SECURITIES AND EXCHANGE COMMISSION
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
DIVISION OF
CORPORATION FINANCE
August 24, 2016
Response of the Office of Mergers and Acquisitions
Division of Corporation Finance
J. Allen Miller
Chadbourne & Parke LLP
1301 Avenue of the Americas
New York, NY 10019
Re:
Enersis Americas S.A. Tender Offer for Shares of Endesa Americas S.A.
Dear Mr. Miller:
We are responding to your letter dated August 24, 2016, addressed to Ted Yu, Christina
Chalk, and Jennifer Lopez-Molina, as supplemented by telephone conversations with the staff, in
regard to your request for exemptive relief. To avoid having to recite or summarize the facts set
forth in your letter, we attach the enclosed copy of your letter, as well as a copy of the
accompanying letter from Chilean counsel, Cariola Diez Perez-Cotapos & Cia. Unless otherwise
noted, capitalized terms in this response letter have the same meaning as in your August 24, 2016
letter.
On the basis of the representations and the facts presented in your letter, the Division of
Corporation Finance, acting for the Commission pursuant to delegated authority, by separate
order is granting an exemption from Exchange Act Rule 14e-5. This exemptive relief permits
the purchase or an arrangement to purchase Endesa Americas Shares subject to the Tender Offer,
other than pursuant to the Tender Offer, to the extent that the Merger and the exercise of
statutory merger dissenters' withdrawal rights under Chilean law could be deemed to be a
prohibited purchase or arrangement to purchase Endesa Americas Shares under Exchange Act
Rule 14e-5.
In granting this relief, we note the following:
•
The Merger and Tender Offer are both part of the Reorganization of certain Chilean
electricity generation and distribution companies to separate the Chilean and non-Chilean
electricity generation and distribution businesses of Enersis Americas, Endesa Chile, and
Chilectra;
J. Allen Miller
Chadbourne & Parke LLP
August 24, 2016
Page2
•
The Reorganization consists of (i) the Spin-offs of Enersis Chile, Endesa Americas, and
Chilectra Americas and (ii) the Merger and the related Tender Offer;
•
Shareholders of Enersis Americas, Endesa Chile and Chilectra approved the Spin-Offs as the
first step in the Reorganization in December 2015, with trading of the shares of the spun-off
companies shares starting on April 21, 2016;
•
In accordance with Chilean law, the Merger requires the separate vote of the shareholders of
Endesa Americas, Chilectra Americas and Enersis Americas following the Spin-offs. Enersis
Americas has filed a registration statement on Form F-4 which includes a prospectus for the
shares to be issued in the Merger and the information statement in connection with the vote
on the Merger;
•
Chilean law provides statutory merger dissenters' withdrawal rights in the Merger.
Shareholders who exercise these rights in the Merger would receive a cash payment based
on the weighted average trading price of Endesa Americas Shares during a specified period
prior to the shareholder meeting to vote on the Merger;
•
The Tender Offer is intended to protect the minority shareholders of Endesa Americas who
may want to dissent with respect to the Merger by providing them a fixed cash alternative for
their Endesa Americas Shares rather than a cash price to be determined using a formula
based on future trading prices, given the fact that at the time the Reorganization was
announced, Endesa Americas did not exist and had no trading market for its shares;
•
All shareholders ofEndesa Americas (including holders of ADSs) will have equal
opportunity to choose among three alternatives in connection with the Merger: (i) participate
in the Merger and receive shares (or ADSs) of Enersis Americas in exchange for their Endesa
Americas Shares; (ii) dissent with respect to the Merger and exercise their statutory merger
dissenters' withdrawal rights as provided under Chilean law; or (iii) tender their Endesa
Americas Shares in the Tender Offer and receive the Tender Offer Price in cash;
•
All shareholders of Endesa Americas will be provided with disclosures about the Merger, the
Tender Offer, and each of the alternatives described above prior to the shareholder meeting
to vote on the Merger, including through the Prospectus/Information Statement and U.S.
Offer documents;
•
Shareholder approval of the Merger will be required under Chilean law regardless of the
outcome or progress of the Tender Offer;
•
The Tender Offer Price is fixed and, at the time the Tender Offer is launched, the price to be
paid to shareholders exercising their statutory merger dissenters' withdrawal rights will have
J. Allen Miller
Chadbourne & Parke LLP
August 24, 2016
Page 3
been determined and fixed pursuant to Chilean law, the Merger exchange ratios will have
been determined, and such information will have been disclosed;
•
The Tender Offer will be launched contemporaneously with the distribution of the final
Prospectus/Information Statement in advance of the shareholder meeting to approve the
Merger;
•
The Tender Offer is eligible to be conducted in reliance on the Tier II cross-border
exemptions provided in Exchange Act Rule 14d-l(d); and
•
Except for the relief from Exchange Act Rule 14e-5 described herein, the Tender Offer made
to U.S. shareholders will comply with all applicable provisions of Regulations 14D and 14E
and Rule 13e-3 under the Exchange Act.
The foregoing exemptive relief is based solely on the representations and the facts
presented in your letter dated August 24, 2016 and does not represent a legal conclusion with
respect to the applicability of the statutory or regulatory provisions of the federal securities laws.
The relief is strictly limited to the application of the rule listed above to this transaction. You
should discontinue this transaction pending further consultations with the staff if any of the facts
or representations set forth in your letter change. In addition, this position is subject to
modification or revocation if at any time the Commission or the Division of Corporation Finance
determines that such action is necessary or appropriate in furtherance of the purposes of the
Exchange Act.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the
federal securities laws, including Sections 1O(b) and 14(e) of the Exchange Act and Rule 1Ob-5
thereunder. Responsibility for compliance with these and any other applicable provisions of the
federal securities laws rests with the participants in this transaction. The Division of Corporation
Finance expresses no view with respect to any other questions that this transaction may raise,
including, but not limited to, the adequacy of the disclosure concerning, and the applicability of
any other federal or state laws to, this transaction.
Sincerely,
Ted Yu
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance
Enclosures
UNITED STATES OF AMERICA
BEFORE THE
SECURITIES AND EXCHANGE COMMISSION
August 24, 2016
In the Matter of a Tender Offer for
Shares of Endesa Americas S .A.
