda or purpose (as the case may be) and the terms and conditions of the Investors’ Consultation.
22.2.1 Unless otherwise provided in the By-Laws or the law, any Investors’ Consultation will require the Investors’ Ordinary Consent.
22.3 Participation – Representation – Voting
22.3.1 Unless otherwise provided for by law and/or the By-Laws, each Investor has a number of votes equal to the proportion for which its Commitment accounts in the Fund in relation to the Total Commitments. Investors and/or Shares whose voting rights have been suspended in accordance with the law and/or the By-Laws shall not be taken into account.
22.3.2 In order to be taken into account, the Investor’s vote must reach the Management Company
(i) no later than the scheduled time for the general meeting or (ii) by the date determined by the Management Company in the event of a written or electronic consultation. Any vote which has not been received within the period indicated may not be taken into account by the Management Company.
The favourable outcome of any Investors’ Consultation with respect to a proposed amendment and/or transaction, where applicable, will become effective at expiry of a period of one (1) Business Day of obtaining the Investors’ Consent or on any other later date determined by the Management Company.
The outcome of the Investors’ Consultation will be binding on all Investors, even on Investors which did not participate to the Consultation or voted against the proposed amendments.
22.5 Minutes of Investors’ Consultations
22.5.1 Investors’ Meeting – If the Investors’ Meeting is convened to vote, the Management Company will draw up minutes of the resolutions. An attendance sheet signed by the attending Investors will be drawn up. Copies of such minutes will be delivered to the Investors upon request.
22.5.2 Written or electronic consultation – The minutes of any written or electronic consultation of the Investors will be prepared by the Management Company for the Investors upon request.
22.5.3 Communication – The Management Company will make copies of the minutes of all collective decisions available to the Investors upon request.
22.6.1 Minutes of the collective decisions will be kept in a special register.
22.6.2 Minutes of the collective decisions will be signed by the Management Company.
22.6.3 Copies or abstracts of minutes which are brought before a court or used for other purposes will be certified by the Management Company.
23.1 Unless expressly provided otherwise, any notice or communication under or in relation to the By-Laws (a “Notice”) must be made:
(a) in writing (including electronically and excluding by fax);
(b) in French;
(c) by hand delivery, courier or registered letter with return receipt requested, email or international airmail delivery service providing package tracking and acknowledgement of receipt (such as FedEx or DHL); and
(d) in each case to the address and the attention of the person mentioned in Article 23.2 below or to any other address and/or for the attention of another person as notified, in the case of an Investor, by such Investor to the Management Company and, in the case of the Management Company, as was notified by the Management Company, to all the Investors, for the purposes of the By-Laws (which address will in each case supersede the address previously communicated starting on the date on which notice of such new address was deemed to have been given in accordance with this Article 23).
23.2 The postal and email addresses to be used for any Notice are the following:
Address | Electronic Address | For the attention of | |
Occte | 0, xxxxxxxxx Xxxxxxxx Xxxxxxx, xxxxxxxx X 00000 Xxxxxxxx | Occte |
As specified in the relevant Investor’s Subscription Agreement or Transfer Agreement
An Investor
23.3 A Notice will be deemed received:
(a) if delivered by hand or by courier, on the delivery date;
(b) if sent by registered letter with return receipt requested, at 9.30 a.m. the second day (jour franc) after the date it was sent;
(c) if sent by international airmail delivery service, the day of first presentation of the letter; or
(d) if sent by electronic mail, at the time of transmission by the sender, provided that the sender has received no automatic reply stating that the message was not delivered to the recipient.
23.4 The provisions of Article 23 do not apply to documents which may have been delivered, as applicable, in connection with court proceedings in relation to the By-Laws.
24.1.1 A Statutory Auditor will be appointed for six (6) Accounting Periods by the Management Company. Its duties may be renewed.
24.1.2 The Statutory Auditor will perform the verifications and audits provided for by applicable laws and regulations, in particular:
(a) it shall certify, whenever necessary, the accuracy and regularity of the accounts presented in the annual report;
(b) it shall inform the AMF and the Management Company of any irregularities or inaccuracies noted in the performance of its mission;
(c) it shall evaluate the assets and calculations of the exchange ratios in the events of transformation, merger or spin-off transactions to be carried out under its supervision;
(d) it shall review every contribution in kind and draw up a report on its valuation and remuneration;
(e) it shall certify the accuracy of the composition of the Fund Assets;
(f) with respect to the Fund’s liquidation, it shall evaluate the Fund Assets and draw up a report on the liquidation conditions; and
(g) it shall certify the statements serving as a basis for interim distributions.
24.2.1 The Depositary will perform its duties and assignments in compliance with the law, in particular:
(a) it shall ensure the custody of the Fund Assets, go through the Management Company’s orders relating to the buying and selling of securities, as well as orders relating to the exercise of the subscription and allocation rights attached to the securities held by the Fund;
(b) it shall ensure all collections and payments;
(c) it may take any protective measures it deems useful in the Fund’s interest;
(d) it shall ensure the lawfulness of the decisions made by the Management Company in the Fund’s name;
(e) it shall, as the case may be, take any necessary measures that it deems necessary. In case of dispute with the Management Company it shall inform the AMF;
(f) at the end of each Accounting Period, it shall certify (i) the existence of the Fund Assets for which it ensures the custody, and (ii) the positions of the other assets which it has in custody as shown in the inventory which it produces; and
(g) at the end of each semi-annual period, it shall verify the inventory of the Fund Assets and liabilities.
24.2.2 The Depositary will be liable towards the Investors if it fails to comply with the aforementioned duties.
24.3 Non-recognition of Trust Arrangements
The Management Company will treat Investors registered as Investors of the Fund in accordance with the By-Laws and will not recognise (unless expressly provided for in the By- Laws) any trust or any other contractual arrangement under which an Investor holds its shares in the Fund, whether or not the Management Company has been informed of such arrangement.
24.4 Applicability of the By-Laws to Heirs and Assigns
Unless otherwise provided, the By-Laws is binding and effective on the heirs, executors, administrators or other representatives, successors and assigns of the parties to the By- Laws.
24.5.1 All amounts payable in accordance with the By-Laws will, unless otherwise provided, be exclusive of VAT, and the Fund will pay any VAT which may be payable, including any VAT on any fees paid to the Management Company with respect to the Fund, it being clarified, for the avoidance of doubt that no VAT is payable on the fees paid to the Management Company by the Fund at the First Closing Date.
24.5.2 If the Management Company is liable for any value-added tax payment by reason of itself being treated as providing services subject to VAT pursuant to the By-Laws, the Management Company will be indemnified out of the Fund Assets for such payment.
24.6 Applicable Law and Jurisdiction
24.6.1 The By-Laws and the rights, obligations and relationships of the parties to the By-Laws and to any Subscription Agreement and Transfer Agreement (the “Constitutional Documents”) and any dispute or claim in connection therewith of a contractual or non-contractual nature shall be governed by and construed in accordance with laws of France.
24.6.2 All parties irrevocably agree that the courts of France have exclusive jurisdiction to settle any dispute in relation with the Constitutional Documents; accordingly, any court application,
action or proceedings arising out of or in connection with the Constitutional Documents must be brought in these courts.
24.6.3 As part of any such application, action or proceedings, the parties waive, to the extent not prohibited by law, and agree not to assert by way of motion, as a defence or otherwise, in any such proceeding, any claim that a party is not subject personally to the jurisdiction of such courts, that any such proceeding brought in such courts is improper or that the Constitutional Documents, or any subject relating thereto, may not be enforced in or by such courts.
If an article or provision of the By-Laws is declared invalid or unlawful by a court, such article or provision will only be ineffective to the extent of such invalidity or unenforceability. The other provisions of the By-Laws will not be affected thereby and will continue to produce their effects; any invalidity or unenforceability in one jurisdiction could not invalidate or make unenforceable such provisions in another jurisdiction. Furthermore, if an article or provision of the By-Laws is declared invalid or unenforceable but could be valid or enforceable if some parts of the provision were deleted, the relevant provision will undergo the minimum amendment necessary to make it valid and enforceable.
No failure to exercise or delay in exercising, by the Fund or the Management Company, any right, power or privilege provided for in the By-Laws will serve as a waiver thereof, and any single or partial exercise of such rights, powers or privileges will preclude no other or further exercise thereof or the exercise of other rights, powers or privileges. The rights and remedies provided for by the By-Laws are cumulative and are not exclusive of any rights and remedies otherwise provided for by law.
