EFTA02689873.pdf

SECOND DRAFT FOR DISCUSSION PURPOSE ONLY - MAY 2011- CONFIDENTIAL ISSUE # CONFIDENTIAL OFFERING MEMORANDUM [DATE] 2011 BHV OPPORTUNITES FUND SCA, SICAV-FIS Societe d'investissement a capital variable — fonds d'investissement spicialist NO APPLICATION FOR THE ADMISSION OF BHV OPPORTUNITIES FUND SCA, SICAV-FIS (THE "COMPANY") TO THE OFFICIAL LIST OF SPECIALISED INVESTMENT FUND (SW) HAS YET BEEN FILED WITH THE LUXEMBOURG REGULATORY AUTHORITY FOR THE FINANCIAL SECTOR, THE COMMISSION DE SURVEILLANCE DU SECTEUR FINANCIER (THE "CSSF"). THIS CONFIDENTIAL OFFERING MEMORANDUM IS A DRAFT FOR DISCUSSION PURPOSE ONLY AND MAY BE SUBJECT TO SIGNIFICANT AMENDMENTS. APPLICATIONS FOR SUBSCRIPTION WILL BE RESERVED TO WELL-INFORMED INVESTORS WHO/WHICH WILL HAVE TO MAKE THEIR OWN ASSESSMENT OF THE CONDITIONS OF THEIR PARTICIPATION IN THE COMPANY. HENCE, IT IS THE RESPONSIBILITY OF THE INVESTORS TO DETERMINE WHETHER A PARTICIPATION IN THE COMPANY IS SUITABLE FOR THEM OR NOT. 0095739-00000041U:4232950.2 EFTA_R1_02029622 EFTA02689873 By accepting this Confidential Offering Memorandum (the "Memorandum") the recipient agrees to be bound by the following: This Memorandum is submitted on a confidential private placement basis to a number of Investors who/which have expressed an interest in making a Commitment to subscribe for Shares in BHV Opportunities Fund SCA, SICAV-FIS a Luxembourg societe d'investissement en capital variable — fonds d'investissement specialise (investment company with variable capital — specialised investment fund) established in the form of a societe en commandite par actions (corporate limited partnership by shares) in accordance with the 2007 Act (the Company). Unless otherwise defined. capitalised terms used throughout this Memorandum shall have the meanings ascribed to such terms in the Section "Definitions" of the General Section. This Memorandum has been prepared solely for the consideration of Well-Informed Investors. This Memorandum supersedes and replaces any other information provided by the initiators and its representatives and agents in respect of the Company. However, the Memorandum is provided for information only, and is not intended to be and must not alone be taken as the basis for an investment decision. By accepting this Memorandum and any other information supplied to Investors by the initiators the recipient agrees that such information is confidential. Neither it nor any of its employees or advisers will use the information for any purpose other than for evaluating an investment in the Company or divulge such information to any other party and acknowledges that this Memorandum may not be photocopied, reproduced or distributed to others without the prior written consent of the initiators. Each recipient hereof by accepting delivery of this Memorandum agrees to keep confidential the information contained herein and to return it and all related materials to the Company if such recipient does not undertake to purchase any of the Shares. The information contained in the Memorandum and any other documents relating to the Company may not be provided to persons (other than professional advisors) who are not directly concerned with any Investor's decision regarding the investment offered hereby. By accepting this Memorandum, Investors in the Company are not to construe the contents of this Memorandum or any prior or subsequent communications from the Company, the General Partner, the Service Providers, the initiators or any of their respective officers, members, employees, representatives or agents as investment, legal, accounting. regulatory or tax advice. Prior to investing in the Shares, Investors should conduct their own investigation and analysis of an investment in the Company and consult with their legal advisors and their investment, accounting, regulatory and tax advisors to determine the consequences of an investment in the Shares and arrive at an independent evaluation of such investment, including the applicability of any legal sales or investment restrictions without reliance on the Company, the General Partner, the Service Providers, the initiators or any of their respective officers, members, employees, representatives or agents. Neither the Company, the General Partner, the Service Providers, the initiators nor any of their respective officers, members, employees, representatives or agents accepts any responsibility or liability whatsoever for the appropriateness of any potential Investors investing in the Company. Prospective Investors are urged to request any additional information they may consider necessary or desirable in making an informed investment decision. Each prospective Investor is encouraged, prior to the consummation of their investment, to ask questions of, and receive answers from, the initiators concerning the Company and this offering and to request any additional information in order to verify the accuracy of the information contained in this Memorandum or otherwise. The Shares have not been registered under the US Securities Act of 1933, as amended (the "US Securities Act") or the securities laws of any state or political subdivision of the United States, and may not be offered, sold, transferred