TitleCard Capital look at private equity statistics In 2017, statistics suggest that fundraising continued to rise, setting a new 10- high, while assets under management and fund sizes continued to rise. Average equity size was over three hundred million in 2017. The average number of deals is thought to be around the four thousand two hundred mark. Average returns are thought to be about eleven percent which is a much better performance than many other investments these days, The main investors in private equity in 2017 were public pension plans, private sector pension funds, and insurance companies. Family offices remain a smaller investor.
There is generally no accessible tax enticement or other scheme to encourage investment in unlisted companies such as private equity investments.
Both limited partnerships and LLCs are generally treated as tax transparent for US tax purposes. Some private equity funds, due to the nature of their investors or the focus of the fund’s investments, are organised offshore.
The aim of a Private is to attain significant long-term capital gains by acquiring a governing interest in a number of private investments and then improving the management and operations and thus the profitability of those companies. The typical length of a private equity fund investment is ten years (often with a right to extend for up to two years). Capital is usually drawn down within five to six years.
As a result of the Private Fund Investment Advisers Registration Act of 2010, an investment adviser to a private fund is likely to have to register with the US Securities and Exchange Commission (SEC) (or, where assets under management are less than US$100 million, one or more state controlling authorities).
There are no statutorily prescribed maximum or minimum investment periods. Depending on the nature of the private equity fund, investment periods generally range from three to six years, with five or six years being by far the most common. There are no statutory limits on investment transfer amounts. In a single sponsor transaction, the private equity sponsor typically controls all the fully diluted equity of the company other than that owned by management (usually 10% to 20%).
To avoid regulation under the Employee Retirement Income Security Act of 1974, fund sponsors may also need to limit the number of pension plan and similar types of investors in the fund and therefore typically control transfers to these types of investors.
Buyouts of private companies usually take place by auction. A financial adviser is often involved by the seller to manage the auction process. The principal agreement is a merger agreement between the target company and those who have bought into the company introduced by the private equity sponsor. Usually, a private equity sponsor does not seek any special protections from the existing management team. The main non-contractual duty that portfolio company managers owe the target company is the common law duty of good faith and loyalty. The duty of loyalty generally requires disclosure to the board of directors.
As a result, the sponsor has both voting and economic control over the business.
The private equity sponsor and the other equity holders generally enter into a shareholders agreement that gives the sponsor the right to nominate a majority of the company’s directors, and includes a voting provision under which all parties to the agreement agree to vote in favour of the sponsor’s board nominees. Shareholders’ agreements also usually contain provisions, such as drag-along rights, that give the sponsor control over exit transactions.
In consortium transactions, or in a transaction where there are one or more significant minority investors, the shareholders’ agreement may include provisions requiring a super-majority vote that gives the minority a veto over certain fundamental transactions, such as financings, significant add-on acquisitions, sales of significant assets and exit transactions. In consortium transactions there is often also a desire to place such voting provisions and the provisions relating to the nomination and election of directors in the company charter, which is often more difficult to amend than a shareholders’ agreement.
- What percentage of finance is typically provided by debt and what form does that debt financing usually take?
The percentage of financing typically provided by debt depends on the size of the transaction and how much debt can be obtained under prevailing market conditions. While the typical level of debt financing fell at the onset of the credit crisis, the level of debt financing now used in a private equity leveraged buyout transaction is similar to levels before the summer of 2007.
The fundamental different types of debt financing used in buyout transactions are:
- Senior secured first and/or second lien financings.
- Subordinated mezzanine financings.
- Senior secured bonds.
- Unsecured senior or subordinated bonds.
- Convertible and other hybrid debt financings.
A senior secured financing is senior to the borrower’s other debt and a significant portion of the borrower’s assets serve as collateral. Such financings consist of one or more term loan facilities that are used to finance the acquisition and a revolving credit facility that is used for working capital. The extent to which these types of debt are used depends on:
- The size of the overall financing.
- The costs of each type of financing.
- The fund sponsor’s preferences among the types of debt financing available.
- What forms of protection do debt providers typically use to protect their investments?
Debt providers typically protect their investments by obtaining security interests in the borrower’s assets and by obtaining guarantees from the borrower’s subsidiaries, secured by the relevant subsidiaries’ assets.
