A Practical Cross Border Insight Into Private Equity'

Author:Dr. Christoph Neeracher and Luca Jagmetti
Profession:Bar & Karrer

1 Overview

1.1 What are the most common types of private equity transactions in your jurisdiction? What is the current state of the market for these transactions? Have you seen any changes in the types of private equity transactions being implemented in the last two to three years?

All of the standard transaction strategies to acquire portfolio companies are commonly used in Switzerland. We assume that regular leveraged buyouts have accounted for a majority of the transactions in recent years.

1.2 What are the most significant factors or developments encouraging or inhibiting private equity transactions in your jurisdiction?

The most significant event for the Swiss economy was the abandonment of the CHF/EUR minimum exchange rate by the Swiss National Bank (SNB) in January 2015, which resulted in the appreciation of the CHF against the EUR. However, while 2015 was characterised by rather low M&A levels (compared to 2014, the amount of transactions decreased by 17%), 2016 has again been very strong.

2 Structuring Matters

2.1 What are the most common acquisition structures adopted for private equity transactions in your jurisdiction? Have new structures increasingly developed (e.g. minority investments)?

Usually, private equity funds investing in Swiss portfolio companies set up a NewCo/AcquiCo in Switzerland as an acquisition vehicle. The NewCo is held either directly or via Luxembourg, Netherlands or a similar structure. AcquiCos incorporated outside Switzerland are also seen.

Management usually invests directly in the AcquiCo rather than via a management participation company. Often, one single shareholders' agreement (SHA) between the financial investor(s) and management is concluded, which governs all aspects of the investment (governance, exit procedures, share transfers, good/bad leaver provisions, etc.). In other cases, a main SHA is concluded between the financial sponsors and a separate, smaller SHA with management.

2.2 What are the main drivers for these acquisition structures?

The acquisition structure is mainly tax-driven (tax-efficient repatriation of dividends/double taxation treaties, tax-exempt exit). Directly investing in the AcquiCo may allow Swiss-domiciled managers to realise a tax-free capital gain on their investment when the AcquiCo is sold at the exit. However, management incentives and regulatory considerations also play important roles.

2.3 How is the equity commonly structured in private equity transactions in your jurisdiction (including institutional, management and carried interests)?

A Swiss NewCo often has only one class (or a maximum of two classes) of shares. Preferential rights, exit waterfall, etc. are implemented on a contractual level in the shareholders' agreement. NewCos incorporated abroad often have several classes of shares.

2.4 What are the main drivers for these equity structures?

Firstly, Swiss corporate law limits the formation of preferential shares in certain ways. Secondly, the articles of association are publicly available. Consequently, the preferred route is to embody preferential rights, etc. in the shareholders' agreement (which is not publicly available) in which the parties can freely agree on such features.

2.5 In relation to management equity, what are the typical vesting and compulsory acquisition provisions?

Management is often asked to acquire the full stake of their investment at the outset. In mid-sized deals, management participation usually ranges from around 1% to 3%; however, certain funds request much higher management investments. As mentioned in question 2.2, usually each of the managers directly invests in the AcquiCo to realise a tax-free capital gain at the exit. Often, the equity sponsor or the target company grants loans to the...

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