Morgan & Morgan advised the shareholders of Unity Group in a corporate restructuring and subsequent sale of its business to Willis Europe B.V.
Panama, March 12, 2020. Morgan & Morgan advised the shareholders of Unity Group, a holding company with subsidiaries engaged in insurance brokerage in Central America with operations in six countries (Panama, Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua), in a corporate restructuring and subsequent sale of its business to Willis Europe B.V., a company incorporated under the laws of the Netherlands and a subsidiary of Willis Towers Watson (NASDAQ: WLTW), a leading global brokerage and consulting firm. The transaction will increase the reach and scale of Willis Towers Watson in the Latin American region, both for its Corporate Risk and Brokerage (CRB) and the Human Capital and Benefits (HCB) segments.
This was a cross border transaction involving United States of America, British Virgin Islands, The Bahamas, Panama, Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.
Regulatory framework for foreign investment
The Panamanian Constitution reserves “retail activities” for Panamanian nationals. Various statutes have limited the application of the prohibition to activities that involve the sale of goods to consumers.
By statute, the private sector (national or foreign) may not participate in water and sewage services; in other words, these services are reserved to the State. Likewise, electricity transmission services (as distinguished from generation and distribution) is also by statute reserved to the State.
Certain activities in Panama are reserved totally or partially for Panamanian nationals, based on constitutional provisions and regulated by statute. For example, commercial fishing in national waters is reserved for Panamanian nationals. Similarly, broadcast radio and television is reserved for Panamanians, but foreign persons may own up to 35% of corporations holding concessions for those activities.
Another type of restriction in Panamanian statutes prohibits foreign governments from owning land and participating in certain industries. For example, foreign corporates and entities controlled by foreign governments may not hold a majority stake in public service of telecommunications corporations. Similar restrictions are found in mining.
Foreign persons may not own real estate within 10 kilometers of the border with other countries.
Exchange control or currency regulations
The monetary unit in Panama is the Balboa. However, the U.S. Dollar (US$) is the legal tender of Panama and the same nominal value as the Balboa. There are no capital controls or foreign currency controls in Panama. Forced currency is prohibited in Panama’s Constitution and the parties may enter into obligations and establish payments in the currency they freely agree upon.
Grants or incentives
Investments (national or foreign) may qualify for incentives provided they are made in certain areas designated by law.
Individual employment contracts / Termination regulation
- Termination of employment contracts is regulated by the Labor Code, which grants special protection to employees.
- There is a process that can be followed before the Ministry of Labor to reduce personnel based on “economic grounds”, but companies normally carry out reductions without pursuing that process.
Capital gains in the sale of shares are taxed at 10%. The buyer must withhold 5% of the price paid and the seller may accept the amount so withheld as its definitive tax or file a return to obtain a credit for the difference between the amount withheld and the taxed caused by the gain realized in the transaction. In an asset transaction, the tax treatment will depend on the asset being transferred. For example, real estate is levied with two taxes: transfer tax (2%) and capital gains tax (10%). The buyer must withhold 3% of the purchase price, leaving the seller to accept the amount so withheld as its definitive capital gains tax or file a return to obtain a credit for the difference between the amount withheld and the capital gains taxed caused by the gain realized in the transaction. There are stamp taxes that may apply to the documentation granted. The issuance of shares does not cause any taxes.
Antitrust jurisdiction triggering events/thresholds
Corporate concentrations that affect competition will be subject to antitrust review. The threshold at which concentration may affect competition is 25%. Parties to a transaction that affects competition may submit a petition to the antitrust authority to review and approve, which approval may be granted without or with conditions. A concentration that is approved by the antitrust authority may not be reviewed by the authority or subject to judicial review. Without such approval, within three (3) years after perfected both the authority or a court (upon petition by a third party) may review the transaction and impose sanctions (including divestment) if found detrimental for competition.
Signing/closing meeting documents
Closings are ordinarily carried out through the delivery of documents set forth in definitive agreements, including share certificates duly endorsed in the case of share transactions. Payment is usually made through wire transfers.