or delivered, directly or indirectly, in the United States or to, or for the account or benefit of. any US person, except pursuant to an exemption from, or in a transaction not subject to the registration requirements of the Securities Act and any applicable US state securities laws. The Company is not registered nor does it intend to register (i) under the US Investment Company Act of 1940, as amended (the "US Investment Company Act") as an investment company in reliance on the exemption from such registration pursuant to Section 3(cX7) thereunder. Accordingly. the Shares arc being offered and sold only (i) outside the United States to persons that arc (a) other than US persons as defined in Regulation S under the US Securities Act and (b) not US residents (within the meaning of the Investment Company Act) in offshore transactions that meet the requirements of Regulation S under the US Securities Act or (ii) to US persons who arc (a) "accredited investors" (as defined in Rule 501 of Regulation D promulgated under the Securities Act) and (b) either (I) "qualified purchasers" 00957390000004 LU:4232950.2 2 EFTA_R1_02029623 EFTA02689874 (within the meaning of Section 2(a)(51) of the Investment Company Act) or (II) "knowledgeable employees" as such term is defined in Rule 3c-5 of the Investment Company Act. The text of the Articles is integral to the understanding of this Memorandum. Potential Investors should review the Articles carefully. In the event of any inconsistency between this Memorandum and the Articles, the Articles shall prevail. Prior to making any Commitment to subscribe for Shares, Investors should obtain a copy of the Subscription Agreement which contains, inter alia, representations on which the Company may accept an Investor's Commitment. The Articles, the Service Agreements, the Subscription Agreement and related documentation are described in summary form herein; these descriptions do not purport to be complete and each such summary description is subject to. and qualified in its entirety by reference to, the actual text of the Articles, the Service Agreements, the Subscription Agreement and related documentation, including any amendment thereto. No action has been taken which would permit a public offering of the Shares in any jurisdiction where action for that purpose would be required. The Memorandum and any other documents relating to the Company do not constitute an offer or solicitation in any jurisdiction in which an offer or solicitation is not authorised, or in which the person making the offer or solicitation is not qualified to do so. or to any person to whom it is unlawful to make such an offer or solicitation. Any representation to the contrary is unlawful. No action has been taken by the initiators or the Company that would permit a public offering of Shares or possession or distribution of information in any jurisdiction where action for that purpose is required. Investors should be aware that they may be required to bear the financial risk of their investment for a significant period of time as Investors may not request redemption of their Shares. Additionally, there will be no public market for the Shares. Accordingly. Investors should have the financial ability and willingness to accept the risks of investing in the Company (including, without limitation, the risk of loss of their entire investment) and accept that they will have recourse only to the assets of the Compartment in which they invest as these will exist at any time. Certain statements contained in this Memorandum are forward-looking statements. These forward-looking statements are based on current expectations, estimates and projections about the markets in which the Company will operate, and the beliefs and assumptions of the Company. Words such as "expects", "anticipates", "should", "intends", "plans", "believes", "seeks". "estimates". "forecasts". "projects", variations of such words and similar expressions are intended to identify such forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions which are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in such forward-looking statements. Among the factors that could cause actual results to differ materially are the general economic climate. inflationary trends, interest rate levels, the availability of financing, changes in tax and corporate regulations and other risks associated with the ownership and acquisition of Investments and changes in the legal or regulatory environment or that operation costs may be greater than anticipated. An investment in the Shares involves significant risks and there can be no assurance or guarantee as to positive return on any of the Company's Investments or that there will be any return on invested capital. Potential Investors should in particular refer in this Memorandum to Section 25 of the General Section. The investment objectives are based on a number of assumptions which the Company believes reasonable, but there is no assurance that the investment objectives will be realised. The General Partner has taken all reasonable care to ensure that the information contained in this Memorandum is accurate as of the date of this Memorandum (or such other date as stated herein). Other than as described below, neither the General Partner, the Company, nor the initiators has any obligation to update this Memorandum. Under no circumstances should the delivery of this Memorandum, irrespective of when it is made, create an implication that there has been no change in the affairs of the Company since such date. The General Partner reserves the right to modify any of the terms of the offering and the Shares described herein. This Memorandum may be updated and amended by a supplement and where such supplement is prepared this Memorandum will be read and construed with such supplement. 