Share deal vs asset deal in a SaaS sale: which structure to choose and why

The legal structure of a sale, share deal (securities disposal) or asset deal (asset disposal), is one of the most important M&A process decisions. The choice impacts seller taxation, acquirer protection against hidden liabilities, and transaction complexity.

Share deal: disposal of securities

The acquirer buys the shares of the company holding the SaaS, with all its assets AND all its liabilities. Most common structure in Europe (> 70% of mid-market SaaS transactions, Hampleton Partners). Seller advantage: securities capital gains taxation (PFU 30% in France, 0% in Switzerland). Client contracts transfer automatically.

Asset deal: disposal of assets only

The acquirer buys an identified list of assets (code, trademarks, contracts, database). The selling company retains its liabilities. Acquirer advantage: total protection against hidden liabilities, fiscal depreciation of acquired assets. Seller disadvantage: capital gain taxed at corporate rate + contract-by-contract transfer requiring each client's consent.

• Seller taxation: Share = PFU 30% FR / 0% CH | Asset = CIT on gain at company level + potential double taxation on distribution.
• Acquirer protection: Share = hidden liability risk (covered via W&I) | Asset = liabilities remain in selling company, maximum protection.
• Contract transfer: Share = automatic | Asset = written consent required from each client and provider.

The asset deal is chosen by the acquirer when hidden liabilities are significant (litigation, potential tax debts) or when the shareholder agreement is complex. For the seller, accepting an asset deal implies negotiating a structure premium to compensate for less favourable taxation.