In the case of asset deals, special documentation, formalities and filings depend on the type of asset. For example, real estate is only transferable through a public deed (“escritura pública”) granted before a notary public, which deed must then be submitted for registration and actually registered in the Panama Public Registry Office.
Gap requirements between signing and closing
In the case of share transactions, there are no such gaps required by law, except for tender offers of publicly traded shares. In the case of asset transactions involving real estate, for example, such gaps arise because registration of the public deed takes at least 24 hours.
Proof of identity and authority to sign
Corporate resolutions in the case of legal entities, accompanied by a good standing certificate of the jurisdiction of incorporation, and passport or other identification document for the person signing. All documents granted or executed outside Panama must be authenticated by a Panamanian Consul or through the Apostille (Hague Convention (1961) on legalization of document).
- Simple contracts are executed by written signature. Public deeds are granted by a Notary Public upon personal appearance and execution by signatories before the Notary Public.
- In the case of simple contracts, written signature by the persons signing on behalf of corporate parties thereof will suffice – ie, the parties validate whether the persons are duly authorized to enter into an agreement on behalf of the corporate party.
- Individuals with legal capacity may enter into contracts and grant deeds by written signature.
- In the case of foreign companies, it is customary to require powers of attorney duly legalized by a Panamanian Consul or through the Apostille.
Notary impact on transaction timetable
Authentication of signatures by notaries is viable and may be obtained during the execution ceremony, provided that signatories are physically present at such ceremony. Post execution authentication is viable, provided the signatory is in Panama and customary identification documents (eg, passport) is produced to the notary.
Changing of stockholders, officers and directors
Changes of stockholders in the books of the corporation may be regulated in its articles of incorporation and/or by-laws. In the absence of such regulation, it is usually accomplished through the Secretary of the corporation, who customarily requires the share certificate and its endorsement in order to make annotations in the share register.
Changes of directors and officers requires corporate resolutions to be submitted to a Notary Public for issuance of a public deed, which deed must then be filed and registered with the Panama Public Registry Office.
Private limited company
Transfer of title of shares is usually accomplished through the Secretary of the corporation, who customarily requires the share certificate and its endorsement.
Execute document in counterpart
It is customary to avoid counterparts in order to minimize stamp taxes, which are caused and payable with respect to each counterpart. Signature pages of contracts may be executed in different jurisdictions to be consolidated in a single counterpart, with each signature being authenticated in compliance with the law in the jurisdiction of execution, including legalization by “apostille”.
Strictly enforced undertakings
Strict enforcement of undertakings will be available soon, upon signing and promulgation (ie, publication in the Official Gazette) of recently adopted legislation that reinstated provisions of the Judicial Code that were repealed a few years ago.
Damages are available.
Required due executions legal opinions
None required by statute, but in cross border transactions (particularly for indebtedness) it is customary for legal opinions (debtor’s and creditors’ counsel) to be issued.
Morgan & Morgan advised Marsh Semusa and its shareholders in the execution of a call option of shares of the company
Panama, January 30, 2020. Morgan & Morgan advised Marsh Semusa and its shareholders in the execution of a call option of shares of the company. Majority shareholders exercised a call option to acquire from the minority shareholders the remaining shares of Marsh Semusa.
Marsh Semusa is a risk consulting and insurance broker in Panama.
Partner Roberto Vidal represented Morgan & Morgan in this transaction.
Panama, November 15, 2019. Morgan & Morgan acted as counsel to the majority shareholders of Cemento Interoceanico, S.A., a Panamanian company dedicated to the production, commercialization and distribution of cement, concrete and derivative products, with respect to the sale of 75% of the issued and outstanding shares of the company to Cemento de Panama S.L.
Cemento de Panama S.L., is a company organized by the laws of Spain, part of Cemento Progreso´s Group, a Guatemala based major player in the cement and concrete industry in the Central American region.
The transaction had a unique structure and therefore, the legal team of Morgan & Morgan dealt with important challenges throughout the negotiation and closing of the deal.
Morgan & Morgan advised Farallon Nicaragua in the sale of its shrimp producing and supplying business to Cooke Inc.
