Global law firm White & Case LLP has advised Banco Itaú BBA International, S.A. ("Itaú Portugal"), a Portuguese credit institution, on the successful transfer of its European wholesale banking operations from Lisbon to London through a "merger by absorption" under The Companies (Cross-Border Mergers) Regulations 2007 (the "Regulations").
The matter involved transferring the assets and liabilities of Itaú Portugal as transferor company to an "existing transferee company" in the UK, in consideration for shares in the transferee and dissolving the transferor without the need for liquidation. The entity proposed as existing transferee company, Itau BBA International Limited ("Itau UK"), had originally been purchased as a shelf company by the parent of Itaú Portugal. A legal question arose under the Regulations as to the meaning of the defined term "existing transferee company", which sets the requirements for a recipient of the transfer of assets and liabilities on a merger by absorption under the Regulations.
The innovative case removes previous uncertainty over whether a UK newco can be set up and used as a transferee company on a cross-border merger under the Regulations, in order to receive assets and liabilities from an EEA transferor company which is then dissolved without being liquidated.
"As one of the first cases to be undertaken in the UK under the Cross-Border Merger Regulations involving a regulated entity, this complex case involved two work streams – one to manage the cross-border merger in both London and Lisbon and the other to manage the application to the Financial Services Authority (FSA) to achieve regulatory consent to conduct wholesale banking operations in the United Kingdom", said White & Case partner Ashley Ballard.
"We went to The High Court, on behalf of Itau UK, who ruled that the expression ‘existing transferee company’ in the Regulations was intended to distinguish between merger by absorption and merger by forming a new company, thus enabling our client to proceed. Not only was this a positive result for our client, but also for future entities looking at moving a continental European business into the UK."
The White & Case team was led by London-based partners Ashley Ballard, Stuart Willey and Magdalene Bayim-Adomako, who were supported by associates Emer Delaney and Malcolm McLean. AAA Advogados partner Vitor Pereira das Neves and associate Clara Pestana Parreira adviser on Portugese law. Mr Stephen Horan of Erskine Chambers acted as counsel for Itau UK.
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