1. Eligible investors 2. Supervision 3. Asset management 4. Disclosure and reporting obligations 5. Legal form 6. Depositary 7.

Transcription

1 SICAR April 011 Investment company in risk capital (SICAR) The investment company in risk capital (société d investissement en capital à risque (SICAR)) regime was established by the law dated 15 June 004, which was amended on 4 October 008 (the SICAR Law). The end product is a lightly regulated, operationally flexible and fiscally neutral dedicated private equity and venture capital investment company regime for a qualified international investor base. Eligible investors Supervision Asset management Disclosure and reporting obligations Legal form Depository Taxation Conclusion Disclaimer The key characteristics of the SICAR regime may be summarised under the following headings: 1. Eligible investors. Supervision 3. Asset management 4. Disclosure and reporting obligations 5. Legal form 6. Depositary 7. Taxation According to the SICAR Law, a SICAR may solely invest in risk-bearing values. This potentially qualifies any type of investment in unlisted companies whether in the form of equity or debt, without any geographical restrictions. Listed companies may also qualify as risk-bearing investments to the extent the investment aims at the financing of a new business development, for example. Eligible Investors The SICAR regime is reserved for well-informed investors, meaning institutional investors, professional investors or any other investor who: (a) has confirmed in writing that it adheres to the status of well-informed investor; and (b) (i) either invests a minimum of EUR 15,000 in the SICAR; or (ii) has obtained an assessment certifying its expertise, experience and knowledge in adequately appraising an investment in risk capital made by a credit institution within the meaning of Directive 006/48/EC, by an investment firm within the meaning of Directive 004/39/EC, or by a management company within the meaning of Directive 001/107/EC. In addition, the directors/managers (dirigeants) and other persons who are involved in the management of the SICAR, including the management of the assets of

2 SICAR April 011 the SICAR (i.e. the personnel of an appointed investment manager or investment adviser) do not need to be certified as well-informed as a result of their involvement in the management of the SICAR or its assets. appointed and remunerated by the SICAR. The auditor must inform the CSSF about serious (graves) violations of the applicable legal provisions or about any facts or decisions which could potentially threaten the continuity of the company. Supervision The SICAR regime applies upon formal election and is subject to the prior approval by the Commission for the Supervision of the Financial Sector (Commission de Surveillance du Secteur Financier (CSSF)). The CSSF verifies that the SICAR and its representatives comply with the applicable legal provisions and contractual arrangements. Once authorised, the SICAR will be entered onto an official list maintained by the CSSF. Asset Management The CSSF will devote special attention to the qualification of the directors/managers (dirigeants) of the SICAR. The legal representatives of a SICAR need to submit proof of their professional qualifications and experience, good standing and honourability to manage the SICAR. The directors/ managers are not subject to any residency requirement. In practice, the appraisal of the CSSF will consider the qualifications and experience of the management team in its entirety. Legal Form SICARs may be structured in several ways: a private limited liability company (société à responsabilité limitée), public limited liability company (société anonyme), corporate partnership limited by shares (société en commandite par actions), limited partnership (société en commandite simple) or cooperative company in the form of a public limited liability company (société coopérative sous forme de société anonyme). A SICAR may thus, amongst others, replicate the operational and legal flexibility typically associated with Anglo-Saxon limited partnerships. Depending on the choice of fund vehicle, there will be a high degree of structuring flexibility, including for the organisation of subscriptions, redemptions or distributions, the valuation methodology, or the compartmentalisation of assets, liabilities, or investors. The minimum capitalisation of a SICAR (share capital and premium included) is EUR 1,000,000 to be reached within 1 months of its approval by the CSSF. 5% of each share must be paid up (in kind or in cash) at subscription. Disclosure and Reporting Obligations The SICAR must comply with various disclosure requirements. It must compile inter alia a prospectus and an annual report. The annual report must be finalised within six months after the end of the financial period to which it pertains and must be provided to investors. Although the annual reporting obligations are in line with the reporting obligations of commercial entreprises, the SICAR is not subject to consolidated reporting. The annual accounts must furthermore be audited by a Luxembourg authorised external auditor. The auditor is A SICAR may opt for a variable or fixed share capital. The distribution policy (e.g. periodicity) is freely determined in the constitutional documents. The various structuring options are meant to allow tailor-made profit repatriation schemes. Limited Partnership Luxembourg limited partnerships deserve special attention. A limited partnership is an agreement entered into by one or several general partners with unlimited, joint and several liability together with one or several limited partners who participate pro rata in the profits but who also share the losses up to the amount of their capital commitment. A Luxembourg limited partnership has unlimited legal capacity and may

