ANTAQ Approves Resolution On Transfer Of Corporate Control And Ownership Of Contracts

• Published date: 06 October 2021
• Subject Matter: Corporate/Commercial Law, Compliance, Corporate and Company Law, Contracts and Commercial Law
• Law Firm: Tauil & Chequer
• Author: Mr Bruno Werneck, Daniel Gunzburger, Marcelo Fraz'o Rodrigues and Gustavo Passos Corteletti

The Brazilian National Agency of Waterway Transportation ("ANTAQ") has approved Resolution No. 57/2021 ("Resolution 57"), published in the Union Official Gazette on September 20, 2021. Resolution 57 establishes the transfer procedures of corporate control and ownership of "organized port" concessions, port facility leases and private port facility adhesion contracts.

Resolution 57 supports the existing legal provisions in the port legal framework in force in the sense that the transfer of corporate control, direct or indirect, of a company entitled to a contract of an "organized port" concession, a port facility lease or a private port facility adhesion contract depends on the previous analyses and approval of ANTAQ. However, the ownership transfer of these contracts, in addition to ANTAQ's analysis, depends on the approval of the granting authority.

Under Resolution 57, ANTAQ's approval is no longer required for the following operations: (i) corporate control transfer of a company holding a transition contract in "organized ports"; (ii) corporate control transfer of a company entitled to a temporary use contract; (iii) change in the corporate structure that does not result in a change in corporate control; (iv) corporate control transfer due a change in the corporate structure exclusively within the scope of the same corporate group that holds the relevant grant; (v) fiduciary lien, pledge of shares or quotas issued by the assignor, by the grant holders, within the scope of financing operations for raising funds; and (vi) corporate control transfer of certain waterway transport support facilities.

The administrative procedure for previous analysis of the ownership transfer, as provided for in Resolution 57, initiates with a joint request by the assignor and the assignee, which must be submitted through a digital form to be accessed on the ANTAQ website (document standards or electronic forms to standardize and simplify the request will be released within 180 days). Along with the request, several documents listed in Resolution 57 must be submitted to ANTAQ, which vary according to the type of contract being transferred and if the transfer is of the ownership or of the corporate control. In addition to these mandatory documents, ANTAQ may request the submission of complementary documents during the administrative procedure.

Other specific documents must be presented if the assignee is a Private Equity Investment Fund (FIP), an open or closed supplementary...