CHILE Law and Practice Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
(ie, close, or acquire the ability to exercise control) before obtaining the FNE’s clearance. Otherwise, this constitutes gun-jumping infringement for implement - ing a notified concentration prematurely (substantive gun jumping). 2.13 Penalties for the Implementation of a Transaction Before Clearance Penalties for Implementing the Transaction Before Clearance If the parties implement the transaction before clear - ance, the same procedure and penalties for failing to notify apply, as described in 2.2 Failure to Notify . Penalties Imposed for Implementing the Transaction Before Clearance The only precedent involving gun jumping violations ( FNE v Minerva S . A . and JBS S . A ., Case C-346-2018 before the TDLC) involved a transaction that was implemented (whereby Chile was carved out from the international transaction while the foreign holding companies implemented the closing) while FNE clear - ance was still pending. The case was resolved through a settlement, in which the defendants agreed to pay a single sum of up to USD1 million. There are no precedents for sanctions being imposed in the case of foreign-to-foreign transactions, but there could be if a transaction has effects in Chile and is subject to mandatory control. Publicity of Imposed Penalties As the merger control infringements, including gun jumping violations, need to be declared by the TDLC after a public litigation process, all the imposed sanc - tions are made public. 2.14 Exceptions to Suspensive Effect There are no exceptions to the suspensive effect of merger notifications. Accordingly, the parties cannot close or implement the transaction without receiving prior approval. For public bids, it may be advisable to approach the FNE early with a pre-notification (as explained in 3.8 Pre-Notification Discussions With Authorities ) to ensure the merger control process runs as smoothly
and efficiently as possible, bearing in mind that FNE clearance must be obtained before closing. 2.15 Circumstances Where Implementation Before Clearance Is Permitted There are no exceptions that allow the transaction to be closed before clearance. A carve-out does not exempt the parties from their obligation to notify a transaction if it meets the juris - dictional thresholds, nor does it prevent the parties from being found to have engaged in gun-jumping conduct (premature implementation) if the FNE con - cludes that, in practice, decisive influence was exer - cised prior to approval (as in the Minerva / JBS case, explained in 2.13 Penalties for the Implementation of a Transaction Before Clearance ). 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There are no deadlines for notifying a transaction; therefore, the parties may file the notification at any time before closing, as the only requirement is that the transaction that is pending has not been imple - mented. 3.2 Type of Agreement Required Prior to Notification The parties may file a notification from the date on which they have a “serious intention” to execute the transaction regardless of how such intention is mani - fested (in letters of intent, memorandums of under- standing or public announcements of the intention to make a public offer, among others). A binding agree - ment is not required prior to notification. 3.3 Filing Fees There are no filing fees for merger notifications before the FNE. 3.4 Parties Responsible for Filing The parties responsible for filing (notifying parties) are the entities executing the main transaction documents and the entities that execute the transaction through them, regardless of where the entities are incorpo - rated, namely:
74 CHAMBERS.COM
Powered by FlippingBook