0095739-0000004 LU:4232950.2 3 EFTA_R1_02029624 EFTA02689875 This Memorandum will be updated in accordance with Luxembourg Law. No person has been authorised to give any information or to make any representation concerning the Company or the offer of the Shares other than the information contained in this Memorandum and any other documents relating to the Company, and, if given or made, such information or representation must not be relied upon as having been authorised by the Company, any Service Provider or the initiators. Any translation of this Memorandum or of any other transaction document into any other language will only be for convenience of the relevant Investors having requested such translation. In the case of any discrepancy due to translation, the English version of the Memorandum and of any other transaction document will prevail. Data protection Certain personal data of Investors (including, but not limited to, the name, address and invested amount of each Investor) may be collected, recorded, stored, adapted, transferred or otherwise processed and used by the Company, the General Partner, the Services Providers and the financial intermediaries of such Investors. In particular, such data may be processed for the purposes of account and distribution fee administration, anti-money laundering and terrorism financing identification, maintaining the register of Investors, processing subscription, redemption and conversion orders (if any) and payments of dividends to Investors and to provide client-related services. Such information shall not be passed on to any unauthorised third persons. The Company may sub-contract to another entity (the Processor) (such as the Administrator) the processing of personal data. The Company undertakes not to transfer personal data to any third parties other than the Processor except if required by law or on the basis of a prior consent of the Investors. Each Investor has a right of access to his/her/its personal data and may ask for a rectification thereof in case where such data is inaccurate or incomplete. By subscribing to the Shares, each Investor consents to such processing of its personal data. This consent is fonnalised in writing in the Subscription Agreement used by the relevant intermediary. 00957390000004 LU.4232950 2 EFTA_R1_02029625 EFTA02689876  GENERAL INFORMATION Registered office of the Company 35a, avenue J. F. Kennedy L-1855 Luxembourg Grand Duchy of Luxembourg General Partner BHV Opportunities Fund Partners Sitrl [Address] Grand Duchy of Luxembourg Managers of the General Partner • [Title],[Name],[City ofresidence] • [Title],[Name],[City ofresidence] • [Title], (Name], (City ofresidence] Custodian Banque Havilland SA 35a. avenue J. F. Kennedy L-1855 Luxembourg Grand Duchy of Luxembourg Administrator and Domiciliary kucm [Name] [Address] Grand Duchy of Luxembourg Auditor [Name] [Address] Grand Duchy of Luxembourg Legal adviser as to Luxembourg Law Allen & Overy Luxembourg 33, avenue J. F. Kennedy L-1855 Luxembourg Grand Duchy of Luxembourg 00957390000004 LU.4232950 2 5 EFTA_R1_02029626 EFTA02689877  Page I. The Company 14 2. Management and Administration 15 3. investment objective, strategy and restrictions 17 4. Share Capital and Shares 19 5. Subscription of Shares 20 6. Failure to Comply with a Drawdown Notice 21 7. Conversion of Shares 23 8. Redemption of Shares 23 9. Transfer Restrictions 24 10. Ownership Restrictions 25 11. Anti-Money Laundering and Terrorist Financing Requirements 26 12. Calculation of the NAV 27 13. Valuation of Investments 31 14. Temporal), Suspension of Calculation of the NAV and/or of Subscription, Redemption and Conversion 32 15. General Meeting 33 16. accounting year and Reporting 33 17. Dissolution/Liquidation 34 18. Distribution — Re-Investment Cash 36 19. Taxation 38 20. Indemnity 39 21. Announcements and Confidentiality 40 22. Payments 41 23. Expenses 41 24. Reserve 42 25. Risk Factors 43 26. Amendments to the General Section 48 SPECIAL SECTION I -HEW Opportunities Fund SCA, SICAV-FIS -Emerging Markets Fund 1 49 I. Investment policy 49 2. Reference Currency 51 3. Investment committee 51 4. investment adviser 53 5. Term of the Compartment 54 6. Classes of Shares 55 7. Offering of Shares — Capital Contributions 55 8. Drawdown from Investors 57 9. Re-Investment Cash 59 10. Valuation Date 59 11. Distributions and Allocation ofLiquidation Proceeds — Carried Interest — Re-Investment 59 12. Management Fee 59 13. Amendments to this Special Section 60 14. Specific Risk Factors 60 00957390000004 LU:4232950.2 EFTA_R1_02029627 EFTA02689878  DEFINITIONS In this