What is the main source of law authorising this entity form?

Chilean Commercial Code, book 2, title VII, § 8.

If the bylaws and the above § 8 are silent with respect to a relevant matter, the provisions of non-publicly held corporations (sociedades anónimas cerradas), contained in Law No. 18,046 on Corporations, shall apply (as long as such provisions are not contrary to the nature of SpAs).

Give a brief summary of the entity form:

Does the entity possess separate legal personality?

The SpA has separate legal personality.

(Maximum) period of existence

There is no maximum period of existence; SpAs may be incorporated for a fixed term or an indefinite period.

Governing document(s)

The SpA is governed by its bylaws (contained in the incorporation deed and in subsequent amendment deeds, if any).

Liability of incorporators / shareholders

The liability of shareholders (accionistas) is limited to the amount they have agreed to pay-in for their shares.

(Governing) bodies

Shareholders are free to establish the administration structure they deem fit in the bylaws. Common administration structures include (i) the appointment of the majority shareholder as administrator, who in turn appoints delegates who shall represent it in said role; (ii) a board of directors, committee, or similar body; and (iii) the appointment of one or more individuals as administrators.

Other particularities

The SpA may be incorporated by a sole shareholder.

Can this type of entity be involved in international transactions and restructurings (e.g. cross border mergers, asset acquisitions and divestitures, equity acquisitions, conversions etc.)?

Generally, SpAs may be involved in international transactions and restructurings.

Chilean law does not regulate cross-border mergers specifically (neither authorising nor prohibiting them). If certain conditions are met, we believe there are good arguments, from a Chilean corporate law perspective, to uphold the validity of a transaction involving a merger between a Chilean and a foreign entity. Prior to implementing a cross-border merger, the parties need to consider the requirements, practical implications, and viability of the same in all the countries involved.

Can this type of entity be publicly listed or held, or its securities be issued to members of the public?

The shares of SpAs may not be publicly listed or held.

If for a period of more than twelve consecutive (12) months, the SpA has had 2,000 or more shareholders registered in its shareholders registry (or the higher number that may be established by the Financial Market Commission by a general rule), the same is transformed, by operation of law, into a corporation (sociedad anónima), being governed from that point on by the provisions of Law 18,046 on Corporations. Under the above conditions, corporations must list their shares in the Securities Registry held by the Financial Market Commission, becoming publicly held.

Certain other type of securities, such as bonds, may be issued by SpAs to members of the public.

Can this type of entity be used for a non-profit or charitable organization?

Generally, no, given its nature as a commercial entity, with the ability to make profit distributions

Give a brief summary of the process of incorporation, formation, or organization, including:

Main documents required

An incorporation document containing the bylaws is executed by (i) public deed before a notary public; or (ii) private document with signatures authorised before a notary public, which thereafter must be notarised (protocolizado) in the records of said notary. The incorporation public deed must be executed in Spanish; the private instrument may be in double columns setting out the Spanish language provisions and foreign language equivalent.

An abstract of the incorporation document, which must be authorised by the same notary public before whom the incorporation document was granted.

Powers of attorney, particularly in case the shareholders are foreign and do not have a representative in Chile for purposes of the incorporation process, including executing the incorporation document and obtaining a tax identification number (Rol Único Tributario or RUT).

Involvement of notary, company register, governmental authorities

The abstract of the incorporation deed must be registered in the Registry of Commerce of the Real Estate Registrar (Registro de Comercio del Conservador de Bienes Raíces) of the SpA's domicile and published in the Official Gazette (Diario Oficial) within sixty (60) days from the date of the incorporation document. Upon registration and publication of the abstract, the SpA is deemed validly in existence from the date of the incorporation document.

Timing (estimate)

Registration and publication of the abstract usually takes approximately five (5) business days from the execution of the incorporation document.

Main costs, including registration and similar fees (excluding legal fees)

Once the entity has been duly incorporated, its legal representative must file the start-up declaration (Inicio de Actividades) and request its tax identification number, both before the Chilean tax authority (Servicio de Impuestos Internos). This filing has no cost.

The notary fees usually range from USD100 to USD400 approx., and the registration fees usually range from USD15 to USD300 approx., both depending on the entity's capital. If the entity's capital exceeds USD200,000 approx., the publication fee is USD70 approx. (under that amount, the publication has no cost).

The corporate objects/purpose must be stated in the bylaws and included in the above-mentioned abstract.

Is a description of the anticipated business or purpose of the entity required for incorporation, formation or organization?

