Chile Takeover Guide. Contact. Roberto Guerrero V. Guerrero, Olivos, Novoa y Errázuriz, Santiago, Chile.

Transcription

1 Chile Takever Guide Cntact Rbert Guerrer V. Guerrer, Olivs, Nva y Errázuriz, Santiag, Chile rguerrer@guerrer.cl

2 Cntents Page INTRODUCTION 1 CHANGE OF CONTROL 1 CHANGE OF CONTROL THROUGH SHAREHOLDERS AGREEMENT 2 OTHER TYPES OF CHANGE OF CONTROL 2 INFORMATION ABOUT CHANGE OF CONTROL 2 TENDER OFFER FOR THE ACQUISITION OF SHARES 2 ELIMINATING MINORITY SHAREHOLDERS _3_ takever guide - chile

3 INTRODUCTION In Chile, change f cntrl and tender ffers ver publicly traded crpratins are regulated by Law Nr. 18,045 and by the rules and regulatins issued by the Superintendency f Securities and Insurance (Superintendencia de Valres y Segurs, r SVS ). All references herein t articles are t Law Nr. 18,045. Regulatins are intended t prtect minrity sharehlders with reprting bligatins and mandatry tender ffers in mst cases f change f cntrl, with premiums being shared amng all sharehlders. CHANGE OF CONTROL General rule (ART. 54) Any persn that intends t take cntrl f a crpratin that, accrding t Chilean regulatin publicly ffers its shares (that is, trades its shares n a stck exchange), must infrm the general public abut such an intentin prir t the change f cntrl. The infrmatin must be sent t the: target crpratin; cmpanies that cntrl and that are cntrlled by the target crpratin; SVS; and stck exchanges where the shares f the target crpratin are traded. A highlighted ntice must be published in tw natinal newspapers. The cmmunicatin t the public must be made at least 10 business days prir t the date f which the change f cntrl is intended t take place and, in any event, as sn as negtiatins tending t a change f cntrl have cmmenced, thrugh the delivery f infrmatin and dcumentatin abut the target crpratin. General Ruling Nr. 104 issued by the SVS ( GR 104 ) cntains the required infrmatin that must be disclsed, which includes (i) a heading in capital letters with the expressin cntrl and the name f the target, (ii) the way the bidder intends t take cntrl, (iii) the terms and cnditins f the intended transactin, including the price, (iv) purpse f the intended acquisitin f cntrl and business plan, and (v) the identificatin f the entities that intend t take cntrl. Clsing f the transactin (ART. 54 A) The clsing f the change f cntrl transactin must be disclsed t the public within tw business days fllwing the date in which the change f cntrl takes place. GR 104 establishes the minimum infrmatin that such annuncement must cntain, including (i) a heading in capital letters with the expressin cntrl, the name f the target and f the entities that tk cntrl, (ii) the price, number f shares acquired, percentage f wnership previusly held and utcme after the transactin, and (iii) indicatin f the newspaper where the initial ntice was published. Exceptin (ART. 54 B) These rules d nt apply where a change f cntrl takes place thrugh a tender ffer _3_ takever guide - chile page 1