There are a number of contractual and structural mechanisms that are also used by debt providers. Debt providers can contract with each other to subordinate one class of creditors to another class. The two groups can agree that one group will not have any rights in an insolvency proceeding until the other class of creditors has been repaid in full.
Debt providers can also obtain structural seniority by extending debt to an operating company subsidiary of a holding company, rather than to the holding company itself. Lenders at the operating level are repaid before creditors with a claim at the holding company level, because the operating company subsidiary must satisfy all of its debt claims in an insolvency proceeding before the holding company receives whatever value is left as a result of its holding equity in the subsidiary.
Contractual and structural mechanisms
Contractual covenants also provide lenders with some protection. Such covenants can include obligations to maintain the financial health of the borrower as well as other negative and affirmative covenants. Lenders can also be protected by keep-well arrangements under which fund sponsors agree to provide the borrower with capital in certain situations.
- Are there rules preventing a company from giving financial assistance for the purpose of assisting a purchase of shares in the company? If so, how does this affect the ability of a target company in a buyout to give security to lenders? Are there exemptions and, if so, which are most commonly used in the context of private equity transactions?
There is no prohibition on a company giving financial assistance in connection with the purchase of its own shares. Courts can void guarantees and security given by a target company if a fraudulent transfer has occurred (such as a transfer of assets when the transferor is insolvent). Creditors in leveraged buyout transactions often rely on the guarantee provided by the acquiring fund that the borrower and its subsidiaries will be solvent after the buyout transaction, including any debt resulting from the transaction and the provision of any guarantees and security.
- What is the order of priority on insolvent liquidation?
Most portfolio companies in need of bankruptcy relief use the provisions of Chapter 11 of the Bankruptcy Code, regardless of whether the goal of the proceedings is the liquidation of the business or the reorganisation of the business as a going concern.
The statutory priorities for repayment are:
- Secured claims, to the extent of the value of the underlying collateral.
- Administrative claims (generally, claims that arise after a bankruptcy is commenced and before the effective date of the plan of reorganisation).
- Priority claims (for example, certain claims for unpaid wages and taxes).
- General unsecured claims.
A senior secured creditor with liens on a material portion of a debtor’s assets may agree to be effectively subordinated to the payment of a predetermined portion of administrative and priority claims, as the price of liquidating through Chapter 11. This is because a Chapter 11 liquidation can be more advantageous for the senior secured creditor than simply foreclosing on its collateral.
In a bankruptcy proceeding, the rights of any single holder, including rights relating to priorities of distribution, can be waived by an affirmative vote of a majority of holders (that is, two-thirds in amount and one-half in number) within the same class. Inter-creditor and subordination agreements are enforceable in a Chapter 11 proceeding to the same extent as outside of bankruptcy.
A court can also subordinate one creditor’s claim to another creditor’s claim (or the claims of all other creditors) if it is shown that the creditor has engaged in inequitable conduct (for example, fraud or breach of fiduciary duties) that resulted in an injury or disadvantage to the other creditor(s). If so, the subordinated claim is treated as lower in priority than the claim to which it is subordinated, but the subordination does not affect its treatment in relation to any other claim or to equity.
Additionally, a court will look past the form of debt to determine its substance and may recharacterise debt as equity (and treat it as lower in priority than all claims) if this is determined to be the economic substance of the transaction.
- Can a debt holder achieve equity appreciation through conversion features such as rights, warrants or options?
It is possible for a debt holder to participate in the appreciation of equity value through convertible securities such as rights, warrants or options, but it is not very common in US buyout transactions. Debt holders generally do not participate in the equity in large transactions. In small and middle-market transactions, it is common for mezzanine lenders and hedge funds to invest alongside the equity participants in the equity rather than receiving warrants or other convertible securities, although in some transactions, share purchase warrants are a part of the overall financing provided by the debt holders.
Portfolio company management
- What management incentives are most commonly used to encourage portfolio company management to produce healthy income returns and facilitate a successful exit from a private equity transaction?
The most common management incentives used to encourage portfolio company management are:
- Share options.
- Restricted shares.
- Other share-based awards.
- A combination of these.