24.9 Reproduction of Documents
The By-Laws and all documents relating thereto, including, without limitation, any consents, waivers or amendments which may be entered into subsequently, and any certificates and other information previously or subsequently provided to Investor, may be reproduced by it using any photographic, microfilm, miniature photographic, electronic data storage or any similar process, and any Investor may destroy an original document so reproduced. The Fund, the Management Company and each Investor undertake and represent that any such reproduction will be as admissible as evidence as the original itself in any court or administrative proceeding (whether or not the originals exist and whether or not such reproduction was made by an Investor in the regular course of its business) and that any enlargement, facsimile or further reproduction of such reproduction will likewise be admissible as evidence.
The Investors acknowledge and accept that all documents relating to their investment in the Fund, including, but not limited to, their Side Letter, Subscription Agreement, Transfer Agreement, and any other agreement, waiver or amendment thereof which may be entered into subsequently, may be electronically executed by the Fund, the Management Company and the Investors. Each Investor expressly and irrevocably agrees that the procedure proposed by DocuSign implements an electronic signature within the meaning of the provisions of articles 1366, 1367 and 1375 of the French Civil Code and acknowledges that such electronic signature has the same legal value as their handwritten signature. Thus, each Investor hereby expressly and irrevocably acknowledges, agrees and accepts that the electronic signature of any documents relating to their investment in the Fund thus produced by it will be fully valid and enforceable against it.
any Transfer Agreement, the Management Company or the Fund, as the case may be, shall be entitled to set-off (compenser) the amount of such liability against any sum or sums that would otherwise be due to such Investor under the By-Laws, the Subscription Agreement, the Side Letter, any Transfer Agreement or any other agreement, irrespective of the fact that such amounts due are fungible (fongible), payable (exigible), or liquid (liquide). Any exercise by the Management Company of its right of set-off (compenser) under this Article shall be without prejudice to any other right or remedy available to the Management Company or the Fund under the By-Laws or otherwise.
24.11.2 Furthermore, the Investors waive irrevocably:
(a) any right they may have to set-off (compenser) any amount due to the Fund or the Management Company by such Investor pursuant to the By-Laws, the Subscription Agreement, a Side Letter, a Transfer Agreement or any other agreement between such Investor and the Fund or the Management Company against any amount due or that may be due by the Fund or the Management Company to such Investor pursuant to the By-Laws, the Subscription Agreement, a Side Letter, a Transfer Agreement or any other agreement between such Investor and the Fund or the Management Company,
(b) any right they may have to bring a counterclaim in relation to any amount due to the Fund or the Management Company, unless otherwise provided for by the By-
Laws, and
(c) any defence against the Fund’s or the Management Company’s claims, unless otherwise provided for under the By-Laws.
24.12 Power of Attorney – Publication Formalities – Legal Personality
Each Investor hereby irrevocably appoints the Management Company as its attorney to sign, execute and deliver on behalf of such Investor any deed and document and to carry out all acts or other formalities necessary to give effect to the terms of the By-Laws and to secure the Management Company in the full benefit of the rights, powers, privileges and remedies granted to the Management Company by the By-Laws including, but not limited to Article 7.3.5(b). By way of clarification, the representation agreements granted to the Management Company in accordance with Article 24.11.1 are intended to be administrative in scope and limited to items authorised under such agreements, and such representation agreements are not intended to be general delegations of power to otherwise independently exercise discretionary judgement on the Investor’s behalf.
24.13 Language – Langue Anglaise
In accordance with article L.214-25 of the FMFC, the By-Laws are drafted in English.
The Investors acknowledge that they understand the English language and recognise that they are familiar with the use of the English language in the financial context.
Conformément à l’article L.214-25 du Code Monétaire et Financier, le présent règlement est rédigé en anglais.
Les Investisseurs reconnaissent comprendre l’anglais et affirment être familiers avec l’usage de l’anglais en matière financière.
FOR INFORMATION ONLY
THE FOLLOWING LIST OF RISK FACTORS DOES NOT PURPORT TO BE A COMPLETE OR CONCLUSIVE EXAMINATION OF THE RISKS RELATED TO AN INVESTMENT IN THE FUND. PROSPECTIVE INVESTORS SHOULD READ THE ENTIRE BY-LAWS AND CONSULT THEIR OWN PROFESSIONAL ADVISERS BEFORE DECIDING WHETHER TO INVEST IN THE FUND.
Please note that this Schedule 1 has no contractual value and is not legally binding on the Management Company or on the Fund and may be amended from time to time without the Investors’ Consent.
An investment in the Fund involves a significant degree of risk for several reasons and, in particular, due to (but not limited to) the following:
1. Conflicts of Interests - Legal Representation
Xxxx Xxxxxxxx Xxxxx serves as legal counsel to the Fund and the Management Company in a variety of different matters and not to any Investor or the Investors as a group. No independent counsel has been engaged, nor is expected to be engaged, on behalf of the Investors.
2. Risks Related to the Investment in Portfolio Companies
2.1 Passive Investment
The Fund will be managed by the Management Company. The Investors do not have the power to make investment decisions on the Fund’s behalf.
2.2 Investments in operating businesses
The Fund makes an investment in an entity that is an existing business. Accordingly, the Fund is assuming various risks associated with the management of operations including, but not limited to, employee related issues and operational liabilities. In addition, as the Fund is acquiring equity, the Fund may be assuming various liabilities, which may include tax, regulatory and environmental matters. Once the investment is exited, such exit strategy may leave the Fund with residual risk even if the underlying investment has been realised with a potential profit.
2.3 Concentration and lack of diversification
The Fund’s Investments will be concentrated and take significant positions in a limited number of assets located in a single jurisdiction, France; thus the overall performance of the Fund may be adversely affected by the unfavourable performance of the Portfolio Companies, concentrated in one geographic location. Furthermore, the Fund‘s Investments will focus predominantly on a single geographic region, thereby increasing the risk that adverse economic developments in the targeted geographic region will adversely affect the aggregate returns of the Fund.
2.4 Leveraged transactions
While the Fund shall not be leveraged, Investments undertaken by the Fund may be leveraged transactions, which are, by their very nature, subject to a high degree of financial risk.
2.5 Uncertain holding period
The Fund may take a number of years to fully realize proceeds. Investors should have the financial ability and willingness to accept the risks and the lack of liquidity that are characteristic of private equity funds.
2.6 Realization of the Portfolio Companies
The Fund assets generally consist of private illiquid securities, which are typically subject to restrictions on resale. In some cases, the Fund may be prohibited from selling such securities for a period of time or otherwise be restricted from disposing of such securities. Furthermore, certain portfolio companies may require a substantial length of time to liquidate. As a result, there is a significant risk that the Fund may be unable to realize its investment objectives by sale or other disposition at attractive prices or will otherwise be unable to complete any exit strategy.
2.7 Past performance not indicative of future results
The performance to date of the Fund is not necessarily indicative of the Fund’s future results.
2.8 General economic conditions
General economic conditions may affect the Fund’s activities. Interest rates, general levels of economic activity, the price of securities and participation by other investors in the financial markets may affect the value of the assets held by the Fund. The Portfolio Companies can be expected to be sensitive to the performance of the overall economy. A negative impact on economic fundamentals and consumer confidence would likely increase market volatility and reduce liquidity, both of which could have a material adverse effect on the performance of the Fund.
2.9 Illiquid and long-term Investments
The return of capital and the realization of gains, if any, from the Portfolio Companies generally will most likely occur only upon the partial or complete disposition of such Portfolio Companies. While the Portfolio Companies may be sold at any time, the disposition of the Portfolio Companies may not occur for a number of years. There is no public market for the securities held by the Fund, and the Fund generally will not be able to sell its securities publicly unless the sale is registered under applicable securities laws, or unless an exemption from such registration requirements is available. In addition, in some cases, the Fund may be prohibited or limited by contract or law from selling certain securities at a time it might otherwise desire to do so.
2.10 Portfolio Company management risks
With respect to management at the Portfolio Companies level, many Portfolio Companies rely on the services of a limited number of key individuals, the loss of any one of whom could significantly adversely affect the Portfolio Companies' performance. Although the Management Company monitors the management of each Portfolio Company, management of each Portfolio Company will have day- to-day responsibility with respect to the business of such Portfolio Company. There can be no assurance that the existing management team of a Portfolio Company, or any new team, will be able to successfully operate the Portfolio Companies or will meet the Fund’s expectations.
