The procedure of acquiring a company in Chile has less requirements than other jurisdictions. For example, there are no specific rules for Joint Ventures, there isn’t “stamp taxes” or determined stock exchange filings in connection with the operation, or no previous disclosures required between private companies.
The merger and acquisition operation summary will depend regarding the kind of corporation that will be merged or acquired. Private corporations (Limited Liability Company, Closely Held Corporation, and Simply-held Corporation) have a less regulated procedure. By the other side, Public/Open corporations (Openly-held Corporations, companies ruled by the SVS or in regulated markets) have specific limitations and procedures.
1. Acquisition of a Private Corporation in Chile
Our legislation doesn’t have special or impeding formalities regarding a merge or acquisition done by foreign investors. This applies regardless if the foreign company is acquiring the “economic unit” or only a percentage of shares/participation.
In both cases, the acquisition will most likely be materialized in the subscription of shares, where there is no specific ruling regarding foreign entities. This agreement is mainly governed by the general civil and commercial laws, even thou specific norms for third-party effectiveness must be observed.
Also, it’s important to define how the foreign company will act. There is at least three different options:
1) The Foreign Company will acquire to its name.
2) The Foreign Company will incorporate a subsidiary in Chile, company that will acquire to its name.
3) The partners of the Foreign Company will acquire the Chilean Corporation to their name (foreign natural person).
The mechanism to choose will depend on each particular operation, and will have different accountability and tax effects.
Like in the purchase of shares, the Chilean Merger regulation doesn’t have a conditioned procedure for Foreign Investors. That being said, it’s important to remark that since June 2017, there is an obligation to elaborate a notification towards the Chilean FNE (Fiscalía Nacional Económica) regarding the scheme of operation for those mergers which have an aggregate turnover of $ 70 million USD, between all the parties; or an individual turnover of $ 11.3 million USD, for a minimum of two merging players.
– Dissenting share-holders approval or Eventual Appraisal Rights.
In order to safeguard the shareholders interest, Chilean legislation requires a quorum of 2/3 of the voting shares to sell more than 50 % of the corporation assets, or dissolve, transform, merge or split up the corporation.
This approval must be made in an ordinary o extraordinary shareholders meeting. If approved, the dissenting shareholders have the right to withdraw from the company, by selling their shares to the company itself.
– Internal Revenue Service Inspection
Finally, a merger may or not have a direct tax consequence towards the Chilean IRS (S.I.I.). It’s understood that it won’t have direct tax consequences (tax neutrality) when the merger doesn’t imply a liquidation of the absorbed entity (the Chilean player) and when the absorbing company maintains the Chilean tax cost value registered for the transferred assets. Besides that, the fiscal jurisdiction of the absorbing player must have homologous characteristics.
In line with applying fewer formalities to these operations, Chile doesn’t have a specific regulatory framework for this kind of transactions. Therefore they are treated in compliance with The Foreign Investment Statute (DL 600) or the chapter XIV of the Compendium of Foreign Exchange Regulations (Central Bank).