Memorandum, the following terms have the following meanings: 1915 Act means the Luxembourg act of 10 August 1915 on commercial companies, as amended; 2002 Act means the Luxembourg act of 20 December 2002 relating to undertakings for collective investments, as may be amended from time to time: 2007 Act means the Luxembourg act of 13 February 2007 relating to SIFs, as may be amended from time to time; 2010 Act means the Luxembourg act of 17 December 2010 relating to undcrtakings for collective investments, as may be amended from time to time; Accounting Year means a twelve (12) months period ending on 31 December; Additional Report has the meaning set out in Section 16.5 of the General Section; Administrator means [Name] in its capacity as administrative agent and registrar and transfer agent of the Company; Affiliate means (a) in the case of a company: (i) any company which is its direct or indirect holding company or subsidiary or a direct or indirect subsidiary of that holding company; or (ii) a company (or a direct or indirect subsidiary of a company) or other legal entity which controls or is controlled by the person concerned; (b) in the case of an individual, the spouse or direct descendant and ascendants of any kind, and any company directly or indirectly controlled by such person and his associates within the meaning of paragraph (a) of this definition: or (c) in the case of an entity other than a company, the members and any company directly or indirectly controlled by such person and his associates within the meaning of paragraph (a) of this definition; or except in, all cases, any company in which the Company holds an Investment. Annual Valuation has the meaning set out in Section 13.3 of the General Section; Articles means the articles of association of the Company, as amended from time to time; Auditor means the auditor (reviseur d'entreprises agree) of the Company which is Fame]: Bridging Investments means investments made with a view to selling them (or a portion thereof) to a third party within twelve (12) months of their acquisition; Business Day means a full day on which banks are generally open for business in Luxembourg (excluding Saturdays and Sundays and public holidays); Capital Contribution means the cash contributed by an Investor to the relevant Compartment to the exclusion of any Subsequent Closing Actualisation Interest or Equalisation Fee Payment due to the Company; 00957390000004 LU:4232950.2 7 EFTA_R1_02029628 EFTA02689879 Claims and Expenses means, with respect to the relevant person, any and all liabilities, obligations, losses, damages, fines, taxes and interest and penalties thereon, claims, demands, actions, suits, proceedings (whether civil, criminal, administrative, investigative or otherwise), costs, expenses and disbursements (including legal and accounting fees and expenses, costs of investigation and sums paid in settlement) of any kind or nature whatsoever, which may be imposed on. incurred by, or asserted at any time against that person in any way related to or arising out of this Memorandum, the Articles, the Subscription Agreement, the Company, the Investments or the management, administration, or activities of any Indemnified Person on behalf of the Company or Investments; Class means a class of Shares within a relevant Compartment of the Company (categorie d'aclions) as such term is understood under the 1915 Act: Closing means, in relation to any Compartment, any date on which Investors may commit to subscribe for Shares in the Company, as determined by the General Partner and stipulated in the relevant Special Section; Commitment means, in relation to an Investor, the amount committed by it to the Company (and whether or not such amount has been advanced in whole or in pan and whether or not it has been repaid to the Investor in whole or in pan); Commitment Period means, in relation to each Compartment and unless otherwise stated in a Special Section, the period beginning on the First Closing Date of that Compartment and ending on the date as determined in the relevant Special Section of the Compartment. Company means BHV Opportunities Fund SCA, SICAV-FIS; Company's Consent means the written consent (which shall include electronic mail or other electronic communication and may consist of one or more documents (including "pdf' type electronic mail attachments) in similar form each signed by one or more of the Investors) of the Investors who together exceed 50% of the voting rights of the Company at the relevant time, provided that in calculating the percentage vote. Section 6 of the General Section. shall be taken into account in the numerator and denominator; Compartment means a separate portfolio of assets established for one or more Classes of the Company which is invested in accordance with a specific investment objective. The features of each Compartment will be described in their relevant Special Section; Compartment's Consent means, in relation to each Compartment and unless otherwise provided for in a Special Section, the written consent (which shall include electronic mail or other electronic communication and may consist of one or more documents (including "pdr type electronic mail attachments) in similar