2.11 Regulatory requirements
While the Management Company does not believe that there are any regulatory approvals required in respect of Portfolio Company, there may be certain regulatory requirements applicable of which the Management Company is unaware. Failure to obtain any such required approval could result in the failure of the acquisition of the Portfolio Companies to close or, if the acquisition does close, could materially impair the value of the Portfolio Companies.
2.12 Interest rate risk
Certain investments may involve the risk associated with movements in interest rates. Interest rate risk is the risk of a fall in the value of interest rate instruments (long and/or short-term and fixed and/or variable rates) arising from fluctuations in interest rates. By way of example, the price of a fixed rate bond tends to fall as interest rates rise.
The Fund may have invested in bonds or debt securities: if interest rates rise, the value of the Fund Assets may therefore fall.
Furthermore, notwithstanding its interest rate risk hedging policy, the Fund may remain exposed to fluctuations in interest rates, whether upwards or downwards. Thus, a rise in interest rates, if such risk has not been fully hedged, will result in an increase in debt service costs and have a negative impact on such Fund’s results.
3. Fund related risks
3.1 Transfer of Shares and withdrawal
Shares in the Fund are not freely transferable and no market for such shares currently exists, nor is one expected to develop. In addition, the Shares are not transferable except with the consent of the Management Company, which generally may be withheld by the Management Company in its sole discretion, and are subject to the terms and conditions of the By-Laws. It may therefore be difficult for an Investor to sell its Shares or obtain reliable information about their value and the extent of the risks to which it is exposed.
Investors will not normally be able to withdraw from the Fund prior to the end of the Term and its subsequent liquidation, and may not be able to liquidate their investment in the Fund prior to the expiration of the Term, which may be extended pursuant to the By-Laws, and its subsequent liquidation.
3.2 Carried Interest
The fact that the carried interest is based on the Fund’s performance may further incentivize the Management Company to make Investments that are more speculative than would otherwise have been the case.
3.3 Defaulting Investor
If an investor is unable to pay in its commitment when due, the Fund’s capacity to implement its investment policy or to continue its activities could be seriously compromised. The Management Company may then be required to call for funds from the non-defaulting Investors to the extent of their commitments. Default by a large number of Investors could result in the Fund being unable to access enough capital to meet its capitalization obligations, which would limit its possibilities and would likely reduce the Fund’s return.
4. Management Company related risks
4.1 Key Persons
The Fund’s success will depend in large part on the skill and expertise of the investment professionals employed by the Management Company, and there can be no assurance that such individuals will continue to be employed by the Management Company or to perform their duties on the Fund’s behalf.
4.2 Reliance on management
Although the Management Company will monitor the performance of each investment, the Management Company will rely upon the management of the Portfolio Companies to operate on a day-to-day basis and the Management Company may not always be able to protect the Fund’s interests.
4.3 Limited recourse to the Management Company
The By-Laws will seek to limit the circumstances under which the Management Company and its affiliates can be held liable to the Fund. The Management Company and its affiliates generally will not be held liable with respect to their actions or inactions unless they constitute fraud, wilful misconduct, wilful illegal act solely in connection with the performance of their respective duties to the Fund, any wilful material breach of the By-Laws or gross negligence.
The Fund may be required to indemnify the Management Company, its affiliates and related parties for liabilities, costs and expenses arising in connection with services to the Fund.
4.4 Confidential, sensitive or non-public information
Information on the Investors, the Fund and the Investments may be disclosed to third parties in the context of confidentiality agreements. The Management Company may not be held liable for the use that may be made of such information by third parties.
The Management Company, its affiliates and their respective officers, directors, partners, members and employees may hold or receive confidential or commercially sensitive information in the course of their business that may be relevant to the activities of the Fund and/or its investments, including prospective investment opportunities. Such parties shall not be obliged to disclose such information (or the existence of such information) to the Fund or anyone else connected with the Fund.
If confidential or material non-public information regarding the Portfolio Companies or potential investment opportunity becomes available to the Management Company or its affiliates, the Management Company may be precluded from pursuing an investment or exit opportunity for the Fund. In addition, the Management Company’s affiliates may be precluded from disclosing such information to the Management Company, even in circumstances in which the information would benefit the Fund if it were disclosed.
4.5 Possibility of fraud or other misconduct of personnel and service providers
Misconduct by personnel of the Management Company, service providers to the foregoing and/or their respective affiliates, employees and officers could cause significant losses to the Fund. Misconduct may include entering into transactions without authorization, the failure to comply with operational and risk procedures, including due diligence procedures, misrepresentations as to investments being considered by the Fund, the improper use or disclosure of confidential or material non-public information, which could result in litigation or serious financial harm, including limiting the Fund’s business prospects or future marketing activities, and non-compliance with applicable laws or regulations and the concealing of any of the foregoing. Such activities may result in reputational damage, litigation, business disruption and/or financial losses to the Fund. The Management Company has controls and procedures through which it seeks to minimize the risk of such misconduct occurring. However, no assurances can be given that the Management Company will be able to identify or prevent such misconduct.
5. Legal/tax/regulatory risks
5.1 Tax law changes
The Fund has been structured and intends to structure its investments so as to mitigate or reduce taxes or duties, taking into account the tax laws, administrative practices, applicable double tax treaties and other rules which should be relevant. Tax laws are complex and quite often not completely clear, and applicable laws and any other rules or customary practice relating to or affecting tax, or their interpretation in relation to the Fund, its assets and any investment in the Fund may change during the life of the Fund. In particular, both the level and basis of taxation applicable in relation to the Fund, its investments and amounts distributed by the Fund (to third party investors or carried interest holders) may change and therefore tax consequences in connection therewith might change after the Fund’s structure or Investments have been implemented, or be retroactively applied due to such changes in tax law.
5.2 Tax considerations differ for each Investor
The tax position of the Investors in the Fund may differ according to the Investor’s particular financial and tax situations.
The tax structuring of the Fund or its investments may not be tax efficient for any particular Investor. No undertaking is given that amounts distributed or allocated to investors will have any particular characteristics or that any specific tax treatment will be enjoyed. Investors should consult their own tax adviser in this regard. Neither the Management Company, nor any of its affiliates, officers,
directors, members, partners, employees, advisers or agents can take responsibility in this regard.
While it is intended to structure the Fund’s investments in a manner that is intended to achieve the Fund’s investment objectives, there can be no guarantee that the structure of any investment will be tax efficient for a particular Investor or that any particular tax result will be achieved.
5.3 Tax information and rules against tax avoidance
The Fund is subject to various tax information provisions which exact scope, related obligations and exceptions remain unclear in some areas and subject to significant changes. Each Investor is invited to consult with his own tax advisor in order to obtain more detailed explanations on tax information provisions and to verify how these rules could apply to the Fund and to that Investor in his particular case.
Moreover, laws and regulations may change and the interpretation and application that the concerned jurisdictions or administrations make of it may evolve, particularly in the context of common initiatives taken on an international scale (OECD, G20), or by the European Union. It cannot be excluded that these developments may have an adverse impact on the tax treatment of the transactions carried out by private equity funds such as the Fund.
5.4 Changes in legal, tax and regulatory regimes
Changes in legal, tax and regulatory regimes within the jurisdictions of the respective investments as well as the jurisdictions of the Management Company and its affiliates may occur during the life of the Fund. Further, various regulatory changes are expected within the European Union and the European Free Trade Association which may materially affect the performance as well as the current projected performance of any given investment.
5.5 Compliance with anti-money laundering and sanctions regulations
As pertains to efforts to combat money laundering, the Management Company has the right to request documents and information from Investors. In the event of delay or omission by an Investor to submit such information, it is in particular possible that that such Investor be denied admission into the Fund or that fund distributions owed to such Investor be suspended.
If it is later established that an investor, or any direct or indirect beneficiary of an investor, is a person identified in any applicable money laundering law as a “prohibited person” or is engaged (or considered as such) in “prohibited” activities in accordance with such laws, the Management Company may be forced, among other measures, to suspend fund distributions that are owed to that investor or have its shares cancelled or redeemed (without payment in consideration for those shares).
5.6 Disclosure of identity
Under certain circumstances, the Management Company and its affiliates may be required to disclose certain information in respect of the identity of Investors, including beneficial owners of an Investor.
