i OVERVIEW

i Deal activity2

Investments

Private equity deal activity reached a historic record again in 2018, for a second year in a row, exceeding pre-crisis levels and confirming the current excellent health of the private equity (PE) sector in Spain.

In value terms, preliminary estimates available for 2018 suggest investments of an approximate aggregate value of €5.8 billion, representing an 18 per cent increase compared to 2017. This figure significantly exceeds the record activity levels registered in 2007 (with investments in excess of €4.3 billion), evidencing the continuation of a recovery in PE investments that became evident in late 2013 after years of market downturn.

The number of transactions, however, decreased by 6.3 per cent (670 transactions compared with 715 in 2017). The gap between the increase in value and the decrease in the number of transactions evidences the higher share of large deals: in 2018, at least eight transactions exceeding €100 million were closed, representing approximately 63 per cent of the total investment value in 2018, and at least three of these were mega deals, exceeding €1 billion. Most, if not all these transactions were sponsored by global funds.

Mid-market transactions represented 25 per cent of the total investment value in 2018 (approximately €1.47 billion) with 84 per cent of transactions involving less than €5 million of investment; these also reached record levels, showing an increase of 5 per cent compared with transactions in 2017. Most mid-market transactions (44 out of 56) were closed by domestic players.

Investments by foreign players increased by 25 per cent in 2018 in terms of value, with approximately €4.5 billion invested in 118 deals. This represented 77 per cent of the total investment value in 2018 (compared to €3.6 billion or 72 per cent of the total value in 2017). In 2018, there were also transactions closed by foreign funds investing for the first time in Spain, thus increasing the number of global players in the local market.

Domestic private sponsors contributed €1.16 million to investment value (24 per cent of the total) in 2017, reflecting a slight increase in terms of value (€1 billion in 2016) but a decrease in number of transactions (449 deals in 2017 compared to 521 in 2016), evidencing some increase in the size of deals closed by domestic sponsors.

Buyouts represented 60 per cent of the total investment value and increased by 6 per cent in terms of number of transactions. Investment value in venture capital decreased by 22 per cent compared with the previous year's value, although the number of transactions slightly increased from 493 to 519, showing a decrease in the average size of venture capital deals.

In terms of specific sectors, the Spanish Venture Capital & Private Equity Association (ASCRI) preliminary report for 2018 mentions 25 investments in energy and natural resources (€1.19 billion) followed by hotels, restaurants and leisure (14 investments worth €1 billion), communications (20 investments worth €1 billion), consumer products businesses (61 investments for €878 million), and healthcare (48 investments worth €237 million).

Divestments

In terms of volume, 295 divestment deals were closed in 2018 for an aggregate value of €2.05 billion, a 41 per cent decrease compared to 2017. Despite this significant decrease, divestments in the middle market increased both in terms of value and number of transactions (35 divestments worth €1 billion in 2018, compared to 20 divestments worth €769 million in 2017).

In 2018, the most frequently used divestment methods were secondary sales to other private equity firms (a historic high of 47 per cent of total divestments), followed by trade sales to strategic investors (24 per cent of total divestments), and buy-back by shareholders (22 per cent of total divestments).

Fundraising and sponsors

Fundraising by domestic sponsors exceeded €2.15 billion in 2018, a 16 per cent increase compared to the 2017 total. ASCRI estimates that private domestic participants have between €4.5 billion and €5 billion in 'dry powder' to be invested in Spanish companies.

ii Operation of the market

Sale processes

Auctions continue to be the norm in larger transactions and those involving the most valuable assets. They are also becoming increasingly common for mid-market transactions (on account of an increased sensitivity to price maximisation as opposed to deal certainty). Proprietary transactions remain more common for small private equity transactions.

Transactions and deal negotiations have tended to be less protracted than in previous years, although many still extend far beyond six months. Sellers' price expectations remain high and have in most cases increased compared to previous years; bridging-the-gap strategies therefore continue to be seen in a number of deals.