Morgan & Morgan acted as Panamanian legal counsel to Farallon Nicaragua, a vertically integrated producer of farmed shrimp and a leading supplier of branded fresh-frozen shrimp to major markets in Asia Europe and the U.S., in connection with the sale of its business to Cooke Inc., a New Brunswick Canadian company and parent of Cooke Aquaculture Inc.
Morgan & Morgan was required to advise Farallon Nicaragua on legal matters related to this M&A transaction.
Farallon Nicaragua is headquartered in Leon, Nicaragua, employs 384 people, and operates a hatchery, three farms and an onsite processing plant from four locations.
The terms of the deal were not disclosed.
Partners Francisco Arias G. and Roberto Vidal, participated in this transaction.
Panama, September 25, 2018. Morgan & Morgan and sixteen attorneys of the firm were recognized in the Chambers Latin America 2019, guide of the best lawyers and law firms across 20 countries of Central America, the Caribbean, South America and Mexico.
The firm has been ranked in the first Bands within the areas of Banking & Finance, Capital Markets, Corporate/M&A, Dispute Resolution, Energy & Natural Resources, Intellectual Property, Offshore, Projects, Real Estate, Shipping and Shipping Litigation.
Likewise, the publication noted as leaders in their areas attorneys Inocencio Galindo, Francisco Arias, Ramon Varela, Roberto Vidal, Simon Tejeira, Jose Carrizo, Luis Vallarino, Ana Carolina Castillo, Allen Candanedo, Maria Eugenia Brenes, Roberto Lewis, Luis Manzanares, Enrique De Alba, Jazmina Rovi, Juan David Morgan Jr. and Francisco Linares.
One of the clients interviewed stated that “Judging by the results that the firm achieves, I can say that their advice is effective and arrives in a timely manner. I would highlight their availability and technical competence”.
About Morgan & Morgan
With over 80 lawyers and 20 practice areas, Morgan & Morgan is a full service Panamanian law firm, regularly assisting local and foreign corporations from different industries, as well as recognized financial institutions, government agencies and individual clients. Of particular note is our continuous advice for clients involved in all stages of the development of important projects related to energy, water supply, construction, oil, mining, public infrastructure, retail, ports, transportation, among others. Learn more at www.morimor.com.
Morgan & Morgan advised Hidrotenencias, S.A., with respect to the sale of its hydroelectric generation business to EnfraGen Spain, S.A.
Morgan & Morgan acted as Panamanian counsel to the shareholders of Hidrotenencias, S.A., a company that owns and operates three run-of-the-river hydropower plants located in the province of Chiriqui, in connection with the sale of their stake in the company to EnfranGen Spain, S.A.
This cross-border transaction, which involved attorneys from Panama and the United States of America, consisted in the sale of the 100% of the shares of Hidrotenencias, S.A., which in turns owns 100% of the shares of Las Perlas Sur, S.A., Las Perlas Norte, S.A. and Istmus Hydro Power Corp., corporations with hydroelectric generation concessions in the Republic of Panama.
Partner Francisco Arias G., senior associate Roberto Vidal and associate Cristina De Roux, participated in this transaction.
Morgan & Morgan advised Grupo Eleta in the sale of a minority stake in the Pear Island Project to the Grivalia Group
Morgan & Morgan acted as Panamanian counsel to Grupo Eleta in the sale of a minority stake in the Pear Island Project to the Grivalia Group, a global real estate investment company.
Pedro Gonzalez Island (Pearl Island) is located at Archipelago Las Perlas, Pacific Ocean. The project consists of the integrated development of approximately 1,600 hectares of the island, including an airport, several hotels, a town center, several marinas, among others amenities.
This cross-border transaction involved Panama, England and Wales.
Roberto Vidal, senior associate of Morgan & Morgan, participated in this transaction.
Morgan & Morgan advised Grupo Codere with respect to the process of acquiring a casino license in Panama
Morgan & Morgan acted as Panamanian counsel to Grupo Codere, with respect to the process of acquiring a license for the administration and operation of a casino in the Aloft Hotel, located in Panama City. Grupo Codere is a Spanish multinational corporation in the private gambling sector with a presence in Panama.