form each signed by one or more of the Investors) of the Investors who together exceed 50% of the Total Capital Contributions to the relevant Compartment at the relevant time, provided that in calculating the percentage vote, Section 6 of the General Section, shall be taken into account in the numerator and denominator; Control means, in relation to a company or entity: (a) the holding, directly or indirectly, of the majority votes which may be cast at a company's ordinary Investors' meetings or the votes necessary to direct or cause the direction of a company's ordinary Investors' meetings; and (b) any contractual relationship by virtue of which a person can direct the business activities of a company or other entity and "to control" or "controlled" shall be construed accordingly; CIS means the Commonwealth of Independent States which is the international organisation, or alliance, consisting of the following former Soviet Republics: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Ukraine and Uzbekistan; Turkmenistan discontinued permanent membership as of 26 August 2005 and is now an associate member; CSSF means the Commission de surveillance du secteurfinancier, the Luxembourg regulator for the financial sector; 00957390000004 LU:4232950.2 EFTA_R1_02029629 EFTA02689880 Custodian means Banque Havilland SA in its capacity as custodian of the Company; Default means the failure by an Investor described in Section 6 of the General Section which would entitle a declaration of a Default Date; Default Date has the meaning set out in Section 6 of the General Section; Default Expenses means, with respect to any Investor, the amount of (a) any expenses incurred by the Company (and/or any Intermediary Vehicle) in respect of the relevant Compartment, the General Partner or any of the Service Providers arising from, or in connection with, a Default (including lawyers' fees, collection costs and interest, lender costs and borrowing expenses incurred by the Company in respect of the relevant Compartment resulting from any borrowings by the Company or any Intermediary Vehicle to cover any shortfall caused by that Default); and (b) any other fee, charge or payment due to relevant Compartment (and/or any Intermediary Vehicle), the General Partner or any of the Service Providers in relation to which that Defaulting Investor is in default. Default Expenses include, for the avoidance of doubt, any fees, interest, charges and costs associated with the use of any financing to cover any shortfall caused by that Default; Defaulting Investor has the meaning set out in Section 6 of the General Section; Default Notice means a written notice from the General Partner to an Investor notifying it of its failure to contribute to the relevant Compartment amounts which are the subject of a Drawdown Notice on or before the Drawdown Date; Domiciliary Agent means [Name] in its capacity as domiciliary agent of the Company; Drawdown Date means, in relation to each Compartment, the date, as determined by the General Partner specified in a Drawdown Notice given by the General Partner, as the date on which an Investor is to make a Capital Contribution to that Compartment; Drawdown Notice means, in relation to each Compartment and unless otherwise provided for in a Compartment's Special Section, the written notice advising Investors of the Capital Contribution (i.e., the portion of their Commitment required to be contributed to the Company) to be made on a Drawdown Date that is issued prior to that Drawdown Date and the corresponding number of Ordinary Shares that will be issued: Equalisation Fee Payment means any payment required by the General Partner to a Subsequent Investor in order to equalise the contribution to aggregate costs and fees between Previous Investors and Subsequent Investors; EUR means the single currency of the member states of the Economic and Monetary Union; Expenses has the meaning set out in Section 23 of the General Section; Experienced Investor means any investor who (i) adheres in writing to the status of experienced investor and (ii) either (a) commits to invest a minimum of EURI25,000 in the Company or (b) has obtained an assessment by a credit institution within the meaning of Directive 2006/48/EC, by an investment firm within the meaning of Directive 2004/39/EC, or by a management company within the meaning of Directive 2001/107/EC certifying his expertise, his/her/its expertise, experience and knowledge in adequately appraising an investment in the Company; Final Closing Date means, in respect of each Compartment and unless otherwise stated in a Special Section, the date determined by the General Partner to be the date after which no additional Investors shall be admitted to the relevant Compartment provided that this date shall not be later than twenty four (24) months after the First Closing Date without an Investor Consent; First Closing Date means, in respect of each Compartment and unless otherwise provided for in a Special Section, the date upon which the first Investors are admitted to the relevant Compartment; 00957390000004 LU:4232950.2 o EFTA_R1_02029630 EFTA02689881 Follow-on Investments means Investments made by the Company which are intended to