Firm Profile > Finocchio & Ustra Sociedade de Advogados > Campinas, Brazil

Finocchio & Ustra Sociedade de Advogados
R. Avelino Silveira Franco, 149 - Cj 438
Vila Sônia (Sousas)
SP
13105-822
Brazil

Finocchio & Ustra Sociedade de Advogados started with the dream to fill a gap in the State of São Paulo’s countryside’s market and build a full-service office that could compete with the most admired offices in Brazil.

Focused on developing effective and reliable legal solutions, highly qualified professionals, and working closely with clients, we gained market share and currently have in our client portfolio national and international companies of all sizes, and from all business segments.

We have made investments in corporate governance and in our management model; such as our participation in the Partners for Excellence Program (PAEX) of Fundação Dom Cabral, which is one of the best business schools in the world.

With our future and the sustainability of the firm in mind, in 2019 we launched our innovation platform: Future in Us (https://www.futurein.us/en/), as we believe in the rapid and disruptive evolution of law. We also believe that the best way to get to know us is by understanding our ideology. Thus, we make every possible effort and initiative to daily incorporate it into our culture.

Our vision
To be a benchmark firm, sustainable and timeless, in an ever-changing corporate environment.

Our mission
To understand and improve our clients’ businesses, delivering results through strategic, innovative, reliable, and effective solutions.

Our purpose
To fulfill our mission in an ethical and synergetic environment, developing people with respect and transparency.

Our values
We believe in and are guided by our values:

  • We are committed to excellence and result delivering;
  • We act ethically with integrity and transparency;
  • We value our clients and work to exceed expectations;
  • We value promptness and responsiveness;
  • We are assertive through clarity;
  • We are passionate about what we do;
  • We cherish team spirit, an easy-going, and inspiring work environment;
  • Our team is our greatest asset.

Main areas of practice
Banking and finance: the team advises Brazilian and multinational companies, institutional investors and financial institutions concerning all aspects of the banking and stock market activities. We advise our clients on syndicated and structured loans, securitizations and project financing.

Civil litigation: provides advice and represents its clients in the negotiation and pre-litigation phase, in lawsuits and civil arbitration proceedings, presenting the best possible legal solutions for each case, through highly technical, effective, viable and tailored service and performance.

Preventively, it provides legal guidance based on the latest understanding of the Courts, aimed at preventing or minimizing the impact of disputes. Lawsuits and arbitration proceedings are conducted in a strategic manner, acting before the Judiciary Branch and Arbitration Courts.

Corporate compliance: relies on multidisciplinary participation of professionals working in the most diverse areas of law such as administrative, regulatory, tax, criminal, corporate, labour, M & A and contract, in order to align specialized technical knowledge with good compliance practices, providing the client with a customized and integrated solution to prevent, detect and avoid violations of corporate regulations and laws .

Contract law: provides assistance to Brazilian and foreign companies through the preparation, review and negotiation of preliminary agreements, as well as in the various types of contracts, typical and atypical, provided for in Brazilian and international law.

Corporate/M&A: was consolidated as a benchmark in the assistance for shareholding operations, also by participating in several operations of national relevance.

The firm advises domestic and foreign companies, investment funds, individuals and investors in mergers, spin-offs, acquisitions and sales of control and minority interests in companies, as well as in shareholding restructuring processes, review of corporate governance processes, among other shareholding operations.

Corporate criminal law has been consolidated by excellence in its dynamic and contemporary performance related to the elaboration of its strategies in cases of high complexity and national repercussion. The performance of the highly specialized team with solid experience, added by the full service structure provides the client with customized and comprehensive legal solutions. The agility combined with personal servicing in emergency and fragile situations such as searches and seizures and prisons are also trademarks of the corporate criminal law team that provide assurance and comfort to the client in these sensitive phases.

Customs and international trade consultancy: offers to clients counseling in tax and customs matters with high performance, agility, compliance and reduction of operating costs. It has the assumptions of (i) ensuring compliance and (ii) increasing the efficiency of our clients’ Foreign Trade operations.