ORDER GRANTING EXEMPTION FROM
EXCHANGEACTRULE 14E-5
Enersis Americas S.A. submitted a letter dated August 24, 2016 requesting that the
Securities and Exchange Commission ("Commission") grant an exemption from Exchange Act
Rule 14e-5 for the transaction described in its letter ("Request").
Based on the representations and the facts presented in the Request, and subject to the terms
and conditions described in the letter from the Division of Corporation Finance dated August 24,
2016, it is ORDERED that the request for an exemption from Exchange Act Rule 14e-5 is hereby
granted.
For the Commission, by the Division of Corporation Finance, pursuant to delegated
authority.
Brent J. Fields
Secretary
Action as set forth or recommended herein APPROVED
pursuant to authority delegated by the Commission under
Public Law 87-592.
For: Division of Corporation Finance
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Date
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chadbOurne
Chadbourne & Parke LLP
1301 Avenue of the Americas
New York, NY 1001 9
telephone: (212) 408-51 00
August 24, 2016
U.S. Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N .E.
Washington, D.C. 20549
Attn:
Ted Yu, Esq., Chief, Office of Mergers and Acquisitions
Christina Chalk, Esq., Senior Special Counsel, Office of Mergers and Acquisitions
Jennifer Lopez-Molina, Esq., Attorney-Adviser, Office of Mergers and Acquisitions
Re: Merger of Endesa Americas S.A. and Chilectra Americas S.A. with
Enersis Americas S.A. and Tender Offer by Enersis Americas S.A. for
All Outstanding Shares ofEndesa Americas S.A.
Ladies and Gentlemen:
We are writing on behalf of Enersis Americas S.A., a Chilean company formerly known
as Enersis S.A. ("Enersis Americas"), and Endesa Americas S.A., a Chilean subsidiary of
Enersis Americas ("Endesa Americas"), in connection with (i) the proposed merger of Endesa
Americas and Chilectra Americas S.A. ("Chilectra Americas") with and into Enersis Americas
(the "Merger"), with Enersis Americas as the surviving company continuing under the name
Enersis Americas S.A. (the "Surviving Company"), and (ii) the proposed dual tender offer by
Enersis Americas in the U.S. and Chile for all outstanding shares ofEndesa Americas ("Endesa
Americas Shares") (including in the form of American Depositary Shares ("ADSs")) not owned
by Enersis Americas (the "Tender Offer") at the tender offer price of Ch$ 285 per share (the
"Tender Offer Price").
The Merger and the Tender Offer are both part of a reorganization (the "Reorganization")
of certain Chilean electricity generation and distribution companies ultimately controlled by
Enel S.p.A., an Italian electricity and generation company ("Enel"), to separate the Chilean and
non-Chilean electricity generation and distribution businesses ofEnersis Americas, Empresa
Nacional de Electricidad S.A. ("Endesa Chile") and Chilectra S.A. ("Chilectra"). The
Reorganization consists of (i) the spin-off by Enersis Americas of Enersis Chile S.A. ("Enersis
Chile"), the spin-off by Endesa Chile ofEndesa Americas and the spin-off by Chilectra of
Chilectra Americas (collectively, the "Spin-Offs") and (ii) the Merger and the related Tender
Offer.
The Reorganization is a transaction that involves the planned merger of a spin-off entity
(Endesa Americas) that was initially announced on April 22, 2015, before the spin-off had been
approved or the spin-off entity existed. Under Chilean law, the merger requires the separate vote
of the shareholders following the spin-off, and there was concern that the normal minority
protection mechanism in a merger provided by Chilean statute (namely the cash payment upon
exercise of statutory merger dissenters' withdrawal rights based on a pre-merger market trading
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U.S. Securities and Exchange Commission
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August 24, 2016
formula), would not provide adequate protection for the minority shareholders who wished to
dissent from the merger because Endesa Americas did not have an established trading market for
its shares before the Spin-Off. The cash amount payable upon exercise of statutory merger
dissenters' withdrawal rights is based on the weighted average trading prices ofEndesa
Americas Shares during a specified period prior to the shareholders' meeting to vote on the
Merger. As a result, the transaction was structured to add the Tender Offer to the Merger to
address these concerns.
The Merger and related Chilean component of the Tender Offer are Chilean transactions
(i) among Chilean companies, (ii) governed by Chilean statutory provisions, (iii) involving
Chilean minority shareholder protections, (iv) scrutinized as related party transactions under
Chilean law and (v) overseen by the Superintendencia de Valores y Seguros, the Chilean
securities commission (the "SVS"). The U.S. interest in these Chilean transactions is limited.
As discussed in Section LB., based on the analysis of holders resident in the United States under
the rules of the Securities and Exchange Commission (the "Commission"), Enersis Americas
believes that non-U.S. resident ownership ofEndesa Americas Shares is over 92% of total
outstanding shares of Endesa Americas (including as outstanding all shares underlying ADSs and
all shares owned by Enersis Americas) or approximately 83% of the unaffiliated free float
(excluding Enersis Americas' 59.98% interest).
Shareholders of Enersis Americas, Endesa Chile and Chilectra approved the Spin-Offs of
Enersis Chile, Endesa Americas and Chilectra Americas as the first step of the Reorganization in
December 2015. The distribution of the shares in the Spin-Offs was completed, and trading of
the spin-off company shares began, on April 21, 2016. In the second step of the Reorganization,
the shareholders of Endesa Americas would be provided with three alternatives with respect to
their Endesa Americas Shares in connection with the Merger:
•
Participate in the Merger and receive shares of the Surviving Company in exchange for their
Endesa Americas Shares;
•
Dissent with respect to the Merger and exercise their statutory merger dissenters' withdrawal
rights provided under Chilean law and receive a formula price specified by Chilean law in
cash in exchange for their Endesa Americas Shares 1; or
"Dissenting" shareholders are defined as those who at a shareholders' meeting vote against
the Merger, or who if absent from such meeting, state in writing their opposition to the
(Cont'd on following page)
U.S. Securities and Exchange Commission
•
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August 24, 2016
Tender their Endesa Americas Shares in the Tender Offer and receive the Tender Offer Price
in cash.
All Endesa Americas shareholders (other than Enersis Americas) would have the opportunity to
elect any of the three alternatives and would be provided with disclosure about each of the
alternatives prior to the extraordinary shareholders' meetings ofEnersis Americas, Endesa
Americas and Chilectra Americas to vote on the Merger, currently expected to be held on
September 28, 2016.