6. Miscellaneous risks
6.1 Counterparty default
There is a risk, particularly given the current instability in the financial sector that counterparties may default on their contractual obligations to the Fund or its investments. Any such counterparty default would be likely to have an adverse effect on the value of the investments and on returns to its Investors.
6.2 Sovereign/political risk
The operation of the Fund’s investments may be affected by sovereign or political risk. Major disturbances such as wars, riots, strikes, blockades, acts of terrorism or outbreak of associated
military or responsive action have the potential to adversely affect the costs or revenues of the Fund’s investments, which could have a material adverse effect on the earnings of the Fund and its ability to make distributions.
6.3 Market conditions and fluctuations
General economic conditions, including interest rates, the availability of financing, general levels of economic activity, the price of securities and participation by other investors in the financial markets, may adversely affect the value and number of investments made by the Fund or considered for prospective investment by the Fund. The Fund’s investment(s) can be expected to be sensitive to the performance of the overall economy. A negative impact on economic fundamentals and consumer confidence would likely increase market volatility and reduce liquidity, both of which could have a material adverse effect on the performance of the Fund’s investment(s).
6.4 Cybersecurity risk
The Management Company, its affiliates, the Fund’s service providers and other market participants increasingly depend on complex information technology and communications systems to conduct business functions. These systems are subject to a number of different threats or risks that could adversely affect the Fund and its Investors, despite the efforts of the Management Company and service providers to adopt technologies, processes and practices intended to mitigate these risks and protect the security of their computer systems, software, networks and other technology assets, as well as the confidentiality, integrity and availability of information and personal data belonging to the Fund and its Investors. For example, unauthorized third parties may attempt to improperly access, modify, disrupt the operations of or prevent access to these systems of the Management Company, its affiliates, the Fund’s service providers, counterparties or data within these systems. Third parties may also attempt to fraudulently induce employees, customers, third-party service providers or other users of the Management Company’s systems to disclose sensitive information in order to gain access to the Management Company’s data or that of the Investors. A successful penetration or circumvention of the security of the Management Company’s systems could result in the loss or theft of an Investor’s data or funds, the inability to access electronic systems, loss or theft of proprietary information, personal, corporate and sensitive data, physical damage to a computer or network system or costs associated with system repairs. Such incidents could cause the Fund, the Management Company or their service providers to incur regulatory penalties, reputational damage, additional compliance costs or financial loss.
Similar types of operational and technology risks are also present for the Portfolio Companies, which could have material adverse consequences for any such Portfolio Company, and may cause the Fund’s investments to lose value.
6.5 Litigation
Financial performance of the Fund’s investments may be affected from time to time by litigation such as contractual claims, occupational health and safety claims, public liability claims, environmental claims, industrial disputes, tenure disputes and legal action from special interest groups.
6.6 Business interruptions, risk of outbreak of a health epidemic or pandemic
The Fund’s investment activities and operations, or the activities and operations of the Portfolio Companies and service providers, could be interrupted or adversely affected by extraordinary events or emergency situations, including, without limitation, outbreaks of infectious diseases, epidemics or pandemics, war, terrorism, failure of technology, disasters, government macroeconomic policies, social instability and other catastrophic events, such as fires, earthquakes and natural disasters (catastrophes naturelles). The outbreak of an extraordinary event or emergency situation, including an infectious disease, further “waves” of the Covid-19 or any other serious public health concern, together with any resulting restrictions on travel or quarantines imposed, could have a major negative impact on the global economy or the economies of particular countries or regions, and business activity in any of the countries in which the Portfolio Companies operate and thereby adversely affect the performance of the Fund’s investments, including partial or total loss of the investments or significant down time resulting in lost revenues, among other potentially detrimental effects. The likelihood, timing, and severity of these outbreaks are unpredictable.
Insurance against such extraordinary events or emergencies may not be available or only partially available. In addition, there can be no assurance that the particular risks, which are currently insurable, will continue to be insurable on an economically affordable basis in which case the Management Company may choose to underinsure or forego coverage of such risks.
In order to mitigate the effects of these types of events, the Management Company may also activate business continuity and disaster recovery plans. These plans may, for example, require our employees to work and access our information technology, communications or other systems remotely. The failure of these systems and/or disaster recovery plans for any reason could cause significant business interruptions in the operations of the Fund and/or the Management Company. Any plans and preparations for such eventualities may not be adequate or effective for their intended purpose.
Schedule 2. Table of information made available to investors prior to their investment in the Fund
This schedule forms an integral part of the By-Laws. It may be updated by the Management Company at any time to enable it to comply with its legal investor disclosure obligations. The Management Company will inform the Investors of any material change to this information.
Information to be made available to Investors in accordance with article 21 of Instruction no. 2012-061 | Information | |||
a) | ||||
• a description of the investment strategy and objectives of the AIF | Please Policy) | refer to Article of the By-Laws. | (Investment | |
• information on where any master AIF is established | N/A | |||
• information on where the underlying funds are established if the AIF is a fund of funds | N/A | |||
• a description of the types of assets in which the AIF may invest | Please Policy) | refer to Article of the By-Laws. | (Investment | |
• the techniques the AIF may employ and all associated risks | Please Policy) | refer to Article of the By-Laws. | (Investment | |
• any applicable investment restrictions | Please Policy) | refer to Article of the By-Laws. | (Investment | |
• circumstances in which the AIF may use leverage; the types and sources of leverage permitted and the associated risks; any restrictions on the use of leverage; any collateral or asset reuse arrangements, and the maximum level of leverage the Management Company is entitled to use on the AIF’s behalf | Please refer to Article 9 (Investor Protection Provisions) of the By-Laws. | |||
b) a description of the procedures the AIF may implement to change its investment strategy or investment policy, or both | The applicable procedure is that applicable in the event of amendment of the By-Laws, is | |||
1 Pursuant to article 21 of AMF Instruction no. 2012-06 on the terms and conditions for declaring, amending, and drawing up a prospectus and periodical Fund information. The numbering complies with that used in article 21 of AMF Instruction no. 2012-06 and article 23 of the AIFM directive. Sections a) through p) reproduce verbatim provisions a) through p) of article 21 of AMF Instruction no. 2012-06.
Information to be made available to Investors in accordance with article 21 of Instruction no. 2012-061 | Information |
defined in Article 21 (Amendment of the By- Laws) of the By-Laws. | |
c) a description of the main legal implications of the contractual relationship entered into for investment purposes, including information on jurisdiction, applicable law and the existence or otherwise of legal instruments enabling the recognition and enforcement of judgments in the territory where the AIF is established | Please refer to Article 24.6 (Applicable Law and Jurisdiction) of the By-Laws. |
d) the identification of: | |
• the management company, | Please refer to Articles 2.3 (Directory) and 8 (Operation and management of the Fund) of the By-Laws. |
• the depositary, and | Please refer to Articles 2.3 (Directory), 10.6 (Depositary and Centralising Agent) and 24.2 (Depositary) of the By-Laws. |
• the statutory auditor of the AIF, | Please refer to Articles 2.3 (Directory) and 24.1 (Statutory Auditor) of the By-Laws. |
• and any other service provider. | Please refer to Article 2.3 (Directory) of the By-Laws. |
• and a description of their obligations | Please refer to Articles 8 (Operation and management of the Fund), 10.6 (Depositary and Centralising Agent), 24.1 (Statutory Auditor) and 24.2 (Depositary) of the By-Laws. |
• and of the Investors’ rights. | Please refer to Articles (Admission of Investors), 8 (Operation and management of the Fund) and 9 (Investor Protection Provisions) of the By-Laws. |
e) For AIFM-Directive compliant management companies, a description of how the Management Company complies with the requirements set out in IV of article 317-2 | In order to cover potential professional liability risks resulting to which the Management Company is exposed, the latter |
Information to be made available to Investors in accordance with article 21 of Instruction no. 2012-061 | Information |
of the AMF’s General Regulations2 | has taken out a professional civil liability insurance policy. |
f) a description of any management function delegated by the management company | The Manager has delegated the administrative and accounting management to the Administrative and Accounting Delegate. |
• and of any safe-keeping function delegated by the depositary, the name of the delegate and any conflict of interest which may arise from such delegations | N/A |
g) a description of the AIF’s valuation procedure and of the pricing methodology used to value assets, including the methods used to value hard-to-value assets | Please refer to Article 13 (Portfolio Valuation and Share Value) of the By- Laws. |
h) a description of the AIF’s liquidity risk management, including the redemption rights in both normal and exceptional circumstances, and the existing redemption arrangements with investors | N/A the Fund is a closed ended fund. |
i) a description of any fees, charges and expenses and of the maximum amounts thereof which are directly or indirectly borne by investors | Please refer to Article 10 (Fees and Expenses) of the By-Laws. |
j) a description of how the management company ensures fair treatment of the investors | Please refer to Article 9.6 (Side Letters) of the By-Laws. |
• and, whenever an investor obtains preferential treatment3 or the right to obtain preferential treatment, a description of that preferential treatment | N/A |
• the type of investors who obtain such preferential treatment | N/A |
2 In accordance with paragraph IV of article 317-2 of the AMFGR, a management company must either have additional equity, or be covered by a professional civil liability insurance policy to cover any risks of incurring professional liability.