Environmental: advises clients with a focus on understanding the solution regarding the interpretation of the complex and sparse environmental legislation, but also in complying with the requirements of the environmental control agencies, aiming at the company’s good standing and seeking to assist it in the adoption of the best strategy oriented to the client’s business, with the lowest risk of accountability.

In the area of litigation, the office is prominent for the strategic analysis of our clients’ demands, whether they are in an administrative or judicial phase, and for a vision that is not limited to the legal perspective.

Family and succession planning: provides assistance to its clients in drafting public deeds, out-of-court settlements and consensual actions.

It provides guidance on the property regime, preparing prenuptial agreements and common-law marriage deeds, as well as on property division in divorces, common-law marriage dissolutions, and inventories.

Succession planning is customized to meet the expectations and specific needs of each client, with the preparation of wills and corporate structuring, in conjunction with the corporate area.

Intellectual property: provides legal assistance for the protection of trademarks, patents, industrial designs, scientific, literary, artistic works, computer programs and etc. in Brazil and abroad.

The team works with all administrative or litigation procedures and also in the drafting of contracts related to intellectual property rights, such as licensing, assignment, distribution, franchising and technology transfer contracts.

It offers intellectual property portfolio strategic management services to assist clients in the protection of intangible assets. It has a strong performance in the area of technological innovation.

Labour: was consolidated as a benchmark in legal advisory assistance and strategic conducting of judicial and administrative proceedings, including accidental regressive claims, and it also has strong participation in collective bargaining and legal audits.

The team advises domestic and foreign companies in all aspects involving human resources, with emphasis on the analysis of HR routines, payroll and occupational medicine and safety; correction of vulnerable procedures and guidance of safe methods that minimize the risk of contingencies in the labor sector. It also works in shareholding operations for the assessment of possible labor liabilities.

Real estate: acts in the evaluation of the risks involved in the real estate business concerning the analysis of eventual environmental liabilities and compliance with the requirements established by the New Forestry Code, as well as in the preparation of the most diverse agreements.

Regulatory law: the advisory segment develops important works to follow up and support the entire license obtaining process with the federal, state and municipal management bodies, as well as concerning compliance issues. In the litigation segment, it operates with the definition and structuring of theses in administrative proceedings and tax infraction notices carried through by the most diverse instrumentalities of the Direct and Indirect Public Administration.

Restructuring and insolvency: has consolidated as a reference in working with companies undergoing economic and financial crisis in cases of national relevance. It assists clients in corporate restructuring processes and renegotiation of large liabilities through the planning, preparation and conduction of court assisted and extrajudicial reorganization processes, as well as through disputes resolution (judicial litigation) of financial origin.

Tax consulting: works together with other areas of the firm for the seamless search to understand the client’s business with the goal of bringing customized and unique alternatives for the process of decision making by the companies’ officers.

The tax consulting team understands that only a strategic perspective allows an adequate understanding of the core and routine fiscal issues experienced by the companies, and that is precisely what it has been doing for clients in a wide range of business segments.

Tax litigation: is prominent for its comprehensive servicing of clients’ needs, working with professionals of solid academic backgrounds and broad expertise.

The area is familiar with taxes in practice and capable not only of conducting the administrative and judicial proceedings, but also to assist clients even before they constitute the tax credit, ie, in the inspection procedures, thus avoiding the generation of liabilities or increasing the chances of success. Being familiar with clients’ business and carrying out strategic conduction of their actual or potential litigations is of essence to accomplish effective results in the litigation sphere.

Tax planning: is essential to corporate strategy and is currently a key financial tool, in addition to being an ally of compliance and corporate governance.

The team works alongside corporate and environment teams and has the experience and knowledge necessary to deliver customized tax planning and international taxation projects to clients. The multidisciplinary approach involving finance, accounting and the participation of other areas of the office guarantees fundamental solutions. In addition to creating tax efficiency, the work developed by the team contributes to the management of clients’ businesses.