In small and middle-market transactions, incentive plans commonly account for 10% to 15% of the fully diluted equity. Incentive plans are relatively smaller in larger transactions and commonly account for between 5% and 10% of the fully diluted equity. Incentive awards are usually subject to both time-based vesting (for at least some portion of the awards) and performance-based vesting. Performance-based vesting is usually based on the sponsor’s return on its investment.
Restricted stock is sometimes used to allow the recipient to gain favourable tax treatment by electing to be taxed on the fair market value of the common share grant at the time of grant and to pay income taxes at ordinary income rates, with appreciation generally taxed at capital gain rates on realisation.
Senior managers may also be required to invest in the transaction, either through a direct cash investment or through the rollover of their current equity holdings in the target company. The structure, nature and amount of such required investment depends on individual circumstances. Sponsors generally work with managers to try to design equity rollovers in a tax-efficient manner.
- Are any tax reliefs or incentives available to portfolio company managers investing in their company?
Corporations can offer incentive share options (ISOs). ISOs are taxed at capital gains rates when the shares are sold if certain requirements are met. No tax is due when they are exercised and therefore the issuer is not entitled to a tax deduction. To achieve capital gains treatment, the shares must be held for both:
- Two years following the ISO’s grant date.
- One year after the ISO is exercised by the manager.
Companies are limited in the amount of ISOs they can grant and as a result ISOs are not widely used.
Portfolio companies that are operated in a pass-through form can grant managers profits interests in exchange for performing services for the company. These profits interests generally represent the right to a share of the venture’s future profits and are treated as capital gains at the level of the manager, to the extent that the underlying income is a capital gain. This differs from ordinary income from the exercise of non-qualified share options or the vesting of restricted shares without a section 83(b) election. When the portfolio company is sold, the gain is typically treated as capital gains at the level of the manager.
Bills have been introduced in Congress several times over the last few years that propose to tax the carried interest earned by managers of private equity and hedge funds at ordinary income rates (they currently receive capital gains treatment). Effective January 1, 2018, the Tax Cuts and Jobs Act of 2017 imposes a three-year holding period requirement to tax carried interest at more favourable long-term capital gain rates, although the impact of this legislation is not yet clear.
- Are there any restrictions on dividends, interest payments and other payments by a portfolio company to its investors?
So long as the dividend payments are in accordance with the portfolio company’s charter and contractual obligations, the payment of dividends by a solvent company is generally unrestricted. State laws generally prohibit the payment of dividends by a company that is a going concern if after giving effect to the distribution, the company would not be able to pay its existing and reasonably foreseeable debts, obligations and liabilities.
- What anti-corruption/anti-bribery protections are typically included in investment documents? What local law penalties apply to fund executives who are directors if the portfolio company or its agents are found guilty under applicable anti-corruption or anti-bribery laws?
Investment documents may include protections regarding the Foreign Corrupt Practices Act (FCPA). The FCPA generally prohibits fund executives from offering or giving bribes to a “foreign official”, “foreign political party or party official”, or any candidate for foreign political office, to obtain or retain business opportunities. The FCPA generally applies to:
- US persons, including US companies, controlled subsidiaries and affiliates of US companies, and citizens, nationals and residents of the US, wherever located.
- In certain circumstances, non-US persons, including non-US companies and non-US citizens outside the US.
The US Department of Justice (DOJ) and the US Securities and Exchange Commission (SEC) both enforce the FCPA. Violators of the FCPA may be subject to both criminal and civil penalties. In criminal cases, firms are subject to a fine of up to US$2 million per violation of the anti-bribery provisions. Individuals are subject to a fine of up to US$100,000 and/or imprisonment for up to five years, per violation. However, under the Alternative Fines Act, the fines imposed on firms and individuals can be much higher: the actual fine can be up to twice the benefit that the defendant sought to obtain by making the corrupt payment. In civil actions, a fine of US$10,000 can be assessed for each act committed in furtherance of the offence, potentially making the total fine greater than US$10,000. Fines imposed on individuals must not be paid by their employer or principal. In addition, persons or firms found in violation of the FCPA can be barred from doing business with the US Government and can be ruled ineligible for export licences.