Law No. 20,659 establishes an optional system, allowing for the incorporation to be performed electronically in a short time frame and with lower costs, through a website of the Chilean Ministry of Economy. In our experience, for a number of practical reasons, the alternative system is not used by business groups, either national or international.

Minimum number of incorporators / shareholders and residency requirements

SpAs may be incorporated by a sole shareholder.

There are no residency requirements for shareholders. However, each shareholder must obtain a Chilean tax identification number and appoint an individual with domicile or residency in Chile as its representative before the Chilean tax authority for notification purposes.

Minimum number of directors (or other applicable officers) and residency requirements

There is no requirement regarding a minimum number of directors or other applicable officers.

There are no residency requirements, except that, for tax purposes, at least one (1) individual with domicile or residency in Chile must be appointed as representative of the entity before the Chilean tax authority.

Minimum share capital, or equivalent, and payment requirements (including opening a bank account)

The bylaws must set the capital of the SpA and the number of shares into which it is divided, but there is no minimum capital requirement.

The capital of the SpA must be fully subscribed and paid within the period of time provided in its bylaws. If the bylaws are silent, the period of time for payment of the share capital is five (5) years from the date of incorporation.

Is the physical presence of incorporators/directors/shareholders required in the jurisdiction for incorporation, formation, or organisation?

No, the incorporation document can be executed pursuant to a power of attorney of the shareholder(s).

Is a tax identification number, or equivalent, required? If so, how is it obtained?

Yes, in order to have business activities in Chile, the SpA must obtain a tax identification number from the Chilean tax authority.

The SpA must also submit a sworn statement describing the initiation of business activities in Chile. This is done by completing and filing the relevant form through the website of the Chilean tax authority, which includes, among other information, the identification of the incorporator(s) and its tax identification number, the name of the person who will serve as representative of the SpA before the tax authority, and the capital, corporate purpose, and business address of the SpA. The initiation of activities statement must be submitted by the SpA within two (2) months from the actual start of its activities.

What is the title of the applicable company registry?

Registry of Commerce of the Real Estate Registrar (Registro de Comercio del Conservador de Bienes Raíces).

The competent Registry of Commerce where the SpA must be registered depends on the SpA's domicile.

Real Estate Registrars are regulated entities auxiliary to the justice system but are not governmental agencies.

What types of information must be filed at the (company) register, and which of them will it be publicly available, e.g.: Articles or other formation document, Articles or other formation document, Group structure, Share capital, Directors, Accounts, Insolvency, good-standing, liquidation, Liens and encumbrances on the shares, Liens and encumbrances on assets of the entity, Other (e.g. litigation, tax matters)

The information listed below must be included in the abstract that is registered in the relevant Registry of Commerce and it is publicly available (the abstract is also published in the Official Gazette):

• Name of the entity.
• Name of the incorporator(s).
• Corporate purpose.
• Amount of the issued and paid-in capital.
• Date of the incorporation deed.
• Name and domicile of the notary where the incorporation document was granted or notarised and, in the latter case, the digest number of the notarised document.

A marginal note to the above registration may be made, recording powers of attorney granted by the SpA by means of a public deed (normally general powers of attorney granted to officers or other individuals).

The incorporation document that contains the bylaws, any subsequent documents amending the bylaws (whether by means of a public deed or notarised private document), and the corresponding abstracts, are also publicly available.

What is the title of the executive body and its members? What are their main duties, tasks and responsibilities?

There is no mandatory administration structure. Shareholders are free to establish the administration structure they deem fit in the bylaws (e.g. an administrator (which may be a legal entity), a board of directors, committee, or similar body), and to set the main tasks and responsibilities of the administration.

Typically, the administration represents the entity and conducts the management of the same in accordance with its business purpose, with broad powers, except with respect to those matters that must be resolved by the shareholders, as per the bylaws or applicable law.

How are the members of the executive body appointed, dismissed and replaced?

The appointment, dismissal, and replacement of the members of the executive body must be performed in accordance with the provisions of the bylaws (and depending on the relevant administration structure).

An initial appointment is included in the incorporation document.

Is it possible to appoint corporate directors or must all directors be natural persons?

Please see the comments above.

Is there a requirement to have non-executive directors? How are they appointed, dismissed and replaced? Do non-executive directors serve on a separate body (two-tier structure) or can a one-tier board (with executive and non-executives) be appointed, or is some alternate structure used?

No, please see the comments above.

What is the title of the body of owners / shareholders / members, and what are the main tasks / responsibilities / powers of that body?

Shareholders, acting through a shareholders meeting (junta de accionistas). Bylaws may authorise shareholders to adopt a unanimous written resolution —normally by public deed or by a notarised private document – in lieu of a meeting (a procedure expressly allowed by law for the amendment of the bylaws).