preserve, protect or enhance the value of existing Investments; General Partner means BHV Opportunities Fund Partners Sari the unlimited partner (actionnaire gerant commandite) of the Company and references to the exercise of any determinations, discretions and the making of decisions shall be references to the General Partner acting on behalf of the Company: General Meeting means the general meeting of the Shareholders of the Company or, as the case may be, of relevant Compartment or of a relevant Class; General Section means the general section of the Memorandum that sets out the general terms and conditions applicable to all Compartments of the Company, unless otherwise provided in any of the Special Sections; Indemnified Person has the meaning given in Section 20.1 of the General Section; Independent Valuer means any of the independent valuers of a relevant Compartment appointed by the Company from time to time to determine the Market Value of an Investment held by a Compartment (including any third-party finn retained to oversee and review the work of other independent valuers); Institutional Investors means investors who qualify as institutional investors according to Luxembourg Law; Invested Capital means any amounts drawn and any amounts committed to Investments by the relevant Compartment, plus amounts reserved for Follow-on Investments and shall be reduced by (i) the acquisition cost of realised Investments (excluding underwritings and Bridging Investments) and (ii) any permanent write off: Investment means any investment of a relevant Compartment (whether directly or through an Intermediary Vehicle), including participations in or commitments to Portfolio Companies or Intermediary Vehicles, Liquid Assets, shares, bonds, convertible loan stock, options, warrants or other securities of, and loans (whether secured or unsecured) made to any person, rights and interests: Investment Adviser means the investment adviser appointed by the General Partner in relation to the management of a relevant Compartment as determined in the relevant Special Section; Investment Committee means a committee established by the General Partner at the level of a relevant Compartment as described in Section 2.6 of the General Section and in the Special Section of the relevant Compartment; Investor means any person who is or becomes an investor in the Company by assuming a Commitment and, where the context requires, shall include that person as a Shareholder of the Company; Intermediary Vehicle means any subsidiary or other company, entity or arrangement (such as a limited partnership, unit trust or trust) in which one or more Compartment(s) holds any direct or indirect interest (whether characterised as equity, debt or otherwise, including a co-investment or fractional interest), specifically established for the purpose of structuring the holding of one or more Investment(s), or other analogous entity controlled, directly or indirectly, by the Company or its Affiliates: Kick-off Period means the transitional period set out for each Compartment in its Special Section which is used for the building-up of the Compartment's portfolio and during which risk spreading requirements are not yet fulfilled; Liquid Assets means cash or cash equivalents, including, inter alia and without limitation, investments in units of money market funds, time deposits and regularly negotiated money market instruments the remaining maturity of which is less than twelve (12) months, treasury bills and bonds issued by OECD member countries or their local authorities or by supranational institutions and organisations with European Union, regional or worldwide scope as well as bonds admitted to official listing on a stock exchange or dealt on a regulated market, issued by first-class issuers and highly liquid; 0095739.0000004 LU:4232950.2 10 EFTA_R1_02029631 EFTA02689882 Luxembourg means the Grand Duchy of Luxembourg; Luxembourg Law means the applicable laws and regulations of the Grand Duchy of Luxembourg; Manager means each manager of the General Partner; Management Fee means the management fee to which the General Partner may be entitled, in accordance with Section 23 of the General Section and the terms of the relevant Special Section; Management Share means the management share held by the General Partner in the Company or the Compartment in its capacity as unlimited Shareholder. Manager means a member of the General Partner's board ofmanagers; Market Value means, (a) in relation to Investments of a relevant Compartment, the Market Value of such Investments as determined by an Independent Valuer in accordance with appropriate valuation standard, subject in each case to possible adjustment by the General Partner or the Administrator acting on their behalf to take account of discrepancies including those resulting from the legal holding structure of Investments or variations in local market practice; and (b) in relation to the Investments which arc not valued by an Independent Valuer the market value determined as detailed in the Articles. For the avoidance of doubt Market Value does not take into account any leverage or other liabilities incurred by the relevant Compartment in relation to the