4 CHANGE OF CONTROL THROUGH SHAREHOLDERS AGREEMENT GR 104 states that any sharehlders agreement that may allw its members t btain cntrl f a publicly traded crpratin must be cmmunicated t the SVS and the stck exchanges, as sn as it takes place. The ntice must include at least the fllwing infrmatin: (i) heading in capital letters with the expressin cntrl and the name f the target, (ii) purpse f the intended acquisitin f cntrl and business plan, (iii) the terms and cnditins f the sharehlders agreement, and (iv) the identificatin f the entities that are parties t the sharehlders agreement. OTHER TYPES OF CHANGE OF CONTROL GR 104 establishes that a change f cntrl f the cmpany that, in turn, cntrls a publicly traded crpratin must als be disclsed fllwing the regulatins described abve, mutatis mutandi. If there is a change in the persn r agent thrugh which cntrl is exercised, but there has nt been a change f cntrl in a publicly traded cmpany, the entity that hlds cntrl (r its representative) must disclse this fact t the SVS and the stck exchanges abut the change, including (i) a statement that cntrl is held by the same entity as befre, (ii) an identificatin f the persns thrugh which cntrl is exercised, and (iii) the crrespnding participatin structure. INFORMATION ABOUT CHANGE OF CONTROL GR 104 states that the cmpanies that are subject t a change f cntrl must reprt such change t the SVS and the stck exchanges as sn as they knw abut it. TENDER OFFER FOR THE ACQUISITION OF SHARES Cncept (ART. 198) This refers t an ffer made fr a limited perid f time, thrugh any means, t sharehlders f a crpratin that makes a public ffer f its shares, r t acquire shares f stck r cnvertible securities wned by them and that wuld allw the fferer t reach a certain percentage f the cmpany. The regulatins n tender ffers apply t mandatry as well as t vluntary tender ffers. Mandatry tender ffers (ART. 199) The fllwing acquisitins f shares issued by an pen crpratin that makes public ffer f its shares must be made thrugh a tender ffer: thse that allw the fferer t take cntrl f the target; when the cntrller sharehlders reach tw thirds f the issued shares with vting rights; when a persn takes cntrl f a hlding cmpany f anther crpratin that makes public ffer f its shares, and that represents 75% r mre n the value f the mther cmpany s cnslidated assets; when the persn that tk cntrl acquires 3% r mre f the shares f the crpratin within 12 mnths after the change f cntrl. Hwever, in this case it _3_ takever guide - chile page 2

5 is pssible t acquire mre than the indicated percentage withut the need t make a tender ffer if the acquisitin is made n a stck exchange, pr rata fr the remaining sharehlders, pursuant t the exchange regulatins apprved by the SVS t this effect; any tender ffer made fr a class f shares that has pre-eminence in the cntrl f the crpratin that triggers the bligatin t make a jint tender ffer fr an equivalent percentage fr the remaining classes f shares. Exceptins t the bligatin t make a tender ffer (ART.199) Acquisitins arising frm a capital increase thrugh the issue f new shares, which given their number, allw the acquirer t btain the cntrl f the issuer; acquisitin f shares sld by the cntrlling sharehlders, prvided that: they have stck exchange presence, as defined by the SVS in General Rule Nr Accrding t that rule, a share has stck exchange presence if it is registered in the Securities Registry and is listed n a stck exchange, and if it has an adjusted presence equal r higher than 25%, in accrdance with a stated frmula; the price f the purchase is paid in cash; the price f the shares is nt substantially higher than market price. It is understd that market price is the weighted average price f the shares in stck exchange transactins between 90 and 30 business days prir t the acquisitin date; and price substantially higher than market price is the price that exceeds market price in a percentage that is determined yearly by the SVS, by means f a general rule, and that cannt be lwer than 10% nr higher than 15%. General Rule Nr. 101 f the SVS states that the price is substantially higher than market price if it is exceeded by 10% r mre; acquisitins that take place as a cnsequence f a merger; acquisitins that take place as a cnsequence f a sharehlder s death; acquisitins that arise frm freclsure prceedings; and acquisitins that arise frm preferential rights fr the purchase r sale f shares cntained in sharehlder agreements registered prir t December 20, On January 5, 2001, the SVS frced the cmpanies t infrm abut all sharehlder agreements executed prir t December 20, Purchase made in the suburbs f a tender ffer (ART. 201) In the perid running between 90 days prir and 120 days fllwing a tender ffer, the fferer cannt acquire shares f thse included in the tender ffer with price cnditins that are mre favurable than thse cntemplated in the tender ffer. If that is dne, the sharehlders that tendered their shares in the tender ffer have the right t demand the price difference. In these cases, the fferer and thse wh have benefited, are jintly and severally liable fr payment _3_ takever guide - chile page 3

