CHILE Law and Practice Contributed by: Cristián Eyzaguirre Fontaine, Daniela Del Solar Nielsen and Gonzalo Eyzaguirre Alvarado, Eyzaguirre & Cía
tender offer must include, among other infor - mation, the full identification of the offeror and its controlling persons; details of the shares or securities subject to the offer and minimum acceptance thresholds; price and payment terms; the offer duration and acceptance pro - cedures; the offeror’s current shareholding and relationships with major shareholders; financing arrangements; any guarantees; conditions for revocation; identification of managers and advi - sors; and any additional information required by the CMF. The offer shall also mention whether or not the offeror intends to keep the company as a pub - licly traded corporation. Additionally, when presented with a tender offer, each of the board members is required to issue a written report outlining their opinion of the tender offer’s desirability from the company’s shareholders’ point of view. In their reports, each director must state their relationship with the company’s controller and the offeror and any interest they may have in the transaction. These reports and the tender offer prospectus must be made available to the general public. 7.3 Producing Financial Statements Bidders in M&A transactions are required to include pro forma and historical financial state - ments in their disclosure documents. These must be prepared in accordance with IFRS standards for publicly traded corporations. Additionally, under applicable Financial Market Commission ( Comisión para el Mercado Finan- ciero , CMF) regulations, the offeror must also provide a summary of its financial situation for the last two fiscal years, including balance sheet and income statement figures; key indicators of liquidity, solvency, and profitability; a description of its main business activities; any credit ratings
assigned to it or its ultimate controllers, if appli - cable; and whether its securities are listed on any stock exchange. 7.4 Transaction Documents In Chile, transaction documents regarding pub - licly traded companies are not required to be disclosed in full. However, important documen - tation, such as the tender offer prospectus, must be filed with the Financial Market Commission ( Comisión para el Mercado Financiero, CMF ) and made publicly available. These documents are disclosed to provide transparency but are not published in their entirety. In the context of a business combination, direc - tors owe fiduciary duties to the company and its shareholders, primarily the duty of care ( deber de diligencia ) and the duty of loyalty ( deber de lealtad ). These duties require directors to act in good faith, with due diligence and confidential - ity, and in the best interests of the company as a whole rather than serving the interests of any particular shareholder or group. The role of directors in a business combination under Chilean law is more limited compared to the one in the United States of America and oth - er jurisdictions. Directors are not directly respon - sible for negotiating or approving the transaction but are primarily tasked with providing share - holders with the necessary information to allow them to make an informed decision regarding the potential transaction. In this regard, in the con - text of a public tender offer involving a publicly traded company, each director is also required by law to issue an individual report providing their opinion on the offer from the perspective of 8. Duties of Directors 8.1 Principal Directors’ Duties
439 CHAMBERS.COM
Powered by FlippingBook