Enersis Americas has filed a Registration Statement on Form F-4 (Registration No. 33321405), as amended (the "Registration Statement"), under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), in order to register certain Enersis Americas shares being
offered as consideration in the Merger. The Registration Statement includes a combined
prospectus for the shares of Enersis Americas to be issued to Endesa Americas shareholders in
the Merger and information statements for the respective extraordinary shareholders' meetings of
Enersis Americas and Endesa Americas to vote on the Merger (the "Prospectus/Information
Statement").
As set forth in the tentative timetable attached hereto as Exhibit A, Enersis Americas
proposes to launch the Tender Offer contemporaneously with the distribution of the
Prospectus/Information Statement included in the Registration Statement following effectiveness
of the Registration Statement. The purpose of the timing is to provide Endesa Americas
shareholders with information with respect to the Merger, the Tender Offer and the Chilean
statutory merger dissenters' withdrawal rights before they vote on the Merger.
I.
Relief Requested
We respectfully request on behalf of Enersis Americas that the staff of the Division of
Corporation Finance (the "Staff') of the Commission grant exemptive relief from the provisions
of Rule 14e-5 under the U.S. Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to permit the purchase or an arrangement to purchase Endesa Americas Shares subject to
(Cont'd from preceding page)
Merger, within the 30-calendar-day period following the shareholders' meeting. Shareholders
present or represented at the meeting and who abstain in exercising their voting rights shall
not be considered as dissenting.
U.S. Securities and Exchange Commission
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August 24, 2016
the Tender Offer, other than pursuant to the Tender Offer, to the extent that the Merger and the
exercise of statutory merger dissenters' withdrawal rights made available under Chilean law
could be deemed to be a prohibited purchase or arrangement to purchase Endesa Americas
Shares under Rule 14e-5.
II.
Background
A.
Enersis Americas
Enersis Americas is a company organized under the laws of the Republic of Chile and is
a "foreign private issuer" as defined in Rule 3b-4(c) under the Exchange Act. Enersis Americas'
ADSs ("Enersis Americas ADSs") and debt securities are registered under Section 12(b) of the
Exchange Act and traded on the New York Stock Exchange (the "NYSE"). Shares of Enersis
Americas trade on the Santiago Stock Exchange, the Chilean Electronic Stock Exchange and the
Valparaiso Stock Exchange (collectively, the "Chilean Stock Exchanges"). Enel has indirect
beneficial ownership of 60.6% of Enersis Americas.
B.
Endesa Americas
Endesa Americas is a company organized under the laws of the Republic of Chile and is a
"foreign private issuer" as defined in Rule 3b-4(c) under the Exchange Act. The distribution of
the shares of Endesa Americas in the Spin-Off from Endesa Chile was completed, and the
trading of its shares and ADSs commenced, on April 21, 2016 as part of the Reorganization.
Endesa Americas' ADSs are registered under Section 12(b) of the Exchange Act and traded on
the NYSE. Since April 21, 2016, Endesa Americas Shares have been trading on the Chilean
Stock Exchanges and Endesa Americas ADSs have been trading on the NYSE. Enersis
Americas has direct beneficial ownership of 59.98% of Endesa Americas.
In accordance with the instructions to Rules 14d-l (c) and (d) under the Exchange Act,
Enersis Americas, with the assistance of Georgeson Inc., a shareholder consultancy firm,
performed an analysis of (i) the holders of shares and ADSs of Endesa Chile (the company from
which Endesa Americas was spun-off) resident in the United States ("U.S. Residents") as of
November 20, 2015, the most recent practicable date before public announcement of the Tender
Offer on November 24, 2015, and (ii) the U.S. Resident holders ofEndesa Americas Shares and
Endesa Americas ADSs as of April 29, 2016, the most recent practicable date after the initial
trading of Endesa Americas Shares commenced.
Based on such inquiry, as of November 20, 2015, Endesa Chile shares represented by
ADSs represented approximately 3.99% of the total issued and outstanding Endesa Chile shares.
Approximately 3.1 % of the total issued and outstanding Endesa Chile shares were held by U.S.
Residents in the form of shares and not ADSs, almost entirely through Chilean custodial
U.S . Securities and Exchange Commission
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August 24, 2016
accounts required for foreign investors in Chile for tax purposes. Excluding Endesa Chile shares
held by Enersis Americas, which represented 59.98% of the total issued and outstanding Endesa
Chile shares, and treating all ADSs as held by U.S. Residents, U.S. Resident holders ofEndesa
Chile shares and ADSs represented approximately 17.84% of the unaffiliated free float. Of the
17.84% of the unaffiliated free float, approximately 9.96% are in the form of ADSs and the
remaining 7.88% are in the form of shares.
Based on such inquiry, as of April 29, 2016, Endesa Americas Shares represented by
ADSs represented approximately 3.5% of the total issued and outstanding Endesa Americas
Shares. Approximately 3 .1 % of the total issued and outstanding Endesa Americas Shares were
held by U.S. Residents in the form of shares and not ADSs, almost entirely through Chilean
custodial accounts required for foreign investors in Chile for tax purposes. Excluding Endesa
Americas Shares held by Enersis Americas, which represent 59.98% of the total issued and
outstanding Endesa Americas Shares, and treating all ADSs as held by U.S. Residents, U.S.
Resident holders ofEndesa Americas Shares and ADSs represented approximately 16.5% of the
unaffiliated free float. Of the 16.5% of the unaffiliated free float, approximately 8.74% are in the
form of ADSs and the remaining 7.76% are in the form of shares.
C.
Chilectra Americas
Chilectra Americas is a company organized under the laws of the Republic of Chile. The
distribution of the shares of Chilectra Americas in the Spin-Off from Chilectra was completed,
and the trading of its shares commenced, on April 21, 2016 as part of the Reorganization. Since
April 21, 2016, Chilectra Americas shares have been trading on the Chilean Stock Exchanges.
Chilectra Americas' shares are not registered under the Exchange Act, are not represented by
ADSs and not traded on any U.S. stock exchange. Enersis Americas has direct beneficial
ownership of 99 .1 % of Chilectra Americas.
III.