6 Purchase f shares during the tender ffer perid (ART. 201) During the perid in which the tender ffer is in effect, the fferer cannt acquire shares that are subject t the ffer thrugh private transactins r in lcal r freign stck exchanges. Characteristics f the tender ffer Addressees all the sharehlders f the cmpany r f the applicable series f shares. If the number f tendered shares exceeds the number f shares ffered t be acquired, the fferer must acquire them pr rata t all tenderers; cnditins f the ffer the same cnditins t all sharehlders, including SDR hlders; term nt lwer than 20 nr higher than 30 days (unless the cmpany has issued ADRs, in which case the term must be 30 days). The term can be renewed nly nce fr a minimum f five and a maximum f 15 days; irrevcability the tender ffers are irrevcable. Hwever, the fferer may cntemplate bjective causes fr their failure, which must be clearly included in the prspectus and in the ntice f cmmencement f the tender ffer; amendments t the ffer the tender ffers can be amended during their term nly t imprve the ffered price r t increase the maximum number f shares ffered t be purchased. Any increase in price must als favur thse wh accepted the ffer at the initial price; retractin the acceptance f the ffer may be retracted by the sharehlder until the terminatin f the ffer; guarantee tgether with the ffer, the fferer may include a frmal guarantee f cmpliance, which must be frmalised as set frth in the law. Prcedure f the tender ffer Publicatin the fferer must publish a ntice in tw natinal newspapers including the infrmatin required by the SVS in General Rule Nr. 104; prspectus a prspectus must be made available t interested peple. The prspectus must indicate if the fferer has the purpse f maintaining the crpratin subject t the rules f public crpratins and registered with the SVS; restrictins and bligatins during the tender ffer (ART. 207): prhibitins fr the target cmpany (unless therwise authrised by the SVS): t repurchase shares; t incrprate subsidiaries; t sell assets representing mre than 5% f the value f the assets; t increase its indebtedness in mre than 10% _3_ takever guide - chile page 4

7 bligatin fr the target cmpany t deliver an updated list f sharehlders within tw days frm the publicatin f the ntice; bligatin fr the directrs f the target cmpany t issue a written reprt abut the cnvenience f the tender ffer fr the sharehlders. Such reprts must be made available t the public within five business days after the publicatin f the ntice; ntice f result n the third day after the expiratin date f the tender ffer. Cmpetitive tender ffers (ART. 206) During the term f a tender ffer anther tender ffer may be launched with respect t the same shares. Cmpetitive tender ffers are valid nly if their start ntices are published at least 10 days prir t the date f expiratin f the riginal tender ffer. The fferers in utstanding tender ffers cannt participate in the new tender ffers. Simplified tender ffers The SVS may exempt tender ffers f up t 5% f the shares f the target cmpany frm the bligatin t cmply with certain requirements if such acquisitins are made in a stck exchange and pr rata t all sharehlders, pursuant t the regulatins t be apprved by the SVS t this effect. On January 5, 2001, the SVS issued Ruling Nr. 1,514, which established the requirements t apply t this exceptin: requirements: the acquisitin must be made in a stck exchange; the acquisitin must be made pr rata amng the sharehlders wh tender their shares; the percentage f shares t be acquired must nt allw fr a change f cntrl. exempted bligatins: t make a prspectus; restrictins and bligatins fr the target and its directrs; publicatin f the ntice f result. prcedure: publicatin f a simplified ntice f cmmencement; cmmunicatin f the result t the target, the SVS and stck exchanges; if the ffer is made within 12 mnths after a change f cntrl transactin undertaken by the same persn r related party, the priced ffered cannt be lwer than the price paid in the change f cntrl; _3_ takever guide - chile page 5

8 thse wh make a simplified tender ffer cannt take cntrl r launch a tender ffer at a higher price within the fllwing 120 days. Rules fr ther actrs in the capital markets Fund Managers the managers f funds that are supervised by the SVS may participate as tenderers n behalf f such funds, selling the crrespnding shares and exercising all the rights they are vested with. Intermediaries the transactins arising frm a tender ffer may be traded by brkers utside a stck exchange. ELIMINATING MINORITY SHAREHOLDERS The eliminatin f minrity sharehlders after a change f cntrl r tender ffer prcess is very restrictive. Article 71 bis f Chilean Crpratins Law (Law Nr. 18,046 ) cntains an appraisal right in favur f minrity sharehlders f a publicly traded cmpany if the cntrlling sharehlder acquires mre that 95% f the issued shares. In additin, the bylaws f the cmpany may establish a right in favur f the cntrlling sharehlder t frce the minrity sharehlders that did nt exercise their appraisal right, t acquire their shares, prvided that (i) the percentage f shares higher than 95% was acquired thrugh a tender ffer fr 100% f the issued shares, (ii) in which at least 15% f such shares were acquired frm nn related sharehlders, and (iii) at the same price as the tender ffer _3_ takever guide - chile page 6