3 According to article 23 of the European Commission Delegated Regulation of 19 December 2012, preferential treatment granted to one or more investors is treatment which “shall not result in an overall material disadvantage to other investors”. Accordingly, a mere clarification on the interpretation of the By-Laws would not be preferential treatment.
Information to be made available to Investors in accordance with article 21 of Instruction no. 2012-061 | Information |
• and, where relevant, their legal or economic links with the AIF or the management company | N/A |
k) the latest annual report | N/A |
l) the procedure and conditions for the issuance and redemption of shares | Please refer to Articles 6.2 (Issuance of Shares and subscription price) and 16.4 (Redemption of Shares) of the By-Laws. |
m) the latest value of the Fund | N/A |
n) where available, the Fund’s past performance | N/A |
o) the name of the prime broker and a description of any material arrangements which the AIF has made with its prime brokers, how conflicts of interest in relation thereto are managed, the provision of the agreement with the depositary on the possibility for transfer or reuse of AIF assets, and information about any transfer of liability to the prime broker that may exist | N/A |
p) a description of how and when the information required under IV and V of article 421-34 of the AMF’s General Regulations is disclosed4 | Information about the risk profile and risk management systems, the total amount of leverage and any new arrangements made for managing that risk, the percentage of the AIF’s assets subject to special treatment, the maximum leverage and any right to reuse AIF assets used as collateral and any guarantee provided for by the arrangements relating to leverage will be reported in the Partnership’s annual report. Please refer to Article 12 (Accounts, Tax Information and Reports) of the By-Laws. |
4 According to paragraph IV of article 421-34 of the AMFGR, the following information must periodically be sent to the Investors: (i) the percentage of the AIF’s assets that have received special treatment due to their illiquid nature, (ii) any new arrangements made for managing those risks, (iii) the AIF’s current risk profile and the risk management systems used to manage those risks.
Where an AIF or its management company uses leverage, according to paragraph V of article 431-34 of the AMFGR, the following information must be disclosed: (i) any change in the maximum leverage, as well as any right to reuse the AIF’s assets given as collateral and any guarantee provided for by the leverage arrangements, (ii) the total amount of leverage the AIF uses.
Information to be made available to Investors in accordance with article 21 of Instruction no. 2012-061 | Information |
q) for the purpose of Regulation (EU) 2019/2088 and Regulation (EU) 2020/852, a description of the manner in which sustainability risks are integrated into the investment decisions | Please refer to Schedule 3 (SFDR) of the By- Laws. |
r) for the purpose of Regulation (EU) 2019/2088 and Regulation (EU) 2020/852, a description of the results of the assessment of the likely impacts of sustainability risks on the returns of the financial product | Please refer to Schedule 3 (SFDR) of the By- Laws. |
[to be completed by Gide]
Schedule 4. Specimen of notification letter
(On letterhead of the Transferor Investor)
Occte
[●] France Date: [●]
FPCI OCCTE OCCIDEV (the “Fund”)
Dear All,
Pursuant to Article 16.1.2 of the Fund’s By-Laws dated [●] (the “By-Laws”), we hereby inform you that we have agreed to sell [•] [•] shares in the Fund (the “Proposed Shares”) (accounting for a Commitment of €[•] in the Fund) to [●] (the “Transferee Investor”) and to transfer all the rights and obligations attached to such shares pursuant to the provisions of the By-Laws.
In accordance with the By-Laws, we inform you of the following:
Transferor Investor: [●] Transferee Investor: [●]
Address: [●] Address: [●]
Tax residence: [●] Tax residence: [●]
Number and class of the Proposed Shares:[●]
Sale price: [●]
Unless otherwise provided for in this letter, the capitalised terms used but not defined herein will have the meanings given to them in the By-Laws. This letter will constitute the “Notification Letter” relating to the Proposed Shares above pursuant to and for the purposes of the By-Laws.
Yours faithfully,
On behalf of [Transferor Investor]
Annexe 2
Modèle de bulletin de souscription de parts de catégorie A du FPCI OCCTE OCCIDEV
OCCTE OCCIDEV
Fonds professionnel de capital investissement Articles L. 214-159 et suivants du Code monétaire et financier
BULLETIN DE SOUSCRIPTION PARTS A
Nom de l’Investisseur:
SOUSCRIPTION AUX PARTS A DE OCCTE OCCIDEV
Instructions pour compléter et retourner le Bulletin de Souscription
1 Veuillez adresser un projet non signé du Bulletin de Souscription au plus tard dix (10) jours ouvrables avant la date de souscription à laquelle vous souhaitez être admis par OCCTE (la
« Société de Gestion ») au sein de OCCTE OCCIDEV (le « Fonds ») (ou à une date antérieure qui vous aurait été notifiée par la Société de Gestion) à :
OCCTE, 0, xxxxxxxxx Xxxxxxxx Xxxxxxx, xxxxxxxx X, 00000 Xxxxxxxx.
2 Après confirmation par la Société de Gestion de la complétude de la documentation de souscription, veuillez envoyer 2 exemplaires du Bulletin de Souscription signés à OCCTE, 0, xxxxxxxxx Xxxxxxxx Xxxxxxx, xxxxxxxx X, 00000 Xxxxxxxx avec les coordonnés bancaires et la liste des signataires autorisés si vous êtes une personne morale.
AVERTISSEMENT
L’attention des investisseurs est attirée sur le fait que, sauf exceptions visées au règlement du Fonds (le « Règlement »), leur investissement dans le Fonds est bloqué pendant la durée de vie du Fonds, le cas échéant prorogée.
Le Fonds est principalement investi dans des entreprises non cotées en bourse qui présentent des risques particuliers. Vous devez prendre connaissance des facteurs de risques du Fonds décrits à la rubrique "Profil de risque" du Règlement.
Le Fonds n'est pas soumis à l'agrément de l'AMF et n'est pas soumis aux règles applicables aux fonds d'investissement alternatifs agréés : ses règles de gestion et de fonctionnement sont fixées par son Règlement.
Sauf mention contraire, les renseignements demandés sont obligatoires. Conformément à la loi n° 78/17 du 6 janvier 1978 modifiée et au Règlement Général sur la Protection des Données (UE) 2016/679 du 27 avril 2016 (dit « RGPD »), vous disposez d’un droit d’accès, de rectification, d’effacement, ainsi que d’un droit à la limitation du traitement, un droit d’opposition au traitement et à la portabilité des données vous concernant, dont la Société de Gestion est seule destinataire.
BULLETIN DE SOUSCRIPTION
Sauf s’il en est disposé autrement dans le Bulletin de Souscription ou lorsque le contexte l’exige, les termes et expressions du Bulletin de Souscription commençant par une majuscule renvoient aux définitions contenues dans le Règlement sauf s’il en est disposé autrement par les présentes.
Toute référence au Règlement du Fonds doit être interprétée comme étant une référence au Règlement, tel que modifié.
1. IDENTITE DE l’INVESTISSEUR
Nom de l’Investisseur
(dénomination légale)
Adresse de l’Investisseur
(domicile / siège social)
Forme juridique de l’Investisseur
(ou date et lieu de naissance)
Le cas échéant, représenté par (par exemple une société de gestion, etc.) et forme juridique de cette entité
Juridiction d’enregistrement
Numéro d’enregistrement
(numéro RCS ou équivalent)
Pays de résidence fiscale
(en d’absence de résidence fiscale, le siège de direction effective de la personne morale ou l’entité)
(l’ « Investisseur »)
☐ Conformément au Règlement Général de l'Autorité des marchés financiers, l'Investisseur, en cochant cette case, reconnaît par écrit que le Fonds est strictement réservé aux Investisseurs Qualifiés tels que définis dans l'avertissement du Règlement.