Department Name Email Telephone
Arbitration, Family and Succession Planning; Restructuring and Insolvency José Luis Finocchio Junior jose.finocchio@fius.com.br
Tax Octávio Lopes Santos Teixiera Brilhante Ustra octavio.ustra@fius.com.br
Labour Veridiana Moreira Police veridiana.police@fius.com.br
Restructuring and Insolvency Camila Somadossi Gonçalves da Silva camila.somadossi@fius.com.br
Criminal Corporate Law; Compliance Guilherme Cremonesi Caurin guilherme.cremonesi@fius.com.br
Civil Litigation; Family and Succession Planning Raissa Simenes Martins Fanton raissa.fanton@fius.com.br
Corporate/M&A; Banking and Finance Felipe Lopes de Faria Cervone felipe.cervone@fius.com.br
Tax Planning Bruno Marques Santo bruno.santo@fius.com.br
Tax Consulting Pedro Henrique Buffolo Junior pedro.buffolo@fius.com.br
Tax Litigation Leandro Lucon leandro.lucon@fius.com.br
Contractual; Real Estate; Environmental; Regulatory Luis Felipe Dalemdico Silveira felipe.silveira@fius.com.br
Photo Name Position Profile
 Pedro Henrique Buffolo Junior  photo Pedro Henrique Buffolo Junior Partner
 Guilherme Cremonesi Caurin  photo Guilherme Cremonesi Caurin Partner
 Luis Felipe Dalmedico Silveira  photo Luis Felipe Dalmedico Silveira Partner
 José Luis Finocchio Junior  photo José Luis Finocchio Junior Managing Partner
 Octávio Lopes Santos Teixeira Brilhante Ustra  photo Octávio Lopes Santos Teixeira Brilhante Ustra Managing Partner
 Felipe  Lopes de Faria Cervone   photo Felipe  Lopes de Faria Cervone  Partner
 Leandro Lucon  photo Leandro Lucon Partner
 Bruno Marques Santo  photo Bruno Marques Santo Partner
 Veridiana Moreira Police  photo Veridiana Moreira Police Partner
 Raissa Simenes Martins Fanton  photo Raissa Simenes Martins Fanton Partner
 Camila Somadossi Gonçalves da Silva  photo Camila Somadossi Gonçalves da Silva Partner
Lawyers: 74 :
Other fee-earners: 95 :
English (fluent)
Italian
German
Spanish
AMCHAM

The Post Pandemic M&A Market in Brazil

OVERVIEW

The pandemic caused by the coronavirus has brought several impacts to the national and global market. Some reports were recently published pointing out the number of mergers and acquisitions (M&A) transaction in Brazil between the beginning of the pandemic and the months that followed. According to such studies, if we compare the number of M&A transactions performed at the beginning of the pandemic and the number of transactions today, we see that there has been a significant increase.

The August 2021 report published by the Transactional Track Record (TTR)[1], indicates a 52% increase in the number of concluded transactions if compared to the same period in 2020, with US companies increasing their acquisitions in the Brazilian market by 91%. According to this report, in August 2021, 232 mergers and acquisitions were registered, for a total value of BRL 32.3 billion, being the most active month of the year in relation to the number of transactions. The technology sector is the most active of the year, with a total of 547 transactions, representing a 78% increase over the same period in 2020. In second place is the finance and insurance sector, with 265 transactions.

Such increase in the M&A sector can be explained by the fact that many transactions that were in progress in the period prior to the pandemic were paused and were only resumed once the economic scenario and the pandemic were stabilized, allowing the parties involved in the transaction to negotiate and close their respective deals. Additionally, the Real depreciation after the COVID pandemic made Brazilian companies more attractive to foreign investment made by international companies who look for acquisitions to grow their participation in the Brazilian market or to enter into such market, using the advantage of a strong currency against Real, such as Euro or United States Dollars.

Moreover, with the pandemic and all the respective economic difficulties, many companies had to (i) seek resources in the market in order to survive; and (ii) file for bankruptcy or receivership; while others were sold because their partners could no longer support their costs. On the other hand, some sectors of the economy were benefited by the pandemic and are on the rise, being noticed by investors and even began to seek opportunities in the market.

BUSINESS ENVIRONMENT LAW

On August 26, 2021, Law 14.195/2021 was sanctioned in Brazil, also known as the Business Environment Law, which aims to promote the reopening of the economic activity in Brazil after the pandemic and attract foreign capital. Among its provisions, such law purports to facilitate entrepreneurship in the country by promoting debureaucratization, simplification, and legal security.

