GETTING THROUGH THE DEAL Private Equity Private Equity Private In 29 jurisdictions worldwide Contributing editor Bill Curbow 2015 2015 Private Equity 2015 Contributing editor Bill Curbow Simpson Thacher & Bartlett LLP Publisher Law The information provided in this publication is Gideon Roberton general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does Sophie Pallier Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. Although Business development managers London, W11 1QQ, UK the information provided is accurate as of February Alan Lee Tel: +44 20 3708 4199 2015, be advised that this is a developing area. 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Encompass Print Solutions First published 2005 Tel: 0844 2480 112 Dan White Eleventh edition [email protected] ISSN 1746-5508 CONTENTS Global Overview 7 Peru 101 Bill Curbow, Kathryn King Sudol, Atif Azher and Peter H Gilman Roberto MacLean and Juan Luis Avendaño Simpson Thacher & Bartlett LLP Miranda & Amado Fund Formation Singapore 106 Low Kah Keong and Felicia Marie Ng Australia 10 WongPartnership LLP Adam Laura, Deborah Johns and Peter Feros Gilbert + Tobin Spain 112 Carlos de Cárdenas, Alejandra Font and Víctor Doménech Austria 17 Alter Legal Martin Abram and Clemens Philipp Schindler Schindler Rechtsanwälte GmbH Switzerland 120 Shelby R du Pasquier and Maria Chiriaeva Brazil 23 Lenz & Staehelin Alice Cotta Dourado and Clara Gazzinelli Cruz Campos, Fialho, Canabrava, Borja, Andrade, Salles Advogados Turkey 127 Şafak Herdem Canada 30 Herdem Attorneys At Law Bryce Kraeker, Myron Dzulynsky, Alan James and Timothy Wach Gowling Lafleur Henderson LLP United Kingdom 132 Anthony McWhirter and Richard Ward Cayman Islands 36 Debevoise & Plimpton LLP Andrew Hersant, Chris Humphries and Simon Yard Stuarts Walker Hersant Humphries United States 139 Thomas H Bell, Barrie B Covit, Peter H Gilman, Jason A Herman, Chile 44 Jonathan A Karen, Glenn R Sarno and Michael W Wolitzer Simpson Thacher & Bartlett LLP Felipe Dalgalarrando H Dalgalarrando, Romero y Cía Abogados Transactions China 50 Caroline Berube Australia 149 HJM Asia Law & Co LLC Rachael Bassil, Peter Cook and Peter Feros Gilbert + Tobin Colombia 57 Jaime Trujillo Austria 156 Baker & McKenzie Florian P Cvak and Clemens Philipp Schindler Schindler Rechtsanwälte GmbH Denmark 63 Eskil Bielefeldt, Kristian Tokkesdal and Peter Bruun Nikolajsen Brazil 162 Delacour Law Firm Alice Cotta Dourado and Clara Gazzinelli Cruz Campos, Fialho, Canabrava, Borja, Andrade, Salles Advogados Germany 69 Thomas Sacher and Guido Ruegenberg Canada 168 Beiten Burkhardt Harold Chataway, Kathleen Ritchie, Daniel Lacelle and Ian Macdonald Gowling Lafleur Henderson LLP India 75 Ashwath Rau Amarchand & Mangaldas & Suresh A Shroff & Co Cayman Islands 176 Andrew Hersant, Chris Humphries and Simon Yard Stuarts Walker Hersant Humphries Japan 80 Makoto Igarashi and Yoshiharu Kawamata Nishimura & Asahi Chile 180 Felipe Dalgalarrando H Dalgalarrando, Romero y Cía Abogados Luxembourg 86 Marc Meyers Loyens & Loeff China 186 Caroline Berube HJM Asia Law & Co LLC Nigeria 95 Ajibola Dalley GRF Dalley & Partners 2 Getting the Deal Through – Private Equity 2015 CONTENTS Colombia 194 Nigeria 259 Jaime Trujillo Tamuno Atekebo, Eberechi Okoh, Omolayo Longe and Baker & McKenzie Adebisi Sanda Streamsowers & Köhn Denmark 200 Eskil Bielefeldt, Kristian Tokkesdal and Peter Bruun Nikolajsen Peru 264 Delacour Law Firm Roberto MacLean and Nathalie Paredes Miranda & Amado Abogados France 205 Pierre Lafarge, Jean-Luc Marchand and Anne-Cécile Deville Singapore 268 Latournerie Wolfrom Avocats Ng Wai King and Jason Chua WongPartnership LLP Germany 212 Thomas Sacher and Guido Ruegenberg Slovenia 276 Beiten Burkhardt Aleš Lunder and Saša Sodja CMS Reich Rohrwig Hainz Hong Kong 218 Robert Ogilvy Watson, Chin Yeoh and Adrian Cheung Switzerland 280 Ashurst Hong Kong Andreas Rötheli, Beat Kühni, Felix Gey and Dominik Kaczmarczyk Lenz & Staehelin India 224 Rupinder Malik, Sidharrth Shankar and Shantanu Jindel J Sagar Associates Taiwan 287 Robert C Lee, Candace Chiu and Jack Chang Yangming Partners Indonesia 231 Joel Hogarth Ashurst LLP Turkey 293 Duygu Turgut and Ali Selim Demirel Esin Attorney Partnership Italy 237 Marco Gubitosi and Filippo Troisi Legance – Avvocati Associati United Kingdom 300 David Innes, Guy Lewin-Smith and Richard Ward Debevoise & Plimpton LLP Japan 243 Asa Shinkawa and Masaki Noda Nishimura & Asahi United States 305 Bill Curbow, Kathryn King Sudol and Atif Azher Simpson Thacher & Bartlett LLP Korea 249 Do Young Kim and Jong Hyun Park Kim & Chang Mexico 254 Carlos del Río, Carlos Zamarrón and Andrea Rodriguez Creel, García-Cuéllar, Aíza y Enríquez, SC www.gettingthedealthrough.com 3 TRANSACTIONS Esin Attorney Partnership TURKEY Turkey Duygu Turgut and Ali Selim Demirel Esin Attorney Partnership 1 Types of private equity transactions 2 Corporate governance rules What different types of private equity transactions occur in What are the implications of corporate governance rules for your jurisdiction? What structures are commonly used in private equity transactions? Are there any advantages to going private equity investments and acquisitions? private in leveraged buyout or similar transactions? What are the effects of corporate governance rules on companies that, Private equity transactions in Turkey usually involve buyouts. There are also a few venture capital transactions, however, these transactions are not following a private equity transaction, remain or become yet attractive to investors and rarely generate satisfactory results. In prac- public companies? tice, private equity capital is primarily used by companies facing financial One of the main problems in private equity transactions is private equity distress (but which are operationally viable) and unable to induce profita- investor representation in target companies and their subsidiaries’ corpo- ble investments due to a lack of adequate financial resources. Additionally, rate bodies. In deals involving subsidiaries, the private equity investors’ private equity capital is utilised in Turkey by non-distressed companies representatives often decline to join the subsidiaries’ boards. In order to aiming to develop their existing business and by entrepreneurs wishing to overcome this, contractual obligations are imposed on the seller’s side, exit companies they have incorporated. Following company restructuring mandating the seller to reflect in its subsidiaries those corporate govern- or a term of management over a few years, investors usually remain for two ance principles applicable to the target company. Such obligations, how- to five years and then seek high returns from a sale to a strategic buyer or a ever, are not implementable under Turkish corporate governance rules. The public offering. In some cases, private equity investors sell the target com- Capital Markets Board of Turkey (CMB) issued corporate governance rules pany to another private equity investment firm, as was the case in in NBK applicable only to listed companies (there are approximately 360 compa- Capital Equity Partners’ sale of Yudum to Afia International and Carlyle’s nies listed on the Borsa Istanbul (BIST)). While the guidelines on corporate sale of Medical Park to Turkven. governance are not strictly binding, listed companies are required either Commonly, private equity investments in Turkey are realised by to implement the rules and declare their compliance, or explain the reason acquiring the target company’s shareholding through either a share sub- for their noncompliance in their annual reports. Yet companies have shown scription or a sale of shares, or both. Share purchase agreements and share a relaxed attitude to such requirements because there are no statutory obli- subscription agreements are the main instruments for these investments. gations to apply these guidelines. These corporate governance guidelines Another significant instrument is the shareholders’ agreement to grant mostly relate to issues such as shareholder rights, duties of public disclo- rights of first refusal and tag-along and drag-along rights, or alternatively, sure and transparency issues, minority rights, independent auditing and initiating a public offering for the private equity investor. the board of directors’ duties. However, the new Communiqué (No. IV/56), Foreign interest in Turkish companies has increased significantly dated 30 December 2011 and issued by the CMB has made several guide- since 2006. Major investments by Bancroft, Pinebridge Investments (ex- lines regarding the listed companies. This Communiqué has been replaced AIG Fund), Partners in Life Science UK Ltd, Citigroup Venture Capital by a new Communiqué (No. II-17.1), issued by the CMB on 3 January 2014. International, KKR, NBGI, Carlyle Fund, Abraaj Capital, Bain Capital, NBK These Communiqués require listed companies to comply with corporate Capital, ADM Capital and Argus Capital have confirmed this trend. Since governance rules