美国优先股法律模板之managementrightsletter2013clean.docx

This sample document is the work product of a coalition of attorneys who specialize in venture capital financings, working under the auspices of the NVCA. See the NVCA website for a list of the Working Group members. This document is intended to serve as a starting point only, and should be tailored to meet your specific requirements. This document should not be construed as legal advice for any particular facts or circumstances. Note that this sample presents an array of (often mutually exclusive) options with respect to particular deal provisions. MANAGEMENT RIGHTS LETTER Preliminary Note The assets of a pension plan subject to the Employee Retirement Security Act of 1974 ( “ERISA ”) must be held in trust. Moreover, the persons responsible for managing those assets have significant fiduciary duties under ERISA and cannot engage in certain transactions prohibited by ERISA. If a pension plan covered by ERISA (an “ERISA Plan” )invests in a venture fund, then all of the fund - sucshaassseittssinvestments in portfolio companies - are treated as assets of the ERISA Plan, absent an exemption. As a result, the trust requirement applies, the managing partner of the fund is treated as an ERISA fiduciary, and the fund must comply with the rules regarding prohibited transactions. The U.S. Department of Labor, which is charged with administering ERISA, has issued regulations that contain certain exemptions from the plan assets rules. Under one exemption, a venture fund is not deemed to hold ERISA plan assets if it qualifies as a venture capital operating company (a VCOC“” ). To qualify as a VCOC, the fund must have at least 50% of its assets invested in venture capital investments. An investment in a portfolio company qualifies as a “ venture capital investment ” if the fund obtains certain management rights with respect to the portfolio company. “ Managementrights, i”n turn, are defined as contractual rights running directly from the portfolio company to the fund that give th