PREPARATION FOR A M&A TRANSACTION

In this sense, it is highly recommended that companies seeking to enter into M&A transactions make the proper preparation, assisted by financial and legal advisors through all the phases of the transaction in order to make the best deal possible.

For a company to prepare itself for a M&A transaction, the main point is to identify what would be the company’s major concerns and goals and to establish which actions would have to be performed so that all matters are addressed and covered during the M&A phases (that is, the due diligence, negotiation of the main documents, signing and closing procedures). That way, the company will be able to verify (i) if the governance of the company was set in accordance with applicable law; (ii) if the company has any issues whatsoever regarding tax, labor, environmental and/or civil matters; and (iii) how to outline mitigation plans for the main findings regarding the target company and/or target assets.

DUE DILIGENCE

The best way to identify the major issues involving the target company or its assets is to perform a previous due diligence, where the legal and financial advisors review all the legal and financial aspects of the target company (in the same way as it would be performed by a prospective buyer) to identify the liabilities already materialized and possible future liabilities. Once the problems are identified, the company may draw up an agenda with its legal and financial advisors to resolve as many contingencies as possible and adjust its controls procedures until the consummation of a possible sale.

The due diligence phase is crucial to define if the transaction will be implemented or not. Depending on the red flags and issues identified by the relevant advisors, the potential buyer may choose to present a binding offer for the acquisition of the target company/assets with a potential adjustment of the purchase price as a result of the due diligence procedure. The potential buyer may even choose not to present a binding offer at all in case a major issue is found in the target company/assets.

Other possible scenario is to establish, in the definitive contracts, clauses that guarantee that any losses arising out of any matter of the due diligence would have to be indemnified by the sellers. The potential buyer can even hold a portion of the purchase price in a restricted account (usually an escrow account) or earn-out and/or require representations and warranties from the sellers in which they assume responsibility for possible risks identified or, even more importantly, for risks not identified due to the issues found, in which case the required representations and warranties will be even more significant.

Based on the above, it is clear to assume that if the company is in good standing, the purchase price will be better evaluated by the potential buyers. One point that should be highlighted is that the buyer is not in the day to day of the business, thus not knowing the history or having access to the same information as the sellers. With a proper due diligence, the company (potential buyer) will have all the information required to make a better assessment of the target company/assets.

By following the steps indicated above, the company willing to buy a target company and/or assets will have detailed information to better evaluate the financial matters, establishing a more accurate purchase price, besides the fact that it will have a more solid structure to go through a healthier M&A transaction and to achieve the goals established prior to implementing the transaction.

TAX STRUCTURING

Clearly taxes play an important role in M&A transactions anywhere in the world, but in Brazil this is especially true. The complexity of our tax system gives rise both to the necessity of thorough due diligence and tax planning opportunities.

Share deals, where the buyer acquires shares in the target company in opposition to having asset deals, are the most common approach in Brazil, mainly because the taxation on sales of assets (fixed assets, inventory, etc) is higher than the sale of shares, but also due to the fact that buying shares can allow the acquirer to amortize goodwill (i.e. as long as proper structing is done), to step-up the cost basis of assets according to Purchase Price Allocation study (which needs to be done and registered before a Notary Public or the Tax Authorities) and since this is usually more straightforward than changing ownership/legal title of individual each asset/liability.

In most cases, foreign entities set-up and inject cash in a local holding company to make the acquisition, which has advantages both from legal/regulatory perspective as well as tax advantages such as pushing down intercompany debt (subject to special transfer pricing and thin capitalization rules) utilized to finance the transaction and allowing the buyer (i.e. the holding company) to be merged into the target (hence, allowing tax amortization of goodwill).

When modeling and analyzing financials of target companies in Brazil a detailed tax analysis is recommended, since there are many different taxation regimes, tax benefits and specific rules that can be impacted by a transaction and as a consequence modify financial flows of the valuation.

As final remarks, Brazil does not have a wide treaty network (e.g. there is no Double Tax Treaty between Brazil and the USA) and in spite of dividends currently not being subject to tax in Brazil, potential tax reform are under discussions in the Congress.

[1] Available in: https://blog.ttrecord.com/category/market-reports/reports-brazil/.