The National Authority of Civil Aviation (ANAC) announced this Friday have decided that the control structure of TAP and Portugalia, arising out of the purchase by the Atlantic Gateway SGPS 61% of the share capital of TAP, "is in accordance with the provisions of european regulation, which requires that the companies holding licenses for the air transport community belong and are effectively controlled by member States and/or nationals of member States". That is, the regulator of aviation considered that it was the Portuguese businessman Humberto Pedrosa who had the majority of the capital and the control effective to the private consortium.
Before that, following a preliminary review, the FAA determined that there were indications about the lack of control effective by a national of a Member State.
according To information that the Express had access to, such evidence stem mainly from the imbalance in the obligations of the capitalization and financing of the activity of the TAP group taken on by members, of aspects of corporate governance, of the majorities laid down for the decision of matters of strategic and special rights granted to a minority shareholder.
With the goal of overcoming the concerns of the FAA, the consortium changed the notification of the operation. In particular, with changes in the structure of government, so as to ensure conditions for the effective exercise of the government of the society is done by the HPGB (the holding company of Humberto Pedrosa); revision of the majorities required for the adoption of strategic decisions; the revision of the rules of appointment and powers of decision; the commitments of non-competition by the creation of mechanisms to improve the management capacity and knowledge of the aeronautical sector, on the part of the management team of the partner Humberto Pedrosa; and the reduction of the signs identified above, as regards a possible control effective on the part of the elements of the management team assigned to the DGN (holding David Neeleman), arising out of, until then, greater knowledge of the aeronautical sector that these elements would have, compared to the elements of the same team assigned to the HPGB.
As the Express reported in June, between the demands made by the regulator was the experience of the private shareholders in the aviation sector. The HPGB, society of the Portuguese businessman Humberto Pedrosa, owner of the Barraqueiro group, does not have curriculum in air transportation, therefore, one of the changes to the shareholders ‘ agreement of the consortium Atlantic Gateway (that Pedrosa integrates with David Neeleman, a shareholder of the company, the brazilian air Blue), provides that the society of Portuguese businessman and deepen their knowledge in air transport and to receive advice so that he can better pronounce as shareholder of TAP. Fernando Pinto, was the expert chosen. In statements to Express at the time, the president of TAP has confirmed: “This was the requirement of the FAA and there is this intention (consulting), but the contract for the provision of services has not yet been signed.” This should happen when the process of privatizat ion of the company is closed.
Another of the substantive changes submitted to the regulator with respect to the shareholders ‘ agreement of private shareholders, by eliminating the clause, drag along rights, which determines that the minority shareholders of a company have the obligation to sell their shares if the majority shareholder decides to sell its stake. To the that the Express found next to sources close to the process, this clause was planned before the changes delivered to the regulator, which means that Neeleman had the right to demand that Pedrosa would sell its stake if decide to sell your. The contrary was not provided. The private shareholders no longer now be tied to each other.
The decision which the regulator released this Friday “is a decision that has account of a former business, which was set up by the previous government and voted by the FAA in February. Now it is validated in the sense that changes have been made", explained the secretary of State of Infrastructure, Guilherme W. d’oliveira Martins, in declarations to the Lusa agency. "It is an administrative decision, the interim of a decision-making process of corporate change of the TAP”, said the ruler.
As for the business that allows the State to recover the majority of the capital of TAP (agreement signed in February with the current Government), the FAA still has not been notified. Before that, you need to complete the financial restructuring of the company (the renegotiation of the debt from the creditor banks) and proceed with the public offer of sale (OPV) of 5% of the company to the workers. Only at the end of this process, after the transfer of shares, is that the TAP notifies the FAA about the new ownership a shareholder of the group.
The secretary of State recalled that the current socialist Government has already renegotiated the acquisition of shares of the airline to have 50% of the share capital, being the “end this process” to notify the FAA, which should make a final decision. The private consortium is left with 45% of the share capital of the group which has, as a main asset of the carrier, but can reach up to 50%, depending on the accession of the workers of the firm to the operation of the sale of the 5% that is intended to be used.
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