The shareholders have the rights and responsibilities set out in the bylaws.

The main tasks are typically related to passing resolutions respecting matters that are outside the scope of powers of the management, such as reviewing and approving the entity's financial statements, deciding on profit distribution, appointing the administration (and auditors, if applicable), or deciding on more material matters, such as amendments to the bylaws, mergers, capital increases or reductions, major divestments, and granting certain guarantees in favour of third parties.

What are the majority and quorum requirements for decisions by the shareholders? Can they be varied or changed?

In general, the majority and quorum requirements may be freely established in the bylaws.

Typically, the bylaws follow the rule that shareholders meetings can be held on first call with the absolute majority of the voting shares and, on second call, with the shares present in the meeting, and that decisions are taken with an absolute majority of the shares present. More material matters, such as those described in the preceding comment, typically require higher majorities (e.g. an absolute majority of the issued shares with voting rights, or an affirmative vote of two-thirds of the issued shares with voting rights). A resolution to amend the bylaws, in lieu of a shareholders meeting, requires the consent of all shareholders. Also, if the bylaws are silent with respect to the majority required for a capital reduction, the consent of all shareholders is required.

The majority and quorum requirements may be changed through an amendment to the bylaws. Bylaws may be amended by an agreement adopted in a shareholders meeting, the minutes of which must be notarised or recorded on a public deed, or by an agreement of all the shareholders entered by means of a public deed or notarised private instrument. An abstract of the shareholders meeting minute, public deed or notarised private instrument must be registered in the relevant Registry of Commerce of the Real Estate Registrar and published in the Official Gazette, within sixty (60) days from the date of the amendment.

Any special governance regimes (e.g. depending on size, being listed at a stock exchange, or other criteria)?

No.

As mentioned above, if certain conditions are met, the SpA is transformed by operation of law in a corporation, and it may have to list its shares.

What are the periodic accounting obligations incumbent upon the entity? To whom must those accounts be submitted?

Certain accounting information must be periodically submitted to the Chilean tax authority, in connection with the tax obligations of the entity.

Generally, SpAs are not required to submit their accounts and financial information to other authorities. Exceptions may apply in certain industries, or if the SpA is subject to a special regime or agreement, which may require it to submit financial information (e.g. mining entities subject to the mining royalty or a special mining tax regime may be required to periodically submit financial statements to the Financial Market Commission).

SpAs must maintain accounting records that are sufficient to determine the financial position of the entity, and to support its periodic tax filings.

Is the entity permitted to determine its own financial year?

With the prior approval of the Chilean tax authority, SpAs may establish a financial year ending on 30 June.

Is the entity subject to any statutory (external) auditor obligations?

The bylaws can provide that no external auditor is required. If the bylaws are silent on this matter, external auditors or account inspectors are appointed.

Requirements to appoint other persons (officers, secretary, internal auditor / accountants). If so, what are their functions? Are there any residency requirements?

Generally, no.

If the bylaws state that the SpA shall be administered following the rules of corporations, aside from the board members (three (3) minimum), at least a general manager and a secretary of the board must be appointed. The general manager and secretary need not be resident in Chile. The secretary and the general manager may be a director (but not the president of the board in the case of the latter).

What is the title designated for 'ownership interests' (e.g. shares, quota, interests, membership)?

Shares (acciones).

Are different classes of ownership interests possible? If so, what are some examples of different classes?

Different classes of shares are possible.

Examples include, preferred shares, non-voting shares, limited voting shares, shares entitled to more than one vote, shares entitled to a mandatory dividend (i.e. not contingent on the amount of profits), for a fixed or determinable amount, etc.

The separate classes of shares and their relevant rights and burdens must be defined in the bylaws.

What documentation is required for the transfer of ownership interests?

A written transfer agreement is required. In the absence of a special rule in the bylaws, the transfer agreement must be executed before a notary public, two witnesses or a stockbroker. The transfer agreement must expressly state that the purchaser knows the laws that regulate SpAs and the bylaws of the SpA, and the shareholders protections, or lack thereof, that the bylaws may contain.

The bylaws may contain transfer restrictions or rights that must be complied with.

Are there any additional formal requirements required for the transfer of ownership (notary, approvals, stamping, filings, corporate records)?

The transfer of shares must be recorded in the entity's shareholders registry.

In addition, the transfer of shares must be reported to the Chilean tax authority within two (2) months of the transfer being made.

Are there any applicable stamp duties imposed when transferring ownership interests?

No.

