The economic beneficiary must decide on what basis he wishes to offer the business controlled by him to interested investors (share deal or asset deal).
Factors in favour of an asset deal
An asset deal will be concluded where the business investor presumably is only considering taking on certain liabilities, or no liabilities at all.
Real estate deals / direct purchase rather than economic transfer of ownership
Various factors may induce investors not to buy the legal entity, but rather the asset or assets behind it:
- liability risks
- indefinite strict liability of the legal entity for pollution
- residual effects of the Holocaust or forced labourers
- deferred taxes
- liquidation tax
- indirect partial liquidation
- other taxes.
Particular succession variants
With regard to the asset deal of interest, the investor offers to take over the assets by the:
- purchase of moveable property (Article 184 ff. of the Swiss Code of Obligations)
- transfer of assets pursuant to Article 69 ff. of the Swiss Law on Mergers
- the take-over of assets pursuant to Article 181 of the Swiss Code of Obligations
The offer also determines the procedure applicable to the deal.
The following sections represent an asset deal as the purchase of moveable property (Article 184 ff. of the Swiss Code of Obligations).
- Asset transfer
- Take-over of a business pursuant to Article 181 of the Swiss Code of Obligations:
- Since the entry into force of the Swiss Law on Mergers, the take-over of a business pursuant to Article 181 occurs only for legal entities not included in the commercial register, and is hence rarely applied.