Proprietary deals in Spain are structured as they are in most European jurisdictions. This includes an indicative offer, which, on occasion, may lead to the execution of an exclusivity agreement (of between one and three months' duration, which is often extended), followed by a due diligence phase and the negotiation of a share purchase agreement (SPA) or investment agreement. The financing banks tend to participate in the deal negotiation at a much earlier stage than they did prior to the financial crisis. In the case of minority investments, the negotiation of the shareholders' agreement (and the inclusion of minority protection in the target company's articles of association) often proves more complex and time-consuming than the SPA itself.

Auction processes tend to be divided into two or three phases, in line with standards in other jurisdictions. In the first phase, potential buyers submit a non-binding, indicative offer based on their preliminary valuation of the target and setting out the likely key terms. The seller selects two or more potential buyers to enter the second stage on the basis of the non-binding offers received. In the second phase, the selected bidders are given access to a data room and other due diligence information, possibly including a vendor's due diligence report or a 'fact book'. At the end of this phase, potential buyers are required to submit a binding offer, including markups of the sale documentation drafted by the seller. It is not unusual for the second phase to be followed by a third during which the seller and the potential buyer enter into bilateral (although often non-exclusive) negotiations and conduct a final confirmatory due diligence.

Public-to-private transactions include a due diligence of the listed target company (approved by the target board); and the negotiation of a transaction agreement with the independent directors of the target company or the negotiation of an 'irrevocable agreement' with the main shareholders (whereby the shareholders undertake to tender their shares in the takeover bid to be launched by the private equity fund under agreed terms), or both. Under Spanish takeover rules, break fees of up to 1 per cent of the transaction value are allowed for the first offeror. A tender offer is mandatory if the sponsor acquires a 30 per cent stake in the company (or appoints a majority of the target company directors). Certainty of funds is a key feature of the Spanish tender offer, which must include a bank guarantee for the consideration offered in the bid, if in cash. Competing bidders must be provided the same information as the initial offeror (who, under Spanish law, only has limited 'first-mover' advantages). Spanish law provides for the squeeze-out of minority shareholders if, as a consequence of the tender offer, the offeror owns 90 per cent or more of the target company's voting rights and the offer is accepted by 90 per cent or more of its addressees.

Management incentive arrangements

As in other jurisdictions, most private equity deals carried out in Spain include an incentive scheme to align the management team's interests with those of the private equity investor. The management incentive package (MIP) often combines 'sweet equity' and a 'ratchet'. Although each MIP is bespoke to the specific transaction, target and management team, one structure traditionally used to implement sweet equity involves the management team's contribution to the target being made in the form of capital or common stock, while the private equity fund's contribution is divided between equity and a participating loan or preferred shares. It is not unusual for the management team to be provided financing to enable them to purchase shares in the target. The target company may provide financing and, in so doing, profit from the exception to the financial assistance prohibition that applies to employees of Spanish limited liability companies. The risk of this type of sweet equity for the management team and the target company is that their equity-derived gains obtained upon divestment (which benefit from a lower rate of taxation) may be requalified by the tax authorities as income. The MIP is usually accompanied by entering into a shareholders' agreement including drag-along and tag-along rights and 'good-leaver' and 'bad-leaver' provisions. In most cases, the management team is also asked to provide representations and warranties on investment and upon exit (as opposed to the sponsor, who in some cases only undertakes to provide representations and warranties on title and capacity).