How are shares issued? (including information on payment obligations, registration requirements)

Capital increases and the issuance of shares require an amendment of the bylaws, which must be authorised by the shareholders. The bylaws may also establish that the administration is allowed, either generally or in a limited manner and temporarily or permanently, to increase the share capital to finance the general business of the SpA or for specific purposes.

Any shareholder agreement which amends the bylaws to increase the entity's capital, must be recorded on a public deed or notarised document (as mentioned above, a resolution in lieu of a meeting may also be adopted), and an abstract thereof must be registered in the relevant Registry of Commerce of the Real Estate Registrar and published in the Official Gazette, within sixty (60) days from the date of the amendment.

Issued shares may be offered at the price that the shareholders freely decide (shareholders may also decide to delegate the determination of the offering price, typically to the board of directors, an appraiser or a third non-interested party).

Shares must be paid within the term defined in the bylaws or, if the bylaws are silent, within five (5) years of the capital increase.

A preferential offer of issued shares to existing shareholders is not mandatory, but such right may be included in the bylaws.

Further information on equity contributions, e.g., non-cash payments on shares, (share premium) contributions without issuances of shares, can partially paid shares/ownership interests be permitted and what are the restrictions on them?

Shareholders may agree on non-cash payments for shares, and their corresponding valuation.

Share premium contributions – i.e. equity contributions without issuing shares, are possible.

The bylaws may provide that a maximum or minimum percentage or amount of capital may be controlled by one or more shareholders, directly or indirectly. In such a case, the bylaws include regulations concerning the effects of the breach of said limits (otherwise, the relevant provisions establishing the limits will be considered as non-existent).

Unless the bylaws state otherwise, shares whose price is not fully paid confer no rights.

Any requirements with respect to share cancellation, share repurchase and other capital reductions

If the capital is not paid within the term established in the incorporation deed or the relevant capital increase amendment, the same shall be reduced according to the actual subscribed and paid-in amount.

As long as it is not prohibited in the bylaws, the SpA may repurchase its shares. Repurchased shares must be sold in the period of time established in the bylaws or within one (1) year from the repurchase if no period of time is established. Shares that are not sold within the applicable term must be cancelled and the capital reduced accordingly.

Capital reductions may be agreed upon by the shareholders by the majority established in the bylaws. If the bylaws are silent, the consent of all shareholders is required.

Any requirements with respect to distributions to shareholders?

Minimum dividend distribution rules may be included in the bylaws. In the absence of a rule, unless otherwise unanimously agreed by the shareholders, the shareholders are entitled to a dividend equivalent to at least 30% of the net earnings for each financial year.

As a general rule, (i) dividends are paid exclusively from the net earnings for the financial year or retained earnings from balances approved by the shareholders' meeting, (ii) if the SpA has accumulated losses, the financial year's earnings shall be primarily applied to reduce such losses, and (iii) if a financial year has losses, they shall be reduced by retained earnings, if any.

The SpA's bylaws may include provisions that preferred shares are entitled to a mandatory dividend (i.e. not contingent on the amount of profits), for a fixed or determinable amount. Also, the bylaws may provide that dividends shall be paid from profits related to a specific line of business or specific assets, regardless of the overall results of the SpA, in which case the entity shall have separate accounts.

Can the owners or shareholders adopt a restrictive or governing agreement among themselves such as a Shareholders Agreement?

Yes.

Which are the typical annual maintenance costs of maintaining the existence and legal good standing of such an entity (excluding legal fees)?

The annual maintenance costs include those incurred for the preparation and submission of annual or monthly tax returns (tasks normally undertaken by accountants) to the Chilean tax authority.

An annual shareholders meeting may also be required.

The SpA must maintain a business address and pay an annual municipal license that ranges between 0.25% and 0.5% of the SpA's capital for tax purposes, which may not be less than USD70 and not more than USD585,000 approx. This municipal license can be paid in two (2) instalments.

What are the general corporate tax rates? (Specify if there is a national versus local distinction).

Currently, there is a general corporate tax regime with a corporate tax rate of 27%.

There is an alternative corporate tax regime with a corporate tax rate of 25% (Régimen Pro Pyme), which, in general terms, may be applicable to small and medium business that comply with several requirements, such as having an average annual gross income not greater than USD3,130,000 approx., in the last three (3) years.

A 35% withholding tax is applicable to dividends made to foreign shareholders, against which all or part of the corporate tax already paid may be used as tax credit. The tax credit will depend on the applicable tax regime (100% in case of entities under Regimen Pro Pyme and 65% under the general tax regime) and the existence of double taxation treaties.

Summary of any specific matters, e.g. recent or prospective major legal developments

N/A