Investment documents may also include protections from the UK Bribery Act (Bribery Act). The Bribery Act is similar to the FCPA, which criminalises the payment of bribes to foreign officials. However, the Bribery Act is more expansive in three ways:
- Most significantly, the Bribery Act imposes a strict liability criminal offence that applies to any company with ties to the UK that fails to prevent an associated person (that is, anyone performing services on the company’s behalf) from paying a bribe. The only defence to liability is if the company can prove that it had adequate procedures in place to prevent the bribery from occurring.
- The Bribery Act does not contain any exceptions for facilitation payments or relatively insubstantial payments made to facilitate or expedite routine governmental action.
- The Bribery Act criminalises purely commercial bribery that is unconnected to any public or governmental official, unlike the FCPA.
Additionally, investment documents may include protections regarding the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Convention). The Convention applies to the bribing of foreign public officials. The Convention applies irrespective of, among other things:
- The value of the advantage and its results.
- Perception of local custom.
- Local authorities’ tolerance of these payments.
- The alleged necessity of the payment in order to obtain or retain business or other improper advantage.
The convention applies as soon as an offer or promise is made, whether directly or through intermediaries, and applies even in cases of a third party beneficiary. Penalties are specified by each country but are comparable to FCPA penalties. Many countries specify unlimited fines and ten years’ imprisonment.
- What forms of exit are typically used to realise a private equity fund’s investment in a successful company? What are the relative advantages and disadvantages of each?
Forms of exit
The three most common forms of exit used to realise a private equity fund’s investment in a successful company are the:
- Sale to a financial buyer such as another private equity fund.
- Sale to a strategic buyer.
- Initial public offering (IPO).
Sales to financial buyers or strategic buyers can take the form of either a sale of the company or of assets. It is also possible to have a carve-out sale in which a portion of a successful company is sold or even, on rare occasions, brought public.
Private sales, whether to financial or strategic buyers, are significantly more common than IPOs. The viability of an IPO depends to a great extent on market conditions.
Advantages and disadvantages
The advantage of an IPO is that it is possible to realise significantly greater value in the long term. However, in most IPOs the fund sponsor does not sell most (or any) of its shares. Instead, newly issued shares are sold to the public. As a result, even with a successful IPO, the fund sponsor still has market risk in relation to its shares in the company, as well as the continued business risk of operating the portfolio company.
Although greater value may be realised over the long term from an IPO, the private sale is by far the more common exit strategy. The advantage of a private sale is that the private equity fund sponsor realises all the value of the sale immediately and no longer has to deal with either business or market risk in relation to its investment.
Sales to other private equity fund sponsors remain a particularly common form of exit. From a fund investor perspective, a sale to another private equity fund may mean there is no exit at all if the investor is also invested in the acquiring fund.
- What forms of exit are typically used to end the private equity fund’s investment in an unsuccessful/distressed company? What are the relative advantages and disadvantages of each?
Forms of exit
The two primary forms of exit used to end a private equity fund’s investment in an unsuccessful company are to sell the company (an asset or a stock sale) where the equity holders do not receive anything, or to enter into voluntary bankruptcy.
Advantages and disadvantages
The bankruptcy procedure is preferred because the buyer gets clean title to all the assets and the seller is assured of having no remaining liabilities. In a sale of the company outside of bankruptcy, no matter how strong the contractual arrangements may be, the seller is always left with the possibility that liabilities may remain its responsibility.
In a voluntary bankruptcy, the portfolio company can sell all or substantially all of its assets with court approval. It is unusual for such sales to result in any proceeds being paid to the equity holders, and some classes of creditor may also receive proceeds equalling only a small percentage of their claims.
- What recent reforms or proposals for reform affect private equity in your jurisdiction?
Tax Cuts and Jobs Act of 2017
In December 2017, significant tax reform was enacted in the form of the Tax Cuts and Jobs Act of 2017 (2017 Tax Reform Act). Key changes resulting from the 2017 Tax Reform Act that may impact private equity funds and sponsors include, among other things:
- Business taxes
- reduction of corporate income tax rate: reduction of the maximum corporate tax rate to 21%, and repeal of the corporate AMT.