Description of the Merger and the Tender Offer
A.
The Merger
1.
General
The Merger is intended to combine all the non-Chilean businesses formerly held by
Enersis Americas, Endesa Chile and Chilectra prior to the Spin-Offs in a single entity as the
second step of the Reorganization. Holders of Endesa Americas and Chilectra Americas shares
or ADSs will receive shares or ADSs of the Surviving Company, as applicable, pursuant to a
specified merger exchange ratio that will be approved by the shareholders at the shareholders'
meetings to approve the Merger, currently scheduled for September 28, 2016. Preliminary
information regarding the Merger and the Tender Offer was provided to the market, the
U.S. Securities and Exchange Commission
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August 24, 2016
shareholders ofEnersis Americas, Endesa Chile and Chilectra and the SVS, prior to the
shareholders' meetings held on December 18, 2015 to approve the Spin-Offs. At the time, the
shareholders were advised that the Merger would be subject to separate shareholder votes of the
shareholders of the parties to the Merger, including Endesa Americas and Chilectra Americas,
which, as spin-off companies, had not yet come into existence.
As disclosed in the Registration Statement, the Merger will be conducted by means of a
statutory merger under Chilean law but requires the approval of the shareholders of Enersis
Americas, Endesa Americas and Chilectra Americas at their respective shareholders' meetings.
In addition, the Merger will only be consummated if:
•
the Merger is approved by holders of two-thirds of the outstanding voting shares of
each of Enersis Americas, Endesa Americas and Chilectra Americas;
•
shareholders who exercise statutory merger dissenters' withdrawal rights constitute
less than (i) 10% of the outstanding shares ofEnersis Americas, provided that no
shareholder will own more than 65% of the outstanding shares ofEnersis Americas
after the Merger (which was set as a result of requests by Chilean minority
shareholders that were made public), (ii) 10% of the outstanding shares of Endesa
Americas and (iii) 0.91 % of the outstanding shares of Chilectra Americas (which
represents all the shares not owned by Enersis Americas as the controlling
shareholder); and
•
Enersis Americas obtains registrations and approvals that are preconditions to the
issuance and listing by Enersis Americas of the shares to be exchanged for shares of
Endesa Americas and Chilectra Americas in the Merger.
2.
Statutory Merger Dissenters' Withdrawal Rights
Shareholders of Enersis Americas, Endesa Americas and Chilectra Americas that do not
wish to participate in the Merger may exercise statutory merger dissenters' withdrawal rights
pursuant to Chilean law. The statutory merger dissenters' withdrawal right is a right provided
under Chilean law that allows dissenting shareholders in a merger to receive a cash payment
equal to the weighted average market price of the shares over a 60 Chilean trading-day period
falling between the 30th and 90th Chilean trading days prior to the shareholders' meeting to
approve the merger, in exchange for the dissenting shareholder's shares. Under Chilean law, a
shareholder who dissents from the approval of a merger may exercise statutory merger
dissenters' withdrawal rights at any time during a 30-calendar-day period following the
shareholders' meeting that approves the merger, and payment must be made to such exercising
shareholder within 30 calendar days of the end of statutory merger dissenters' withdrawal rights
U.S. Securities and Exchange Commission
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August 24, 2016
exercise period. A shareholder that elects to exercise statutory merger dissenters' withdrawal
rights must provide a written notice of such intent to the company during the prescribed exercise
period. Statutory merger dissenters' withdrawal rights may only be exercised by a shareholder of
the Chilean company. Holders of ADSs must withdraw their shares from the ADSs and become
shareholders of the Chilean company in order to exercise statutory merger dissenters' withdrawal
rights. At the time the final Prospectus/Information Statement and other materials for the
shareholders' meetings to vote on the Merger are distributed, the statutory merger dissenters'
withdrawal rights prices will be known and will be included in those shareholders' meeting
materials.
B.
The Tentler Offer and the Tender Offer Price
1.
General
As further discussed below, the Tender Offer (i) will be conducted as a dual tender offer
in both the United States and Chile at the same Tender Offer Price, (ii) will have substantially
identical terms and (iii) will be conducted, subject to limited exceptions, with substantially
identical procedures. Furthermore, based on analysis and calculations of U.S. Resident
ownership ofEndesa Americas Shares (including in the form of ADSs), Enersis Americas is of
the view that the Tender Offer will qualify for relief from the tender offer rules under the
Exchange Act provided by Rule l 4d-1 (d) under the Exchange Act in accordance with Instruction
2 to paragraphs (c) and (d) of Rule 14d-l ("Tier II Relief'). The consummation of the Tender
Offer will be contingent, among other things, on the approval of the Merger by the relevant
shareholders at the extraordinary shareholders' meetings and satisfaction of the same statutory
merger dissenters' withdrawal rights condition to the Merger. The Tender Offer is proposed to be
launched contemporaneously with the distribution of the final Prospectus/Information Statement
in advance of the extraordinary shareholders; meetings of Enersis Americas, Endesa Americas
and Chilectra Americas to approve the Merger.
The Tender Offer was introduced into the Reorganization transaction structure in late
November 2015,just prior to the extraordinary shareholders' meetings ofEnersis, Endesa Chile
and Chilectra held in December 2015, to address a specific concern arising out of the unique
transaction structure of the Reorganization and the interplay with the Chilean statutory merger
dissenters' withdrawal rights in the Merger.
Under the Chilean Companies Act, the cash payment to be received by dissenting
shareholders exercising their statutory merger dissenters' withdrawal rights in the Merger is
based on the weighted average of the closing prices of the Endesa Americas Shares during the
60-trading-day period between the 30th and the 90th trading days prior to the extraordinary
shareholders' meeting to approve the Merger. However, Endesa Americas would not exist until
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August 24, 2016
the future contemplated Spin-Offs were completed, and as such there was no trading market at
the time the proposed Reorganization was announced to serve as a point of reference for
shareholders. There was concern raised by certain minority shareholders of Endesa Chile, before
the approval of the Spin-Offs in December 2015, that the market price ofEndesa Americas
Shares could be more vulnerable to market fluctuations and uncertainties because of, among
other reasons, its expected lower liquidity due to the pendency of the Merger.
