Co-investment rights in private equity funds: Here to stay

As we close out 2016 with deal volume down in the private equity space, much attention is being paid to PE’s so-called “dry powder” – their unspent cash reserves on hand.

According to Preqin’s “2016 Preqin Global Private Equity & Venture Capital Report”, the global amount of dry powder has now topped US$1.3 trillion, the highest since the data provider’s records began in 2000.

This growing pile of cash reserves is not surprising given that the buyout space is becoming increasingly crowded. Not only are there new PE firms emerging all over the globe, but the competitive landscape is also shifting with Chinese multinationals, sovereign-wealth funds and pension funds all wielding their financial clout and confident in their ability to make direct and often solo investments.

Appetite for directs

Case in point was the October announcement that the Ontario Teachers’ Pension Plan had agreed to buy the Canadian operations of Constellation Brands for $1.03 billion.

The dominance of Canadian pension plans in the domestic and international M&A game is nothing new. As the Economist explored in its October 22, 2016 article “The Barbarian Establishment,” many “other kinds of entities with access to cheap and often state-related capital have entered the buyout market.” Given their investment capability and expertise, not to mention their deep pools of capital, these buyers are more and more often seen as direct single buyers when quality assets and businesses are put up for auction.

Data over the past several years show that appetite for direct investments by LPs in private equity and venture capital deals has remained elevated.

PitchBook data found that in 2015, LPs were involved in 168 completed deals, a 23 percent rise from 2012. This appetite for direct investing can be troubling for the general partners of PE funds who have historically relied – and continue to rely – on investments in their funds from institutional investors such as sovereign-wealth funds and pension plans.

The rise of co-investment rights

What does it mean when your investor client becomes your competitor? For most funds, it means continuing to allow co-investment rights (and accompanying lower fees) in the hope that the large LPs will decide not to invest directly but rather be alongside the fund as a co-investor.

Mary Abbott, Partner, Osler, Hoskin & Harcourt LLP
Mary Abbott, Partner, Osler, Hoskin & Harcourt LLP

To withhold co-investment rights or structure or price them in a manner inconsistent with the market gives rise to the risk that these deep-pocketed LPs walk away from the fund.

According to Preqin’s report on PE co-investment, 69 percent of GPs actively offered co-investment opportunities to their LPs, and a further 18 percent are considering doing so in the future. On the other hand, according to the report, 26 percent of LPs are actively co-investing and 24 percent are opportunistically co-investing.

Historically, investors agreed to commit monies to a fund sponsor (the general partner) and the partnership agreement would, among other things, dictate how the GP would allocate capital, requirements for asset diversification, the target investment size and the timing for exiting investments.

While this is still the process, it is now increasingly common for LPs to require that the fund documents contemplate co-investments. Co-investments allow LPs to effectively by-pass the fund and invest directly in the targeted company. Co-investments are still coordinated and agreed to by the GP and the co-investor, but the terms, including the fees payable to the GP, will vary from those applicable to the LPs in the fund.

John Groenewegen, Partner, Osler, Hoskin & Harcourt LLP
John Groenewegen, Partner, Osler, Hoskin & Harcourt LLP

The fees payable to the GP on co-investments vary from fund to fund and in some cases are zero. Funds with formal co-investment programs will often attempt to set the fee structure at the time of the establishment of the fund. In other funds, the fee and/or carried interest payable will be a matter of negotiation with co-investors at the time of the investment.

In either case, the overall fee package for co-investors will usually be lower than the incentive income-sharing arrangements in the main fund (with some funds still commanding the classic 2 percent management fee and the 20 percent carried-interest arrangement).

The availability of co-investment rights can also be a matter of negotiation when funds are being launched; some GPs may grant such rights only to select investors (generally, its largest or most loyal, or those that are perceived to be strategic investors), while others have conceded that all LPs will be entitled to co-investment rights.

Benefits for LPs, benefits for GPs

While co-investment rights are gaining in popularity and many LPs demand them in order to invest in a fund, in reality there are still only a limited number of LPs that are able to deliver, given that timing to get the deal done is often tight and the required cheque size can be large.

PE transactions that anticipate co-investors participating should provide for appropriate deal mechanics and conditions, such as an appropriately drafted non-disclosure agreement permitting disclosure to potential co-investors, and ensure that enough time is given to bring the co-investors to the table.

Some GPs might have preferred the passive money of old. However, most are willing to accept the new state of play and accompanying overall lower fees to ensure the availability of flexible and committed capital.

Participation by large institutions in a co-investment capacity provides PE funds with the flexibility to execute large transactions without having to look outside their investor group for third-party capital. In a world where deal flow is slowing, committed capital and the ability to show up at the table with a big cheque can make all the difference.

From the LP perspective, co-investments can improve their prospects of boosting returns with more favourable fee arrangements and in a more controlled manner. For some, in particular those building out their own internal investment teams, co-investments offer the opportunity to invest alongside experienced GPs, and can give them experience in direct investment disciplines.

Given all these positives, it is difficult to imagine that the co-investment trend will slow any time soon.

Mary Abbott, a partner in Osler, Hoskin & Harcourt LLP‘s corporate practice, wrote this article in partnership with John Groenewegen, a partner in Osler’s corporate practice and co-chair of the firm’s private equity group. Based in Toronto, Mary advises domestic and foreign companies, as well as Canadian pension plans, while John’s clients include Canadian pension plans, private equity funds and strategic investors.

Photo of dropping coins courtesy ©iStock/Sezeryadigar 

Photos of Mary Abbott and John Groenewegen courtesy of Osler, Hoskin & Harcourt LLP