- cap on deductions for business interest: corporations and other business taxpayers will be barred from deducting net business interest expense in excess of about 30% of EBITDA for tax years beginning before 2022, and, for tax years beginning on or after 2022, about 30% of EBIT.
- cap on use of NOLs: the use of net operating loss carryforwards is capped at 80% of taxable income. Net operating loss carrybacks will be phased out.
- Pass-through and direct business income taxes
- lower taxes on certain pass-through and direct business income: individuals are allowed to deduct 20% of their “qualified business income” (but excluding compensation and investment income) earned directly or from certain pass-through entities, subject to certain restrictions.
- carried interest: carried interest in investment partnerships (including private equity funds) will be eligible for long-term capital gains treatment only after satisfying a three-year holding period requirement.
- International taxation
- modified territorial tax regime. A modified territorial tax regime has been implemented that generally provides a 100% exemption for dividends received by US corporate shareholders that own 10% or more of the voting stock of non-US corporations. The 2017 Tax Reform Act also denies the exemption for certain hybrid dividends where the payer can deduct the dividend or realise a similar benefit with respect to income taxes imposed outside the US.
- modifications to CFC rules: the existing “Subpart F” regime of taxing, on a current basis, US shareholders of controlled foreign corporations (CFCs) on such corporations’ passive earnings has been expanded to provide a minimum tax on the global intangible low tax income of certain US shareholders.
- Relevant ownership rules have broadened the class of foreign corporations that qualify as CFCs and have broadened the US shareholder definition to include a US person that owns 10% or more of the total shares of a foreign corporation by value (where the current definition only looks to vote).
- base erosion minimum tax: a10% minimum tax is imposed on a corporation’s taxable income calculated without regard to most deductible payments to related foreign persons, certain derivative payments, and certain other amounts. The tax will be phased in, with a 5% minimum tax rate applicable for tax years beginning in 2018.
- hybrid payments:deduction of certain interest and royalty payments made to a related party that does not have corresponding taxable income (or is afforded a deduction) in its country of residence are now denied.
New partnership audit rule guidance
At the end of 2017 and beginning of 2018, the US Department of Treasury (Treasury) issued guidance on the implementation of the partnership audit rules in the Bipartisan Budget Act of 2015. Importantly for the private equity fund industry, the Treasury has clarified that tiered partnerships generally will be permitted to push adjustments resulting from partnership audits at a lower tier partnership through to indirect partners. If a partnership is required to pay an imputed underpayment with respect to adjustments to items of income, gain, loss, deduction or credit at the partnership level, the partnership may elect to “push out” the adjustment to its partners rather than paying tax at the corporate level. Previously, it was unclear of a partnership which received a “push out” of such adjustment could itself “push out” the adjustment to its own partners. New rules provide for an iterative application of “push out” elections.
SEC amendments to Form ADV
Amendments adopted in 2016 to Form ADV, which many private fund sponsors are required to file periodically, took effect in October 2017. The amendments require (among other things):
- Additional reporting with respect to separately managed accounts, including the type of assets held in such accounts, the use of derivatives and borrowing, and the role of custodians.
- Registration on a single Form ADV of multiple private fund advisers operating as a single advisory business in a “relying adviser” structure, which codifies prior no-action guidance on the topic. The amendments to the rules require, among other things, that the entities:
- have the same principal office and place of business;
- be subject to the same supervision and control;
- operate under a single code of ethics and written policies and procedures administered by a single chief compliance officer.
- Additional disclosures about sponsors and their businesses, including:
- the sponsor’s internet presence (such as social media platforms);
- information about other offices of the sponsor;
- information about third-party chief compliance officers who are not employees of the sponsor;
- the range of assets on the sponsor’s own balance sheet;
- confirmations regarding certain private funds managed by the sponsor.
SEC guidance on Unibanco
In March 2017, the US Securities and Exchange Commission (SEC) provided further guidance regarding investment advisers relying on a line of no-action letters relating to Uniao de Bancos de Brasileiros S.A., commonly known as the Unibanco no-action letters. The Unibanco no-action letters permit a non-US affiliate of a registered US investment adviser that shares personnel with such investment adviser to provide investment advice through the registered adviser affiliate without itself registering. The SEC clarified the list of documents that such affiliated foreign advisers must provide to the SEC in order to rely on the Unibanco position and provided a specific SEC email address to which such documentation should be sent.