In response to such concerns, the Board of Directors ofEnersis Americas proposed in
November 2015 to include the Tender Offer as an ancillary transaction to the Merger to provide
additional protection to the post-Spin-Off minority shareholders of Endesa Americas in
connection with the Merger. Specifically, the Tender Offer Price establishes a fixed cash value
that minority holders ofEndesa Americas Shares and Endesa Americas ADSs could obtain if
they preferred a cash alternative to the consideration to be provided in the Merger.
The initial proposed tender offer price of Ch$ 236 per share of Endesa Americas that was
announced on November 24, 2015, was determined based on the average share price ofEndesa
Chile for the prior three months and weighted by the relative contribution of the non-Chilean
businesses (that would be contributed to Endesa Americas in the Spin-Offs) to the value of
Endesa Chile estimated by the financial advisor to the Directors' Committee of Endesa Chile.
The Tender Offer Price of Ch$ 285 per share was determined following requests by Chilean
minority shareholders of Endesa Chile that were made public and represents a premium of
approximately 20% over the initial proposed tender offer price.
In November 2015, the Board of Directors ofEnersis Americas agreed and publicly
announced that Enersis Americas would conduct the Tender Offer at an initial proposed tender
offer price of Ch$ 236 per share. The Tender Offer Price was subsequently increased and the
increased price was announced in December 2015, immediately prior to the shareholders'
meetings held on December 18, 2015. Preliminary information regarding the Tender Offer
(including the Tender Offer Price), as well as the Merger, and Enersis Americas' commitment to
conduct the Tender Offer at the Tender Offer Price, was provided to the market, the shareholders
ofEnersis Americas and Endesa Chile and the SVS prior to the shareholders' meetings held on
December 18, 2015 to approve the Spin-Offs. At the time, Endesa Americas had not yet come
into existence.
The distribution of Endesa Americas Shares in the Spin-Off was completed, and the
trading in the Endesa Americas Shares and ADSs commenced, on April 21, 2016. As of
August 4, 2016, the closing price of Endesa Americas Shares on the Santiago Stock Exchange
was Ch$ 310.67 per share; the Tender Offer Price is Ch$ 285 per share.
U.S. Securities and Exchange Commission
2.
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August 24, 2016
Regulation of the Tender Offer
A.
Chilean Law
Chile has adopted laws governing tender offers for Chilean companies. The SVS has
authority to regulate the Chilean Offer. We have been advised that pursuant to Chilean law,
tender offers must be addressed to all shareholders of the subject company on equal terms, and
therefore, Enersis Americas cannot exclude U.S. Resident holders ofEndesa Americas Shares
from the tender offer in Chile (the "Chilean Offer").
We have also been advised that Chilean law requires that any person seeking to acquire
shares of a Chilean listed corporation by means of a tender offer must make the offer to all
shareholders on the same conditions and must comply with other applicable requirements of the
Chilean Securities Act.
B.
Dual Tender Offer Structure Under Tier II Relief
Enersis Americas has determined to conduct the Tender Offer by means of (i) the Chilean
Offer in Chile to all minority holders ofEndesa Americas Shares (including U.S. Resident
holders) regardless of residency and (ii) a tender offer in the United States to U.S. Resident
holders of Endesa Americas Shares and any holders of Endesa Americas ADSs, regardless of
residency (the "U.S. Offer"). The Chilean Offer and the U.S. Offer will have substantially
identical terms and will be conducted, subject to limited exceptions, with substantially identical
procedures.
Based on its analysis of U.S. Resident shareholders ofEndesa Americas, Enersis
Americas believes that the U.S. Offer would be eligible for Tier II Relief.
IV.
Proposed Timing of the Merger and Tender Offer
As described in the tentative timetable attached hereto as Exhibit A, Enersis Americas
proposes to launch the Tender Offer contemporaneously with the distribution of the
Prospectus/Information Statement included in the Registration Statement. The purpose of the
timing is to provide Endesa Americas shareholders with information with respect to the Merger,
the Tender Offer and the Chilean statutory merger dissenters' withdrawal rights before they vote
on the Merger. Furthermore, both the U.S. Offer documents and the Prospectus/Information
Statement will contain information regarding the relationship between the Merger and the Tender
Offer, including the three alternatives that are available to Endesa Americas minority
shareholders in connection with the Merger.
U.S. Securities and Exchange Commission -10-
August 24, 2016
Specifically, these alternatives are for Endesa Americas minority shareholders to:
1. participate in the Merger and receive shares or ADSs of the Surviving Company, as
applicable;
2. dissent with respect to the Merger and exercise statutory merger dissenters'
withdrawal rights provided under Chilean law and receive specified formula price in
cash (which is expected to be known by the time the Prospectus/Information
Statement is distributed); or
3. tender Endesa Americas Shares or Endesa Americas ADSs in the Tender Offer and
receive the Tender Offer Price in cash.
The intent is to provide Endesa Americas shareholders with all the necessary information
with respect to the Merger, the Tender Offer and the Chilean statutory merger dissenters'
withdrawal rights (including then current market prices, the statutory merger dissenters'
withdrawal rights prices and any material tax effects) before the vote on the Merger so that they
can make a fully informed investment decision in connection with the Merger.
As described in the tentative timetable attached hereto as Exhibit A, during the Tender
Offer period, the _extraordinary shareholders' meetings to approve the Merger would occur and
Endesa Americas shareholders would be entitled to exercise their statutory merger dissenters'
withdrawal rights under Chilean law. However, the actual payment of the cash amounts for
exercises of statutory merger dissenters' withdrawal rights in exchange for Endesa Americas
Shares and the effective date of the Merger each would not occur until after the purchase of
Endesa Americas Shares and Endesa Americas ADSs tendered in the in the Tender Offer has
occurred. As a result, no "purchase" of Endesa Americas Shares (as defined in Rule 14e-5) other
than in the Tender Offer would occur during the Tender Offer period.
V.
Discussion of Rule 14e-5 Relief
A.
Rule 14e-5
Subject to certain exceptions, Rule 14e-5 under the Exchange Act provides that any
"covered person" is prohibited from directly or indirectly purchasing or arranging to purchase
any securities subject to a tender offer, except pursuant to such tender offer. Rule 14e-5 defines a
"covered person" as (i) the offeror and its affiliates, (ii) the offeror' s dealer-manager and its
affiliates, (iii) any advisor to the parties described in (i) and (ii) above, whose compensation is
dependent on the completion of the tender offer, and (iv) any person acting, directly or indirectly,
in concert with any of the foregoing in connection with any purchase or arrangement to purchase
U.S. Securities and Exchange Commission -11-
August 24, 2016
any securities subject to a tender offer or any related securities. This prohibition applies from the
time the tender offer is first publicly announced until the tender offer expires.
