Private equity in Latin America Orlando Fernández of PLcCross-borderexamines recent developments in private equity investment in Latin America, outlines some key common characteristics of the Latin American private equity market and analyses legal and market developments in Brazil, !I Chile and Colombia. With a couple of notable exceptions, private equity (see LAVCA, Press Release, Latin American investors have traditionally been less active in Latin Investment Activity Strong in 2009 with Positive Outlook America than in Europe, the US and the major Asian for 2010 (www.lavca.org)). economies. According to the Emerging Markets There are, however, signs that private equity activity Private Equity Association (EMPEA), in 2009, Latin could surge in Latin America in the near future. 58% America accounted for: of private equity houses surveyed for a KPMG report a 10% of the US$22 billion (about EUR17 billion) published in April2009 stated their intention to increase raised by private equity firms for investing in their presence in the region between 2010 and 2012 emerging markets. (see KPMG, lnsight Latin America: A guide to the : 14.5% of the US$48 billion (about EUR37 billion) future of Private Equity for investment professionals) invested by private equity funds in emerging (KPMG Report, available at www.kpmg.com). rnarkets A survey of institutional investors published by Coller 2"41 of the US$345 5 blllion (about EUR270 Capital and the EMPEA in Aprrl2010, rariked Brazil as billion) invested by private equity sponsors the ~vorld'ssecond most attractive emerglng market after r~~~l~~l~~isee E'1 IndustryStatlstlcs China The çame sun/ey ranked the reçt of Lati" 4n?erjca Fundralslng Investment at the in fifth place ahead of central and eastern Europe Africa website (ww~empea net)) tbe Middle East and the CIS isee Coller CapttallEhIPEA ln dddition private equity investments ~nLatln Errerging itlarkets Pnvate Equlty Sur~ey2070 avatlable America ,ire heavlly concentrated in a few iuriçdict~ons "t "b~~co~~erca~~~~lco~~)(EMPEA s~in/ey) data b!f the Cap'tal 1nternatrona.l private equity çponsors are also beginning Assoc ation (WVCA) an organisation represe~ting'i ihe to look beyond Brazil and hlexico ard into countries qion ~rivate~quity cornmu~ity and of s 15'6 14 ike Cniie Colorrbia 2nd Peru r~hicnPave exper evced 111 cri ate .'cj~,ty :raPsactions in Iatfn-tin.errca dilrinq ~cororp~cgroAth l.npro'ved po,,t,cal stabil,tv )"C9 'ock ciace in Rr?zil 2nd Mexico resp~ctibely Orlando Fernández Orlando is one of "'Cross-border's market practice analysts. He writes on key legal developments, major transactions and rnarket trends, focusing on capital markets, financia1 regulation, M&A and private equity. and enacted investor-friendly legislation in recent HM Capital Partners (then called Hicks Muse Tate years. 23% of general partners (GPs) interviewed for and Furst (Hicks Muse)) and Advent International a Deloitte survey published in July 2009 said they (Advent). However, due to econornic turrnoil in the expected Colombia to see the rnost deal activity region in the late 1990s and early 2000s, the returns out of all Latin Arnerican countries during 2010. on rnany of these sponsors' Latin Arnerica funds were 14% predicted that either Chile or Peru would be unsatisfactory, which caused some of thern to leave". the region's dealrnaking hotbed (see Deloitte, Latin For instance, Argentina's econornic rneltdown in 2001 American Private Equity Confidence Sunley, available at led to bankruptcies and defaults in severa1 of Hicks www. deloitte. com). Muse's portfolio cornpanies in that country, which underrnined investor confidence. As a result, Hicks Against this background, this article examines the Muse's second Latin Arnerica fund raised US$150 Latin Arnerican private equity landscape. In particular, rnillion (about EUR120 million) out of an initial target of the article: US$1.5 billion (about EURI .2 billion) at its first closing. Overviews recent developrnents in private equity These setbacks caused Hicks Muse to partially retreat investment in Latin Arnerica. frorn the region in August 2001. 