Ratchets provide the management team with a bonus payment upon exit, depending on the achievement of a minimum return for the private equity fund. The hurdle is bespoke for each MIP but often based on an internal rate of return (IRR) of between 15 and 25 per cent or one and a half to three times the money invested by the fund. To improve their tax treatment, ratchets are commonly implemented through a 'multi-annual bonus'. Under Spanish tax law, extraordinary gains generated over a period of more than two years may benefit from a 30 per cent reduction for the purposes of personal income tax. This provides a significant advantage over taxation of ordinary gains. However, the application of the reduction is limited to €300,000 of bonus payments, provided that the bonus payment does not exceed €1 million.

ii LEGAL FRAMEWORK

i Acquisition of control and minority stakes

Prior authorisation

As a general rule, the acquisition of control or a minority stake in a Spanish company by a private equity fund (or, indeed, any other investor) is not subject to prior authorisation (other than as may be established in the articles of association, financing or other agreements, and other arrangements applicable to the target company). In particular, investments by private equity funds (or their investment vehicles) domiciled or incorporated abroad are not subject to any foreign investment authorisations (except if the fund or vehicle is domiciled in a tax haven); they must nevertheless be notified to the Investment Registry for administrative, economic and statistical purposes only. Exceptionally, foreign investments in certain sectors must be assessed separately. Those sectors include, inter alia: air transport; radio; minerals and raw materials of strategic importance; mining rights; television; gambling; telecommunications; private security; and arms and explosives for civil use and activities related to national defence.

The acquisition of a significant stake in specific entities (e.g., credit institutions, insurers, investment service companies) requires prior authorisation by the corresponding regulator.

Any transaction involving an economic concentration exceeding the legal thresholds established by Spanish or European law requires prior notification to the competition authorities. Competition clearance is required before the transaction can be implemented. Spanish competition law requires that the appropriate notification be filed with the National Market and Competition Commission (CNMC) if either of the following thresholds is met:

  1. a 30 per cent share of the national market or a defined geographical market is acquired or increased as a result of the concentration (except if the target or assets acquired in the transaction achieved turnover in Spain of no more than €10 million in the previous financial year, and provided that the undertakings concerned do not hold, individually or aggregately, a market share of 50 per cent or more in any affected market); or
  2. the combined aggregate turnover in Spain of all the undertakings during the previous financial year exceeds €240 million, provided that at least two of the undertakings has a total turnover in Spain of more than €60 million each.

For calculation purposes, turnover includes the overall sales of the economic group to which the undertaking belongs (excluding intragroup turnover). Portfolio companies are deemed to form part of the private equity fund's group. The CNMC must, within one month of notification, either clear the transaction or open an in-depth second-phase investigation if the transaction could potentially impede the maintenance of effective competition in the corresponding market. That deadline may nevertheless be suspended if the CNMC decides to request additional information from the undertakings or third parties.

If the target company holds administrative concessions, it may be necessary or advisable (depending on the specific terms of the concession contract or applicable legislation) to seek and obtain authorisation from the relevant authority for a change of control in the target, or to at least inform the authority of that change.

Concept of 'control' and takeover bids for listed companies

A private equity sponsor's effective control of a Spanish company depends on: the company's articles of association; the existence of voting agreements; the composition of the board; and minority protections established by law or in shareholders' agreements.

In the context of listed companies, control of a listed target is deemed to exist where a legal or natural person, or a group of legal or natural persons acting in concert, directly or indirectly holds at least 30 per cent of the corresponding voting rights, or holds a stake of less than 30 per cent of the voting rights but appoints (prior to or within 24 months of the acquisition) a majority of the target's board of directors. In these cases, control may be acquired by either directly or indirectly acquiring target securities with voting rights or entering into shareholders' or voting agreements. Mandatory bids when control of a listed target is reached must be addressed to all holders of the target company's shares, convertible bonds or share subscription rights.

Minority shareholder rights

Shareholders holding at least 5 per cent of the shares (3 per cent for listed companies), whether individually or aggregately, may require that the board of directors call a general meeting and include additional items on the agenda. The Spanish Companies Law (SCL) requires approval at the general meeting for acquisitions, disposals or transfers of material assets. Transactions involving consideration exceeding 25 per cent of the asset value reported on the company's most recently approved balance sheet are presumed to be material. The SCL also acknowledges that the general meeting may issue instructions to the directors of Spanish companies.