relevant asset: Memorandum means this confidential offering memorandum, as amended or supplemented from time to time: Memorial means the Memorial C, Recueil des Sociiies et Associations, the Luxembourg official gazette; NAV means the net asset value of the Company, each Class and each Share as determined in accordance with Section 12 of the General Section; Net Distributable Cash means, with respect to any period and each Compartment, all cash receipts by the relevant Compartment arising during that period from the Compartment's Investments and other assets (including amounts released from Reserves and all cash proceeds received by the Compartment during that period from capital events, including (a) the sale, transfer, exchange or other disposal of all or any portion of any Investment; (b) the incurrence of any indebtedness by the Compartment; (c) the refinancing of any indebtedness of the Compartment; and (d) any similar transaction), reduced by the portion thereof used during that period to pay or establish Reserves, service the requirements of any credit facility or other third party debt, and pay the Expenses (excluding the Management Fee) For the avoidance of doubt, any Subsequent Closing Actualisation Interest or Equalisation Fee Payment paid by Investors, as the case may be, will not be taken into account for the purpose of calculating Net Distributable Cash; Open-ended Compartment means a Compartment where any Shareholder may request redemption of all or part of its Shares from the Company, in accordance with the terms of the relevant Special Section; Ordinary Shares means Shares which may be subscribed by Investors who/which are not Restricted Persons; Participating Shares means Shares which are (i) reserved for subscription by the initiators, the General Partner and the Investment Adviser(s) or their directors, managers, officers, employees or non-staff advisers and which (ii) grant their holder the right to receive the Carried Interest and the Preferred Return as described in the relevant Special Section; Portfolio Company means the target company the General Partner takes directly or indirectly (i.e. through one or more Intermediary Vehicles) for the account of a relevant Compartment a participation in accordance with the investment policy as determined in the relevant Special Section; Processor means an entity (such as the Administrator) to which the processing of personal data may be sub-contracted by the Company; 0095739.0000004 LU:4232950.2 11 EFTA_R1_02029632 EFTA02689883 Professional Investors means Investors who qualify as professional investors within the meaning of Annex 111 to the law of 5 April 1993 on the financial sector, as amended; Reference Currency means, in relation to each Compartment and Class, the currency in which the NAV of such Compartment or Class is calculated, as stipulated in the relevant Special Section; Re-investment Cash has the meaning set out in Section 18 of the General Section; Restricted Person has the meaning set out in Section 10 of the General Section; Service Agreements means the custodian agreement, the administrative agent and registrar and transfer agent agreement, the domiciliary agency agreement and any other agreement between the Company on account of one or more Compartments and any other Service Provider: Service Providers means the Custodian, the Administrator, the Domiciliary Agent and any other person who provides services to the Company from time to time; Set-Up Costs has the meaning set out in Section 23 of the General Section; SIF means the specialised investment fund under the 2007 Act; Special Section means each and every supplement to this Memorandum describing the specific features of a Compartment. Each such supplement is to be regarded as an integral pan of the Memorandum; Shareholder means an owner of Shares; Shares means all shares issued by the Company from time to time, representing the total outstanding share capital: Subscription Agreement means, in relation to each Compartment, the subscription agreement entered into by each Investor and the Company for the account of such Compartment, as the case may be, as it may be further amended from time to time: Subscription Fee means a fee charged either on the Commitment or on the Contributed Capital to the benefit of the General Partner (or an agent or third party if so instructed by the General Partner) and which is determined (if any) in the relevant Special Section; Total Commitments means, in relation to each Compartment, the total Commitments ofInvestors to such Compartment; Total Capital Contributions means, in relation to each Compartment and unless otherwise stated in a Special Section, the total of all Capital Contributions made by the Investors to the relevant Compartment; Total Undrawn Commitments means, in relation to each Compartment and unless otherwise stated in a Special Section. the total of all Undrawn Commitments at the relevant time that arc available to be drawn down into the Compartment pursuant to Section 18 of the General Section and the terms of the relevant Special Section; Transfer has the meaning set out in Section 9 of the General Section; Underlying Claim has the meaning set out in Section 18.8 of the General