2. ENGAGEMENT
3. Engagement de l’Investisseur
L’Investisseur s’engage irrévocablement à investir dans le Fonds un montant total de :
€
EUR
(montant en chiffres) (montant en lettres)
(ci-après l’ « Engagement ») et à répondre aux Avis d’Appel de Tranches (Drawdown Notices) effectués par la Société de Gestion.
L’Engagement sera versé au fur et à mesure des Avis d’Appel de Tranche effectués par la Société de Gestion dans les termes et conditions prévus dans le Règlement.
En contrepartie de cet Engagement, l’Investisseur souscrira à parts A, ayant une valeur initiale de 1 € (un euro) chacune (les « Parts »).
☐ L’Investisseur reconnait avoir lu l’ANNEXE 3 et effectue les déclarations et garanties figurant dans cette ANNEXE 3.
4. Acceptation par la Société de Gestion
Suivant l’acceptation de l’Engagement par la Société de Gestion, l’Investisseur sera réputé être devenu un Investisseur dans le Fonds. L’Investisseur pourra donc bénéficier de tous les droits qui sont attachés aux Parts et devra respecter toutes les obligations qui incombent à un investisseur du Fonds en application du Bulletin de Souscription et du Règlement.
5. Adhésion au Règlement
L’Investisseur s’engage à respecter les dispositions du Règlement qui lui ont été communiquées par la Société de Gestion au plus tard à la date de la signature par l’Investisseur du Bulletin de Souscription telle qu’indiquée à la clause 21 (la « Date de Signature »).
L’Investisseur reconnait avoir reçu une copie du Règlement, qu’il l’a lue et comprise, pouvant être modifié et/ou mis à jour à tout moment : (i) avant l’acceptation par la Société de Gestion de l’Engagement par l’Investisseur, en accord avec cette clause 5, ou (ii) après l’acceptation initiale de la Société de Gestion de l’Engagement par l’Investisseur, en application des dispositions du Règlement.
A tout moment après la Date de Signature et avant l’acceptation de la Société de Gestion de l’Engagement de l’Investisseur, la Société de Gestion pourra modifier le Règlement dès lors que ces modifications, telles que déterminées par la Société de Gestion (i) sont des modifications qui peuvent être effectuées sans le consentement des Investisseurs conformément au Règlement, ou (ii) sont nécessaires ou opportunes afin de réaliser le closing en cours. L’Investisseur accepte d’être lié par toutes les modifications proposées, telles que notifiées à l’Investisseur par la Société de Gestion, sauf lorsque l’Investisseur informe la Société de Gestion qu’il n’accepte pas ces propositions de modification, dans un délai de cinq
(5) Jours Ouvrables à compter de la notification de la Société de Gestion, pour autant que l’Investisseur justifie que cette modification est susceptible de lui causer un préjudice substantiel.
Sans préjudice de ce qui précède, l’Investisseur comprend qu'une révocation ou un retrait (y compris, sans limitation, en vertu de tout droit qu'il peut avoir de le faire en vertu des lois ou règlements applicables de la juridiction dans laquelle il est établi) de son engagement irrévocable de souscrire en vertu du Bulletin de Souscription, en relation avec son Engagement, sans le consentement préalable de la Société de Gestion, constituera une violation de ses obligations en vertu des présentes, en conséquence de quoi l’Investisseur sera tenu de payer à la Société de Gestion et au Fonds tout montant destiné à réparer l'ensemble des préjudices, pertes, dommages, demandes, réclamations, coûts, charges et dépenses encourus par eux (y compris, sans limitation, les intérêts, pénalités, honoraires d'avocats, commissions d'agent de placement, coûts encourus ou temps passé par leur personnel et tous les autres coûts et dépenses nécessaires pour remplacer l’Investisseur par un nouvel investisseur pour le même Engagement) en relation avec cette situation.
6. Annexes et Supplément
Les Annexes du Bulletin de Souscription font partie intégrante du bulletin de souscription (le
« Bulletin de Souscription »). Le Supplément, le cas échéant, ne fait pas partie du Bulletin de Souscription.
7. CONVENTIONS, DECLARATIONS, GARANTIES ET RESPONSABILITES
8. L’Investisseur confirme à la Société de Gestion et au Fonds que toutes ses déclarations et garanties, contenues dans le Bulletin de Souscription ainsi que toutes informations fournies (les « Informations de l’Investisseur ») sont sincères, exactes et complètes à la Date de Signature (ou, si elles sont fournies ultérieurement, à la date à laquelle ces informations sont transmises). L’Investisseur n’omettra pas d’indiquer tout fait important et nécessaire afin de ne pas rendre mensongères ou trompeuses les Informations de l’Investisseur, et l’Investisseur accepte que les Informations de l’Investisseur puissent être utilisées à n’importe quel moment par le Fonds et/ou la Société de Gestion dans le cadre de la règlementation applicable au Fonds et à la Société de Gestion.
9. L’Investisseur reconnait que la fourniture d’informations sincères, exactes et complètes est une condition essentielle et déterminante de l’acceptation de son Engagement par la Société de Gestion.
10. L’Investisseur doit s’assurer que chaque information fournie à la Société de Gestion, au Fonds ou aux représentants ou conseils de la Société de Gestion restera sincère, exacte et complète à tout moment et aussi longtemps que l’Investisseur sera un Investisseur dans le Fonds. L’Investisseur ne devra pas omettre de déclarer tout fait important qui risquerait de rendre trompeuses ou inexactes les Informations fournies
par l’Investisseur. De plus, l’Investisseur s’engage (i) à fournir diligemment à la Société de Gestion toute information et/ou attestation que celle-ci pourrait raisonnablement demander concernant notamment l’identité, la nationalité, la résidence fiscale, le statut fiscal, l’activité ou les bénéficiaires effectifs de l’Investisseur et (ii) à adresser par écrit à la Société de Gestion, dans les meilleurs délais un rectificatif en cas de modification des déclarations, garanties et confirmations effectuées dans le Bulletin de Souscription et/ou des informations relatives à la résidence fiscale de l’Investisseur afin de permettre à la Société de Gestion d’évaluer et de se conformer à toute exigence légale, réglementaire ou fiscale applicable à la Société de Gestion, au Fonds ou aux Investisseurs.
12. Tout paiement effectué par l’Investisseur conformément aux clauses 5 et 11 et à l'ANNEXE 3 ne réduira pas l'Engagement Non Appelé de l’Investisseur.
13. AUTRES DISPOSITIONS
14. Notification et consentement pour recevoir les notifications par emails ou toute autre forme de notification électronique
L’Investisseur reconnaît et accepte que toutes les notifications qu’il aura à effectuer dans le cadre du Bulletin de Souscription ainsi que l'envoi du Bulletin de Souscription signé à la Société de Gestion et, le cas échéant, la notification de l'acceptation du Bulletin de Souscription par la Société de Gestion à l’Investisseur seront effectués conformément à l’Article 23 du Règlement relatif aux notifications. Nonobstant l’Article 23 du Règlement, le Bulletin de Souscription sera réputé reçu par la Société de Gestion dès que celui-ci recevra pour la première fois une copie ou l'original du Bulletin de Souscription signé. L’Investisseur reconnaît que toute notification adressée par la Société de Gestion à un contact figurant à l'ANNEXE 2 ou, si la Société de Gestion et l’Investisseur en conviennent autrement, à tout autre contact désigné, sera considérée comme une forme de notification valable au titre du Bulletin de Souscription et de l’Article 23 du Règlement.
L’Investisseur accepte expressément de recevoir le Règlement ainsi que tout autre rapport, avis ou communication concernant le Fonds et la Société de Gestion par courrier électronique ou par d'autres moyens de communication électronique et déclare et certifie avoir eu connaissance lors de la souscription que le Règlement ainsi que tout autre rapport, avis ou communication concernant le Fonds peuvent être envoyés par tout moyen, y compris par courrier électronique ou par d'autres moyens électroniques en remplacement ou en plus des copies sur format papier, tel que précisé à l’Article 23 du Règlement.
La notification de tout changement d'adresse électronique de l’Investisseur doit être adressée à la Société de Gestion par lettre recommandée avec accusé de réception.