All shareholders are entitled to request information relating to items on the agenda of a general meeting or submit any questions in writing. The board of a limited liability company is entitled to reject information requests when it considers that: the information requested would be unnecessary to protect the shareholders' rights; there are objective reasons to consider that the information could be used for aims unrelated to the corporate purpose; or disclosure could be contrary to the company's interests or those of its related companies. However, even if disclosure is deemed detrimental to the company's interest, disclosure cannot be denied if requested by shareholders representing 25 per cent of the share capital (a threshold that may be reduced to 5 per cent in the articles of association). The breach of the information right only entitles the shareholder to demand compliance and seek indemnification. Nonetheless, it does not serve as a basis, with certain exceptions, to invalidate the shareholders' resolutions. Likewise, shareholders will be liable for any damages caused by misuse of the information requested or any use that is detrimental to the company's interest.

Shareholders representing at least 1 per cent of the company's share capital (1 per mille in the case of listed companies) may challenge resolutions passed at a general meeting or by the board of directors that are contrary to law; the company's articles of association; any general meeting or board of directors' internal regulations (as the case may be); or are detrimental to the corporate interest to the benefit of one or multiple shareholders or third parties. Abusive resolutions are considered to be detrimental to the corporate interest. The possibility of challenging corporate resolutions on the basis of mere formal breaches that have no relevant impact on the result of the constitution and voting at meetings is limited under the SCL. All shareholders are entitled to challenge resolutions that are contrary to public policy.

Finally, shareholders holding the minimum percentage to call a general meeting have standing to bring a derivative claim on behalf of the company against any director.

Non-resident sponsors

In transaction structures for foreign PE investments tax factors need to be considered, particularly the tax treatment of dividends and capital gains realised on exit. Spanish companies may benefit from rights deriving from EU directives, such as the Parent-Subsidiary Directive and the Merger Directive, or from Spain's 80-plus bilateral tax treaties (including the amended treaty with the United States not yet in force that favours direct investment into Spain). Spain's broad tax-treaty network with Latin America makes Spain an attractive vehicle for channelling capital investments in Latin America as well as a tax-efficient exit route for EU capital investments.

Leveraged buyouts

Structuring of leveraged buyouts (LBO) continues to be challenging. Interest payments under certain shareholder loans are reclassified as equity income and financial expenses related to LBO loans are only deductible up to 30 per cent of the target's operating profit (or the target tax group). More importantly, the commonly used structure for debt pushdowns (the creation of a tax group or the merger of the acquisition vehicle with the target company) has been undermined by an additional limit on the tax deductibility of financial expenses: if the acquirer merges with the target, or the target is included in the acquirer's tax group, financial expenses are limited to 30 per cent of the acquirer's operating profit (i.e., the vehicle's expenses may not be offset against income generated by the target) unless the LBO loan represents less than 70 per cent of the consideration exchanged for the target and at least 5 per cent of the loan is amortised annually. In addition, goodwill resulting from a merger is no longer tax-deductible. The tax authorities and courts have also taken the stance that the merger between the acquisition vehicle and the target company is ineligible for the special restructuring tax regime on the basis that the merger is tax-driven and does not pursue valid business reasons.

ii Fiduciary duties and liabilities

Any private equity fund investing in a Spanish company must be aware of the fiduciary duties it may have as a member, or those of its directors.

Directors' duty of care is subject to a 'business judgement rule' protecting discretionary business decisions taken with a reasonable standard of diligence and in the absence of a conflict of interest. The duty of loyalty comprises a wide range of duties, including, inter alia, those regarding conflicts of interest, confidentiality, freedom of judgement and independence from instructions of, or connections with, third parties (this prohibits directors from, among other actions, receiving remuneration from third parties). The company may waive some of these duties (in particular conflicts of interest) on a case-by-case basis. Some transactions require approval at a shareholders' meeting (e.g., to allow directors to receive remuneration from third parties, or allow the company and a director to complete a transaction for a value exceeding 10 per cent of the company's assets).