We understand that the Staff has expressed the view that filing a definitive proxy
statement for the solicitation of shareholder approval for a merger during the pendency of a
tender offer may under certain circumstances constitute an "arrangement to purchase" securities
and a potential violation of Rule 14e-5. In the context of the Merger, by analogy to the Staffs
definitive proxy statement position, we understand that the Staff may view the effectiveness of
the Registration Statement and the distribution of the final Prospectus/Information Statement
included in the Registration Statement to shareholders and ADS holders of Enersis Americas and
Endesa Americas in connection with the Merger as an "arrangement to purchase" Endesa
Americas Shares and Endesa Americas ADSs. Similarly, we understand that the Staff may view
the exercise of statutory merger dissenters' withdrawal rights by Endesa Americas shareholders
as an "arrangement to purchase" Endesa Americas Shares by Endesa Americas, as an affiliate of
Enersis Americas subject to Rule 14e-5.
Based on such views, Rule 14e-5 could be interpreted to prohibit (i) Enersis Americas
from having the Registration Statement declared effective and distributing the final
Prospectus/Information Statement in connection with the Merger contemporaneously with the
launch of the Tender Offer and holding the extraordinary shareholders' meetings to vote on the
Merger, as Enersis Americas proposes to do, and (ii) Endesa Americas shareholders from
exercising their statutory merger dissenters' withdrawal rights pursuant to Chilean law prior to
the end of the Tender Offer period.
B.
Exemptive Relieffor the Merger and Exercise of Chilean Statutory Merger
Dissenters' Withdrawal Rights
Enersis Americas believes that the Merger and the exercise of the Chilean statutory
merger dissenters' withdrawal rights merit deference to Chilean laws applicable to the Merger,
the Tender Offer ·and the statutory merger dissenters' withdrawal rights in the same manner as
the Commission has provided for deference to home country laws in certain exceptions to Rule
14e-5, such as the exceptions provided by Rules 14e-5(b)(10) and (11). The Merger and the
Chilean Offer are governed by Chilean law. We are advised that Chilean tender offer rules
include a rule similar in many respects to Rule 14e-5 that prohibits purchases of shares outside of
a tender offer in Chile. We are also advised that under Chilean law, the Merger and the exercise
of statutory merger dissenters' withdrawal rights would not be considered prohibited purchases
that would be restricted while the Chilean Offer is open. Moreover, the actual exchange of the
shares under the Merger and purchase of shares under the withdrawal rights will occur only after
the Tender Offer is closed.
U.S. Securities and Exchange Commission -12-
August 24, 2016
In addition, even if the Merger and the exercise of the statutory merger dissenters'
withdrawal rights were subject to Rule 14e-5, the Merger and the Tender Offer do not implicate
the discrimination or manipulation concerns Rule 14e-5 was adopted to address. As noted in the
Rule 14e-5 adopting release, Rule 14e-5 is designed to prevent fraudulent, deceptive or
manipulative acts or practices in connection with a tender offer for equity securities "by
preventing an offeror from extending greater or different consideration to some security holders
outside the offer, while other security holders are limited to the offer's terms." 2 The Merger, the
exercise of statutory merger dissenters' withdrawal rights and the Tender Offer do not implicate
concerns related to fraudulent, deceptive or manipulative acts or practices because, in the
proposed transaction all minority holders of Endesa Americas Shares and Endesa Americas
ADSs (i) will be able to participate in the Tender Offer and the Merger, (ii) will be able to
exercise statutory merger dissenters' withdrawal rights, if they choose to dissent, and (iii) will
receive disclosure about the Merger and the Tender Offer before they vote on the Merger. In
addition, the Tender Offer was introduced to the Reorganization by Enersis Americas at the
suggestion of minority shareholders to provide additional protections for all minority
shareholders. Furthermore, the underlying policy concern of Rule 14e-5 that purchases outside
the tender offer could manipulate the market price in a manner that could have negative impacts
on the tender offer are not applicable in connection with the Tender Offer and the Merger. At the
time the Tender Offer is launched, the price to be paid to shareholders exercising their statutory
merger dissenters' withdrawal rights will have been determined and fixed pursuant to Chilean
law, the merger exchange ratios will have been determined and such information will have been
disclosed. As a result, there would not be the same manipulation concerns that underlie the
policy rationale of Rule 14e-5 because the investing public will have received information as to
the "true state of affairs." 3
2
See Section II.C.l of the "Cross-Border Tender and Exchange Offers, Business
Combinations and Rights Offerings", Release Nos. 33-7759, 34-42054; 39-2378,
International Series Release No. 1208 (the ''Cross-Border Release").
See Securities Exchange Act Release No. 34-8712 (October 8, 1969) (adopting Rule lOb-13,
the predecessor rule to Rule 14e-5): "[I]rrespective of the price at which such purchases
[outside the tender offer] are made, they are often fraudulent or manipulative in nature and
they can deceive the investing public as to the true state of affairs."
U.S. Securities and Exchange Commission -13-
August 24, 2016
The fundamental purpose of the Tender Offer is to serve as a protection for the minority
shareholders of Endesa Americas by providing them a fixed cash alternative for their Endesa
Americas Shares, given the fact that at the time the Reorganization was announced Endesa
Americas did not exist and had no trading market. Unlike typical tender offers, the Tender Offer
is not intended to allow Enersis Americas to acquire (i) additional control in order to avoid the
need to obtain shareholder approval for the Merger or (ii) additional voting power in order to
influence the shareholder vote regarding the Merger. The Merger and the Tender Offer are not
structured as a typical two-step acquisition with an initial tender offer followed by a short-form
merger. Shareholder approval of the Merger will be required under Chilean law regardless of the
outcome or progress of the Tender Offer. In fact, acquiring Endesa Americas Shares in the
Tender Offer would not allow Enersis Americas to influence the shareholder vote on the Merger
because it would not acquire any additional shares or voting power in Endesa Americas until
after the shareholders' meeting to vote on the Merger, given that the closing of the Tender Offer
occurs well after the date of the shareholders' meeting.