Section; Undrawn Commitment means with regard to an Investor, the amount of its Commitment which at the relevant time is available to be drawn down and includes, for the avoidance of doubt, those amounts repaid and available for further drawdown pursuant to Section 18 of the General Section and the terms of the relevant Special Section, but not exceeding a Investor's Commitment: 00957390000004 LU:4232950.2 12 EFTA_R1_02029633 EFTA02689884 Unconsummated Transaction means a proposed Investment, or a proposed liquidation of an asset that is considered by the Company but no consummated; USD means the United State Dollar, the currency of the United States of America; Valuation Date has the meaning set out in Section 12 of the General Section; Well-Informed Investors means any well-informed investors within the meaning of article 2 of the 2007 Act. There exist three categories of well-informed investors, Institutional Investors, Professional Investors and Experienced Investors. For the avoidance of doubt, the managers of the General Partner and the other persons involved in the management of the Company such as the members of the Investment Committee, as the case may be, are regarded as Well- Informed Investors for the purpose of article 2 of the 2007 Act. 00957390000004 LU.4232950 2 13 EFTA_R1_02029634 EFTA02689885  GENERAL SECTION The General Section applies to all Compartments of the Company. The specific features of each Compartment and Class are set forth in the Special Sections. I. THE COMPANY Corporate form - Legal regime 1.1 The Company is a Luxembourg societe d'investissement a capital variable -fonds d'investissement specialise (investment company with variable capital - specialised investment fund), governed by the 2007 Act, the 1915 Act and the Articles. 1.2 The Company has adopted the form of a corporate partnership limited by shares (societe en commandite par actions). The Company is registered with the Luxembourg trade and companies register under the number B [number'. Its Articles will be published in the Memorial on [date]. 1.3 A Luxembourg corporate partnership limited by shares (societe en commandite par actions) is a company established by contract between one or more shareholders who are indefinitely, jointly and severally liable for the obligations of the company and one or more shareholders who only contribute a specific share of capital. Therefore, it is comprised of: (a) the actionnaire *ant commandite or the general partner who is responsible for the management of the company and is jointly and severally liable for all liabilities which cannot be met with the assets of the company: and (b) the aclionnaires commanditaires or limited shareholders whose liability is limited to the amount of their investment in the company. 1.4 No measure affecting the interests of the Company vis-a-vis third parties and no decision with a view to amend the Articles may be taken without the affirmative vote of the actionnaire gerant commandiM (i.e., the General Partner). 1.5 The capital of the Company is at all times equal to the value of its net assets. The Company was incorporated with an initial capital of EUR31,000. The share capital increased by the issue premium (if any) of the Company must reach EUR1,250,000 within a period of twelve (12) months following its authorisation by the CSSF (and may not be less than this amount thereafter). The combined accounts of the Company are held in EUR. 1.6 The registration of the Company pursuant to the 2007 Act does not constitute a positive attessment by any Luxembourg authority as to the adequacy or accuracy of this Memorandum or as to the assets held in the various Compartments. Any representations to the contrary are unauthorised and unlawful. Umbrella structure - Compartments and Classes 1.7 The Company has an umbrella structure consisting of one or several Compartments. A separate portfolio of assets is maintained for each Compartment and is invested in accordance with the investment objective and policy applicable to that Compartment. The investment objective, policy, as well as the other specific features of each Compartment are set forth in the relevant Special Section. 1.8 The Company is one single legal entity. However, in accordance with 71(5) of the 2007 Act, the tights of the Investors and creditors relating to a Compartment or arising from the setting-up, operation and liquidation of a Compartment are limited to the assets of that Compartment. The assets of a Compartment are exclusively dedicated to the satisfaction of the rights of the Investors relating to that Compartment and the rights of those 00957390000004 LU:4232950.2 14 EFTA_R1_02029635 EFTA02689886  creditors whose claims have arisen in connection with the setting-up, operation and liquidation of that Compartment. 1.9 Each Compartment is treated as a separate entity and operates independently, each portfolio of assets being invested for the exclusive benefit of this Compartment. A purchase of Shares relating to one particular Compartment does not give the holder of such Shares any rights with respect to any other Compartment. 1.10 Within a Compartment, the General Partner may decide to issue one or more Classes the assets of which will