It is also important for investors to bear in mind that directors' fiduciary duties (and the liability that may result from the breach of those duties) may extend to persons or entities acting as shadow or de facto directors.

The SCL also imposes specific duties of loyalty on members and shareholders, including the obligation not to abuse their majority powers and – unless expressly derogated in the company's by-laws – the right of minority shareholders to request the repurchase of their shares five years after incorporation if the company has made profits during the three preceding years and no dividends are distributed (equal to at least 25 per cent of the legally distributable profits of the relevant year or the five preceding years). Spanish courts have also upheld members' duty of loyalty in more general terms on the basis of concepts such as contractual good faith, the duty not to act against the company's interests and the duty not to obtain disproportionate advantages to the detriment of the company or the other members. These duties would therefore apply to a private equity fund in its capacity as a member or shareholder of the company.

iii YEAR IN REVIEW

i Recent deal activity

Major deals

Several large buyout deals (exceeding €100 million) were closed in 2018, representing close to 63 per cent of the total invested value of the year and a significant increase in comparison with 2017. The energy sector was the most sought after by investors, followed by leisure, communications, consumer products, healthcare and information technology. Notable deals were all sponsored by global private equity funds, including CVC Capital Partners' acquisition of a 15 per cent stake in Naturgy; Blackstone's acquisition of Cirsa International Gaming Corporation, a leading gaming company with a dominant position in Spain and Latin America; Cinven's acquisition of Ufinet Latam, a fibre-optic operator in the wholesale telecommunications market in Latin America; Orient Hontai Capital's acquisition of Imagina (a leading distributor of audiovisual content and sports events) and the acquisition by TowerBrook Capital Partners, Torreal and Peninsula Capital Partners of a significant stake in Aernnova Aerospace, a company specialising in the design and manufacturing of aerostructures and components (the four deals exceeded €1 billion in deal value). Other relevant transactions included Cinven's acquisition of Plantas de Navarra, an international company devoted to the production of crops and new vegetable varieties, and Ardian's acquisition of MonBake, a group specialising in the production and distribution of bread, bakery and pastry products.

Mid-market investment value has slightly increased in 2018 compared to 2017 and represents 25 per cent of the total invested value over the year, with numerous significant transactions sponsored mainly by national private equity funds. For example, MCH Private Equity acquired a majority stake in Altafit Grupo de Gestión (a company managing gyms) and Magnum Industrial Partners and Alantra Private Equity acquired a majority stake in ROQ (a company specialising in the manufacture of machinery and equipment for textile printing and packaging). Nazca Capital acquired a majority stake in Terratest, a leading company in the soil-improvement and microtunnelling sector. Significant mid-market transactions sponsored by international private equity funds include the acquisition by HIG Capital of the Spanish distillery Puerto de Indias, the acquisition by L Catterton of a majority stake in Goiko Grill (burger restaurants) and the acquisition by Avenue Capital of 100 per cent of Roig Cerámicas, a company that specialises in the manufacture of ceramic floor and wall tiles.

Minority investments

The acquisition of minority stakes in Spanish companies continues to be popular among private equity funds. Noteworthy transactions in 2018 included KKR's acquisition of a stake in Telepizza; GPF Capital's acquisition of a minority interest in Grupo Malasa, a Galician company devoted to furnishing; Aurica Capital's acquisition of a minority stake in restoration group Larrumba; Ysios Capital's acquisition of a minority stake in Galecto (specialising in the biotechnology industry); the acquisition of Mecanizaciones Aeronáuticas (a Spanish manufacturer of parts for the aerospace industry) by ProA Capital; and the above-mentioned mega deal regarding CVC's minority investment in Naturgy.

Expansion investments

Private equity funds continue to contribute equity to finance the expansion of Spanish businesses. During 2018, several international and domestic private equity firms invested in Spanish companies to support their future growth, development and international expansion. For example, Ardian invested in MKD Automotive, an online platform for vehicle-fleet maintenance and repair, Gala Capital invested in audiovisual group Secuoya, and US private equity firm Summit Partners invested in Advance Medical, a company specialised in telemedicine and telediagnosis services.