In addition, there is little risk for shareholder confusion because Enersis Americas and
Endesa Americas have been transparent about the inclusion of the Tender Offer as part of the
overall Reorganization. Preliminary information regarding the Tender Offer and the Tender
Offer Price was presented to shareholders of Endesa Chile as part of the shareholder approval of
the Spin-Offs on December 18, 2015, before Endesa Americas (the target company) even existed
as a post spin-off entity. There will be disclosure about the interconnections between the Merger
and the Tender Offer, including the alternatives that are available to Endesa Americas
shareholders, in all relevant documentation, and such information will be provided to holders of
Endesa Americas Shares and Endesa Americas ADSs in the Prospectus/Information Statement
and U.S. Offer documents distributed before Endesa Americas shareholders vote on the Merger.
Although the Commission did not adopt an exception from Rule 14e-5 for Tier II offers
similar to the exemption provided for Tier I offers, the Staff indicated that it would continue to
review requests for relief from Rule 14e-5 for non-Tier I offers. The Staff has enumerated certain
factors that it considers important in considering Rule 14e-5 exemption requests in cross-border
transactions, including (i) the proportional ownership of U.S. security holders of the subject
security in relation to the total number of shares outstanding and to the public float; (ii) whether
the offer will be for "any-and-all" shares or will involve prorationing; (iii) whether the offered
consideration will be cash or securities; (iv) whether the offer will be subject to a foreign
jurisdiction's laws, rules, or principles governing the conduct of tender offers that provide
U.S. Securities and Exchange Commission -14-
August 24, 2016
protections comparable to Rule 14e-5; and (v) whether the principal trading market for the
subject security is outside the United States. 4
Based on the analysis of holders resident in the United States, Enersis Americas believes
that as of April 29, 2016, non-U.S. Resident ownership ofEndesa Americas Shares is over 93%
of total outstanding shares of Endesa Americas (including as outstanding all shares underlying
ADSs and all shares owned by Enersis Americas) or approximately 84% of the unaffiliated free
float (excluding Enersis Americas' 59.98% interest). Endesa Americas Shares represented by
ADSs represented approximately 3.5% of the total issued and outstanding Endesa Americas
Shares. Approximately 3. I% of the total issued and outstanding Endesa Americas Shares were
held by U.S. Residents in the form of shares and not ADSs, almost entirely through Chilean
custodial accounts required for foreign investors in Chile for tax purposes. Excluding Endesa
Americas Shares held by Enersis Americas, which represent 59.98% of the total issued and
outstanding Endesa Americas Shares, and treating all ADSs as held by U.S. Residents, U.S.
Resident holders of Endesa Americas Shares and ADSs represented approximately 16.5% of the
unaffiliated free float. The level of U.S. Resident ownership is not substantially above the 10%
ownership level that would have qualified Enersis Americas for almost complete relief from the
U.S. tender offer rules in a Tier I offer under Rule 14d-l(c) under the Exchange Act.
The Tender Offer will be a cash tender offer for any and all Endesa Americas Shares and
ADSs. The Merger and the Tender Offer will be made on the same basis to U.S. and non-U.S.
holders ofEndesa Americas Shares (including Endesa Americas Shares represented by Endesa
Americas ADSs) and will be subject to extensive Chilean regulation. Under Chilean law: (i) the
same price must be paid to each shareholder on a per share basis; (ii) the offeror cannot withdraw
the offer except for predetermined and disclosed termination conditions (that can be waived);
(iii) the tender offer is subject to the supervision of the SVS; (iv) the offeror cannot buy shares
outside of the tender offer; (v) the individual directors of the target company have to issue a
formal statement about the terms of the tender offer; (vi) the tender offer terms may only be
changed to improve the price, increase the amount of shares offered to be purchased or extend
the tender offer period to a maximum term of 45 days; (vii) the offeror must comply with
information obligations; (viii) the target company and its directors may not (x) buy target shares,
4
See Section 11.C.1 of the Cross-Border Release. See also No-Action and Exemptive Letter:
Tender Offer for Shares of Chemoil Energy Limited (December 14, 2009).
U.S. Securities and Exchange Commission -15-
August 24, 2016
(y) sell assets representing more than 5% of total assets or (z) increase indebtedness by more
than 10%. In addition, the primary trading market of Endesa Americas Shares is in Chile.
In view of the relatively low level of U.S. Resident ownership and the significant
protections provided under Chilean law, Enersis Americas believes that considerations of
international comity with Chilean law should be taken into account. We note that the Staff has
shown flexibility when applying the U.S. tender offer rules in situations where, as here, the level
of U.S. interest is low and the constituency making an investment decision consists primarily of
non-U.S. Residents.s Enersis Americas, a Chilean foreign private issuer, seeks relief in a
situation involving a business combination with Endesa Americas, another Chilean foreign
private issuer, in a transaction that is regulated by and subject to minority protections established
under Chilean law and overseen by the Chilean SVS.
Based on the foregoing, we respectfully request on behalf of Enersis Americas that the
Staff grant exemptive relief from the provisions of Rule 14e-5 under the Exchange Act to permit
the purchase or an arrangement to purchase Endesa Americas Shares subject to the Tender Offer,
other than pursuant to the Tender Offer, to the extent that the Merger and the exercise of
statutory merger dissenters' withdrawal rights made available under Chilean law could be
deemed to be a prohibited purchase or arrangement to purchase Endesa Americas Shares under
Rule 14e-5.
The foregoing request for relief would be subject to the following conditions:
•
holders of Endesa Americas Shares and Endesa Americas ADSs will receive
disclosure about the Merger, the Tender Offer and the statutory merger dissenters'
withdrawal rights, including information regarding the alternatives available to them,
before they vote on the Merger; and
•
holders ofEndesa Americas Shares and Endesa Americas ADSs will have equal
opportunity to participate in the Merger and the Tender Offer.
*
*
*
See No-Action Letter: Reuters Group PLC and Thomson Reuters PLC (February 29, 2008).
Except for the exemptive relief requested herein, Enersis Americas will comply with all
applicable provisions of the Exchange Act and the rules thereunder in connection with the
Merger and the Tender Offer, including Regulations 14D and 14E and Rule 13e-3.