15. Communication d'informations concernant l’Investisseur
Sauf s’il en a été convenu autrement par écrit par la Société de Gestion avant l'admission de l’Investisseur dans le Fonds, la Société de Gestion ou ses Affiliées sont autorisés à communiquer toute information concernant le Fonds et les Investisseurs (y compris le nom de l’Investisseur, sa forme légale, son lieu d’immatriculation et sa résidence fiscale, ses associés, ses informations bancaires, les bénéficiaires effectifs et le montant de l'Engagement de l’Investisseur dans le Fonds) ; (i) à toute autorité gouvernementale (y compris les autorités fiscales, réglementaires et/ou boursières) ; (ii) à tout cocontractant ou prestataire de services du Fonds ou à toute Société du Portefeuille, à tout prêteur du Fonds ; (iii) à toute autre personne si la Société de Gestion détermine que cette communication est dans l’intérêt du Fonds, y compris dans le cadre d'un Investissement ; (iv) dans le cadre de tout litige ou différend ou afin de s’assurer du respect des dispositions du Règlement ; et (v) à tout Investisseur et/ou investisseur potentiel du Fonds.
16. Dispositions relatives aux données personnelles
1.1 Notice Protection des Données : la notice fournit les informations détaillées sur la protection des données personnelles par la Société de Gestion ; cette notice, telle qu’elle
pourra être modifiée de temps à autre, est accessible auprès de la Société de Gestion (« Notice »).
La Société de Gestion et ses prestataires de services récolteront et traiteront, de temps en temps, des données personnelles concernant l’Investisseur ou les représentants de l’Investisseur, signataires autorisés, actionnaires, membres, associés, investisseurs sous- jacents ou bénéficiaires effectifs transmises par l’Investisseur en relation avec un investissement dans le Fonds et/ou dans le cadre de la mise en œuvre des activités du Fonds incluant le prénom, nom de famille, adresse de résidence, adresse e-mail, numéro de téléphone et autres informations de contact, date et lieu de naissance, nationalité et profession, documents d’identité, informations de compte bancaire et informations fiscales (y compris la structure fiscale, le traitement fiscal, le statut fiscal et la résidence fiscale) (les « Données Personnelles »). Les Données Personnelles seront traitées en conformité avec le RGPD ainsi qu’à toute autre législation qui serait applicable en matière de protection des données (la « Règlementation Protection des Données »).
Le Fonds (représenté par la Société de Gestion agissant pour son compte) est le responsable du traitement des données communiquées au titre du Règlement et du Bulletin de Souscription.
Si l’Investisseur est une société ou une personne morale, si celui-ci a communiqué des Données Personnelles concernant toute personne à la Société de Gestion ou ses prestataires de services, l’Investisseur déclare et garantit que (i) ces données ont été obtenues et traitées et sont divulguées par l’Investisseur à la Société de Gestion, à ses prestataires de services et/ou aux autres Investisseurs conformément au droit applicable, et (ii) l’Investisseur a informé la personne dont les données sont communiquées et a obtenu son consentement vis-à- vis des dispositions relatives au traitement des données personnelles de la présente clause.
L’Investisseur reconnait et accepte aussi que la Société de Gestion ne traitera les Données Personnelles que dans les finalités suivantes (chacune une « Finalité », et ensemble, les
« Finalités ») :
(i) se conformer à (i) ses obligations légales au titre de l’article 1649 AC du Code général des impôts et plus généralement avec les obligations légales conformément aux règlementations relatives à la lutte contre le blanchiment d’argent et le financement du terrorisme, incluant FATCA et CRS5 ; et (ii) tout autre exigence juridique, règlementaire ou fiscale applicable à la Société de Gestion, au Fonds, à l’Investisseur ou à tout investissement proposé au Fonds, y compris les exigences qui ne s’appliquent que pour
(1) obtenir ou chercher à obtenir des autorisations fiscales pertinentes auprès de toute autorité fiscale compétente, (2) obtenir ou chercher à obtenir un taux réduit ou une exemption de tout impôt applicable, (3) ou permettre au Fonds d’être admissible à un taux réduit de retenue dans toute juridiction d’où ou à travers laquelle le Fonds reçoit des paiements sur leurs actifs ;
(ii) évaluer et traiter l’acquisition de l’Investisseur, gérer son investissement dans le Fonds, y compris la réception des paiements et le cas échéant, communiquer avec l’Investisseur concernant ses activités et plus généralement concernant ses Parts. Cette utilisation est nécessaire pour la réalisation des obligations du Bulletin de Souscription ;
(iii) gérer les affaires du Fonds de manière effective et conforme, y compris par la réalisation d’audits, l’implémentation d’un processus de gestion des risques et la gouvernance d’entreprise, le maintien et la surveillance des systèmes d’information et la gestion des prestataires de services tiers. Ce traitement est nécessaire et légitime pour la Société de Gestion dans le cadre de la gestion des risques et de la gestion effective de ses affaires ;
(iv) détecter, rechercher et prévenir toute violation interne ou externe des politiques internes, du droit et de la règlementation applicable et l’établissement de l’exercice ou de la défense des droits. Ce traitement est nécessaire et représente un intérêt légitime pour la Société de Gestion afin de se conformer à la Règlementation Protection des Données, à la gestion des risques et la gestion effective de ses affaires ;
5 La loi relative au respect des obligations fiscales concernant les comptes étrangers (« FATCA ») et l’accord multilatéral entre autorités compétentes concernant l’échange automatique de renseignements relatif aux comptes financiers signé par la France le 29 octobre 2014 (« Common Reporting Standard » ou « CRS »)
(v) contacter l’Investisseur avec des informations sur (i) les produits et services de la Société de Gestion, (ii) les produits et services du groupe auquel le Fonds appartient qui peuvent être dans l’intérêt de l’Investisseur et (iii) des recommandations sur des services tiers et la présentation à d’autres clients ou prestataires de services, sauf si l’Investisseur a refusé ou opté pour la non réception de ces informations, ou si l’Investisseur a indiqué ultérieurement son refus de recevoir des communications de cette manière. L’Investisseur peut à tout moment opter pour la non réception de ces informations en contactant la Société de Gestion.
L’Investisseur reconnait et accepte que toute information qu’il divulgue à la Société de Gestion, y compris les Données Personnelles, pourront être utilisées, traitées, transférées et divulguées par la Société de Gestion en relation avec les Finalités à (i) toute autorité française ou internationale (y compris les autorités fiscales, de régulation et/ou des marchés financiers),
(ii) toute source de financement ou prestataire de services du Fonds et/ou des Holdings d’Investissement, (iii) tout Affiliées, employé ou membre de la Société de Gestion et/ou l’Investisseur potentiel, (iv) des tiers tels que des fournisseurs de comptes bancaires, gestionnaires, administrateurs, directeurs, employés, avocats, conseils financiers (incluant les prêteurs seniors), dépositaire, délégataire comptable, auditeurs ou tout autre prestataire de service ensemble avec leurs conseils respectifs, agents et prestataire de services en relation avec l’activité du Fonds, (v) d’autres sous-traitants (tel que défini dans le RGPD) tels que les fournisseurs de technologie d’information, services d’hébergement informatique et de cloud, services d’archivage d’e-mails, réalisation de notices aux investisseurs et de bilans financiers, fournisseurs de gestion des relations avec la clientèle, gestion d’investissement, logiciels de reporting et autres logiciels utiles aux affaires et (vi) toute autre personne (les
« Destinataires »), dans la mesure où ces divulgations sont raisonnablement nécessaires dans le but d’assister la Société de Gestion à l’accomplissement de ses obligations légales, réglementaires et fiscales.
Le stockage, transfert et divulgation des Données Personnelles aux Destinataires ne peut avoir lieu qu’au sein de la zone géographique de l’Union Européenne ou à des entités qui ont été reconnues comme offrant un niveau de protection équivalent à celui accordé dans l’Union Européenne ou garanties appropriées conformément à l’article 46 du RGPD.
Les informations communiquées par l’Investisseur à la Société de Gestion seront conservées par la Société de Gestion pendant une durée maximale de six (6) ans courant à compter du Dernier Jour de Liquidation du Fonds, afin de se conformer à l’article L. 102 B I du Livre des procédures fiscales, ou pendant tout autre délai de conservation courant à compter du Dernier Jour de Liquidation du Fonds et résultant d’une modification de la disposition précitée pendant la Durée et la période de liquidation du Fonds.