Distressed investments

In 2018, there were fewer examples of distressed investments than in previous years. Distressed deals involved real estate assets in particular, but also other industries. SAREB (Spain's management entity for impaired real estate assets transferred by nationalised and other state-aided banks) made various divestments in 2018. This included, for example, selling to Redevco Iberian Ventures its 40 per cent stake in the Parque Corredor shopping centre. SAREB is expected to continue divesting assets in the coming years.

Certain domestic private equity firms also invested in 'special situations'; for example, Black Toro Capital invested in Bionaturis, a Spanish biotech company.

Exits

In 2018, Torreal sold its stake in Imagina (a leading group in the European audiovisual sector) to the Chinese private equity Orient Hontai Capital. Spanish private equity ProA Capital divested from Grupo Vips (restaurants) to Alsea. Diana Capital and GED sold their stake in Megafood to Burger King, and Corpfin Capital and CCMP Capital Advisors sold their stake in Volotea to Apollo and Meridia.

Examples of exits through IPOs in 2018 included the divestment by Providence from Masmovil (a phone operator company) and Torreal's exit from Aston Martin (a luxury car brand).

ii Financing

The availability of acquisition financing in Spain has again significantly increased in 2018 (in terms of earnings before interest, tax, depreciation and amortisation (EBITDA) multiples financed by banks) with respect to previous years and the volume of domestic banking activity is at pre-crisis levels. Spanish borrowers currently have access to a wider range of alternative financing products after years of limited financing sources. Specialised LBO funds have become particularly active in the Spanish market, forcing banks to offer more favourable financing terms to maintain their market share.

Financing terms and conditions offered to sponsors vary depending on the type of financing products, although interest rates offered by the banks decreased during 2018. In fact, a number of deals that were largely equity-financed from 2008 to 2013 were leveraged through recaps after 2014. 'Covenant-lite' financings have also returned to the Spanish market.

iii Key terms of recent control transactions

Pricing formulae: locked box and bridging the gap

In a seller-friendly market, locked-box price mechanisms are clearly prevalent (as opposed to price adjustments based on completion accounts). They are sometimes used in conjunction with a 'ticking fee' to capture part of the cash generated by the business after the locked box accounts date. Private equity sponsors are particularly inclined to use this formula, transferring the business's financial risk to the buyer as of the locked box date.

With sellers' price expectations on the rise, bridging-the-gap strategies continue to challenge current deals. Vendor loans (subordinated to bank financing) and earn-outs based on EBITDA or other performance criteria, or dependent on the return obtained by the private equity fund upon its exit from the target, have been used in a number of private equity transactions. Minority investments and reinvestments by selling shareholders occasionally follow the same approach.

Conditionality

In a pro-seller market, hell-or-high-water antitrust conditions (whereby the buyer undertakes to accept any conditions imposed by the antitrust authorities to clear the transaction) are not uncommon and a strong advantage for PE acquirers when competing with strategic or corporate competitors. On the contrary, financing-out and MAC/MAE conditions and reverse break fees continue to be the exception.

Warranties

Representations and warranties, indemnities and the scope of the seller's liability remain among the most negotiated aspects of deals. In general, private equity funds continue to invest with robust protection from representations and warranties given by the seller (other than in secondary buyouts) and to provide only limited representations and warranties upon divestment. However, in auction processes in particular, it is not uncommon for the buyer to accept that warranties are provided only as of signing (with no bring down at completion) and that the buyer's knowledge (including as a consequence of the due diligence process) excludes the vendor's liability.