Attached to this letter is a letter of Chilean counsel stating that the descriptions of Chilean
law, regulation and practice applicable to the Merger and the Tender Offer in this letter are
accurate.
If you have any questions or require additional information, please contact J. Allen Miller
at (212) 408-5454 or amiller@chadbourne.com or Sey-Hyo Lee at (212) 408-5122 or
shlee@chadbourne.com.
cc: Lisa M. Kohl, Esq., U.S. Securities and Exchange Commission
Michael Kennedy, Esq., U.S. Securities and Exchange Commission
TSY/tsy
CPAM: I 0080841.6
Exhibit A
Tentative Timetable of Dates for Tender Offer"
Action
December 18,
2015
Shareholders ofEnersis S.A., Empresa
Nacional de Electricidad S.A. and
Chilectra S.A. approve the
Reorganization, consisting of:
•
•
•
The spin-offs ofEnersis Chile
S.A., Endesa Americas S.A. and
Chilectra Americas S.A.
The merger of Endesa Americas
S.A. and Chilectra Americas S.A.
with and into Enersis Americas
S.A.
The tender offer by Enersis
Americas S.A. for all outstanding
shares ofEndesa Americas S.A.
April 21.
2016
The spin-offs of Enersis Chile S.A.,
Endesa Americas S.A. and Chilectra
Americas S.A. completed
August 5,
2016
Boards of Directors ofEnersis Americas
S.A., Endesa Americas S.A. and Chilectra
Americas S.A. call extraordinary
shareholders' meetings to vote on the
merger to be held on September 28, 2016
September 8,
2016
Form F-4 declared effective
Distribute prospectus/information
statement to US holders and ADR holders
File final prospectus/information
statement under Rule 424(b)
September 13,
2016
Comment
Launch Tender Offer for Endesa
Americas S.A. shares and ADRs
All future dates are tentative and subject to change.
Note: Chilectra Americas S.A. is
not a '34 Act reporting company
Action
Comment
September 26,
2016
ADS voting cutoff date
September 28,
2016
Extraordinary shareholders' meetings to
vote on the merger
September 290ctober 28,
2016
Chilean statutory merger dissenters'
"withdrawal rights"t exercise period (for
each party to the merger)
30 calendar days from date of
shareholders' meetings
October 28,
2016
Tender Offer period ends (at the close of
trading on the Chilean Stock Exchanges)
Maximum period of 45 days from
launch under Chilean law,
assuming an extension of 15 days
from initial 30 day period (i.e., for
launch on September 13, period
ends October 28, 2016)
October 31,
Announce results of Tender Offer
Must be publicly announced in
Chile within 3 calendar days of
end of Tender Offer period
November.2,
2016'
Certification that all conditions to the
merger have been satisfied
After conditions have been
satisfied
November 3-4,
2016
Tender Offer payments made and
purchase of tendered shares completed
Chilean practice is to pay 2-3 days
after announcement of Tender
Offer results
November 5-27,
2016
Payment to holders exercising statutory
merger dissenters' "withdrawal rights"
and purchase of shares completed
Payment must be made within 30
calendar days of end of statutory
merger dissenters' "withdrawal
rights" exercise period (i.e., by
November 27, 2016)
December 1,
2016
Merger effective
Merger effective on first day of
calendar month following the
month in which the merger
conditions were certified as
satisfied
2016*
Right of dissenting shareholders to receive cash payment equal to the weighted average closing price
of the shares during the 60-trading-day period between the 30th and 90th trading days preceding the
applicable extraordinary shareholders' meeting.
Note: October 31 and November 1, 2016 are public holidays in Chile.
2
CPAM: 9605522.12
CARJC)Lt\ DIEZ 1?EREZ--COT1\POS
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August 24 111 , 2016
U.S. Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549
Attn: Ted Yu, Esq., Chief, Office of Mergers and Acquisitions
Christina: Chalk, Esq., Senior Special Counsel, Office of Mergers and Acquisitions
Jennifer Lopez-Molina, Esq., Attomey Advisor, Office of Mergers and Acquisitions
Re: Merger of Endesa Americas S.A. into Enersis Americas S.A. and Tender Offer by
Enersis Americas S.A. for Shares ofEndesa Americas S.A.
Ladies and Gentlemen:
We are acting as special Chilean counsel to Enersis Americas S.A., a corporation
organized under the laws of the Republic of Chile ("Enersis Americas"), in connection with
its proposed tender offer (the "Tender Offer") for all outstanding (a) shares of common stock,
no par value ("Endesa Americas Shares"), and (b) American Depositary Shares ("Endesa
Americas ADSs") of Endesa Americas S.A., a corporation organized under the laws of the
Republic of Chile ("Endesa Americas"), other than any Endesa Americas Shares owned by
Enersis Americas, as described in the Registration Statement on Form F-4 (the "Form F-4"),
as amended, filed with the U.S. Securities and Exchange Commission (the "Commission")
(Registration No 333- 211405).
In such capacity, we have reviewed the letter, dated August 241h, 2016, prepared by
Chadbourne & Parke LLP on behalf of Enersis Americas requesting certain exemptive relief
in connection . with the Tender Offer and the proposed merger of Endesa Americas and
Chilectra Americas S.A. with and into Enersis Americas (the "Merger") as described therein
(the "Letter"). We confirm that in our opinion the descriptions of Chilean law and regulation
in the Letter are fair, complete and accurate, in all material respects, as regards the aspects of
the Tender Offer and the Merger described in the Letter for which exemptive relief has been
requested therein. We also confirm that in our view the descriptions of Chilean practice in the
Letter are fair, complete and accurate, in all material respects, as regards the aspects of the
Tender Offer and the Merger described in the Letter for which exemptive relief has been
requested therein. The foregoing confirmations are limited to matters involving the laws of
the Republic of Chile and are not to be read as extending by implication to any other matters
not referred to herein.
This letter is provided at the request of the staff of the Commission solely for the
benefit of the addressee in connection with the request for relief for the transactions
contemplated in the Letter and may not be used or relied upon by any other person or for any
other purpose.
Sincerely yours,
CARIOLA DIEZ PEREZ-COTAPOS
&CIA TD./ /
Fron[.~~·~~/
If
2
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