Global Private Equity Newsletter - Summer 2016 Edition: LBO & Management Packages In France: Are Recent Developments In The Practice Driven By Tax Considerations?

by Dechert LLP
Contact

The management packages offered to managers in LBOs can sometimes be differentiating factors for financial sponsors enabling them to win a competitive process for the acquisition of a target company.

However, although the financial profitability of the management packages is an attractive element, for several years tax considerations have become paramount in structuring management packages. Indeed, gone are the days when a manager could simply invest a few tens of thousands of euros in order to receive a capital gain of several million euros, fully exempted from income tax, if the investment was undertaken through a share savings plan (PEA)!

Despite the decision of the Council of State1 on this topic, should we conclude that the capital gains allocation mechanisms (ratchet) is no longer viable? Or should we believe that since the Macron law, free shares now constitute the new El Dorado of management packages2?

Nothing is less certain. Management packages should not be driven solely by the search for a balance between tax optimisation and risk; above all, management packages should aim to enable managers to participate in the entrepreneurial and capitalistic adventure of the LBO and ensure an alignment of interests between managers and investors.

The Main Objective: To Align The Interests of Managers and Investors

In LBO deals, the profitability of investment funds depends on an increase of the equity value of the portfolio company. For investment funds, aligning their interests with those of the managers consists in ensuring that it will be in the best interest of the managers to increase the value of the company’s business by offering them equity in the company.

Given that the financial resources of the managers are often limited, the financial sponsors often propose investment structures that enable the managers to receive a higher portion of the equity value on exit relative to the amount of their investment in the company (the "ratchet" or “promote”). 

The Manager: An Investor Like No Other

For managers, due to their operational functions as employees in the group, access to the equity may be granted in two ways: 

  • Either through an investment, which requires managers to bear a financial risk and acquire securities at their fair market value. The acquisition price of a ratchet instrument can be expensive as it enables the manager to receive a significant amount of the gain realized by the financial sponsor when selling the portfolio company (through a liquidation preference mechanism).

  • Or through an incentive mechanism, which offers managers privileged or free equity based on their position as employees or directors. 

Investment and incentive follow two different paths: to benefit from a financial investment opportunity vs. to benefit from additional remuneration for incentive.

However, their methods of implementation, which each imply equity access, are close. This has led French taxing authorities to question the favourable tax rules applicable to capital gains made by the managers in the case of packages structured as an investment.

The tax treatment of capital gains--- where the use of a liquidation preference benefits to non- employee third parties such as venture capital investors--- has never been questioned by the taxing authorities. However the controversy with liquidation preferences in the management incentive situation arises because the beneficiary of the preference plays the role of both an investor and an employee. 

Tax Uncertainty: A Ticking Time Bomb

Issues related to the taxation of management packages are not new and can be compared with those which were debated on carried interest, which aims to align the interests of the investors (LPs) and the managers (GPs) of investment funds. Unlike taxation of carried interest, there is no clear legal tax regime in France for LBO management packages.

The lack of clear tax law on the subject has enabled the French tax authorities to tax the profits made by managers as employees (maximum rate of 62%) and, consequently, refuse to apply capital gains taxation, which is traditionally more favourable (depending on the duration of ownership prior to the disposal and the size of the company, the rate can be limited to 23.75%). 

The main argument of the French tax authorities is that the sums received pursuant to ratchet mechanisms remunerate the work of the manager (like a bonus) and not a financial risk borne by the manager as investor (like a capital gain). 

To support this argument, the tax authorities refer, in particular, to the leaver clauses usually include in the shareholders agreement signed by the managers with the financial sponsor. These leaver clauses require a manager who resigns before his shares vest, or who breaches the terms of the shareholders agreement, to sell back his shares to the financial sponsor for par value (meaning the face value of the shares). Thus the tax authorities assert that the employee’s status as an equity holder is tied to his status as an employee and therefore the tax authorities refuse to grant a manager the status of an investor.