1 Outlines some key cornrnon characteristics of the As Cooper explains, between late 2001 and 2008, private Latin American private equity rnarket and highlights equity activity in Latin America was sporadic and mostly current regional trends. confined to a couple of players such as Advent. However, Analyses legal and rnarket developrnents in in the past two years, sponsors have rekindled their Brazil and the increasingly popular investrnent interest in the region. destinations of Chile and Colornbia. Key characteristics of market and regional trends 1 >> For our multi-jurisdictional guides to private equity law and i Although some jurisdictions have a larger and more I practice, search 7-500-9935 on our website. developed rnarket than others, Latin Arnerican private equity has some key cornrnon characteristics. These Recent developrnents include: Although international private equity houses are currently showing increasing interest in Latin Arnerica, The way funds are structured and the jurisdictions this is not their first incursion into the region. As where they tend to be domiciled. Richard Cooper, a partner at Cleary Gottlieb Steen & The kind of transactions taking place. tiam~ltonrecalls, "we were already advising private rquity firms in Latin America back in the rnid-1990s. F~riidstructures For instance, in 1995. we acted for TPG Capital The Cayman Islands Iirnited partnership is the rnost ithen called Teras Pacific Group (TPG)) on the popular structure among foreign private equity firrns sstablishment of the USS300 million iabout EUR233 looking to invest in more than one Latin American million) Newbridge Capital's Latin America Fund jurisdiction. Exarnples of funds that have been set up ITPG :vas an original co-íounder and co-owner nf as Cayrnans Iimited partnerships include: ::ewbridqejU. All five of Advent's Latin American private equtty !bnds JiAPEFs) Ry the mtd-90s". Cooper conttnues. "there Lbere :.?~eralbig private eauity sponsors active in Latin A USS1 3 billion (about EUR1 billion) fund raised by :,vrica, incluoinq Carlvlo, KKR. CVC l,>ternat;onal, GP Investrnents in 2007 According to Martin Litwak, head of investrnent FROM THE OUTSET, SPONSORS OPERATING funds and wealth structuring at Ferrére IN LATIN AMERICA NEED TO THINK ABOUT Internacional in Uruguay, private equity sponsors sornetirnes structure their Latin Arnerican funds HOW TO STRUCTURE THEIR INVESTMENTS as British Virgin Islands (BVI) lirnited partnerships, IN A WAY TMT MINIMISES THE TAX IMPACT which can be more suitable for funds that have more than 15 investors, have a rninirnurn OF AN EXIT FOUR OR FIVE YEARS DOWN THE subscription requirernent of less than US$IOO,OOO LINE, WHICH REQUIRES CONSULTATION WITH (about EUR79,OOO) and do not plan to list on an LOCAL LAWYERS AND TAX SPECIALISTS. approved stock exchange (see LAVCA, Domiciling I Latin Arnerican PE Funds). Notably, LAPEF V was also the first ever LAPEF fund Litwak further notes that private equity sponsors to receive a cornrnitrnent frorn a South Arnerican investing in Latin Arnerica occasionally dornicile pension fund, which suggests that recent regulatory their funds in Bermuda, the Baharnas and the changes allowing Latin Arnerican institutional Channel Islands. They have also recently started investors greater flexibility to invest in private equity looking into Ireland and Luxernbourg but generally are beginning to have an irnpact (see below). regard these jurisdictions as too expensive and heavily regulated. Current trends. The effect of the financia1 crisis on private equity fundraising was less acute in Latin In addition to the more "typical" offshore structures Arnerica than in other parts of the world. According highlighted above, there are other alternatives, such to LAVCA, fundraising in the region fel1 by 43% as the Ontario lirnited partnership, which was used to US$3.6 billion (about EUR2.71 billion) in 2009, by both Aureos Capital for its US$140 rnillion (about cornpared to a fall of 61 % worldwide. EURlO9 rnillion) Latin Arnerica Fund, and vSpring Capital for its recently raised US$150 rnillion (about Cornrnentators believe that Latin Arnerica is poised to EURI 14 rnillion) Alta Ventures Mexico Fund I. benefit frorn the current wave of interest in ernerging econornies. According to the EMPEA, private equity Over the past two decades, jurisdictions such as firrns raised US$11 billion (about EUR8.4 billion) to Brazil, Chile and Colornbia have introduced legislation invest in ernerging and frontier rnarkets in the first half authorising and governing the establishrnent of of 2010 (H12010), US$2 billion (about EUR1.6 billion) dornestic private equity and venture capital funds. more than in the equivalent period in 2009. These structures are popular arnong local private equity firrns, but can also serve as pass-through Private equity transactions entities for offshore-dorniciled funds investing in a Latin Arnerican private equity transactions tend to specific jurisdiction. consist of growth capital investrnents and rnid- rnarket buyouts of cornpanies seeking expansion or institutional investors. Foreign private equity houses facing liquidity or succession issues. According to active in Latin Arnerica raise their capital frorn LAVCA, in 2009: institutional investors in North Arnerica, Europe and, increasingly, Asia and the Middle East. Advent Early-stage investrnents accounted for 17% of all International's US$1.65