The use of warranty and indemnity insurance in acquisition deals has significantly increased in Spain in recent years, both in PE and corporate acquisitions. In most cases the insurance was taken out by the buyer seeking supplementary protection for breach of warranties, both in terms of value and certainty of payment.

iv REGULATORY DEVELOPMENTS

i Spanish law on private equity funds and managers

The AIFMD3 was implemented in Spain through Law 22/2014 on private equity entities, enacted on 12 November 2014, which also applies to managers of private equity and similar closed-ended alternative investment funds (CEAIFs) incorporated or marketed in Spain. These managers must be authorised by the Spanish securities regulator, the National Securities Market Commission. Subject to certain exceptions and particular rules, Spanish private equity funds and companies must invest at least 60 per cent of their assets in shares, shareholder loans and instruments convertible into the equity of non-listed companies. Law 22/2014 also introduced a new type of private equity fund that invests more than 75 per cent of its assets in small and medium-sized enterprises. The Law reinforced reporting obligations; the mechanisms to monitor and prevent conflicts of interest; and the rules on the approval of remuneration and incentive policies. It also imposed restrictions on asset stripping and the requirement to designate depositaries. In addition, legal recognition was granted to European venture capital funds and European social entrepreneurship funds created by EU Regulation Nos. 345/2013 and 346/2013 respectively (as amended by EU Regulation 2017/1991).

Finally, the Law addressed the cross-border marketing and management of CEAIFs, both by Spanish managers abroad and by AIF managers in Spain (including the use of European passports for marketing European CEAIFs by managers authorised in EU Member States).

ii Tax reform

The amendments to Spanish corporate income tax that entered into force in late 2016 introduced a general restriction on deductibility of losses and impairment in equity transactions, as well as a restriction on offsetting carry-forward losses in large companies.

iii Other legislative changes

The SCL was amended by Law 31/2014 to improve the corporate governance of Spanish companies (see Section II).

Refinancing, restructurings and distressed deals have become easier to implement following two amendments to the Spanish Insolvency Law in recent years (including rules for the cramdown of dissenting creditors and for clean asset sales prior to or within insolvency).

The application of Spanish regulations on the prevention of money laundering and the financing of terrorism to private equity firms operating in Spain has also become more stringent. The obligations imposed by these rules include identifying the legal and natural persons who will take part in the transaction; cooperating with a special commission of the Bank of Spain; implementing written procedures and creating internal compliance bodies for due diligence duties.

Finally, the Spanish Criminal Code was amended in 2015, introducing significant changes to the criminal liability of legal persons, and compliance standards.

v OUTLOOK

Private equity activity has again increased in 2018 to record levels (at €5.8 billion), confirming the growth of the previous four years). Most private equity sponsors seem to expect this trend to continue at least through 2019, if not beyond.

Liquidity (both in terms of bank and other financing and dry powder by private equity sponsors) drives up price expectations and EBITDA multiples, to the point that more and more fund managers complain about fierce competition (unless, of course, they are on the sell side) and fear that the Spanish market may be close to overheating.

Spain continues to face a number of challenges in 2019, mainly related to Catalonia and domestic politics. The private equity industry itself continues to confront its own issues, including competition by strategic buyers and family offices (mainly from Latin America) and pressure on tax structuring and carried interest.

Nevertheless, there are good reasons to be optimistic about the private equity industry in Spain. The year 2019 might witness take-privates of listed companies (public-to-private transactions, also known as P2Ps, which have been absent from the Spanish market in recent years). The deleveraging process is expected to continue for companies, which should lead to carve-outs and other divestments of non-core assets. Domestic private equity funds are raising new funds and international sponsors have a renewed interest in investing in Spain, which should guarantee an increasing amount of deals. In addition, family-owned businesses facing succession issues should continue to offer good opportunities for private equity investments. Finally, the increasing availability of financing and the high internationalisation of many Spanish businesses should also encourage investment.


Footnotes

1 Christian Hoedl is a partner and Diana Linage is a senior associate at Uría Menéndez.

2 Source: the Spanish Venture Capital & Private Equity Association (ASCRI, www.ascri.org). Figures for 2018 are based on preliminary estimates published by ASCRI in January 2019.

3 Directive 2011/61/EU on Alternative Investment Funds Managers.