Conformément à la Règlementation Protection des Données, l’Investisseur dispose des droits suivants sur ses Données Personnelles :
(i) droit d’accès : sur demande, la Société de Gestion communiquera à l’Investisseur une copie des Données Personnelles dont elle dispose, le cas échéant ;
(ii) droit de rectification : si des données personnelles sont inexactes ou incomplètes, l’Investisseur a le droit de demander la correction ou la rectification desdites données ;
(iii) droit à l’effacement : l’Investisseur a le droit d’obtenir la suppression des Données Personnelles, notamment lorsque les Données Personnelles ne sont plus nécessaires aux Finalités mentionnées ci-dessus ou si l’Investisseur retire son consentement (le cas échéant) ;
(iv) droit à limiter le traitement des données: l’Investisseur a le droit d’obtenir de limiter le traitement des Données Personnelles, notamment lorsque l’exactitude des données est contestée ;
(v) droit à la portabilité : l’Investisseur a le droit d’obtenir, dans un format structuré, couramment utilisé et lisible par machine, les Données Personnelles qu’il a consenti à communiquer, ou qui sont nécessaires à l’exécution du Règlement, et qui sont traitées de manière automatisée ;
(vi) droit de s’opposer : l’Investisseur a le droit de s’opposer à tout moment (i) pour des raisons tenant à sa situation particulière, à un traitement des Données Personnelles le concernant, à moins que la Société de Gestion justifie de raisons sérieuses au traitement
des données et (ii) le cas échéant, au traitement des Données Personnelles le concernant dans un but de commercialisation ;
(vii) droit de retirer son consentement : si la licéité du traitement des Données Personnelles est fondée sur le consentement de l’Investisseur, l’Investisseur a le droit de retirer son consentement à tout moment. Cela n’affectera pas la licéité du traitement basé sur le consentement antérieurement à son retrait ; et
(viii) droit d’introduire une réclamation auprès de l’autorité de protection des données : si l’Investisseur a des préoccupations concernant le traitement des Données Personnelles en application du Règlement, l’Investisseur a le droit d’en informer l’autorité de protection des données autorisée à recevoir ces réclamations.
L’Investisseur reconnait et accepte que (i) lorsque la fourniture de Données Personnelles est rendue nécessaire pour s’assurer de la conformité avec des obligations légales, réglementaires et fiscales, il ne peut pas s’opposer à leur traitement, et (ii) que le défaut de fourniture des Données Personnelles dans les cas précités pourrait empêcher le maintien de l’Investisseur dans le Fonds.
Pour toute question sur le traitement des données personnelles conformément au Bulletin de Souscription ou pour exercer les droits décrits ci-dessus, veuillez contacter le responsable de la protection des données de la Société de Gestion : Xxxx XXXXXX x.xxxxxx@xxxxx.xx
17. Dispositions diverses
Les intitulés des clauses du Bulletin de Souscription sont uniquement destinés à faciliter la lecture du bulletin et sa compréhension et ne doivent pas limiter ou autrement affecter la signification des présentes.
Dès son acceptation par la Société de Gestion, le Bulletin de Souscription, le cas échéant, la Side Letter et le Règlement constitueront l'intégralité de l'accord entre l’Investisseur, la Société de Gestion et le Fonds en ce qui concerne l'objet des présentes, et remplaceront tous les accords, conventions et déclarations antérieurs, écrits ou oraux, entre ces Parties concernant la souscription de parts du Fonds. Aucun accord, convention ou déclaration antérieure, écrit ou oral, ne pourra être utilisé pour infirmer, compléter ou interpréter le Règlement, le Bulletin de Souscription ou, le cas échéant, la Side Letter.
Le Bulletin de Souscription s'applique au profit des héritiers, exécuteurs testamentaires, administrateurs ou autres représentants et successeurs des Parties aux présentes et les lie, sous réserve des dispositions légales et réglementaires applicables au Fonds.
Si une clause ou une disposition du Bulletin de Souscription est déclarée nulle ou inopposable par une juridiction, seule cette clause ou cette disposition sera privée d'effet. Les autres dispositions du Bulletin de Souscription n'en seront pas affectées et continueront de produire leurs effets ; la nullité ou l'inopposabilité dans une juridiction ne saurait rendre nulle ou inopposable ces dispositions dans une autre juridiction. De plus, si une clause ou une disposition du Bulletin de Souscription est déclarée nulle ou inopposable mais pourrait être valable ou opposable si certaines stipulations ou parties de la disposition sont supprimées, la disposition concernée fera l’objet du minimum de modifications nécessaires afin de la rendre valable et opposable.
L’Investisseur reconnaît qu'il a participé ou a eu la possibilité de participer de manière significative à la négociation et à la rédaction du Bulletin de Souscription, du Règlement et, le cas échéant, de la Side Letter, et que, le cas échéant, il lui a été conseillé de consulter son propre conseil juridique et qu'il a eu la possibilité et les moyens adéquats de faire appel à un conseil juridique, pour défendre ses intérêts et négocier les dispositions de ces contrats. En cas d'ambiguïté ou si une question se pose sur l'interprétation du Bulletin de Souscription, du Règlement et, le cas échéant, de la Side Letter, ces documents seront interprétés comme étant le fruit de négociations entre la Société de Gestion et l’Investisseur et aucune présomption ne jouera en faveur ou en défaveur de l'un d'entre eux du fait de la rédaction de l'une ou l’autre des dispositions du Bulletin de Souscription, du Règlement et, le cas échéant, de la Side Letter. L’Investisseur déclare et garantit en outre que le Bulletin de Souscription, le Règlement et, le cas échéant, la Side Letter, ne sont pas des contrats d'adhésion au sens de l'article 1110 du Code civil et que l'article 1190 du Code civil ne s'applique pas.
Les recours dont dispose le Fonds, la Société de Gestion et leurs Affiliées en vertu du Bulletin de Souscription sont cumulatifs et non exclusifs des autres recours qui peuvent être mis à leur disposition en vertu du droit applicable, du Règlement et, le cas échéant, de la Side Letter.
18. Modifications
L’Investisseur déclare et garantit à la Société de Gestion et au Fonds qu'il a téléchargé et imprimé l'intégralité du Bulletin de Souscription et qu'il n'a pas modifié ou autrement révisé celui-ci de quelque manière que ce soit par rapport à la version initialement reçue.
Le fait que la Société de Gestion n'exerce pas ou tarde à exercer un droit prévu dans le Bulletin de Souscription ne constitue pas une renonciation à ce droit, et l'exercice, même partiel, d'un droit, d'un pouvoir ou d'un privilège n'empêchera pas son exercice ultérieur ou l'exercice de tout autre droit, pouvoir ou privilège.
Le Bulletin de Souscription (y compris ses Annexes) peut être modifié ou résilié sous réserve du consentement écrit de l’Investisseur et de la Société de Gestion.
Nonobstant ce qui précède, la Société de Gestion peut accepter de renoncer à, modifier le contenu ou limiter la portée de toute déclaration, garantie ou disposition du Bulletin de Souscription. Une telle décision ne doit pas être assimilée à une Side Letter au sens de l’Article
9.6 du Règlement.
19. Exécution forcée et caducité
L’Investisseur reconnait et accepte expressément que toute inexécution ou violation d’une clause du Bulletin de Souscription sera susceptible d’être sanctionnée par une exécution forcée, conformément à l’article 1221 du Code civil, sauf si cette exécution est impossible, et ce sans préjudice d’éventuels dommages et intérêts.
L’Investisseur reconnait et accepte que cette exécution forcée, au regard de ses droits et obligations, n’a pas pour objet ou pour effet de créer une disproportion manifeste entre son coût pour l’Investisseur et son intérêt pour le Fonds.
L’Investisseur reconnaît que le Bulletin de Souscription ne dépend ni n’est lié à aucun autre contrat ou opération au sens de l’article 1186 du Code civil et qu’il n’est par conséquent pas recevable à réclamer la caducité du Bulletin de Souscription.
20. Loi applicable
Les droits et obligations des parties qui découlent du Règlement, du Bulletin de Souscription et, le cas échéant, de la Side Letter seront régis et interprétés conformément à la loi française. Tout différend concernant le Bulletin de Souscription sera exclusivement soumis aux tribunaux français compétents.