SEC guidance on inadvertent custody issues
The SEC also recently issued guidance reminding registered advisers that they may be deemed to have “inadvertent custody” over clients’ funds when a custody agreement between a client and its custodian grants the adviser access to client funds (for example, by requiring the custodian to comply with all instructions from the adviser), even when it exceeds the scope of the advisory agreement with the client. Such custody would subject the adviser to Rule 206(4)-2 under the Advisers Act (Custody Rule), including requiring surprise examinations. Such situations may arise in particular for advisers managing separately managed accounts, where the client will often enter into an agreement with its custodian without the adviser’s review. The SEC has indicated that in such instances, advisers may instruct the custodian to limit the adviser’s authority (as acknowledged by the custodian and client).
Capital call subscription facilities
In June 2017, Institutional Limited Partner Association (ILPA) released its view on best practices involving subscription lines of credit. The best practices focus on disclosure and diligence matters but also contain recommendations on fund terms such as how funds should take into account credit facilities when calculating the economic arrangements among the partners. ILPA recommended showing the impact of credit facilities in net internal rate of return numbers and providing other details regarding the use of such facilities in quarterly reports. ILPA also recommended that fund governing documents limit maximum leverage to 15-25% of uncalled capital commitments and cap the period such leverage may be outstanding at 180 days. While not yet common practice, ILPA additionally suggested that the preferred return hurdle in private equity fund “waterfalls” should be calculated based on when funds are drawn down from the credit facility, rather than when investors are required to contribute capital.
Fiduciary Rule updates and uncertainties
In 2016, the US Department of Labor (DOL) issued a new rule making a wider group of sponsors subject to fiduciary standards under the US Employee Retirement Income Security Act of 1974 (ERISA). However, the DOL delayed many requirements of the new rule yet again in 2017, with the new effective date set at 1 July 2019. At this time, there are a number of ongoing court challenges to the new rules as well that bear watching in the year ahead.
Potential Volcker Rule regulatory changes
Federal financial regulators have indicated in early 2018 that they are seeking to significantly reduce the impact of the Volcker Rule established by the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted following the 2008 financial crisis, and which restricts banks from certain private equity investments. Potential areas suggested for reform include clarifying key definitions such as “proprietary trading” and “covered fund,” revising the Volcker Rule compliance regime, reprieving non-US financial institutions from the rule, and potentially providing US banks with the ability to qualify for the non-US trading exemption.
Private equity/venture capital association
National Venture Capital Association (NVCA)
Status. The NVCA is a trade association that represents the US venture capital industry.
Membership. The NVCA comprises more than 450 member firms.
Principal activities. The NVCA aims to foster a greater understanding of the importance of venture capital to the US economy and support entrepreneurial activity and innovation. It represents the venture capital community’s public policy interests, strives to maintain high professional standards, provides reliable industry data, sponsors professional development, and facilitates interaction among its members.
US Government Printing Office
Description. The US Government Printing Office is the Federal Government’s official digital resource for disseminating the official information of the US government. The website is kept up-to-date.
Larry Jordan Rowe
Ropes & Gray LLP
T +1 617 951 7407
F +1 617 235 0201
Professional qualifications. Massachusetts, US
Areas of practice. Private investment funds; hedge funds; investment management; investment adviser; private equity transactions.
Justin T Kliger
Ropes & Gray LLP
T +1 617 951 7197
F +1 617 235 0042
Professional qualifications. Massachusetts, US
Areas of practice. Private investment funds; hedge funds; investment management; investment adviser.
*the authors would like to thank Catherine Simes for her contribution to this article.
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END OF DOCUMENT
RESOURCE ID 1-500-5474DOCUMENT TYPE Country Q&A
PLC Corporate Law, PLC Cross-border, PLC Finance, PLC Financial Services, PLC Law Department, PLC Share Schemes & Incentives, PLC Tax, PLC US Corporate and Securities, PLC US Law Department, Private Equity multi jurisdictional guide
© 2018 THOMSON REUTERS. NO CLAIM TO ORIGINAL U.S. GOVERNMENT WORKS.