Unfortunately, to date, the only decision rendered by the Council of State with regard to management packages supported the position of the tax administration (Gaillochet case law of 26 September 2014). The decision was surprising insofar as it was inconsistent with the opinions issued by the Committee regarding abuse of tax law available on this topic.

To mitigate the risk relating to this unfavourable case law and to be able to benefit from capital gains taxation, it is now commonly accepted that managers must make a significant investment as part of a management package (depending not only on their position within the group but also the size of their personal assets) and pay for their securities at the fair market value (according to a valuation determined by an independent third party expert). 

The Ratchet: From Warrants to Preferred Shares

If the tax authorities refuse to grant managers the status of investors, the very principle of ratchet could be in question, regardless of the instrument subscribed by managers. Does the position of the tax authorities now call into question the use of warrants, which enabled managers to increase their interest in the capital under certain conditions immediately before a liquidity event, to preferred shares, which affects the waterfall relating to the allocation of the liquidation surplus or the sale price? In other words, why did the practice move from warrants to preferred shares? 

Once again, the change in the taxation explains a lot! Indeed, until recently, warrants were eligible for share savings plans (PEA) and, if it was not subscribed through a share savings plan, any capital gain was taxable at a fixed rate of 19% (i.e. a rate of 34.5% with the social contributions). The rate was even 16% until 2009 (i.e. a rate of 31.1% with the social contributions).

Since 2013, capital gains on securities are taxed at the progressive income tax rate through, with regard to shares exclusively, allowances based on the duration of ownership (reduction of 50% after 2 years of ownership, and 65% for over 8 years3). It is therefore more favourable for the shareholders to hold preferred shares than warrants, which do not benefit from these allowances.

In addition, preferred shares may, in certain cases, enable managers to benefit from a lower level of risk, in the absence of a successful LBO, by providing managers with the ability to convert them into ordinary shares.

Macron Law (6 August 2015): A Move Towards Incentive?

Certain experts believed, wrongly in our opinion, that the reduction of the tax rates applicable to free shares and their resulting attractiveness, should resolve the uncertainty with regard to the tax treatment of management packages. 

Indeed, the tax regime for free shares (AGA) is secure and attractive for its beneficiaries (i.e. application of the capital gains regime with allowance based on period of ownership). In addition, the Macron Law shortened the required allocation and lock up periods (minimum of 2 years instead of 4 years) to make them more compatible with the investment horizons of the funds at the time of their investment. 

However, AGAs still have a significant cost for companies, the extent of which is not necessarily measurable at the time of grant. Previously, the employer's share (deducted at a rate of 30%) was payable at the time of grant, when it was not certain that the shares would vest (the contribution was therefore possibly paid at a loss). The employer's share (reduced at the rate of 20% since the Macron Law) is now due at the time the shares vest. However, it is calculated based on the value of the shares on the date they vest and depends on the value created during the vesting period. 

In addition, the AGA only partially address the issue of aligning the interests of investors and managers since they are, by nature, free. Therefore, the manager could receive a significant return on their shares allocated for free upon a liquidity event, even though the financial sponsors have not received their desired return (IRT). 

Thus, the position of the French tax authorities results in a certain paradox, since managers who have invested a significant amount in a management package could be prevented from applying the capital gains regime (in the absence of a legal regime) while managers benefiting from shares allocated for free would have access to the advantageous tax regime. 

We hope that this situation does not become widespread and that the legislator finally addresses the question of management packages to implement a secure legal regime, as it did in 2009 for the carried interest.

Footnotes

1) Council of State, 26 September 2014, no. 365573, M. Gaillochet

2) Law no. 2015-990 of 6 August 2015 on economic growth, activity and equal opportunities

3) Additional reductions are applicable under certain conditions relating to the subscription date of the securities and the size of the company.

 

Written by:

Dechert LLP
Contact
more
less

Dechert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.