3 SICAR April be considered a separate legal entity from its partners. The property of the limited partnership will thus be treated as the partnership s property. The mutual rights and duties of the partners towards the limited partnership and among themselves can be organised with maximum flexibility. The partnership agreement may furthermore be adopted under private seal or in a public deed. The importance of the limited partnership as an investment vehicle becomes clearer when looking at its fiscally transparent treatment (see below). Moreover, the rules relating to SICARs having adopted the form of a limited partnership have recently been clarified to allow further flexibility for the repatriation of proceeds and to recognise the validity in Luxembourg of the Anglo-Saxon practice of financing the limited partnership via non-interest bearing loan commitments. Each compartment may thus be separately liquidated. When the last compartment is liquidated, though, the SICAR itself will be deemed liquidated. Depository The Luxembourg SICAR regime distinguishes itself from other venture capital and private equity regimes in that the SICAR assets must be entrusted to a Luxembourg established depositary bank. The legislator thereby clearly aims at a higher investor protection standard. The depositary is a routine institution for Luxembourg-based investment companies, which operates independently in the exclusive interest of investors. Compartments SICARs may be constituted with multiple compartments, each compartment corresponding to a distinct part of the assets and liabilities of the SICAR. Compartments not only allow initiators and managers to combine different investment policies within the same legal entity but furthermore permit a vintage year approach whereby investors may participate in different investment tranches over time. The compartmentalisation also facilitates the introduction of certain excused investor provisions, allowing for the creation of segregated side-pockets in respect of assets in respect of which certain investors may not participate. The constitutional documents of the SICAR must expressly allow the creation of compartments and need to foresee the applicable operational rules. The prospectus must thus describe the specific investment policy of each compartment. Unless otherwise provided for in the constitutional documents of the SICAR, the rights of investors and of creditors relating to a specific compartment or which have arisen in connection with the creation, operation or liquidation of that compartment shall be limited to the assets of that compartment. Consequently, the assets of that compartment are exclusively available to satisfy the rights of investors in relation to that same compartment and the rights of creditors whose claims have arisen in connection with the creation, the operation or the liquidation of that compartment. Again, unless the constitutional documents provide otherwise, for the purpose of the relations between investors, each compartment will be deemed to be a separate entity. Taxation A SICAR organised as a capital company will be subject to corporate income tax on its worldwide profits (combined rate for the city of Luxembourg (011): 8.80%) and should thus qualify as a tax resident for Luxembourg s tax treaties. The return (whether in the form of interest income, capital gains or dividends) derived from securities will be exempt from corporate income tax. Taking into account the hybrid nature of venture capital and private equity funding, the SICAR thus benefits from an extended exemption regime. The returns on funds held pending investment will also benefit from the exemption, provided the funds are invested in venture capital and/or private equity projects within a 1 month period. All other income is fully subject to Luxembourg corporate income tax. A SICAR will further be exempt from the annual 0.5% net wealth tax. Most importantly, the regime provides the requisite flexibility needed to ensure flexible, tax neutral and swift profit repatriations and extractions, whether by way of redemption, distribution or liquidation. Dividends received from a SICAR and capital gains realised on the disposal of shares by nonresident shareholders will not be subject to Luxembourg tax, either by withholding or assessment. The tax features of the limited partnership may be easily summarised. Although the limited partnership is a legal entity separate from its partners, it is not liable itself for income or net wealth taxes in Luxembourg.

4 SICAR April The limited partnership is to be treated as transparent for Luxembourg tax purposes and profits received from a partnership as well as capital gains realised on the disposal of a partnership interest by non-resident partners will not be subject to Luxembourg tax, either by withholding or assessment. It is worth noting that fund management services rendered to a SICAR will not be subject to Luxembourg VAT. Conclusion The SICAR with its flexible structuring options and its neutral tax regime completes the product range of existing investment vehicles available in Luxembourg. The SICAR does not replace any of the existing regimes but merely closes the gap by delivering a tailored private equity and venture capital investment vehicle aimed at both the domestic and international qualified investor base. Loyens & Loeff Luxembourg is an integrated tax and corporate law practice which comprises more than 110 fee-earners and offers corporate and tax services on a fully integrated basis. Loyens & Loeff Luxembourg is affiliated with Loyens & Loeff, which has over 900 fee-earners in 17 offices in the Benelux and the main financial centres of the world. For further information, please contact your regular adviser at Loyens & Loeff Luxembourg or: Marc Meyers tel: marc.meyers@loyensloeff.com Thibaut Partsch tel: thibaut.partsch@loyensloeff.com Pieter Stalman tel: pieter.stalman@loyensloeff.com Peter Moons tel: peter.moons@loyensloeff.com Loyens & Loeff Luxembourg 18-0, rue Edward Steichen L-540 Luxembourg tel : fax : Disclaimer While this publication has been prepared with the utmost care, Loyens & Loeff Luxembourg accepts no responsibility for the consequences of any reliance on this publication without the further involvement of Loyens & Loeff Luxembourg. AMSTERDAM ARNHEM BRUSSELS EINDHOVEN LUXEMBOURG ROTTERDAM ARUBA CURAÇAO DUBAI FRANKFURT GENEVA LONDON NEW YORK PARIS SINGAPORE TOKYO ZURICH

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